Shakti Towers P.Ltd. vs Prof. J.D.Agarwal
2009 Latest Caselaw 754 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CONT.CAS(C) 280/2008

%                                  Date of Decision : 5th March, 2009.

SHAKTI TOWERS P.LTD.                            ..... Petitioner
                  Through                       Mr. Dinesh Garg with
                                                Ms. Rachna Agrawal,
                                                Advocates

                                   Versus

PROF. J.D.AGARWAL                               ..... Respondent
                            Through             Mr. O.P. Khadaria,
                                                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:- (Oral)

1. Present Contempt Petition has been filed under Sections

11 and 12 of Contempt of Courts Act, 1971 for wilful breach of

undertaking dated 30th October, 2007 as well as order dated 5th

February, 2007 passed in EFA No. 12/2007.

2. Mr. Dinesh Garg, learned Counsel for petitioner states that

in pursuance to respondent's aforesaid undertaking, respondent

had to hand over vacant peaceful physical possession of tenanted

premises on or before 30th April, 2008, but he failed to do so. He

further pointed out that respondent had, in fact, subsequent to

the undertaking filed a suit being CS(OS) No. 1978/2008 seeking

cancellation of conveyance deed dated 28th June, 2005 in respect

of tenanted premises executed by DDA in favour of present

petitioner and also for a declaration that ejectment decree dated

16th September, 2004 was a nullity. Learned Counsel further

stated that ejectment decree dated 16th September, 2004 was the

foundation/basic proceeding on the basis of which EFA No.

12/2007 had been filed and it was only in this EFA that

respondent had given his undertaking to vacate the tenanted

premises by 30th April, 2008.

3. Mr. Garg also drew my attention to order dated 13th

October, 2008 passed in execution petition No. 321/2007 which

shows that respondent herein had filed an application for stay

under Order 21 Rules 29 and 58 read with Section 151 CPC for

stay of warrant of possession issued in favour of petitioner with

regard to tenanted premises. The said order is relevant to the

present proceedings and is reproduced hereinbelow :-

"13.10.2008

PRESENT : Counsel for Decree Holder Shri Vijay Zaveri Counsel for Judgment Debtor Shri OP Khadaria

Photocopy of documents filed on behalf of Judgment Debtor, copy supplied.

Arguments have been heard on the application for stay under Order 21 Rule 29 and 58 read with Section 151 CPC moved by the Judgment Debtor. It is alleged that suit for declaration challenging the Judgment and Decree is pending in the Hon'ble High Court and is fixed for 11.11.2008.

Learned counsel for Decree Holder has opposed the application and stated that the suit of Judgment Debtor is fixed for arguments on maintainability. It is also alleged that no stay has been granted in the said suit.

However, learned counsel for the Judgment Debtor states that the said application for stay is pending and is fixed for 11.11.2008.

Learned Counsel for Judgment Debtor seeks adjournment, at request adjourn for 17.11.2008. In case no stay is granted execution would proceed.

Warrants of possession which were issued for 17.10.2008 are stayed till next date of hearing. Put up on date fixed i.e. 17.11.2008."

4. In fact, Mr. Garg stated that petitioner was able to obtain

possession of tenanted premises only on 22nd October, 2008 and

that too, by virtue of this Court's order dated 17th October, 2008.

Mr. Garg pointed out that in the said order Hon'ble Mr. Justice

S.N. Dhingra had directed respondent to personally appear in

Court and to explain as to why he should not be sent to jail and

penalised for non-compliance of his undertaking. Since the

order dated 17th October, 2008 is relevant to the present

proceedings, it is reproduced hereinbelow :-

"On 5th November 2007 respondent had given an undertaking that he shall hand over the peaceful and vacant possession of the premises being No.4-CC, Ashok Vihar, Delhi to the petitioner on or before 30th April 2008 and an amount of Rs.41,29226/-, deposited with the Court, be paid to the petitioner.

It is submitted by counsel for the respondent that the respondent later on came to know that the petitioner was not the owner of the premises and he filed a suit for declaring the decree as null and void.

