Apex Computers Pvt. Ltd. vs Sh. Rajiv Kapoor
2009 Latest Caselaw 280 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                     Reserved on: January 14, 2009

                                      Date of Decision: January 28, 2009


                                C.R.P. 48/2008

       SANTOSH KAPOOR                  ..... Petitioner
                    Through: Mr. Sikandar Arora, Advocate.

                       versus


       APEX COMPUTERS P. LTD.                ..... Respondent
                    Through: Mr. S.R. Sharma, Advocate

                                        AND

                            CONT. CAS(C) 557/2008

       APEX COMPUTERS PVT. LTD.          ......Petitioner
                      Through: Mr. S.R. Sharma, Advocate
                Versus

       SH. RAJIV KAPOOR                        ......Respondent
                      Through: Mr. Sikandar Arora, Advocate.


CORAM:
HON'BLE MR. JUSTICE MANMOHAN

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not?                                          Yes
3. Whether the judgment should be reported in the Digest?                          Yes


                                JUDGMENT

MANMOHAN, J

1. By way of the present judgment, I am disposing of a Civil Revision

Petition being CRP No. 48/2000 and a Civil Contempt Petition being Cont.

Cas.(C) 557/2008 as facts are common to both the proceedings.

2. The CRP No. 48/2008 has been filed under Section 115 of the Code of

Civil Procedure, 1908 (hereinafter referred to as 'CPC'), by Mrs. Santosh

Kapoor seeking setting aside of the order dated 12th February, 2008 passed

by the Additional District Judge, Delhi in RCA No. 16 of 2007 as well as

quashing of order dated 11th December, 2006 passed by Civil Judge, Delhi in

Execution Case No. M-7/2004, whereby Mrs. Santosh Kapoor's objection

application to the warrants of attachment with respect to DDA Flat No. C-

58C, Shalimar Bagh (hereinafter referred to as 'DDA flat') was dismissed.

3. Cont. Cas.(C) No. 557/2008 has been filed by the Apex Computers

against Mr. Rajiv Kapoor, son of Mrs. Santosh Kapoor under Article 215 of

the Constitution and Sections 10 and 12 of the Contempt of Courts Act

alleging willful breach by Mr. Rajiv Kapoor of undertakings given to the

Courts on 7th December, 2002, 24th February, 2003 and 3rd September, 2004.

4. Briefly stated the material facts are that M/s Apex Computers Pvt. Ltd.

filed a suit against M/s Welcome Enterprises for recovery of Rs. 1,61,977/-

along with pendent lite interest and future interest at the rate of 21% per

annum. Since despite service defendant did not enter appearance, defendant

was proceeded ex parte and the suit was decreed for a sum of Rs. 1,61,977/-

together with interest thereon at the rate of 15 % per annum from the date of

filing of the suit till realization. It is pertinent to mention that admittedly Mr.

Rajiv Kapoor is the sole proprietor of M/s. Welcome Enterprises and that the

suit for recovery was based on dishonoured cheques.

5. In proceedings filed under Section 138 of the Negotiable Instruments

Act, 1881, Mr. Rajiv Kapoor on 7th December, 2002 undertook to pay

Rs.1,50,000/- by 3rd February, 2003 to M/s Apex Computers Pvt. Ltd. On

such an undertaking being given by Mr. Rajiv Kapoor, M/s Apex Computers

Pvt. Ltd. undertook not to execute the civil decree against him.

6. As Mr. Rajiv Kapoor failed to make payment by 3rd February, 2003,

the Additional Sessions Judge (in short 'ASJ') forfeited his bail bond and

issued non-bailable warrants against him.

7. On Mr. Rajiv Kapoor furnishing a pay order of Rs. 30,000/-, the ASJ

on 24th February, 2003 gave time to Mr. Rajiv Kapoor till 30th September,

2003 to settle the dispute with M/s Apex Computers Pvt. Ltd. in accordance

with the order dated 7th December, 2002. In the said order Mr. Rajiv Kapoor

undertook to pay interest at the rate of 8% on the outstanding amount of Rs.

1,20,000/- from the said date.

8. This Court on 26th September, 2003 by an ex parte order allowed a

Criminal Misc. (M) Petition filed by Mr. Rajiv Kapoor and set aside the

order dated 3rd February, 2003 as well as the subsequent orders passed by the

ASJ for procuring the presence of accused Mr. Rajiv Kapoor.

9. However, in execution proceedings filed by M/s Apex Computers Pvt.

Ltd., Mr. Rajiv Kapoor on 20th August, 2004 agreed to pay a sum of Rs.

