9911796707
TMI Blog2003 (12) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... at any time prior thereto. The petitioners filed the present application within five months of getting knowledge of the undertaking given by the respondents in the aforesaid case, In such a situation, the proceedings initiated against the respondents cannot be held to be barred by limitation in view of the law laid down by this Court in Pallav Sheth v. Custodian [ 2001 (8) TMI 1239 - SUPREME COURT] , wherein it has been held that the period of limitation in a case like the present one has to be counted from the date of knowledge. In the present proceedings we are basically concerned with the violation or breach of the undertaking given by the respondents. Shri C.A. Sundaram, learned senior counsel, has submitted that the Respondent No. 2 was not personally present and the undertaking was given by him through a power of attorney. In our opinion, the mere fact that the respondent No. 2 was personally not present and the undertaking and the consent terms were given through a power of attorney will make no difference as he also got benefit under the consent decree passed by this Court. We are conscious of the fact that the power to punish for contempt must always be exercised conscious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpt proceedings against the respondents; Sadruddin Hasan Daya and Shohin S. Daya. The facts leading to the filing of the contempt petition are as under. 2. The Bank of Baroda filed Summary Suit No. 2949 of 1996 against (1) M/s Dawood Co. (2) Sadruddin Hasan Daya and (3) Shohin S. Daya for recovery of certain amount of money. The respondents were granted unconditional leave to defend the suit by the order dated 15.4.1998 passed in Summons for Judgment No. 580 of 1996. This order was challenged by the petitioner Bank of Baroda by filing Special Leave Petition (Civil) No. 2730 of 1999, which was renumbered as Civil Appeal No. 4138 of 1999. During the pendency of the Appeal, the parties arrived at a settlement, the minutes of the decree were drawn and the same were placed on record. By the order dated 28.7.1999, the appeal was disposed of with a direction that there shall be a decree in terms of the minutes of the decree drawn by learned counsel for the parties. As per the said consent terms the parties, inter alia, agreed that the respondents (defendants) would pay to the petitioner (plaintiff) ₹ 2,44,71,616/- and ₹ 2,40,69,447/- together with interest thereon as specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Division Bench, wherein the parties entered into a settlement. The appeal was disposed of in terms of the consent terms by the order dated 5.10.1999, which reads as under : Undertaking given to this Court by the Appellants in terms of the Consent Terms is accepted. The Consent Terms taken on record and marked 'X'. The appeal is disposed of in terms of the Consent Terms which would be binding on the parties............ Under the Consent Terms, the defendants had to pay a sum of ₹ 1,11,27,146/- together with interest thereon at the rate of 14% per annum in quarterly installments. Clauses 5, 6, 7 and 8 of the Consent Terms, which formed part of the decree are being reproduced below : 5. Agreed, declared and confirmed that the immovable properties belonging to and owned by the Appellants situated at : (a) Land, building and structure standing on Moon-Dust Property, J.P. Road, Versova, Andheri (E), Mumbai 400 058, (b) Land, building and structure standing on Fazalbhai Wadi, Erangal, village, area of Madh Island, Malad (W), Mumbai. (c) Land, building and structure standing on Survey No. 54/3, 56 at village Revadanda, Taluka Alibaug, District Raigad. (d) Land, building and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Supreme Court and without meaning any disrespect to the Hon'ble Supreme Court, the Hon'ble Supreme Court has no jurisdiction to pass any decree dated 28th July, 1999 and such decree has no validity considering the provisions of the said Recovery of Debts due to Banks and Financial Institutions Act, 1993 and the ruling of the Hon'ble Supreme Court as set out hereinabove. Thus based on such a decree, no recovery proceedings can be initiated including issuance of a Demand Notice. 5. The applicants in the light of the aforesaid facts and circumstances and the law as laid down submit to the Hon'ble Tribunal that in the absence of adjudication having taken place and in the absence of any Recovery Certificate having been issued and in view of the fact that the decree has been passed by the Hon'ble Supreme Court without jurisdiction and is hence a nullity, the present Demand Notice dated 31st July, 2000 ought to be set aside. 