9911796707
TMI Blog2018 (5) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner it would not be justifiable to vitiate the efforts made by the court to conclude the settlement as the amount had been received by the respondent. The court further concluded that the respondent cannot be made to suffer liquidation proceedings. Hence, essentially on facts this court came to a conclusion that there was no justification to revive the winding up petition. There is nothing in the two orders of this court, namely, order dated 12.01.2015 and 29.05.2017 on account of which we can conclude that the respondent has substantially interfered in the course of justice. In my opinion, the facts do not warrant coming to a conclusion that the respondent is guilty of wilful disobedience of the order of this court or of contempt of court. Petition dismissed. - CONT.CAS(C) 490/2017 - - - Dated:- 3-4-2018 - MR. JAYANT NATH J. Petitioner Through: Ms. Maneesha Dhir, Mr. K.P.S. Kohli, Ms. Sharmistha Ghosh and Mr. Mahipal Singh, Advs. Respondent Through: Mr. A.S. Chandhiok, Sr. Adv. and Mr. Rakesh Khanna, Sr. Adv. with Ms. Pooja Mehra Saigal, Mr. Sahil and Ms. Shefali Jain, Advs. JAYANT NATH, J. (ORAL) 1. Present Contempt Petition is filed under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition. Essentially, the grievance of the petitioner is that the respondents have failed to comply with the terms of the Settlement Agreement dated 8.1.2015 despite receipt of the full amount as has been noted by this Court in the order dated 29.5.2017. The grievance of the petitioner is that under Clause 7 of the Settlement Agreement Trina Solar s receipts for each instalment duly paid were to be duly released to the petitioner. This particular document entitles the owners of the solar modules for a warranty for 25 years. It has been pleaded that though the petitioner has paid the entire dues the respondents have illegally and contrary to the terms of the Settlement and order of this court withheld the Trina Solar s Receipts which the respondent was obliged to release. Another grievance of the petitioner is that as per Clause 6 of the said Agreement the respondents were obliged to withdraw the pending arbitral proceedings which has not been done. 6. I have heard learned counsel for the parties. Learned counsel for the petitioner has relied upon the judgments of the Supreme Court in Ram Narang vs. Ramesh Narang and Another, (2006) 11 SCC 114 and Delhi Development Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court. He is permitted to do so. The petitions stand disposed off in terms of the aforesaid. 9. It is clear from the above order that parties affirmed the Settlement Agreement. The petitioner undertook to pay the instalments in terms of the schedule mentioned in the Settlement Agreement dated 8.1.2015. The undertaking given by the petitioner was accepted by the Court. There is no undertaking given by the respondent. Thereafter the admitted fact is that the petitioner has made payment in terms of the Settlement Agreement dated 8.1.2015 but with delay. Paragraph 4 of the said Settlement Agreement reads as follows:- 4. That the Guarantor agrees and undertakes that if it defaults/deviates in any payment of the said settlement amount of US$ Thirty Million Three Hundred Seventy Nine Thousand One Hundred Fifteen and cents Sixty in accordance with the aforesaid Payment Schedule, then the entire outstanding amount of US$ 35,740,136 (which includes liquidated damages of US$ 1,701,911) less any amount paid by the Guarantor obligors under this Agreement along with interest @ 12% per annum on the balance amount, starting from the date of such default till the date; of payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt inasmuch as consent term merge in the order of the court. In view of this finding and the fact that the petitioner had made payment of the agreed amount in terms of the Settlement Agreement with interest for the delayed payment the court took the view that the petitioner cannot now be made to suffer liquidation proceedings. 13. The contention of the respondents is that they have no objection to abide by the terms and conditions of the Settlement Agreement. However, in terms of Clause 4 of the Settlement Agreement, the petitioner remains in default in making payments of the balance dues of the respondent. The respondent also state that they have no objection in handing over the Trina Solar Receipts provided the petitioner abides by clause 4 of the Settlement Agreement. It has been pointed out that Trina Solar Receipts for the value of payments made by the respondent of USD 31 million already stand released to the petitioner. What has been withheld by respondent No.3 is only the balance receipts on account of non-payment of the balance amount under clause 4 of the Settlement Agreement which are valued approximately USD 5 million. The case of the petitioner however is that in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 brings 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 the court but on one of the parties. Thus, the offence committed by the person concerned is qua the party not qua the court, and, therefore, the very foundation for proceeding for contempt of court is completely absent in such cases. (emphasis in original) The appeal was accordingly allowed and the order passed under Section 2(b) of the Act was set aside. ...... 24. All decrees and orders are executable under the Code of Civil Procedure. Consent decrees or orders are of course also executable. But merely because an order or decree is executable, would not take away the court's jurisdiction to deal with a matter under the Act provided the court is satisfied that the violation of the order or decree is such, that if proved, it would warrant punishment under Section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lacy in the argument that the provisions of Order 39 Rule 2-A CPC would also include the case of violation or breach of permanent injunction granted at the time of passing of the decree. 17. I may also look at the judgment of the Division Bench of the Allahabad High Court in Arun Kumar Tiwari and Ors. vs. Rajesh Pandey and Ors.(supra). The said judgment pertains to a consent order passed in a company court. The Court held as follows:- 8. On merits, the issue which falls for consideration before the Court is whether a contempt petition of this nature, complaining of a breach of a settlement agreement which was entered into between the parties before the Mediation and Conciliation Centre of this Court and in terms whereof the company appeal was disposed of, was maintainable. .... 10. The agreement which was arrived at in the course of mediation was a settlement by which the dispute was compromised. When the Division Bench disposed of the appeal in terms of the compromise, the mediated settlement received the imprimatur of the Court. Section 634 of the Companies Act provides that any order made by a Court under the Act may be enforced in the same manner as a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner is that despite order dated 29.5.2017 passed by this court, the respondent has not abided by the settlement agreement and handed over the Trina Receipts. There is no dispute that clause 4 of the settlement agreement states that in case the petitioner is unable to make the payment within the stipulated schedule the entire outstanding of USD 35,740,136/- would become payable with interest. This court however in its order dated 29.5.2017 noted clause 4 of the settlement agreement but concluded that on account of the delay in making payment by the petitioner it would not be justifiable to vitiate the efforts made by the court to conclude the settlement as the amount had been received by the respondent. The court further concluded that the respondent cannot be made to suffer liquidation proceedings. Hence, essentially on facts this court came to a conclusion that there was no justification to revive the winding up petition. 20. In my opinion, there is nothing in the two orders of this court, namely, order dated 12.01.2015 and 29.05.2017 on account of which I can conclude that the respondent has substantially interfered in the course of justice. In my opinion, the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
