Microsoft Corporation vs Ashok Azad And Ors. [Along With ...
2004 Latest Caselaw 1141 Del

JUDGMENT

T.S. Thakur, J.

1. The short but all important question that falls for consideration in these petitions is whether the respondents had given any undertaking to this court, the violation whereof could possibly justify initiation of contempt proceedings against them. Facts giving rise to the controversy are few and may be stated at the outset.

2. The petitioners are engaged in the development and sale of computer software and owners of the copyrights qua such softwares. The respondents are, on the other hand, proprietors of computer training institutes situate in different parts of the country who are, according to the petitioners, indulging in unrestricted use of pirated unlicensed computer software of the petitioner companies. Original suits Nos.451/1999, 452/1999 and 453/1999 were, therefore, instituted by the petitioners in this court seking a permanent prohibitory injunction against defendant respondents herein inter alia restraining them from using for computer training purposes or otherwise selling, offering for sale, exposing, displaying, advertising or exporting unlicensed or piraed/counterfeit software of the plaintiffs. The plaintiffs also prayed for rendition of accounts and payment of the amount earned by the defendants respondents out of the use of such pirated software.

3. The suits aforementioned were accompanied by applications for ad interim injunctions restraining infringement of the copyrights held by the plaintiffs and for appointment of local commissioners to inspect the franchisee computer training centres and for seizure of the computers that contain unlicensed software of the petitioner. These applications were allowed and by an ex parte ad interim orders passed by a single bench of this court, the defendants restrained from using pirated computer software of the plaintiffs petitioners and from infringing the copyrights held by the petitioners in any other manner whatsoever. Local commissioners were also appointed to visit the premises of the defendants in the suits to verify the actual position and submit report to the court. The reports submitted by these local commissioners appear to suggest that the defendants were indeed using pirated computer software of the plaintiffs.

4. Before the issues that arose for consideration could be judicially determined, the parties arrived at an amicable settlement, the terms whereof were reduced to writing and presented to the court trying the suits under Order XXIII of the Code of Civil Procedure with the prayer that the compromise may be recorded and a decree in terms of the same passed in favor of the plaintiffs in each one of the suits. Since the fate of the present petitions turns entirely on the terms contained in the memos of comromise which are identical in nature, we may gainfully reproduce the text of one such memo filed in suit No. 452/1999:-

"The Plaintiff and Defendant Nos. 4, 5 and 6 above named have arrived at the following settlement:-

1. Defendant Nos. 4, 5 and 6 acknowledge the Plaintiff to be the owner of the copyright in the computer software developed by the Plaintiff, as described in the Plaint.

2. Defendant Nos. 4, 5 and 6 acknowledge the Plaintiff to be the proprietors of their trademarks, whose registration particulars are as follows :-

  Trade Mark  T.M. No.  Class    Date          Goods 

Microsoft   430450     16    30/11/84  Computer hardware and
                                       software manuals, computer
                                       documentation etc. 

Microsoft   437500      9    09/05/85  Computer programs
GW Basic                               pre-recorded on tapes,
                                       disks, diskettes,
                                       cartridges etc. 

Microsoft   437501     16    09/05/85  Computer hardware and
GW Basic                               software manuals, computer
                                       documentation etc.
 

3. Defendant Nos. 4 and 5 acknowledge that they have infringed the plaintiff's registered trademarks and copyrights and passed off their goods as those of the plaintiff's.  
 