I consider that irrespective of the discovery made by the respondent regarding new facts qua ownership of the premises, he was bound by the undertaking. It is to be noted that the JD (respondent herein) had contested right up to the Supreme Court and lost and it is only thereafter that this undertaking was given to the Court. In my view the conduct of the respondent shows that he has no intention of handing over the possession of the premises in question to the petitioner. Since the respondent has not abided by the undertaking furnished by him in the Court, he is bound to face the contempt proceedings apart from taking coercive measures by this Court for recovery of possession.

It is submitted by counsel for the respondent that he had vacated the premises but the same was lying locked still in possession of the respondent.

SHO Police Station Ashok Vihar is directed to break open the lock of the premises in question, make inventory of the goods lying there, if any, take those goods in his possession and hand over the peaceful vacant possession of the same to the petitioner by the evening of 27th October 2008.

The counsel for the respondent submits that there is a judgment of the Supreme Court where it is recorded that any decree obtained by fraud is non est. In case the respondent succeeds in his current suit filed for declaration of the decree as null and void, he would then have remedy of re-obtaining the possession back, but once an undertaking is given to the Court after having lost the matter right up to Supreme Court, he is bound to abide by the undertaking given by him in the Court and the undertaking cannot be brushed aside merely because the respondent is clever enough to file one suit after another. The respondent/JD shall appear in person on the next date of hearing as to why he should be sent to jail and be penalized for non compliance of his undertaking given to the Court on 6th November 2008.

Dasti to the petitioner as well as a copy of this order be sent to SHO Police Station Ashok Vihar for compliance.

List on 6th November, 2009."

5. Mr. Garg contended that respondent is still persisting with

his contumacious conduct by not paying the admitted

outstanding arrears of rent upto 30th April, 2008 amounting to

Rs. 3,22,912/-. He further stated that respondent has not paid

any amount for not handing over possession of the tenanted

premises from 30th April, 2008 to 22nd October, 2008. According

to Mr. Garg, the admitted rate of rent was Rs. 3,00,000/- per

month.

6. On the contrary, Mr. O.P. Khadaria, learned Counsel for

respondent submitted that respondent had vacated the tenanted

premises on 15th April, 2008 and was always ready and willing to

hand over possession of tenanted premises. He stated that no

one from petitioner's side had contacted the respondent and,

therefore, he could not hand over vacant physical possession of

tenanted premises to petitioner. He stated that respondent had

written numerous letters to petitioner to take over possession

but all these letters were returned back to respondent with a

noting that petitioner had changed its address.

7. He further submitted that there was no bar in law in filing

a suit challenging petitioner's conveyance deed on independent

grounds. He further stated that respondent had filed an

application for stay in execution petition only in the month of

October, 2008 as petitioner was not taking over possession of

tenanted premises.

8. Mr. Khadaria also referred to the following judgments :-

A) Babu Ram Vs. Sudhir Bhasin reported in AIR 1979 SC

1528 wherein it has been held as under :-

"It is well settled that while it is the duty of the court to punish a person who tries to obstruct the course of justice or brings into disrepute the institution of judiciary this power has to be exercised not casually or lightly but with great care and circumspection and only in such cases where it is necessary to punish the contemner in order to uphold the majesty of law and the dignity of the courts."

B) Jiwani Kumar Parekh vs. Satyabrata Chakravorty

reported in AIR 1991 SC 326 wherein it has been held as

under:-

"In our opinion, before a party can be committed for contempt, there must be a wilful or deliberate disobedience of the orders of the Court. In the present case, we do not find that any such wilful or deliberate or reckless disobedience of our order dated Jan. 16, 1990, has been committed by the respondent to the contempt petition. Hence, the contempt petition is dismissed. There will be no order as to costs.

C) Sukhdev Singh Vs. Hon'ble C.J. Teja Singh and

Hon'ble Judges of the High Court at Patiala reported in AIR

1954 SC 186 wherein it has been held as under :-

"The power of a High Court to institute proceedings for contempt and punish when necessary is a special jurisdiction which is inherent in all Courts of Record. Section 1(2) of Criminal P.C. expressly excludes special jurisdictions from its scope. Hence, the Code of Criminal Procedure does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself."

9. Mr. Khadaria further submitted that in view of Section 13

of Contempt of Courts Act, 1971 if a party commits a breach of

any order and if that breach is only of a technical nature, then a

contemnor should not be punished. Section 13 of Contempt of

Courts Act, 1971 is reproduced hereinbelow for ready reference:-

"13. Contempt's not punishable in certain cases- Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice."

