Pioneer Sales Agencies (P) Ltd. vs Olympus Superstructures Pvt. ...
2004 Latest Caselaw 87 Bom

ORDER

R.M.S. Khandeparkar, J.

1. (Oral) Heard the learned Advocates for the parties. The grievance of the petitioners is that the respondents have violated the order passed by this Court on 18-9-1998 in Suit No. 922 of 1997 as well as failed to comply with the undertakings given to the Court while the said suit was being disposed of by way of Consent Terms. The contention is sought to be controverted on the ground that the petition is not maintainable as the petitioners have assigned the said decree in favour of the M/s. Belly Realtors Pvt. Ltd, for a valuable consideration under a deed of assignment dated 27-10-1999 and therefore such a petition at the instance of the petitioners is not maintainable. It was secondly sought to be contended that the decree dated 18-9-1998 is a conditional one and therefore the non compliance thereof can entitle the decree holder to seek execution of the said decree and there cannot be an occasion for proceeding against the respondents/contemners for contempt of Court. Thirdly, it was sought to be contended that the consent decree does not contain any undertaking to the Court and is a mere consent decree and therefore it can be only an executable decree and it cannot be said that there is any violation of the Court's direction or the undertaking to the Court. Fourthly, it was sought to be contended that the possession of the 5th floor is with the Court Receiver and the respondents have no objection for delivery of the possession of the flats on the 4th floor. It was also sought to be contended that the proceedings are filed beyond the period of six months from the date of the decree and therefore they are barred by the law of limitation.

2. By order dated 21-6-2000, after hearing the parties, the contempt proceedings were admitted for final hearing. The contention sought to be raised on behalf of the respondents in the course of the argument were also sought to be raised at the time of admission and it was observed that all those points can be decided at the final hearing.

3. The fact that the proceedings in the Civil Suit No. 922 of 1997 were disposed of in accordance with the consent terms filed by the parties is not in dispute. The order which was passed while accepting the consent terms filed by the parties on 18-9-1998 reads thus :--

"Counsel for the plaintiffs and defendants are present. They have filed the consent terms duly signed by the plaintiffs and defendants and their respective advocate. The plaintiff is present. He admits his signature and the contents of the consent terms. The advocate for the defendants identify and admit the signature of his client. The consent terms are taken on record and marked 'X' for identification. The consent terms and undertakings, if any, are accepted. There shall be decree in terms of the consent terms. .. . . ... ..."

Plain reading of the above order therefore discloses that the suit was disposed of in accordance with the consent terms including the undertakings therein and while accepting the consent terms even the undertakings given by the parties in those consent terms were accepted by the Court. The grievance of the petitioners therefore will have to be considered bearing in mind this fact situation.

4. Apart from the said order referring to the undertakings in the consent terms, plain reading of the consent terms also would disclose that in terms of Clause (1) thereof the contemners/defendants had not only agreed but had also undertaken to make payment of an amount of Rs. 1,25,00,000/- on or before the expiry of 180 days from the date of execution of those consent terms. Further, in Clause (11) the contemners/defendants had agreed and undertaken to procure conveyance into the name of the society that may be formed by the purchasers of the building. In addition to the said undertakings, the consent terms read with the said order of the Court also directed the respondents/contemners to transfer, convey and assign the flats in respect of which the decree was passed to the petitioners or its nominees on expiry of 180 days from the date of the consent terms. Simultaneously under Clause (9) of the consent terms, contemners had also undertaken to complete all the pending works of the 4th and the 5th floor within a period of 180 days from the date of execution of the consent terms.

5. It is the case of the petitioners that the respondents/contemners wilfully and intentionally did not comply with any of the obligations or undertakings under the said order within the specified period and in spite of notice having been issued to comply with those obligations and the undertakings, refused to comply with the same and further, the conduct of the respondents/contemners discloses clear intention to disobey the said order and not to comply with the undertakings which, according to the petitioners, are apparent from the various acts on the part of the contemners described in the petition. Those acts include interference with the locks affixed by the petitioners to the suit flats and change thereof, non-completion of the work on the 4th and 5th floor within the specified time as well as failure to make arrangements to obtain the necessary occupancy certificate in respect of those flats. It is pertinent to note that in reply to the specific averments regarding the acts of the respondents/contemners, only defence sought to be raised is that of bar of limitation and the order being in the nature of consent terms and therefore it is a mere agreement between the parties and does not. warrant contempt proceedings. In other words, there is no denial of the facts alleged against the contemners in relation to violation of the order of the Court as well as failure on his part to comply with the undertakings.

