9911796707
TMI Blog2023 (5) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... 022, not a single paisa has been paid by the Respondent. The Apex Court has time and again reiterated that non-compliance of undertakings given to the Court will amount to contempt of orders of the Court. In this regard, it is instructive to refer to the judgment of Supreme Court in HSBC PI Holdings (Mauritius) Limited v. Pradeep Shantipershad Jain and Others, [ 2022 (7) TMI 568 - SUPREME COURT ], wherein it has been held that non-payment of the outstanding amount by the Respondent even after repeated opportunities and directions passed by the court will amount to punishment under contempt of Court. In this matter on 06.03.2023, on an enquiry to the Respondent with respect to the time required by him to sell his immovable property to raise the funds, the Respondent was non-committal and vague. He stated that he is still looking for a buyer and it was not possible to give a firm date. This Court did not find that the response of the Respondent was serious or made in good faith. The Respondent is owner of immovable properties and therefore, has sufficient means to make the payment undertaken by him; he, however, lacks the will to make the payment to the Petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e settlement amount shall be paid on or before 29.02.2020 and it was further stated that in case of default, the Respondent herein would become liable for contempt of Court. 2. This contempt petition has been filed by the Petitioners on 02.03.2020 stating that the Respondent has only paid a sum of Rs. 42 lakhs and has failed to pay the balance of Rs. 2,40,84,782.14 as per the undertaking recorded in order dated 30.10.2019 passed by the Trial Court. 2.1 It is stated in the petition that the Petitioners are senior citizens, who are registered medical practitioners who were defrauded by the Respondent, who represented himself to be a portfolio Manager and lured the Petitioners to transfer their stock in shares to the Respondent. The said stock was misappropriated by the Respondent leading to the filing of two complaint cases under Section 138 of the NI Act, which led to the execution of the MoU for returning the said amount to the Petitioners. 3. By the detailed orders dated 13.07.2021 and 20.12.2021, the Respondent has been held guilty of contempt for wilful breach of terms of the MoU and the undertakings given vide order dated 30.10.2019. 4. This Court vide order dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2019 and 27736/2019, under Section 138 of the NI Act. 7.4. Subsequently, with a view to arrive at a settlement, the parties entered into the MoU, whereby, the Respondent agreed to pay a total sum of Rs. 2,66,85,028 along with interest at the rate of Rs. 12% per annum till 29.02.2020 to the complainant in both the cases collectively. 7.5. The breakup of this amount was (i) Rs. 1,97,62,499, i.e., the value of the stocks and; (ii) profits to the tune of Rs. 69,22,529, which had accrued till 17.07.2019 on the said stocks. In addition, the interest at 12% was also payable. 7.6. The Respondent agreed to pay a sum of Rs. 25,00,000/- (first installment), within a week from the date of the MoU and to continue to pay the remaining sum in instalments till 29.02.2020. 7.7. It was further agreed that, if the Respondent defaults in payment of the entire amount with interest by 29.02.2020, he will be liable to pay Rs. 30,00,000 over and above the aforesaid amounts. 7.8. The parties agreed that if the Respondent fails to pay the amount as mentioned in paragraphs 5.4 and 5.5, the Petitioners would be free to take legal recourse available to them. 7.9. The Respondent also agreed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee to sell the same to anyone they like. (Emphasis supplied) 7.10. On 18.09.2019, the Respondent paid a total sum of Rs. 20 lakhs in favour of the Petitioners. 7.11. On 30.10.2019, the Respondent paid a sum of Rs. 14 lakhs by way of demand draft to the Petitioners and also undertook to pay a remaining sum without any fail. The order dated 30.10.2019 passed by the Trial Court reads as under: I am accused in the present cases bearing number 27671/2019 27736/2019 filed by the complainant against me u/s 138 of NI Act. I have amicably settled all the claims of complainant against me, arising out of the cheque in question, I had agreed to pay full and final settlement amount of Rs. 2,66,85,028/- alongwith interest at the rate of 12% per annum to the complainant in both the cases collectively. I hereby undertake that I will make the whole payment of aforesaid settlement amount till 29.02.2020 without any fail. All the terms and conditions of the settlement has been recorded between the parties in an MOU which is Ex. X1. Till today, I had paid a sum of Rs. 34 lakhs to the complainant . I understand that only on the basis of aforesaid undertaking and MOU and in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, ..the respondent has further undertaken to pay to the respondent (sic, petitioner) Rs.35 lakh by 04.012.2020 and R.20 lakh by the 20th every month and the balance by 31.03.2021... 