10. Having considered the rival contentions of both the parties,

the factual position that emerges is that subsequent to a decree

of ejectment dated 16th September, 2004, respondent had given

an undertaking in EFA No. 12/2007 that he would vacate the

tenanted premises on 30th April, 2008 and would hand over its

vacant peaceful physical possession to petitioner herein.

However, I find that respondent herein has not placed on record

any document to show that he contacted the petitioner to hand

over possession of tenanted premises. On the contrary, during

the course of arguments Mr. Khadaria argued before this Court

that it is the petitioner who should have contacted the

respondent to take over possession of the tenanted premises.

This in my opinion, is completely contrary to the language and

intent of the undertaking given by respondent.

11. In the reply filed by respondent to contempt petition, I do

not find any averment or any document to show that respondent

had written any letter to petitioner agreeing to hand over vacant

peaceful physical possession of tenanted premises. Moreover,

even if petitioner was either not willing to take back possession

of tenanted premises or was not responding to respondent's

communication, the only alternative for respondent was to move

the Court, to which he had given an undertaking, to deposit the

keys. Instead of adopting such a course, which any reasonable

law abiding citizen would have adopted, respondent herein not

only filed an application in petitioner's execution petition under

Order 21 Rules 29 and 58 of CPC but also obtained stay of

warrant of possession issued in petitioner's favour. Respondent

did not stop at that, he even went to the extent of filing a civil

suit being CS(OS) No. 1978/2008 praying for a declaration that

ejectment decree dated 16th September, 2004 be declared a

nullity, even though it formed the foundation of execution

proceedings in which respondent himself had given an

undertaking to vacate the tenanted premises.

12. Moreover, on a perusal of the present contempt

proceedings, I find that my learned Predecessor on 17th October,

2008 had passed an order wherein he has given detailed reasons

as to how the respondent had acted in breach of his undertaking

and as to how the SHO, PS Ashok Vihar, Delhi had to be directed

to break open the locks of tenanted premises. By the said order

dated 17th October, 2008, my learned Predecessor had

summoned respondent to appear in person as to why he should

not be sent to jail and penalised for non-compliance of his

undertaking.

13. From the aforesaid facts, it is apparent that respondent has

committed a wilful and deliberate breach of his undertaking

dated 30th October, 2007. In fact, the proceedings initiated by

respondent subsequent to his undertaking, leave no doubt that

he tried to obstruct the course of justice and tried to bring the

institution of judiciary into disrepute by filing multifarious

proceedings. In my opinion, the conduct of respondent

interfered with the due course of justice and he is held guilty of

contempt of Court. In fact, it is necessary to do so, to uphold the

majesty of law and dignity of courts as well as sanctity of

undertakings furnished before courts.

14. Mr. Khadaria states that keeping in view the educational

qualification of respondent as well as his age, some leniency

should be shown to respondent. I am of the view, that as

respondent is an educated man, and is well conversant with

letters of law, there was a higher obligation and duty cast upon

him not to violate/breach his undertaking in the wilful manner

that he did. Consequently, his educational qualification is a

factor which weighs against the respondent and not in his

favour.

15. Keeping in view respondent's contumacious conduct, I

sentence the respondent to one month simple imprisonment

along with a fine of Rs. 2,000/-. Respondent is also directed to

pay use and occupation charges from 30th April, 2008 (when he

undertook to vacate the tenanted premises) to 22nd October,

2008 (when possession of tenanted premises was handed over to

petitioner by SHO, PS Ashok Nagar) at the agreed rate of rupees

three lacs per month. The respondent would also have to pay to

petitioner admitted outstanding rental dues to the tune of Rs.

3,22,912/- for period upto 30th April, 2008.

15. At this stage, Mr. Khadaria prays for suspension of

sentence. However, keeping in view the times that I had

adjourned the matter to enable the respondent to pay the

outstanding dues, I feel this request is meritless and is

accordingly rejected.

16. With the aforesaid observations, present petition is

allowed.

17. Order dasti under the signature of Court Master.

MANMOHAN,J MARCH 05, 2009 rn