 4. Subject to clause 5, Defendant Nos. 4, 5 and 6 undertake that they will not at any time in the future do the following acts, that is to say :-  
   

a)Unauthorisedly use for computer training, or otherwise deal in unlicensed or counterfeit/pirated versions of any of the plaintiff's software, or in any manner infringe or cause or enable or assist others to infringe the plaintiff's copyright in the said computer programs and the related manuals being literary works and detain or convert to their own use infringing copies thereof;

b)Unauthorisedly use for computer training, or otherwise deal in unlicensed or counterfeit/pirated versions of any of the plaintiff's software, or in any manner use the trade mark MICROSOFT in relation to their products, or do any other thing amounting to infringement of the plaintiff's registered trade marks or amounting to passing off;

5. Defendants 4, 5 and 6 undertake to legalise the software used at their training centres as per the following schedule :-

1st quarter starting May 1999 10%

2nd quarter starting August 1999 20%

3rd quarter starting November 1999 30%

4th quarter starting February 2000 40%

It is clarified, in order to remove doubts, that after the expiry of the 4th quarter, the defendants shall completely legalize the use of the plaintiff's software at their outlets, including those of the franchisees of defendant No. 6.

6. Defendant Nos. 4, 5 and 6 agree to give to the plaintiff a complete list of all Lakhotia Computer Centres and courses offered, and update the same as and when required. Defendant Nos. 4, 5 and 6 also agree to list out the number of computers in each centre, and the number of all the plaintiff's programs contained in the said computers. Defendant Nos. 4, 5 and 6 agree to furnish the aforestated information to the plaintiff within 20 days of the recordal of the settlement before this Hon'ble Court.

7. Defendant No. 6 agrees that on completion of each stage mentioned in paragraph 5 above, the plaintiff's counsel, Anand and Anand Advocates, at B-41, Nizamuddin East, New Delhi-110 013, will receive, on the last day of each quarter, a complete list of the centres for that quarter which have legalised the use of the plaintiff's software. Defendant No. 6 agrees that this list will contain the name of the centre, the number of computers which they operate, the software which they have purchased, the name of the dealer from which the software was purchased, the price paid for each of the programs and the courses which each centre offers. Defendant No. 6 also agrees that the plaintiff's counsel will be supplied copies of end user license agreements, proof of purchase and copies of certificates of authenticity for each of the plaintiff's programs program purchased. Defendant No. 6 agrees and will ensure that the centres legalised under each quarterly list would agree to subject their computers and softwar to be audited by the plaintiff's authorised representatives during the period of the legalisation schedule. Furthermore, those centres, which legalise in the 4th quarter, would be subject to an audit period of three months, commencing from the last day of the 4th quarter. Defendant No. 6 further agrees to incorporate a specific provision of this nature in its franchise agreements presently subsisting.

Defendant No. 6 agrees to assist the plaintiff in taking legal action against those franchisees that do not comply with the terms of this compromise application. The Defendant No. 6 also agrees to be part of the audit conducted by the plaintiffs in the manner stated in this compromise application.

In consideration for legalizing their software, the Business Software Alliance (BSA), of which the plaintiff is a member, agrees to present the defendants and other franchisees of Defendant No. 6 which have legalized and passed the Audit process, with an Audit Certificate which will be valid for 12 months. The defendants agree that if they, or any of the franchisees wish to renew the certificate, they will have to pay for any subsequent software audits to gain the renewal. The BSA agrees that these valid Audit Certificates may be used by the Centres as part of publicity. The defendants agree that only fully compliant Centres will receive this Certificate from the BSA, and that the said certificate must be renewed every 12 months if it is used as an i centive for students to enrol.

8. Defendant No. 6 agrees that future franchise agreements will include, as a condition precedent to the franchising arrangement, that all centres will procure and use only legal software of the plaintiff company.

9. Defendant Nos. 4 and 5 shall pay, at the time of recordal of this compromise, a sum of Rs. 50,000/- to Business Software Alliance (BSA) to cover costs, and damages for past infringement in Suit Nos. 451/99, 452/99 and 453/99. The said defendants shall co-operate with the plaintiff to approach the Reserve Bank of India for remitting the said amount to BSA.

10. Defendant Nos. 4 and 5 agree to suffer a decree, which provides for liquidated damages of Rs. 10 lakhs, should the infringing activity recommence in the future.