3. The learned counsel for the respondent submits that the said undertaking shall be duly complied with by the respondent. The said undertaking is accepted. 4. List for compliance on 28.04.2021. (Emphasis supplied) 8.3. However, the Respondent failed to make any payment in furtherance of the undertaking recorded on 21.01.2021. 8.4. In these circumstances, by order dated 13.07.2021, this Court has taken adverse note of the conduct of the Respondent in not even tendering a partial compliance in making the payments; and thereby held the Respondent guilty of contempt of Court. The relevant portion of the order dated 13.07.2021 reads as under: 3. The learned counsel for the petitioner submits that the respondent has defaulted in making the payment for the last 6 months, without any explanation. The counsel for respondent says that the respondent was going through some therapy for depression. However, there is not even partial compliance. Neither an affidavit, nor an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent to pay the outstanding dues to the Petitioners, as undertaken before this Court. Even on the said date (20.12.2021), this Court granted one last and final opportunity to the Respondent to make the payments to the Petitioners. The relevant portion of the order dated 20.12.2021 is reproduced herein under: 2. It is evident from the aforesaid orders that despite the court holding the respondent guilty of contempt of court, it provided the respondent with sufficient opportunity to pay the petitioners and mitigate their difficult circumstances . 3. The case has been adjourned on four occasions post holding the respondent guilty. The order on sentencing was deferred, so as to bring about some rapprochement and some movement from the respondent to pay the monies. Albeit costs of Rs.10,000/- have been paid, the monies owed to the petitioner are still due. The respondent, who is present in court, continues to state that he does not have the monies to pay the outstanding amount. 4. The learned counsel for the petitioners submits that the respondent has a history of conviction for fraud and has undergone a jail term for eight months. She refers to an order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for an amount of Rs. 70 lakhs to the Petitioners. It was submitted by the learned counsel for the Respondent that a further payment of Rs. 37 lakhs will be made by the Respondent within a week from 24.02.2022. He also undertook not to encumber and/or dispose of any property in which he may have an absolute or partial share or interest. In view of the assurances made and undertaking given before this Court, the orders on sentencing were deferred. The relevant portion of the order dated 24.02.2022, reads as under: 3. The learned counsel for the petitioner submits that after due adjustments, the total amount now due is Rs.2.89 crores, inclusive of all interest as of date. After setting off today s payment of Rs.70 lacs and the promised payment of Rs.37 lacs, the total amount due will be Rs.1.82 crores. 4. The learned counsel for the respondent seeks time to obtain instructions in this regard. 5. The respondent undertakes not to encumber and/or dispose off any property in which he may have an absolute or partial share or interest. 6. In view of the above, the orders on sentencing are deferred. 7. List on 26.05.2022. 8. In the interim, the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 31.07.2022) itself and therefore, the Petitioner moved an application before this Court seeking advancement of hearing. 8.14. Thereafter, vide order dated 31.08.2022, the Respondent sought further time to make pending payments. In this manner the Respondent, yet again, undertook (3rd undertaking was given to this Court) to make payments of the outstanding amount to the Petitioners before 12.10.2022. 8.15. However, no payment was made in furtherance of 3rd undertaking as well. 8.16. Thereafter, on 17.11.2022, this Court gave one final opportunity to the Respondent to purge the contempt and to pay the requisite amount to the Petitioner within a period of three (3) weeks and noted that the orders on sentencing will be passed, taking into account the steps taken by the Respondent to purge the contempt. The order dated 17.11.2022 reads as under: The respondent has not complied with the undertaking given vide order dated 31.08.2022 to the effect that the requisite amount will be paid to the petitioner on or before 12.10.2022. Last opportunity is granted to the respondent to purge his contempt and to pay the requisite amount to the petitioner within a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay the Petitioners Rs. 35,00,000 by 04.12.2020 and Rs. 20,00,000 by 20th every month and balance by 31.03.2021. The Respondent acknowledges the payment of outstanding amount under the MoU. 2 Affidavit of unconditional apology dated 17.10.2020 Affidavit tendering unconditional apology to this Court for non-compliance of the MoU dated 07.09.2019 and the order dated 30.10.2019. 