1,70,000/- in full and final settlement of the decree. Mr. Rajiv Kapoor

further agreed before the Civil Judge to give post-dated cheques totaling to

Rs. 1,70,000/- on the next date of hearing. On such a statement being made

by Mr. Rajiv Kapoor, M/s Apex Computers Pvt. Ltd. undertook not to press

the criminal proceedings filed by them against Mr. Rajiv Kapoor.

10. In accordance with the aforesaid undertaking, Mr. Rajiv Kapoor

furnished twelve post-dated cheques amounting to Rs. 1,70,000/-. In fact, on

3rd September, 2004, Mr. Rajiv Kapoor undertook on solemn oath before the

Civil Judge that all the twelve post-dated cheques given by him would be

honoured on the respective dates of their encashment and "that in case any of

the cheques given by me (Rajiv Kapoor) today in court gets dishonoured, I

(Rajiv Kapoor) shall be liable to make payment of entire decreetal amount

along with interest."

11. Mr. Rajiv Kapoor vide his letter dated 29th September, 2004 requested

M/s Apex Computers Pvt. Ltd. to deposit the first post-dated cheque on 15th

October, 2004 instead of 30th September, 2004 on the ground that he had to

bear some unforeseen expense on account of his mother's ailment. M/s Apex

Computers Pvt. Ltd. accepted the request of Mr. Rajiv Kapoor and delayed

the deposit of the cheques.

12. But when the cheques were presented on 15th October, 2004, they

were dishonoured by the Bank on the ground of insufficient funds. Upon

dishonour of the first two cheques, M/s Apex Computers Pvt. Ltd. once again

revived the execution proceedings and on 6th May, 2005, the Executing Court

issued warrants of attachment against the immovable property of Mr. Rajiv

Kapoor.

13. On 5th July, 2005, Mr. Rajiv Kapoor's mother Smt. Santosh Kapoor

filed an objection application on the ground that Mr. Rajiv Kapoor had left

her house and she had disowned her son vide public notice dated 2nd July,

2005. In the said application, it was prayed that the Executing Court should

not issue any warrants in respect of the premises being DDA flat which

belonged to her. However, the Executing Court vide its order dated 11th

December, 2006 dismissed Smt. Santosh Kapoor's application on the ground

that she had nowhere stated that Mr. Rajiv Kapoor did not have any right,

title or interest in the immovable property at Shalimar Bagh. The Executing

Court further held that Smt. Santosh Kapoor had not filed any title deed

showing her title in the property despite the fact that M/s Apex Computers

Pvt. Ltd. had taken the stand that Mr. Rajiv Kapoor was the absolute owner

of the DDA flat as the said property stood in the name of his father.

14. In October, 2006, M/s Apex Computers Pvt. Ltd. also filed a contempt

petition before the Executing Court against Mr. Rajiv Kapoor.

15. Smt. Santosh Kapoor filed an application for review before the

Executing Court on the ground that she was owner of DDA flat by virtue of a

Will left behind by her husband. However, the said review application was

also dismissed by the Executing Court on 12th May, 2007 on the ground that

the title of Smt. Santosh Kapoor with respect of the said property had already

been decided by it, while disposing of her initial objection application.

16. On 7th July, 2007 upon an application being made by M/s Apex

Computers Pvt. Ltd. the Civil Judge corrected a few typographical errors in

the order dated 12th May, 2007 and issued fresh warrants of attachment with

regard to DDA flat.

17. On 12th February, 2008, Smt. Santosh Kapoor's appeal challenging the

Civil Judge's order dated 11th December, 2006 was dismissed by the

Additional District Judge (in short 'ADJ') on the ground that the same was

barred by limitation and that further on merits no case was made out as the

objection application nowhere stated that the property in question did not

belong to Mr. Rajiv Kapoor or that Mr. Rajiv Kapoor had no share in the said

property.

18. It is pertinent to mention that, in the meantime, Smt. Santosh Kapoor

filed a probate petition being PC No. 69 of 2007 claiming to be the exclusive

owner of DDA flat on the basis of an alleged unregistered, handwritten Will

dated 20th December, 2002 left behind by her husband, Sh. Upinder Nath

Kapoor who passed away on 22nd December, 2003. However, the Probate

Court vide its judgment and order dated 5th April, 2008 dismissed the said

probate case on the ground that Smt. Santosh Kapoor had failed to prove the

execution of the alleged Will, in accordance with law. The relevant

observations of the Court while dismissing the probate case are reproduced

hereinbelow for ready reference:-

" The mandatory requirement of law is that a will must be attested by two persons. I have perused the original will. It was not executed in the presence of anybody else. There is not even a single attesting witness of the will. Even the petitioner has not proved the signature of the testator on this will. The requirement of due execution of a will under Section 63(c) of the

Succession Act is its attestation by two or more witnesses. There is not even a single attesting witness of this will hence it is no will in the eyes of law. Even if it is a handwritten will is not proved because the petitioner has not deposed in her affidavit that this will was executed in her presence or it was signed by Upinder Nath Kapoor in her presence. She has not even identified the signature of Upinder Nath Kapoor on this will. No other evidence was lead by the petitioner and respondent preferred not to lead any evidence in this case. Even if the entire affidavit filed by the petitioner is admitted as a gospel truth, the petitioner has failed to prove the execution of the will as per law. Hence the petition is hereby dismissed."