11. The plaintiffs in association with Business Software Alliance (BSA) and National Association of Software and Services Companies (NASSCOM) will hold a press conference announcing the proposed scheme of legalisation of their software by Defendant Nos. 4 , 5 and 6. Defendant Nos. 4, 5 and 6 agree to the release of a letter of apology during the said press conference. The text of the said letter is annexed along with this compromise application and marked as ''Annexure A''. The said defendants further agree hat the Business Software Alliance may reproduce the said letter of apology at its discretion. The venue and timing of this event is agreed to be at the complete discretion of BSA/NASSCOM, who shall give adequate notice (10 days) to the defendants for the said event.

12. The goods seized by the Local Commissioners in suit Nos. 453/99, 452/99 and 451/99 on 3rd March, 1999 shall be dealt in the following manner, i.e., as regards the hard disks of the computers, the same would be released to the defendants after deletion of the unlicensed versions of the software belonging to the plaintiff company.

13. The above undertakings have been given by Defendant No. 4, Mr. Ashok Azad, Centre Director of Lakhotia Computer Centre, NOIDA Branch, on behalf of Defendant No. 5, and Mr. Suresh Lakhotia, Managing Director LCC Infotech, Calcutta, on behalf of Defendant No. 6. The undertakings given herein shall be binding on all the legal heirs, representatives and assigns-in-business of the said defendants henceforth.

14. In consideration of the aforementioned undertakings by the defendants, the plaintiff company agrees to forego its claim for delivery up, rendition of accounts and costs as prayed in terms of paragraph 43(d), (e) and (g) of the plaint.

15. It is, therefore, prayed that the above Memo of Compromise may be recorded and this Hon'ble Court may be pleased to pass a decree in favor of the plaintiffs in terms of paragraphs 43(a) to (c) incorporating the present Memo of Compromise as a part of the decree."

5. The memos of compromise came up before the single bench trying the suits on 27th May, 1999 who passed near identical orders in all the three suits one of which may be extracted in extenso:-

I.A. 5561/99

This is an application filed under Order 1 Rule 10 CPC.

Issue notice.

Counsel for defendants No. 4 and 5 accepts notice accept notice on behalf of defendant No. 6 also.

I have heard the learned counsel appearing for the plaintiff as also the counsel appearing for defendants No. 4 to 6.

For the reasons stated in the application, defendant No. 6 is allowed to be imp leaded as party defendant in the present suit. Application stands disposed of in terms of the aforesaid order.

Amended memo of parties is on record.

S.No. 452/99 and I.A. 5560/99 By order dated 21.4.1999, a decree was passed in favor of the plaintiff and against defendants No. 1 to 3. Now, a joint application has been filed on behalf of the plaintiff and defendants No. 4 to 6 contending, inter alia, that the parties hereto have arrived at a settlement out of Court on the terms and conditions as stated in the application. The said joint application is signed on behalf of the plaintiff and also on behalf of defendants No. 4 to 6. In support of the averments made in the application, the parties have also sworn affidavits which are on record. The joint application filed by the parties under Order 23 Rule 2 CPC is marked 'Exhibit C-2'.

Defendant No. 4 is present in Court in person.

I have heard the learned counsel appearing for the parties.

I have and also perused the terms and conditions of settlement arrived at between the plaintiff and defendant No. 4 to 6 and find the same to be lawful.

Accordingly, a decree is passed in favor of the plaintiff and against defendants No. 4 to 6 in terms of paragraphs 43(a) to 43(c) of the plaintiff. The plaintiff, however, forgoes its claims for rendition of accounts and costs as prayed for in the relief portion of the plaint.

The suit accordingly stands decreed against defendants No. 4 to 6. Let a decree sheet be prepared and the joint application filed by the parties under Order 23 Rule 3 CPC marked 'Exhibit C-2' shall form part of the decree. The hard disks seized by the Local Commissioner be released in favor of defendant No. 1 in terms of the settlement arrived at between the plaintiff and defendants No. 4 to 6. Parties shall bear their own costs.''

