TMI Blog1979 (4) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhasin as a result of which a firm under the style of Sitapur Theatres with its Head Office at Delhi was constituted. The partnership deed was executed as far back as 19-11-1965 and clause 25 of that deed contained the usual arbitration clause. Disputes arose between the partners as a result of which an application under section 20 of the Arbitration Act was made before the High Court and the High Court on hearing the application referred the dispute to the sole arbitration of a retired Judge of the Allahabad High Court. Along with the aforesaid application, the respondent Sudhir Bhasin had filed an application for appointment of a receiver as he apprehended that the appellant would misappropriate the funds of the partnership property. The application for appointment of a receiver was allowed and the respondent Sudhir Bhasin himself was appointed as a receiver of Laxmi Talkies, Sitapur. Thereafter the appellant being aggrieved by this order filed an appeal before the Division Bench of the Delhi High Court. In the appeal it appears that a consent order was passed with the agreement of the parties by which Shri Mahabir Prasad, Advocate and Secretary, Bar Association of Sitapur was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Laxmi Talkies. He will approach the Deputy Commissioner, Sitapur for issue of this licence accordance with the above direction of this Court...... . (Emphasis ours) A perusal of the order extracted above clearly shows that there was no express direction to the appellant to hand over possession to the receiver although certain directions were given by the Court to the receiver for filing quarterly reports etc. The only direction given to the appellant was that he would not interfere with the receiver appointed or with the business of running of the Laxmi Talkies. The appellant was also directed to give all cooperation that the receiver may require. There was thus no specific direction to the appellant to hand over possession of the property to the receiver although impliedly this was meant to be done because the order was passed with the consent of the parties. In the instant case the gravamen of the charge against the appellant was that he had committed a serious breach of the undertaking given to the Court to hand over possession to the receiver and having failed to honour the undertaking, he was liable to be hauled up for an offence under the Act. The High Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the contention of Mr. Asthana was that there was no undertaking given by the appellant to the court at all. Our attention has not been drawn by counsel for the respondent to any application or affidavit filed by the appellant which contains an undertaking given by the appellant to hand over possession to the receiver appointed by the High Court by virtue of the impugned order. It is manifest that any person appearing before the Court can give an undertaking in two way: (1) that he files an application or an affidavit clearly setting out the undertaking given by him to Court, or (2) by a clear and express oral undertaking given by the contemner and incorporated by the court in its order. If any of these conditions are satisfied then a wilful breach of the undertaking would doubtless amount to an offence under the Act. Although the High Court observed that the consent order extracted above had been passed on the basis of various undertakings given by the contemner, we are unable to find any material on record which contains such undertakings. It seems to us that the High Court has construed the consent order itself and the directions contained therein as an implied undertaking giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uming that, on behalf of the Union of India, any undertaking was given that his revisional petition would be disposed of within a day or two. ............... The petitioner presumably thinks that the Court s order required that his revisional petition should be disposed of by the Central Government within a month. This assumption is entirely unwarranted . This decision, therefore, clearly shows that even if there was an undertaking given by the counsel on behalf of his client the undertaking should be carefully construed to find out the extent and nature of the undertaking actually given by the person concerned. It is not open to the Court to assume an implied undertaking when there is none on the record. It was on this ground that this Court negatived the plea of contempt of court. It is well settled that while it is the duty of the court to punish a person who tries to obstruct the course of justice of brings into disrepute the institution of judiciary, this power has to be exercised not casually or lightly but with great care and circumspection and only in such cases where it is necessary to punish the contemner in order to uphold the majesty of law and the dignity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree for ₹ 10,000 may be passed against him and the court accordingly passes the decree. The defendant does not pay the decree. Can it be said in these circumstances that merely because the defendant has failed to pay the decretal amount he is guilty of contempt of court? The answer must necessarily be in the negative. Take another instance where a compromise is arrived at between the parties and a particular property having been allotted to A, he has to be put in possession thereof by B. B does not give possession of this property to A. Can it be said that because the compromise decree has not been implemented by B, he commits the offence of contempt of court? Here also the answer must be in the negative and the remedy of B would be not to pray for drawing up proceedings for contempt of court against B but to approach the executing court for directing a warrant of delivery of possession under the provisions of the Code of Civil Procedure. Indeed, if we were to hold that non compliance of a compromise decree or consent order amount to contempt of court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all. In fact, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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