19. In the meantime, M/s Apex Computers Pvt. Ltd. withdrew the

contempt petition which they had filed before the Executing Court and filed a

fresh contempt petition being Cont. Cas.(C) No. 557 of 2008 before this

Court alleging that Mr. Rajiv Kapoor had deliberately and willfully breached

his own undertaking given on 3rd February, 2003 and on various other dates

before the Executing Court and the Criminal Court.

20. As far as the civil revision petition filed by Smt. Santosh Kapoor is

concerned, it is an admitted position that DDA flat initially belonged to Sh.

Upinder Nath Kapoor. Since the probate petition filed by Smt. Santosh

Kapoor has been dismissed, I am of the view that at this stage I will have to

proceed on the basis that there is no Will executed by Sh. Upinder Nath

Kapoor. Consequently, in accordance with the Succession Act, the property

of Late Sh. Upinder Nath Kapoor would devolve upon all his legal heirs in

equal share which would include his wife Smt. Santosh Kapoor, his son Mr.

Rajiv Kapoor and three daughters. The share of Mr. Rajiv Kapoor would

only be one-fifth in the DDA flat and, therefore, to the extent of Mr. Rajiv

Kapoor's share which is one-fifth undivided share in the said flat, I confirm

the attachment order.

21. Learned counsel for Mr. Rajiv Kapoor advanced two defences in the

contempt petition. He firstly submitted that breach of an undertaking can

never amount to a contempt. Secondly, he submitted that the present

contempt petition filed by M/s Apex Computers Pvt. Ltd was barred by

limitation as the same was based on an undertaking given to the Executing

Court on 3rd September, 2004 whereas admittedly the present contempt

petition was filed in this Court on 18th September, 2008 and even if the initial

contempt filed before the Executing Court in October, 2006 was taken into

account, then also the contempt petition would be barred by limitation, as

under Section 20 of the Contempt of Courts Act, a contempt petition has to

be filed within one year from the date on which the contempt is alleged to

have been committed - which according to him happened in September

2004. In this connection he relied upon judgment of the Hon'ble Supreme

Court in Ompraksh Jaiswal vs. D.K. Mittal and Anr. reported in (2000) 3

SCC 171 wherein it has been held as under :-

"18. In the case at hand the order which was passed on 15-1-1987 had called upon the respondents only to show cause why contempt proceedings be not initiated. After the cause was shown the Court was to make up its mind whether to initiate or not to initiate proceedings for contempt. It was not an initiation of proceedings. We will ignore the order dated 16-2-1987 as it was not signed. But the order dated 6-1-1988 issuing notices to the opposite parties to show cause why they be not punished for disobeying the order

dated 9-12-1986, shows and it will be assumed that the Court had applied its mind to the facts and material placed before it and had formed an opinion that a case for initiating proceedings for contempt was made out. Need for issuance of such notices was conceded to by the Advocate General as also by the counsel for the respondents. That is why it directed the respondents to be called upon to show cause why they be not punished for disobedience of the order of the Court. The proceedings were therefore initiated on 6-1-1988 and were within the limitation prescribed by Section 20 of the Act. The impugned order directing dropping of the proceedings is based on an erroneous view of Section 20 of the Act and hence is liable to be set aside.

22. Learned Counsel for Mr. Kapoor also referred to Rajni Rani Gupta

vs. Babu Ram and Ors. reported in (2001) 58 DRJ 206 wherein it has been

held as under :-

"2. Under Section 20 of the Contempt of Court Act, no Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. In the present case, according to the petitioner, the contempt was allegedly committed in early 1994 when the property was sold by respondents 1 & 2 to respondent No. 3. The Supreme Court in a recent judgment in Om Parkash Jaiswal v. D.K. Mittal and Anr., has held that proceedings in accordance with the provisions of Section 20 of the Act can be said to have been initiated only when the Court forms an opinion by an application of mind that a prima facie case of initiation of proceedings is made out and accordingly issues notice to the alleged contemner to show cause why he be not punished for contempt. It was further held by the Court that mere issuance of notice calling upon the alleged contemner to show cause why contempt proceedings be not initiated would not

amount to initiation of proceedings for contempt for the purpose of Section 20. Since in the present case only a notice calling upon the alleged contemner to show cause why contempt proceedings be not initiated has been issued, this case is fully covered by the judgment of the Supreme Court. A period of more than one year has already passed from the alleged commission of contempt and this petition in view of the judgment of the Supreme Court is clearly barred by Section 20 of the Act and the same is accordingly dismissed."