6. Decrees were pursuant to the above and similar other orders passed in other suits drawn up incorporating the terms of the settlement arrived at between the parties. It is not in dispute that the petitioner decree holders have already instituted execution proceedings No. 329/1999, 330/1999 and 331/1999 for the execution of the decrees in their favor in which the executing court has by separate orders all dated 17th October, 2001 appointed local commissioners with a direction to visit the premises of the judgment debtors to find out whether they are still utilising the pirated computer softwares for their commercial enterprises. The local commissioners have pursuant to the said directions visited the spots and submitted their respective reports to the executing court. Suffice it to say that the execution proceedings arising out of the decrees passed in favor of the petitioners are still pending and are being actively pursued by the decree holders.

7. The pendency of the execution proceedings notwithstanding the decree holders have filed the present petitions seeking initiation of criminal contempt proceedings against the respondents and for imposition of a suitable punishment upon them for violation of what according to the petitioners were undertakings given by the respondents, which undertakings they have, as per the petitioners, violated thereby rendering them liable to action in the contempt jurisdiction of this court. On these petitions coming up before this court, notices to the respondents were issued to show cause why proceedings for committing the contempt of court be not initiated against them . Criminal Miscellaneous Applications Nos. 22/2001, 24/2001 and 26/2001 filed by the petitionrs in these contempt petitions were also allowed by this court and local commissioners appointed to find out whether the respondents continued utilising the pirated computer software for their commercial enterprises. The commissioners appointed by this court have also carried out the assignment given to them and submitted their reports which are on record.

8. The respondents have contested these petitions inter alia on the ground that no contempt action can be maintained for the disobedience of the decrees passed in favor of the petitioner decree holders especially when the decrees are under execution in separate proceedings launched for that purpose. It has also been alleged that the respondent judgment debtors have not in any manner violated the terms of the settlement or the decree passed in terms thereof leave alone conducted themselves in a manner t at could be described as contumacious to warrant any penal action against them in the contempt jurisdiction of this court.

9. Appearing for the petitioners, Mr. Chandhiok, learned senior counsel argued that a reading of the terms of settlement arrived at between the parties and the order passed by this court in the same clearly showed that the defendants in the suit, respondents herein, had given an undertaking to this court, the violation whereof would tantamount to contempt and render the respondents liable to punishment. He urged that the reports submitted by the local commissioners appointed by this court clearly establ shed that the respondents were continuing with the use of pirated software despite the undertaking given by them that they shall refrain from doing so. The fact that the undertaking given by the respondents had also become a part of the decree passed by this court and that the decree was under execution in separate proceedings launched for that purpose did not, according to the learned counsel, make any difference in so far as the maintainability of the present contempt petitions were concerned. This court having issued notices in the contempt petitions and taken cognizance of the contempt committed by the respondents, it is according to Mr. Chandhiok unnecessary to examine over again whether or not the present proceedings were maintainable.

10. On behalf of the respondents, Mr. Kailash Vasudev, learned senior counsel, contended that the issue of a show cause notice in the present contempt petitions did not tantamount to a final determination of the question touching the maintainability of the petitions. This court had not, argued the learned counsel, expressed any opinion on the said aspect of the matter nor did the respondents have an opportunity to urge their objections to the maintainability of the petitions. It was further argued tha the undertakings referred to in the settlement arrived at between the parties were not given to the court nor has the court issued any direction or granted any relief in consideration thereof. A careful reading of the terms of the settlement between the parties, according to the learned counsel, made it manifest that the undertakings were no more than promises made by the parties to each other in relation to their mutual rights and obligations under the settlement, the violation whereof could give to the aggrieved party a cause of action to seek redress in appropriate proceedings including proceedings for execution of the decrees but not by way of proceedings in the contempt jurisdiction of this court. It was also argued that the respondents had done verything possible to legalise the use of software owned by the petitioner decree holders and have in fact paid over a crore of rupees for obtaining licenses for such use which sufficiently showed that the respondents had no intention of either violating the terms of the decrees or committing any breach of the promises made by them as regards the use of pirated software.

