TMI Blog2002 (5) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... ent dated 26.5.99, the same in Ex. C.A. As accordingly requested to dispose off the suit in terms of the compromise as arrived at between the parties. CJ/DELHI 28.5.99 Statement of Sh. A. Sinha, Advocate for Defendant. I admit the statement of counsel for plaintiff. The same is correct. Defendants are bound to Ex C-A. Agreement for settlement has already Ex C-A signed by the Defendant at point - A. CJ/DELHI 28.8.99 Order File is taken up today an application Order 23 Rule 3 CPC. Ld. Counsel for parties. Memo of appearance filed on behalf of the plaintiff. I have gone through the statement of Ld. Counsel for parties and Ex C-A. In view of the statement given by the Counsel for parties and Ex C-A, the suit of plaintiff is disposed off as compromised. Parties shall be bound by their statements. No order as to costs. File be consigned to R/R. The date of 2.7.99 is cancelled. CJ/DELHI 28.5.99 3. The petitioner alleged that the alleged contemner despite an undertaking made in the said agreement having failed and/or neglected to comply therewith has committed contempt of this Court. 4. The relevant clauses of the said agreement are as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d your husband under the said Lease Agreement and you respective liabilities under the Settlement of Agreement dated 26.5.99, and whereas the said cheques have been returned by your bank as unpaid on account of insufficient funds, our client is hereby serving you and your husband with a notice under Section 138 of the Negotiable Instruments Act, 1881 calling upon you to pay to our client the said amounts of ₹ 11,95,000/- and ₹ 4,05,000/- by each one of you separately within a period of 15 days from the receipt of the present notice by you, failing which you and your husband shall be deemed to have committed the offence under Section 138 of the Negotiable Instruments Act, 1881 and for which our client will take appropriate criminal legal action against you and your husband in accordance with law. 15. We further state on behalf of our client that the aforesaid dishonour of cheques is also in breach of solemn undertaking given to the learned Senior Sub Judge, Tis Hazari Courts, Delhi, in Suit No. 91 of 1999 by you and your husband and amounts to contempt of the Hon'ble Court's order dated 28.5.99 You and your wife are also put on notice that unless you and your ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itiated under the said Act :- (i) there must be a judgment or order or decree or direction or writ or other process of the Court; (ii) an undertaking given to the judgment, etc. must be of an undertaking given to a Court; (iii) there must be a disobedience of such judgment or breach of such undertaking; (iv) the disobedience or the breach, as the case may be, must be willful. In the instant case, no undertaking had been or could be given to the Court. 14. In Bajranglal Gangadhar Khemka's case (Supra), Chagla, C.J., however, observed:- 3. Now, Mr. Desai before us has contended that no undertaking was given to the Court in respect of which committal proceedings could be taken out. He says that the undertaking referred to in the decree was merely a solemn promise given by his clients to the other side. Mr. Desai has argued that no undertaking to the Court can be given where an action is compromised and where the Court is bound under Order 23, Rule 3, to record the compromise and to pass a decree in terms of the compromise. Mr. Desai says that the Court is not interested in what terms the parties have agreed to; the parties may agree to any terms, and if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at the scheme of the consent terms. We have first seven clauses which all deal with agreements between the parties. Each clause begins with the expression Agreed . Then we come to Clause 8, which begins by saying Ordered that the defendants do execute the said lease within a period of 2 months from the date hereof. Therefore, Ordered is used here in contradistinction to an agreement. Whereas the first seven clauses merely recorded an agreement between the parties, Clause 8 requires an order of the Court, which would be an executable order. And it is in this clause that the undertaking given by the defendants is incorporated. Therefore, Clause 8, on the face of it, was not dealing with any agreement between the parties at all. What the parties intended- and that intention is clear from the language used in Clause 8 itself--was that, with regard to a particular subject-matter dealt with in Clause 8, an order of the Court should be obtained. And that clause deals with two matters; one was the execution of the lease by the defendants themselves which they were ordered to do, and the other was that they undertook to get the Paradise Cinema, Limited, to join as a confirming party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant willfully disobeyed or committed breach of such an undertaking. What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by which a receiver was appointed, to include an undertaking given by the contemner to carry out the directions contained in the order. With due respects, we are unable to agree with this view taken by the High Court. A few examples would show how unsustainable in law the view taken by the High Court is. Take the instance of a suit where the defendant agrees that a decree for ₹ 10,000 may be passed against him and the court accordingly passes the decree. The defendant does not pay the decree. Can't 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a the party to the lis and not qua the Court and in that view of the matter, no case for initiation of proceedings under the Contempt of Courts Act having been made out. The same view has been taken by two learned Judges of this Court in Urmila Salwan and Ors. v. Kasturi Lal Bhatia,1999 4 AD (Del) 805 and Indian Overseas Bank's case (Supra) 23. Reliance placed by Mr. Nayyar on Salkia Businessmen's Association's case (Supra) is misplaced. Therein a writ petition has been filed. The fact of the case was that the right of the party had been taken away by reason of a compromise in a writ petition and it was held by the High Court that a subsequent writ petition would not be maintainable. The Apex Court held that the public authorities cannot be encouraged to implement their own orders an to invent methods of their own to short-circuit and give a go-bye to the obligations and liabilities incurred by them under orders of the Court and is the same is permitted to be done, the rule of law will certainly become a casualty in the process. 24. The question in this case is as to whether a case for initiation of proceedings under the Contempt of Courts Act has been made out or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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