TaxTMI 
TaxTMI 
2023 (4) TMI 831
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.....2022 admitting Company Petition No.160/IBC/MB/ 2021 filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "IBC") by an Operational Creditor - Sanjay Sodhi. The Operational Creditor in Application under Section 9 claimed operational debt due and payable by the Corporate Debtor - Cinema Ventures Pvt. Ltd. The amount claimed in the Application was INR 1,16,79,622/- (ii) In Company Appeal (AT) (Insolvency) No.836 of 2022 an IA No.2448 of 2022 was filed, bringing on record a settlement dated 14.07.2022. Both the parties prayed that Company Appeal (AT) (Insolvency) No.836 of 2022 be decided in terms of the settlement. This Tribunal vide order dated 27.07.2022 allowed IA No.2448 of 2022 and permitted the Operational Creditor to withdraw the Section 9 Application. The order dated 05.07.2022 was withdrawn. (iii) As per the Settlement Agreement between the parties, the Corporate Debtor undertook to make payments as per the Schedule given in the settlement. The settlement contemplated that on making payment of INR 1,16,79,622/-, the Operational Creditor shall handover the keys of the premises within twenty-four hours. The settlement also contem....
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....re handed over in 20 days and when the premises were inspected, it was noticed that the premises was closed for 2 years, which required the Respondent to incur massive expenditure. Post recommencement, it came to the knowledge of the Respondent that the said premises had serious issues concerning its structural stability. The Respondent decided that a structural audit and roof audit is to be carried out. An independent inspection of the premises disclosed that there were football/ cricket turf court on the roof, rusted columns, no waterproofing and multiple holes dug on the roof. The email dated 17.08.2022 was immediately replied by the email dated 30.08.2022. In the email dated 30.08.2022, the Respondent communicated that inspite of two payments, keys were never physically handed over. The keys were kept in the possession of the Shop Owners Welfare Association, who took 20 days to handover the keys. The other details and efforts taken by the Respondent were communicated along with structural stability issue. There is no willful disobedience on the part of Respondent and Contempt Application deserves to be dismissed. 7. The learned Senior Counsel for the Respondent further submits....
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.... 17.07.2023 [within 12 months from the date of the payment at Sl.No.(II)] 2. That it has been mutually agreed between the Parties herein that the First Party shall hand over the keys of the premises with twenty-four hours of the receipt of the payment of INR 1,16,79,622. 3. That, for the further payment of the balance amount of INR 2.10 Crore, the Second Party herein agrees to pay the aforesaid sum of INR 2.10 Crore in TWELVE (12) EQUATED MONTHLY INSTALMENTS wherein the Second Party shall remit an amount of INR 17,50,000 (Indian rupees Seventeen Lakh Fifty Thousand) for twelve months starting from July 2022 for which the payment shall be made on 10.08.2022 along with the monthly rent/ conducting charges of INR 25,36,420 (Indian Rupees Twenty Five Lakhs Thirty Six Thousand and Four Hundred Twenty)." 11. We may also notice one more Clause of the Agreement, i.e., Termination of Agreement, which is to the following effect: "TERMINATION OF AGREEMENT The event of default/ breach as defined in Clause (I) of this Settlement Agreement shall lead to revival of the proceedings initiated in Company Petition (IB) No.160 of 2021 under Section 9 of the Code before the Hon'ble National Co....
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....k 20 days to make a complete handover. We were primarily exploring and negotiating with the CAM agency to inspect and reopen the premises and to further ascertain the costs to be deployed in possible reparations. To reopen any Cinema after a prolonged closure, it takes massive amount of capital for the same and recommence the business operations. Due to the closure of the premises for a period of 2 years, the company had to incur huge costs for cleaning and sanitizing, reparation of the projectors, mobilization of the staff members, negotiation with the vendors, and such major functions alike which are cardinal prerequisites to recommence the business operations. All these functions and processes are a time consuming affair and took at least 30 days. Due to the aforementioned compelling circumstances of getting ingress after 20 days from the proposed day of admission, the entire process to get on track was derailed. Further to this, it was a pre requisite of Cam Agency to sign settlement agreement covering all the charges from Closure till the commencement of operations. There was lot of back and forth on this agreement on account incorrect charges being levied that consumed a lo....
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....e on judgment of Hon'ble Supreme Court in (2021) SCC OnLine SC 564 - Suman Chadha and Anr. vs. Central Bank of India. The Hon'ble Supreme Court in the above case was considering Appeal against the order passed by the Delhi High Court, convicting the Contemnors with simple imprisonment for three months along with fine of Rs.2000/-. The learned Counsel for the Applicant has submitted that in the above case also there was breach of undertaking given by the Contemnor for which the conviction was ordered. In the above case, the Hon'ble Supreme Court laid down following in paragraph 25, 26, and 27: "25. It is true that an undertaking given by a party should be seen in the context in which it was made and (i) the benefits that accrued to the undertaking party; and (ii) the detriment/injury suffered by the counter party. It is also true that normally the question whether a party is guilty of contempt is to be seen in the specific context of the disobedience and the wilful nature of the same and not on the basis of the conduct subsequent thereto. While it is open to the court to see whether the subsequent conduct of the alleged contemnor would tantamount to an aggravation of the contempt ....
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....ged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Decided issues cannot be reopened; nor can the plea of equities be considered. The Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the Bar, namely, Jhareswar Prasad Paul v. Tarak Nath Ganguly [(2002) 5 SCC 352 : 2002 SCC (L&S) 703] , V.M. Manohar Prasad v. N. Ratnam Raju [(2004) 13 SCC 610 : 2006 SCC (L&S) 907] , Bihar Finance Service....
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....lement Agreement was entered on 14.07.2022, further payment of INR 58,20,378/- odds was made. For non-payments thereafter, the Respondent has come up with the plea as has been communicated by the Respondent to the Applicant by email dated 30.08.2022, as extracted above and other facts as pleaded in the reply filed to this Contempt Application. The facts and pleadings by the parties indicate that there were some issues between the parties regarding the premises for which conducting charges were required to be paid by the Respondent. The Screen could not run beyond two months and due to several issues including structural stability the Cinema premises could not run. In the contempt proceedings we are not required to determine the rights of the respective parties qua the initial agreement between the parties and the claim made by each other. Only question which needs to be considered is as to whether the act of the Respondent can be treated to be act of willful disobedience of the undertaking given before the Court in order dated 27.07.2022. When we look into the overall facts and circumstances, we are satisfied that the facts and circumstances do not indicate that there is any willfu....