5. The present Contempt Petition has been filed on the grounds, inter alia, that in the suit instituted by Oman International Bank SAOD the respondent without disclosing the consent decree dated 28.7.1999 passed by this Court, entered into a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like all criminal cases the burden to establish that the respondents have committed contempt of Court is upon the petitioner. In support of his submissions learned counsel has referred to a decision of this Court in Mrityunjoy Das and Anr. v. Sayed Hasibur Rahaman and Ors. [2001]2SCR471 . Shri Nariman has further submitted that non-compliance of the terms of a consent order or decree cannot amount to contempt of Court and the remedy of the aggrieved party is to apply for execution of decree. In support of this submission reliance is placed on Babu Ram Gupta v. Sudhir Bhasin and Anr. 1979CriLJ952 , wherein it was held as under : 1. The act of the appellant in not complying with the terms of the consent order did not amount to an offence under Section 2(b), however improper or reprehensible his conduct might be. 2. When a person appearing before a court files an application or affidavit giving an undertaking to the court or when he clearly and expressly gives an oral undertaking which is incorporated by the court in its order and fails to honour that undertaking then a wilful breach of the undertaking would amount to an offence punishable under the Act. An undertaking given by one o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her agreed that in the event the decree in the suit became executable, the Court Receiver, Bombay High Court, shall stand appointed as Receiver in execution in respect of the aforesaid properties with power to sell and pay over the net sale proceeds to the plaintiff towards the satisfaction of the decree. After filing of the consent terms and passing of the decree by this Court, it was not open to the respondents to file consent terms in another suit whereunder the same properties were to remain under attachment till the decree passed in the said suit was satisfied and in the event of the decree in the said suit becoming executable, the Court Receiver would have power to sell the said properties and to pay over the sale proceeds to the plaintiff of the said suit. It is, therefore, clear that by the consent terms filed by the respondents before the Bombay High Court in the suit instituted by Oman International Bank, SAOD, on the basis of which the said suit was disposed of the undertaking given before this Court in Civil Appeal No. 4138 of 1999 not to encumber or charge the aforesaid three properties to anyone until the decree was satisfied, was clearly violated. 10. A legal plea ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the present petition that in January, 2001 the petitioners learnt about the consent decree passed in the case of Oman International Bank during the course of execution proceedings before the Debt Recovery Tribunal, when steps were taken to attach the aforesaid three properties. The respondents have neither controverted the said fact nor have placed any material to show that the petitioners got knowledge of the consent terms filed by the respondents in the Bombay High Court at any time prior thereto. The petitioners filed the present application within five months of getting knowledge of the undertaking given by the respondents in the aforesaid case, In such a situation, the proceedings initiated against the respondents cannot be held to be barred by limitation in view of the law laid down by this Court in Pallav Sheth v. Custodian 2001CriLJ4175 , wherein it has been held that the period of limitation in a case like the present one has to be counted from the date of knowledge. 12. The submission of Shri R.F. Nariman, learned counsel for the respondents, that this Court having passed a consent decree, the remedy of the petitioner lay in executing the same and there was no occasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d consideration of the law on the subject, held as under : 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. 14. The respondents had filed consent terms in this Court but the same contained an undertaking that they would not alienate, encumber or charge the properties to anyone until the decree was satisfied. Acting upon this undertaking and the consent terms, this Court passed the decree whereunder the respondents (defendants) were given the facility of depositing the amount in eight quarterly installments commencing from 1st November. 1999 to 1st August, 2001. This Court, therefore, put its imprimatur upon the consent terms and made it a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grossly contemptuous act of a party. If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted, the dignity and authority of the Courts have to be respected and protected at all costs. Otherwise the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society (See In re Vinay Chandra Misra 1995CriLJ3994 The present petition was heard on 27.8.2003 when we enquired whether the respondents would be willing to deposit the amount. Learned counsel for the respondents sought time and the case was adjourned to 23.9.2003 and then to 14.10.2003 and finally to 28.10.2003. However, even on the said date, learned counsel for the respondents reiterated the problems of the respondents in depositing the amount and so the matter was heard on merits. The position remains that though under the consent decree passed by this Court on 28.7.1999, the respondents had to deposit the first installment on or before 1.11.1999 and the last installment by 1.8.2001, but they have not deposited or paid even a single penny. In these circumstances, we are of the op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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