3 CM APPL. 20910/2021 dated 14.07.2021 was filed by the Respondent after the Respondent was held guilty of contempt vide order dated 13.07.2021 Application tendering unconditional apology and extension of time by three (03) months for making payments to the Petitioner under the MoU. 4 Affidavit of undertaking dated 30.05.2022 filed by the Respondent in compliance with the order dated 26.05.2022. Affidavit of undertaking whereby the Respondent undertook to pay a sum of Rs. 1,89,00,000 as per the schedule agreed between the parties. Also tendered an unconditional apology to this Court. 10.4. In each of these pleadings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court to support the sentence given by the High Court. In the said judgment, the Supreme Court has held that the contemnors who violate the undertakings given to the court are undoubtedly guilty of contempt of court. 10.10. The Apex Court has time and again reiterated that non-compliance of undertakings given to the Court will amount to contempt of orders of the Court. In this regard, it is instructive to refer to the judgment of Supreme Court in HSBC PI Holdings (Mauritius) Limited v. Pradeep Shantipershad Jain and Others, 2022 SCC OnLine SC 827, wherein it has been held that non-payment of the outstanding amount by the Respondent even after repeated opportunities and directions passed by the court will amount to punishment under contempt of Court. The relevant portion of the said judgment reads as under: 67. Sufficient opportunities have been given to the respondents to deposit the shortfall amount so as to maintain a sum of USD 60 million in their Corporation Bank account. The first order passed by the learned Single Judge in their application under Section 9 of the Act, 1996 is passed in the year 2014 and even the same has been restored by this Court v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maruti Udyog Ltd. v. Mahinder C. Mehta [Maruti Udyog Ltd. v. Mahinder C. Mehta, (2007) 13 SCC 220: AIR 2008 SC 309] suggests that irrespective of whether or not a decree is executable, the question to be considered by this Court in determining whether a case for contempt has been made out was, whether, the conduct of the contemnor was such as would make a fit case for awarding punishment for contempt of court. 26. Applying the legal propositions discussed supra, to the facts of the case at hand, we are of the view that the conduct of the respondent-contemnors is such as would justify invocation of contempt jurisdiction of this Court. Not only have the contemnors unreasonably delayed and defaulted in compliance of the orders of this Court without explaining the cause for such default, or seeking extension of time for compliance; but they have also sought to avoid compliance of the order, even after taking benefit of the extended time period granted for compliance of the same. The contemnors cannot, at this juncture, claim that the requirement of deposit was not mandatory, but directory and therefore non-compliance thereof would not constitute contempt. 27. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... macious conduct of the Respondent, this Court is unable to accept the submission that the punishment of imprisonment should not be awarded to the Respondent. Sentencing 13. In so far as the order on sentence is concerned, as the Respondent has already been held guilty of contempt and considering his subsequent conduct as aforesaid, this Court sentences Respondent, Contemnor, Mr. Anand Kamal Goel, to undergo two (02) months imprisonment along with a fine of Rs. 2,000. In default of payment of the fine, he shall further undergo fifteen (15) days simple imprisonment. 14. I hereby direct the Registrar General of this Court to take necessary steps to have the convicted contemnor taken into custody and cause him to send to Central Jail, Tihar, under appropriate warrant of commitment for undergoing the sentence awarded as above. 15. A copy of this judgment shall also be furnished to the convicted contemnor free of cost. He shall be informed by the Superintendent, Central Jail that he has the right to prefer an appeal against the conviction and order on sentence passed by this Court. 16. The undertaking given by the Respondent vide order dated 24.02.2022, that he shall r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