11. Before we deal with the merits of the contentions urged before us, we may deal with the question whether the issue of show cause notices in these petitions and the subsequent orders passed by this court from time to time can constitute expression of a any opinion as to the maintainability of these petitions. It is true that subsequent to the issue of the notices of show cause, this court has passed a few interim orders but it is equally true that in none of the said orders has the question of maintain bility of these petitions been examined or determined. The net result, therefore, is that these proceedings are at the stage of the issue of a show cause notice only in which it would always be open to the respondents to urge all such contentions as are legally available to them including the contention that the petitions are not maintainable as the undertakings relied upon by the petitioners were not given to the court and could at best entitle the decree holders to seek execution of the decrees for en orcement of the same. The argument that the progress of the proceedings to the present stage must necessarily imply that this court has found them to be maintainable is, in our opinion, without any merit and is accordingly rejected.

12. That brings us to the question whether the present proceedings are legally maintainable. In fairness to the counsel for the respondents, we must mention that he did not dispute the proposition and in our opinion rightly so that if an undertaking is given by a party to the court, the violation of any such undertaking would tantamount to contempt and would, therefore, be actionable under the Contempt of Courts Act. The argument of the respondents, however, is that no such undertaking was ever given by the respondents nor was the same accepted or acted upon by the court while passing any interim or final order so as to call for any action in contempt. The case of the petitioners, on the other hand, is that the undertakings referred to in the compromi e memos filed in the original suits constituted an undertaking to the court even when neither the memo nor the order passed by the court on the basis thereof specifically stated so. It was in the alternative contended that an undertaking given by a party is according to the long standing practice of this court always treated as an undertaking to the court with the result that even if the undertaking becomes a part of a compromise decree as it happened in the instant case, it would continue to be an undrtaking to the court on which action for contempt would be maintainable.

13. The juristic basis on which the disobedience of an undertaking given to the court would constitute contempt is settled by the decision of the Supreme Court in Babu Ram Gupta v. Sudhir Bhasin and Anr. . In that case, the court while examining a similar question, observed that a breach of an undertaking given to the court amounts to contempt of the court as the contemner by making a false representation obtains from the court a benefit for himself and if he fails to honour the undertaken , he plays a fraud on the court thereby disrupting the course of justice and bringing into disrepute the judicial institution. The same, observed their lordships, was not true of a consent order or a compromise decree where the fraud, if any, is practis d by the person concerned not on the court but on one of the parties. In the latter situation, since the offence committed by the person committing the breach, is qua the party and not the court, the very foundation for proceeding against him in contempt jurisdiction is completely absent. The court enunciated the above principle by reference to two instances in which the defendant in a compromise decree agrees to pay the amount or put the decree holder in possession of the property but fails to honour that promise. In either of these situations, observed their lordships, there was no question of proceeding against the defendant in the contempt jurisdiction of the court for the breach of the promise. The following passage is in this connection apposi e :-

"Take the instance of a suit where the defendant agrees that a decree for Rs. 10,000 may be passed against him and the court accordingly passes the decree. The defendant does not pay the decree. Can it be said in these circumstances that merely because the defendant has failed to pay the decretal amount he is guilty of contempt of court? The answer must necessarily be in the negative. Take another instance where a compromise is arrived at between the parties and a particular property having been allotted to A, he has to be put in possession thereof by B. B does not give possession of this property to A. Can it be said that because the compromise decree has not been implemented by B, he commits the offence of contempt of court? Here also the answer must be in the negative and the remedy of A would be not to pray for drawing up proceedings for contempt of court against B but to approach the executing court for directing a warrant of delivery of possession under the provisions of the Code of Civil Procedure. Indeed, if we were to hold that non-compliance of a compromise decree or consent order amounts to contempt of court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all.''

