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TMI Blog2021 (8) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... SIN [ 1979 (4) TMI 164 - SUPREME COURT ] where it was held that In the instant case, we have already held that there is neither any written undertaking filed by the appellant nor was any such undertaking impliedly or expressly incorporated in the order impugned. Thus, there being no undertaking at all the question of breach of such an undertaking does not arise. There is no dispute on facts that the mortgaged properties have now been sold and with extraordinary efforts, the Bank has also taken possession. The petitioners have also spent 11 days in custody out of the total period of imprisonment of three months imposed by the High Court. In such circumstances, we think that it is sufficient punishment for the petitioners. Therefore, the SLP is disposed of upholding the finding of the learned Single Judge and the Division Bench of the High Court that the petitioners are guilty of contempt of court, but reducing the period of sentence from three months to the period of imprisonment already suffered/undergone by the petitioners - application disposed off. - Ms.Indira Banerjee J, And V. RamasubramanianJ For the Appellant : Santosh Kumar I For the Respondent : No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit the amount of Rs. 2 crores by way of four cheques. Therefore, the Receiver was unable to take possession of the properties. (vii) Thereafter, the petitioners challenged the conditional order of stay passed by DRTIII on 01 st April, 2015 before the High Court by way of W.P.(C)No.3406/2015 stating that the Bank and DRTIII were acting unfairly and unjustly in not accepting their cheques totalling to Rs. 2 crores. (viii) When the writ petition came for admission and interim orders on 8th April, 2015, the petitioners admitted liability and offered, by way of a statement under oath, to deposit Rs. 7 crores, i.e. 25% of the notice amount in three instalments on or before 30th June, 2015. The Bank gave its assent and thereafter the Court ordered that the possession of the properties of the petitioners shall not be disturbed subject to the petitioners depositing Rs. 7 crores on or before 30th June, 2015, i.e. Rs. 2 crores on 30th April, 2015, Rs. 2.5 crores each on 31st May, 2015 30th June, 2015. (ix) On 29th April, 2015, the petitioners gave a letter along with four cheques for Rs. 50 lakhs each dated 06th May, 2015 purportedly in compliance of the order dated 08th April ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners surrendered and were taken into custody on 06.11.2017. After being in custody for 11 days, the petitioners were released on interim bail by Order dated 16.11.2017; (viii) The contempt appeal was thereafter dismissed by the Division Bench of the High Court by an Order dated 27.09.2018, with a direction to the petitioners to surrender within 10 days. However on 01.11.2018, this Court ordered notice in the present SLP and also granted stay of the impugned order. 6. The reason why we have noted certain events post the order of the learned single Judge is to bring on record the fact that the petitioners have already served simple imprisonment for a period of 11 days, out of the penalty of simple imprisonment for three months. They have also paid the fine. 7. The main grounds of attack of the petitioners to the impugned order, as articulated by Mr. Santosh Kumar, learned counsel for the petitioners, are: (i) that the failure of a party to comply with an undertaking, on the basis of which a conditional order of stay was granted, cannot be treated as a wilful disobedience warranting the invocation of the contempt jurisdiction; (ii) that the failure of the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the availability of other modes of enforcement need not deter the Court from invoking its contempt jurisdiction and that the deliberate failure to comply with a solemn undertaking given to a Court has always been frowned upon by Courts. 11. We have carefully considered the rival submissions. 12. Before we analyze the rival contentions, it will be useful first to see the actual undertaking given by the petitioners on 08.04.2015, which led to the contempt proceedings. The undertaking given by the first petitioner on 08.04.2015 reads as follows: Statement of Mr. Suman Chadha S/o Jangi Lal Chadha R/o H3/50 Sector18, Rohini, Delhi I am the petitioner and the director of the third petitioner in this case. I am duly authorised to make a statement on its behalf. I have also filed an affidavit in support of the petition and have taken advice from my lawyer who is present with me in Court. I hereby state and confirm that the sum of Rs.28,82,25,942.24 (Twenty Eight Crores Two Lakh Twenty Five thousand Nine Hundred Forty Two and Paise Twenty Four only) as on 18.8.2014 is due and payable to the respondent i.e. the Central Bank of India as per notice u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts