9911796707
TMI Blog2000 (11) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... pany be wound up on the ground that the respondent-company is not able to pay the debts to its creditors. 2. Notice before admission was ordered in the above-said company petition and during the pendency of the matter, on 14-3-2000, the learned counsel for the respondent-company made a representation that the respondent-company was willing to make the payment as claimed by the petitioner, but sought sometime to make the payment. In the circumstances, this Court recorded the said undertaking of the respondent-company and adjourned the matter till 31-3-2000, so as to enable the parties to work out sometime schedule for payment of the amount . The matter appeared again in the list on 31-3-2000, but however, it was not taken up for hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s terms. Thus an undertaking given in court on behalf of a person without his knowledge and not communicated to him will not be enforced by process of contempt. Where the undertaking is of a negative character, personal service of the order containing the undertaking is unnecessary provided the party against whom enforcement is sought has notice of the undertaking. It seems, however, that personal service is required where the undertaking is positive in character. Where an undertaking has been given on behalf of a company, the company will be guilty of contempt if, with knowledge of the terms of the undertaking, it fails to carry out its obligations contained in the undertaking. A director or other officer of the company may also be pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an injunction. It is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the Court sanctions a particular course of action is misconduct amounting to contempt. The remedy in such circumstances may be in the form of a direction to the contemnor to purge the contempt or a sentence of imprisonment or fine or all of them. On the facts and circumstances of this case and in the light of our finding that there was a breach of the undertaking, we think that mere imposition of imprisonment or fine will not meet the ends of justice. There will have to be an order to purge the contempt by directing the first respondent-contemnor to deliver vacant possession i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings before the Board, no legal proceedings for winding up of such industrial company could be proceeded with, except with the consent of the Board. In the circumstances the learned counsel submitted that though the respondent made a categoric admission of the liability to make the payment to the petitioner in Company Petition No. 182 of 1998, the respondent was not in a position to make the payment immediately in view of the financial situation of the respondent, and if only the respondent brought it to the notice of this Court about the pendency of the issue before the BIFR, this Court is legally obliged to defer the consideration of the company petition. The learned counsel further submitted that it is not the intention of the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny petition. Assuming for the sake of arguments everything favourably to the petitioner in Company Petition No. 182 of 1998 and even if the company petitions were to be allowed ultimately the petitioner would have to go and establish his claim before the Official Liquidator and recover whatever amount was available depending on the nature of his right. On the other hand, the statement made by the respondent on 14-3-2000, only obviated the trial of the company petition, in the sense that in view of the admission made by the respondent, the Court was relieved of the necessity to adjudicate upon the claim of the company petition. What only remained for the Court was to pass a formal order of winding up of the respondent-company. The Court afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if we were to hold that non-compliance of a compromise decree or consent order amounts to contempt of court, the provisions of the Code of Civil Procedure relating to execution of decree may not be resorted to at all. In fact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contemnor by making a false representation to the court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the court itself and thereby obstructs the course of justice and bring into disrepute the judicial institution. The same cannot, however, be said of a consent order or a compromise decree where the fraud, if any, is practised by the person concerned not on ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
