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TMI Blog2019 (12) TMI 1652X X X X Extracts X X X X X X X X Extracts X X X X ..... ise amount for depositing it towards dues in the loan account - It is an admitted position that the respondent did not deposit the balance amount due within the said period of two months and 15 days. Therefore, the said undertaking was not honoured by the respondent. There can be no doubt about the fact that a contempt petition be maintainable even if order or decree of the Court of which contempt is alleged, is executable. But, in the said judgment of the Hon ble Supreme Court in the case of Rama Narang Vs. Ramesh Narang and another [ 2006 (4) TMI 553 - SUPREME COURT] , it was specifically laid down that ultimately the matter was one of discretion of the Court, having regard to the facts of the case. It is relevant to note that after the said judgment was delivered, the Hon ble Supreme Court had occasion to consider the very same matter on the question as to whether the alleged contemnor had indeed committed contempt of the consent order of the Hon ble Supreme Court by breach of undertakings. The subsequent judgment of Rama Narang Vs. Ramesh Narang and another. After discussing the facts of that case and applying the position of law, the Hon ble Supreme Court came to a conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order were drafted, particularly Clauses 8 and 9 thereof, in the facts of the present case, it cannot be said that the respondent has committed civil contempt of this Court under Section 2(b) of the said Act. The contempt petition is dismissed. - Contempt Petition No.259 of 2017 in Writ Petition No. 5344 of 2016 - - - Dated:- 18-12-2019 - MANISH PITALE, J. Mr. P. B. Patil, Advocate for petitioner Mr. Yogesh Nayyar, Advocate for respondent ORDER By this contempt petition, petitioner Nirmal Urban Co-operative Bank Ltd. claims that the respondent has committed contempt of this Court, as defined under the provisions of the Contempt of Courts Act, 1971, by violating undertaking given to the Court, as recorded in order dated 05/05/2017, passed by this Court in Writ Petition No. 5344/2016. According to the petitioner bank, the said order disposed of the writ petition in terms of minutes of order of the same date, which recorded the terms settled between the parties for disposal of the writ petition. It is the case of the petitioner bank that while it complied with all its obligations under the said consent order, particularly Clauses 6 and 7 of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and they have been successful in doing so. The minutes of order dated 5th May, 2017 signed by the petitioner, respondent Nos.1 and 2 and respondent No.4 and their respective Advocates is placed on the record. The petitioner and Mrs. Pragati Bansule, Manager of the Bank identified by their respective Advocates are present in Court. The learned Advocates submit that the petition be disposed of in terms of the minutes of order. The petition is disposed of in terms of minutes of order. In the circumstances, the parties bear their own costs. MINUTES OF THE ORDER The petitioner above named begs to submit as under :- 1. That the petitioner has taken house loan from the Respondent No.1 amounting Rs.29.40 Lacs (Rupees Twenty Nine Lac Forty Thousand only). Petitioner has executed mortgage of Flat No.G-2, situated on ground floor of Shri Shiv Apartments constructed on Plot Nos. 15, 16, 21 and 22, Kh. No. 84/4 in layout of Suraj Co-operative Housing Society Ltd., Nagpur. 2. The respondent No.3 granted Revenue recovery certificate in favour of the Respondent No.1 Bank against the petitioner for above loan account on 04/09/2015 amounting Rs.29,05,598/- along with contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9. The possession and attachment of the Flat No. G-2, shall continue to be with the respondent No. 1 and 2 till the period of Two and half months from the date of release of movable property by Respondent No.1 and 2 in favour of petitioner. If the petitioner fails to liquidate the loan amount for which the Flat No. G-2 is mortgaged within the stipulated period, then the Respondent Nos. 1 and 2 shall be at liberty to Sale the Flat No. G-2, of Shri Shiv Shakti Apartments, Manish Nagar afresh by following due process of law. 10. That the Respondent Nos. 1 and 2 may consider the loan accounts of the Petitioner for one time settlement scheme as framed by the Government in terms of Government Resolution Dt. 16/03/2016 within period of four weeks from today. 5. According to the petitioner bank, in terms of Clause 6 of the said minutes of the order, the petitioner bank returned the amount to auction purchaser and the sale certificate executed in his favour stood cancelled. Thereafter, the movable properties of the respondent were handed over to her and in terms of Clause 8 of the said minutes of the order, the respondent was supposed to dispose of the movable properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er have committed willful contempt of the undertaking given to this Court and the order passed on the basis of the undertaking in writ petition 5344/2015. (ii) The relevant extract of the minutes of the order of which you, have prima-facie committed contempt are thus :- (6) It is agreed that the Respondent 1 shall pay to the Respondent 4 an amount of Rs.53,54,000/- (Rupees Fifty three lac fifty thousand four hundred only). The interest component comes to Rs.5,46,000. Out of which Rs.2,73,000 to be born by respondent 1 bank and this amount cannot be recovered from the petitioner towards full and final repayment of the amount paid by him towards purchase of Flat G-2. The above amount shall be paid by Respondent 1 to Respondent 4 on or before 09/05/17. After receipt of the aforesaid amount by Respondent 4 from Respondent 1, the Sale Certificate executed in his favour shall stand cancelled and Respondent 4 shall have no right, title or interest of what so ever nature over Flat G-2, situated inShri Shiv Shakti Apartments, at Manish Nagar. (8) That the petitioner with intimation to the respondents 1 and 2 sell the movable properties to the prospective purchasers and de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the respondent. It was submitted that the authority of this Court was challenged by the respondent not only by willfully and intentionally violating the undertaking given to this Court, but, also by the nature of affidavits filed by the respondent before this Court, which demonstrate defiance of the authority of this Court. On this basis, charge frames against the respondent was clearly made out and that she deserved to be punished for contempt as defined under Section 2(b) of the said Act. The learned counsel appearing for the petitioner bank placed reliance on the judgment of the Hon ble Supreme Court in the case of Rama Narang Vs. Ramesh Narang and another (2006) 11 SCC 114. 