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TMI Blog1950 (2) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of sale with the Paradise Cinema, Limited, and that the plaintiffs had failed to exercise the option. The defendants further alleged that, subsequent to the agreement of 3rd February 1942, in view of the objection taken to it by the head lessor, an agreement was arrived at on 4th September 1945, by which the defendants had transferred to the company the rents, issues and profits of the property for a period of fifteen years commencing from 3rd February 1942. A supplemental plaint was filed, and the plaintiffs asked that they should be given the benefit of this agreement which was arrived at with the company. The suit came up for hearing and it went on for about a week. The parties then compromised the action, and the consent terms were reduced to writing and signed by counsel for the parties. The particular term with which we are concerned in this appeal is the one with regard to the execution of a lease within a period of two months by the defendants in favour of the plaintiffs in respect of the property in suit. The term provided that the defendants would execute such a lease ; and the term further provided that the defendants undertook to have the Paradise Cinema, Limited, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. In this case, says Mr. Desai, the parties were at liberty to agree to any terms that they thought were proper, and the Court had no voice whatever in dictating to the parties how they should settle their disputes ; and therefore, according to Mr. Desai, the undertaking referred to in the consent terms was not an undertaking to the Court. [4] We are not prepared to accept a position which seems to us contrary to the long practice that has been established in this Court, and, apparently, also in England. There is no reason why even in a consent decree a party may not give an undertaking to the Court. Although the Court may be bound to record a compromise, still, when the Court passes a decree, it puts its imprimatur upon those terms and makes the terms a rule of the Court ; and it would be open to the Court, before it did so, to accept an undertaking given by a party to the Court. Therefore, there is nothing contrary to any provision of the law whereby an undertaking cannot be given by a party to the Court in the consent decree, which undertaking can be enforced by proper committal proceedings. [5] It is necessary to understand what the true nature of the committal proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lease. In our opinion, the second part of clause 8 was as much an order of the Court as the first. The necessity for using the expression "undertake" will become clear when one realises that a mere lease executed by the defendants would not have been of much avail to the plaintiffs, because, as I pointed out earlier, the defendants had already transferred the income for fifteen years of the property in suit to the Paradise Cinema, Limited. Therefore, it was necessary in the interests of the plaintiffs that they should get the Paradise Cinema, Limited, to confirm the lease. It is because of the importance of the defendants getting the Paradise Cinema, Limited, to join in the lease that the parties advisedly used the expression "undertake." [7] It has been urged by Mr. Desai that there is no warrant for the Court reading into the expression used in clause 8 the words "to the Court." Mr. Desai says that we should put upon this clause its plain and natural construction, and the more so as we are dealing with a matter which involves serious consequences upon his clients. It is perfectly true that, if the word "undertake" bore its plain and na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Desai has relied on a judgment of the Calcutta High Court in Nisha Kanto v. Saroj Bashini, A. I. R. (35) 1948 Cal. 294 : (49 Cr. L. J. 567). In that case, a Division Bench consisting of Sir Trevor Harries C. J., and Mukherjea J., had to consider a similar question. There also reliance was placed upon the practice on the original side. And the learned Chief Justice expressed the opinion that the sooner the practice was stopped the better. According to the learned Chief Justice, if one of the terms of the compromise was that one of the parties should give an undertaking to the Court, then the compromise should make it clear that such was the case, and if it did not make it clear and the compromise merely stated that one of the parties "undertakes", then the ordinary construction must be given, and that is, a promise or a solemn promise given to the other party and not to the Court. Now, with very great respect to the learned Chief Justice, he seems to have taken the view that the word "undertake" must be given its ordinary dictionary meaning. He has not considered at all as to whether, by long practice understood both by counsel and by Judges, the expression &quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so drawn our attention to a judgment of the English Court in Cotton v. Heyl, (1930) 1 Ch. 510 : (99 L. J. Ch. 289). That judgment goes to show that even if an undertaking was given in an action which was compromised, and where the parties were neither minors nor was charity interested, the undertaking could be enforced by contempt proceedings. [10] The next question that we have to consider is whether it could be said that the default of the defendants was a wilful default which would bring down upon them the heavy hand of the Court. It is again perfectly true that it is only in cases of wilful default that the Court entertains contempt proceedings. The mere fact that the defendants have failed to carry out their undertaking is itself not sufficient to invoke the jurisdiction of the Court. The party that comes to Court must satisfy the Court that the other side had deliberately refused to carry out the undertaking given by him to Court. Mr. Desai emphasises the fact that in this particular case the undertaking given was not to do something by the party himself : the undertaking that was given was to make some other party to do something, and that other party was not before the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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