merits independently having regard to its applicable policy. This will not in any way preclude the rights of the Bank for recovering the amounts due. 8. Subject to the petitioner filing the necessary affidavit/undertaking copy of which shall be provided to the counsel for the respondent within a week from today, the writ petition is disposed of. 15. It is seen from the portion of the order of the High Court dated 08.04.2015 that it was not an order passed on the basis of an affidavit/undertaking. It was on the basis of an offer made by the petitioners, the first of whom was actually present in Court. The offer so made was accepted by the Bank and hence the order was actually based upon the consent of parties. This is made clear by what is recorded by the Court in Paragraph 5 of its order dated 08.04.2015. Paragraph 5 reads as follows: 5. During the course of hearing counsel for the petitioner Dr. Sharma stated that the petitioners are admitting the liability provided some time is granted in order to settle the matter finally. It was suggested by the counsel that the petitioners may be afforded opportunity of depositing Rs. 7 (seven) crores i.e. 25% of the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Babu Ram Gupta (supra) was clarified and held in part to be obiter by a three member Bench of this Court in Rama Narang vs. Ramesh Narang and Another [(2006) 11 SCC 114] . In Rama Narang (supra), this Court pointed out the distinction between two categories of cases covered by Section 2(b) of the Act namely (i) wilful disobedience to a process of court; and (ii) wilful breach of an undertaking given to a court. 18. In fact, in Rama Narang (supra), this Court went to the extent of holding that it would neither be in consonance with the statute, judicial authority, principle or logic to draw any distinction between the wilful violation of the terms of a consent decree and wilful violation of a decree passed on adjudication. We have our own doubts whether the first category of cases covered by Section 2(b) can be stretched so far. Anyway, that question does not arise in this case and hence we leave it at that. 19. But what has happened in this case is that the subsequent conduct of the petitioners after the order dated 08.04.2015, seems to have tilted the balance against the petitioners. Purportedly in compliance of the undertaking given to Court on 08.04.2015 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove events that happened after 08.04.2015, convinced the High Court to come to the conclusion that the petitioners had actually played a fraud upon the Court. This is why the learned Single Judge as well as the Division Bench of the High Court held the petitioners guilty of contempt of court. 25. It is true that an undertaking given by a party should be seen in the context in which it was made and (i) the benefits that accrued to the undertaking party; and (ii) the detriment/injury suffered by the counter party. It is also true that normally the question whether a party is guilty of contempt is to be seen in the specific context of the disobedience and the wilful nature of the same and not on the basis of the conduct subsequent thereto. While it is open to the court to see whether the subsequent conduct of the alleged contemnor would tantamount to an aggravation of the contempt already committed, the very determination of an act of contempt cannot simply be based upon the subsequent conduct. 26. But the subsequent conduct of the party may throw light upon one important aspect namely whether it was just the inability of the party to honour the commitment or it was part of a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of law. But in this case, the same cannot be permitted to be used, to cover up whatever the petitioners have done. On the contention of the learned counsel for the petitioners that the disobedience, if any, was not wilful and intentional, less said the better. 31. In the light of the above, we are clearly of the view that the finding of the High Court that the petitioners are guilty of contempt, does not call for our interference under Article 136. 32. However, Mr. Santosh Kumar, learned counsel for the petitioners, pleaded that the Court may show sympathy on the petitioners, in view of the fact that the immovable properties which the petitioners attempted to save, by approaching the DRT and the High Court, have already been sold. All the attempts made by the petitioners from 2015 onwards, to save the mortgaged properties have been in vain. 33. There is no dispute on facts that the mortgaged properties have now been sold and with extraordinary efforts, the Bank has also taken possession. The petitioners have also spent 11 days in custody out of the total period of imprisonment of three months imposed by the High Court. In such circumstances, we think that it is suffic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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