23. In my opinion, breach of an undertaking given to a Court amounts to

contempt as would be apparent from the categorical and explicit definition of

'Civil Contempt' under Section 2(b) of the Contempt of Courts Act, 1971.

The said Act defines civil contempt as under :-

"2. Definitions.- In this Act.............

(b) "civil contempt" means willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court;"

(emphasis supplied)

24. Even the Hon'ble Supreme Court in Bank of Baroda v. Sadruddin

Hasan Daya & Anr., reported in (2004) 1 SCC 360 has placed this issue

beyond controversy by holding as under :-

"14. 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 installments 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."

(emphasis supplied)

25. As far as the defence with regard to limitation is concerned, the two

judgments referred to and relied upon by the learned Counsel for petitioner

stand overruled in the case of Pallav Sheth vs. Custodian and Ors. reported

in (2001) 7 SCC 549 wherein it has been held as under :-

"42. The decision in Om Prakash Jaiswal's case (supra), to the effect that initiation of proceedings under Section 20 can only be said to have occurred when the Court formed the prima facie opinion that contempt has been committed and issued notice to the contemner to show-cause why it should not be punished, is taking too narrow a view of Section 20 which does not seem to be warranted and is not only going to cause hardship but would perpetrate injustice. A provision like Section 20 has to be interpreted having regard to the realities of the situation. For instance, in a case where a contempt of a subordinate court is committed a report is prepared whether on an application to Court or otherwise, and reference made by the subordinate court to the High Court. It is only thereafter that a High Court can take further action under Section 15. In the process, more often than not, a period of one year elapses. If the interpretation of Section 20 put in Om Prakash Jaiswal's case (supra) is correct, it would mean that notwithstanding both the subordinate court and the High Court being prima facie satisfied that contempt has been committed the High Court would become

powerless to take any action. On the other hand, if the filing of an application before the subordinate court or the High Court making of a reference by a subordinate court on its own motion or the filing an application before an Advocate-General for permission to initiate contempt proceedings is regarded as initiation by the Court for the purposes of Section 20, then such an interpretation would not impinge on or stultify the power of the High Court to punish for contempt which power, dehors the Contempt of Courts Act, 1971 is enshrined in Article 215 of the Constitution. Such an interpretation of Section 20 would harmonise that section with the powers of the Courts to punish for contempt which is recognised by the Constitution."

(emphasis supplied)

26. Moreover, I am of the view that failure to pay the amount undertaken,

amounts to a contempt which in a situation of this nature is a continuous

wrong. Therefore, in my view, the present contempt petition is not barred by

limitation as prescribed in Section 20 of the Contempt of Courts, Act. In this

connection, the following observations of the Hon'ble Supreme Court in the

case of Firm Ganpat Ram Rajkumar v. Kalu Ram & Ors., reported in AIR

1989 SC 2285, are relevant:-

"7. Another point was taken about limitation of this application under Section 20 of the Act. Section 20 states that no court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. In this case, the present application was filed on or about 3rd November, 1988 as appears from the affidavit in support of the application. The contempt consisted, inter alia, of the act of not giving the possession by force of the order of the learned Sr. Sub- Judge, Narnaul dated 3rd November, 1988. Therefore, the application was well within the period of one year.

Failure to give possession, if it amounts to a contempt in a situation of this nature is a continuing wrong. There was no scope for application of Section 20 of the Act."

(emphasis supplied)

27. In fact, from the aforementioned facts, I am of the view that right from

the inception Mr. Rajiv Kapoor had no intention of paying any amount and

he agreed for a settlement and gave post-dated cheques as well as repeated

undertakings, including the last one on 3rd September, 2004, only with the

intent of gaining time and delaying the execution proceedings. Mr. Rajiv

Kapoor intentionally and deliberately adopted such a course of action, despite

having the option of selling at least his share of the DDA flat in order to

comply with his undertaking. Consequently, I am of the opinion that it is a

clear case of willful breach of an undertaking given to the Executing Court

and I hold the petitioner guilty of contempt and I list the matter for arguments

on sentence on 9th March, 2009.

MANMOHAN, J

January 28, 2009 sb/rn