14. The use of the word ''undertake'' in a compromise petition filed by the parties before the court or the decree which the court passes on the basis whereof is in the light of the above authoritative pronouncement of the Apex Court wholly inconsequential. Just because in the compromise arrived at between the parties, one party undertakes to do an act be it payment of money, delivery of possession or otherwise would not imply that the party making such a promise is doing so to the court. The word ''underake'' no doubt implies a promise but what is important is whether the promise is being made to the party to the proceedings or to the court. An answer to that question would invariably depend upon the facts and circumstances of each case and the phraseolgy used by the parties to the proceedings. In the absence of any indication that the party making the promise intended to do so qua the court, the ordinary inference arising from the use of any word in a document executed between two parties is that the promise is made to the other party. We are in this regard in respectful agreement with the following observations made by the High Court of Calcutta in Nisha Kanto v. Saroj Bashini "But as I have stated the mere user of the word ''undertake'' does not mean a promise to a court. It merely means a solemn promise to some one and where the word appears in an agreement between A and B, it appears to me that if A undertakes, he obviously ndertakes to B, and not to a court."

15. Reliance placed by Mr. Chandhiok on the terms of the settlement arrived at between the parties and in particular on clauses 4, 13 and 14 of the settlement in which the parties have used the expression ''undertake'' is, therefore, misplaced for there is nothing in the said clauses or in any other clause appearing in the settlement to show that the undertakings or the promises made therein were made to the court and not to the plaintiffs petitioners herein. As a matter of fact, the stipulation contained in para 14 of the settlement is a clear indication to the contrary and shows that the promises contained therein were made to the plaintiff companies and not to the court. That is because in para 14, the plaintiff companies have in consideration of the ndertakings given by the defendants foregone their claim for rendition of accounts and costs as prayed for in their respective plaints. An undertaking in consideration whereof one of the parties to the lis agrees to forego a claim made against the part giving the undertaking is by plain logic an undertaking given to the party and not to the court. That position can be elucidated by reference to an undertaking where the defendant seeks from the court a favor or concession, as for instance, grant of time to vacate the premises in his occupation and the court allows such a concession subject to the defendant furnishing an undertaking that he shall voluntarily surrender possession or do any other act stipulated by the court for that purpose by a given ate. In such a situation, the undertaking is given to the court who in consideration thereof passes an order granting a relief or concession which it may not have granted if the defendant did not agree to give the undertaking demanded by the court. The consideration for the undertaking then flows from the court in the form of an order just as the consideration in the instant cases flowed from the plaintiffs by their giving up the claim for rendition of accounts, costs and mesne profits.