6. The contention regarding bar of limitation is totally devoid of substance. The limitation for initiating contempt proceedings does not commence from the date of the order in respect of which violation is complained of but from the date of the act on the part of the contemner to disobey the order or failure on the part of such party to comply with the undertaking given to the Court.

7. Besides, when there is a clear assurance and undertaking given to carry out certain work in or to the building, and to obtain the occupancy certificate, then till and until such work is not carried out, the violation of the order will continue and it would be a case of recurring cause of action for initiation of the contempt proceedings.

8. As regards the contention that it is a mere consent decree and whatever undertaking was in the nature of assurance to the other side and not to the Court, as already observed above, the different clauses and particularly the clauses referred to above disclose undertaking to the Court. Such an undertaking in a consent decree amounts to undertaking to the Court and disobedience thereof would warrant contempt proceedings. The Apex Court in a recent decision in the matter of Bank of Baroda v. Sadruddin Hasan Daya, reported in 2003 AIR SCW 7223 has clearly held that :--

'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 instalments commencing from 1st November, 1999 to 1st August, 2001. This Court, therefore, put its Imprimatur upon the consent terms and made it a decree of the Court. The violation or breach of the undertaking which became part of the decree of the Court certainly amounts to contempt of Court, irrespective of the fact that it is open to the decree-holder to execute the decree. Contempt is a matter between the Court and the alleged contemner and is not affected in any manner by the rights or obligations of the parties to the litigation inter se."

Being so, and once the parties file consent terms incorporating therein an undertaking and based on such consent terms and the undertaking therein, the Court passes the decree, the consent terms as well as the undertaking partakes the nature of the order of the Court and violation of such an order can warrant contempt proceedings. Plain reading of the consent terms dated 18-9-1998 not only discloses, as already ob- ' served above, undertaking to the Court but also specifies direction to carry out various acts by the respondents/contemners and the respondents have not been able to disclose having complied with those directions under the said decree. Apparently, therefore, there is violation of the said order as well as the undertakings given therein, and this violation of the order continued even after issuance of notice on behalf of the petitioners, which fact clearly disclose wilful disobedience of the order and non-performance of undertaking.

9. It is pertinent to note that in the course of the arguments, after taking instructions from the respondents, the learned Advocate made a submission that the respondents are ready and willing to deliver the possession of the 4th floor if some time is granted to the respondents. In other words, in spite of knowing well the obligations of the respondents under the consent decree, the respondents had not delivered the possession of the said floor till this day in blatant violation of the said order and only after having realised the consequence thereof in the course of the arguments, just to avoid punishment which the contemners may have to face as a result of these proceedings, the contemners sought to propose to deliver the possession of the 4th floor. To the said proposal, it was asked whether the respondents are ready and willing to deliver such possession by 1:30 p.m. today, the learned Advocate for the respondents, after taking instructions from the respondent No. 2, expressed the inability of the respondents to do so without assigning any reason for such inability. In other words, in spite of knowing his obligations, the respondents are adamant in not complying with the said decree even till this day.

10. The above narrated acts on the part of the respondents apparently disclose wilful acts on the part of the respondents to disobey the order of the Court as well as failure to comply with the undertakings given to the Court on 18-9-1989. The contemners, therefore, are clearly guilty of contempt of Court, for the reasons stated above.

11. After passing the above order, the respondent No. 2 was asked as to whether he wanted to make any submission having been informed about the fact that he is found to have committed contempt of Court and particularly on the point of punishment. He submitted that in accordance with the consent terms the possession of the 4th floor is also with the petitioners and, therefore, he has not disobeyed the order. The oral statement in that regard is clearly contrary to the materials on record as well as the submissions made by the learned Advocate on behalf of the respondents in the course of the arguments and that too after taking instructions from the respondents.

12. Taking into consideration the facts of the case and the conduct of the respondents, in my considered opinion, the respondent. No. 2 deserves to be punished with civil imprisonment for a period of two months with fine of Rs. 2,000/- (Rupees Two Thousand), to be paid within two weeks in the Registry, and further, to direct the respondent/contemner No. 2 to deliver the possession of the 4th floor forthwith and in any case within two days from today to the petitioners. Order accordingly.

13. At this stage, the learned Advocate for the respondents requests for stay of the order in relation to the civil imprisonment. The same is stayed for a period of four weeks from today, subject to the respondent No. 2 executing a bond in the sum of rupees two lakhs with two sureties of rupees one lakh each or one surety of rupees two lakhs. The bond to be executed and the surety/sureties to be furnished within a period of one week from today to the satisfaction of the Prothonotary and Senior Master.

14. The contempt petition stands disposed of.

15. All concerned to act on the ordinary copy of this order duly authenticated by the Associate/P.S. of this Court as a true copy.

16. Certified copy expedited.