11. On the other hand, Mr. Yogesh Nayyar, learned counsel appearing for the respondent submitted that the minutes of order dated 05/05/2017, were required to be read in their entirety. It was submitted that the petitioner bank was emphasizing on Clause 8 of the said order while Clause 9 of the said order was equally significant. The learned counsel submitted that Clause 9 of the said order specifically provided that if the respondent failed to pay the balance outstanding amount within the total per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge was clearly made out and the respondent deserved to be punished for contempt. 14. Heard learned counsel for rival parties and perused the material on record. The most fundamental and crucial aspect of the present case is, interpretation of the clauses of the minutes of the order dated 05/05/2017, in terms of which this Court disposed of the aforesaid writ petition. The minutes of the order and all its clauses are required to be read as a whole to come to a conclusion as to whether the respondent can be said to have committed contempt of this Court under Section 2(b) of the aforesaid Act, due to breach of undertaking specifically recorded in the said minutes of the order. The undertaking, the breach of which is alleged by the petitioner is found in Clause 8 of the above quoted minutes of the order. In the said clause, the respondent was required to sell the movable properties handed over by the petitioner bank to raise amount for depositing it towards dues in the loan account. It was then stipulated in the said clause that if the respondent was unable to pay amount due within a period of two months upon sale of movable properties, the respondent shall undertake to repay the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order. But, the petitioner bank agreed for such an arrangement with the respondent and parties jointly requested this Court to dispose of the writ petition in terms of minutes of the order. Therefore, the petitioner bank was aware about the consequences of failure of the respondent to abide by the undertaking to pay the entire outstanding amount within 15 days after expiry of two months specified in Clause 8 of the minutes of the order. 17. The manner in which the clauses of the minutes of the order are structured and worded, particularly Clauses 8 and 9, the undertaking given under Clause 8 is an undertaking given to the petitioner bank by the respondent and failure to abide by the same results in consequence specifically stipulated in Clause 9 of the minutes of the order. Therefore, the undertaking stated in Clause 8 of the minutes of the order cannot be said to be undertaking given to this Court. If only the petitioner bank had not agreed to Clause 9 of the minutes of the order and the terms of settlement between the parties had stopped at Clause 8 in which the undertaking was engrafted, it could have been a situation of failure to abide by the undertaking leading to an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n if order or decree of the Court of which contempt is alleged, is executable. But, in the said judgment of the Hon ble Supreme Court in the case of Rama Narang Vs. Ramesh Narang and another (supra), it was specifically laid down that ultimately the matter was one of discretion of the Court, having regard to the facts of the case. It is relevant to note that after the said judgment was delivered, the Hon ble Supreme Court had occasion to consider the very same matter on the question as to whether the alleged contemnor had indeed committed contempt of the consent order of the Hon ble Supreme Court by breach of undertakings. The subsequent judgment of Rama Narang Vs. Ramesh Narang and another (supra) is reported in 2009 16 SCC 126. After discussing the facts of that case and applying the position of law, the Hon ble Supreme Court came to a conclusion, in the facts of that case, that the alleged contemnor had committed contempt of the consent order passed by the Hon ble Supreme Court. 21. It is relevant that in the said case, the consent order included specific undertaking given to the Court by the contemnor to the effect that he would not indulge in specific acts so that the funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that the manner in which the minutes of the order were drafted, the possession and attachment of the flat has continued with the petitioner bank and it is not as if the respondent got away with the property mortgaged to the bank, as well as being relieved of the obligation of returning the outstanding amount. In this situation, this Court is unable to come to a conclusion that failure on the part of the respondent to abide by the requirements of Clause 8 of the minutes of the order would result in punishment of the respondent for contempt of this Court under Section 12 of the said Act. 24. Much emphasis was placed on the contents of the affidavit filed on behalf of the respondent before this Court, contending that some portion thereof was in contrast to letter dated 19/07/2017, sent by the respondent. It was submitted that while in the said letter, the respondent claimed that movable properties were seasonal in nature and, therefore, it was difficult to sell the same, but, in the affidavit before this Court, it was claimed that the movable properties were damaged and torn because they were lying in the said flat in question, which was in possession of the petitioner bank and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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