16. Mr. Chandhiok, all the same argued on the authority of a Full Bench decision of this court in Sardari Lal v. Ram Rakha, that the use of the word ''undertaking''or ''undertake'' must in all situations implies that the same has been furnished to the court and not to any party to the list. We have carefully gone through the decision relied upon by Mr. Chandhiok but find it difficult to hold that it lays down any proposition like the one profounded by Mr. Chandhiok. The parties had in the case entered into an amicable settlement under which the tenant was to withdraw his appeal which he did withdraw. The tenant had sought time to vacate the premises in his occupation till 15 days after the decision in the Letters Patent Appeal filed by him before this court. The court had accordingly passed an order by which the appeal filed by the tenant was dismissed as withdrawn but time was given to the tenant to vacate the premises and for payment of arrears of rent as prayed by him. The question that fell for consideration was whether the statement made by the tenant before this court constituted an undertaking to surrender possession of the premises within 15 days of the disposal of his appeal so as to provide a basis for his committal for conte pt if he failed to do so. The Full Bench answered that question in the affirmative and held that on an interpretation of the terms of the settlement and the practice of this court, the undertaking was given to the court which had exactly the same forces an order made by the court so that the breach of any such undertaking would constitute contempt. What is important is that the court did not lay down any absolute or inflexible rule of interpretation. It, on the contrary, made it clear that the word undertake'' used in the statement of a party or his counsel or in the orders passed by the court would imply an undertaking to the court unless the context otherwise suggested. That is precisely the position in the instant case. The context in which the settlement uses the said expressions leaves no manner of doubt that the undertakings were given to the plaintiffs, in consideration whereof they had abandoned some of the claims made against the defendants. The court had while accepting the settlement n ither referred to any undertaking provided by one or the other party nor accepted the same while granting any relief. The court had simply passed decrees in terms of the memos of compromise without making any additions or alterations to what the parties had agreed to. As observed by S.B. Sinha CJ (as his lordship then was) in Hindustan Motors Limited v. Amritpal S. Nayar , a court dealing with a compromise placed before it by the parties under Order XXIII Rule 3 of the CPC has merely o satisfy itself that the compromise is not unlawful. It has no jurisdiction to go beyond the compromise and direct the parties to do something which is not contemplated under the agreement. The question of the court demanding an undertaking for passin any further order apart from putting its imprimatur on the settlement arrived at between the parties did not, therefore, arise. A compromise decree, it is well settled, is no more than an agreement between the parties with the seal of the court super a ded to it. Suffice it to say that there was no real occasion for the court to demand an undertaking for its jurisdiction to pass any order based on a compromise arrived at between the parties was limited to satisfying itself whether the settlement is la ful. Once the answer to that question was in affirmative, the court has to simply lend its seal to the settlement as indeed it did in the present case.

17. Reliance was also placed by Mr. Chandhiok on the judgment of the Supreme Court in Bank of Baroda v. Sadruddin Hasan Daya and Anr. , in support of the contention that even if an undertaking becomes a part of the decree passed by the court, the breach of the same would be actionable in the contempt jurisdiction of the court. That decision does not, in our view, declare the law differently from what has been stated in Babu Ram Gupta v. Sudhir Bhasin and Anr. . The court in that case was also dealing with undertakings which had been furnished to the court as is evident from a reading of the terms extracted at pages 364 and 365 of the report. What is important is that if an undertaking is given to the court which becomes a art of the decree then even when the decree may be executable by itself, the breach of the undertaking would provide a cause of action to the aggrieved party to initiate action for contempt. The real issue, therefore, is not whether the breach of an undertaking contained in a compromise decree is actionable in contempt. The issue is whether any undertaking was at all given to the court regardless whether the same was incorporated in the decree or otherwise. If the answers be in the affirmative, the branch would be punishable for an undertaking to the court if violated must call for a penalty for the person who has committed the breach. But where the undertaking is not to the court but to a party to the proceedings no action for contempt can lie. Its immaterial whether such an undertaking to the opposite party is a part of the decree or otherwise.

18. As noticed earlier, the undertaking in the instant case was to the plaintiffs and not to the court. The alleged breach of the said undertakings cannot, therefore, provide a sound basis for initiating action in contempt against the respondents. As observed by the Supreme Court in R.N. Dey and Ors. v. Bhagyabati Pramanik and Ors. , the weapon of contempt cannot be used for purposes of executing a decree or implementing an order for which the law provides appropriate proceedings. Contemp eventually remains a matter between the court and the contemner. An aggrieved person has no right to insist that the court must necessarily take action in the exercise of its contempt jurisdiction.

19. We must before parting observe that the allegations made against the respondents are serious for if the petitioners were to be believed, the respondents continue to use pirated software in the computer training centres run by them at different places. This affects the petitioners and may even affect others who are provided training on the basis of such software. This courts' refusal to take action in its contempt jurisdiction should not be understood to mean that the court is approving of the alleed violation of valuable rights vested in the petitioners. But then the petitioners are not without an effective remedy in law. They have instituted execution proceedings in which they are entitled to seek appropriate redress. Parallel proceedings in tituted in the contempt jurisdiction of this court do not appear to us to be well-founded, in the facts and circumstances of these cases.

20. In the result, these petitions fail and are hereby dismissed but in the circumstances without any order as to costs.