Delhi High Court
Preeti Kapur vs Anshuman Kapur & Ors. on 8 October, 2009
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 23.09.2009
% Judgment delivered on: 08.10.2009
+ CM(M) No.427/2009
PREETI KAPUR ..... Petitioner
Through: Mr. Amit Khanna and Mr. Pankul
Nagpal, Advocates
versus
ANSHUMAN KAPUR & ORS. ..... Respondents
Through: Mr. Jayant Nath, Senior Advocate
with Mr. L.M. Asthana, Advocate for
respondent No.1
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
JUDGMENT
VIPIN SANGHI, J.
1. In challenge in this petition under Article 227 of the
Constitution of India is the order dated 26.3.2009 passed by Shri
Narinder Kumar, Additional District Judge-01 (West), Delhi dismissing
the petitioner‟s Contempt Petition No.1/2009 seeking an order for
making reference to this Court under Sections 11 and 12 of the
Contempt of Courts Act on account of the alleged willful breach by the
respondent No.1 of the undertaking given by him on 31.8.2008 in
H.M.A. Case No.550/2008. Respondent Nos.2 & 3 are proforma
respondents. They acted as the counsel for respondent No.1 before
the trial Court which passed the decree of divorce by mutual consent.
The expression "parties" used in this order refers to the petitioner and
respondent No.1 only, unless the content otherwise requires.
2. The petitioner was married to the respondent No.1 on
19.4.2000 according to Hindu rites and ceremonies. Two children,
namely, Sanah Kapur and Aayana Kapur were born from the wedlock.
Due to temperamental differences, the parties (i.e. the petitioner and
respondent No.1) could not reconcile their disputes and started living
separately since 15.9.2007. It appears that the parties, with a view to
arrive at a mutual settlement which, inter alia, provided for divorce by
mutual consent entered into an agreement on 13.9.2008. Under this
agreement it was recorded that the petitioner herein is in occupation
of premises situated at 121, Anupam Gardens, Sainik Farms, New
Delhi-110062. This agreement also provided that if the petitioner pays
to the respondent a sum of Rs. Two crores by 31st December, 2008 the
said property would be transferred to the petitioner along with all
rights, title and interest. The petitioner as per this agreement was to
retain the custody of the two minor children without any interference
by the respondent.
3. The parties thereafter moved a petition jointly u/s 13B (2) of
the Hindu Marriage Act. It was stated that the parties had settled all
their disputes and claims amicably. They further stated that they have
consented to grant divorce to each other without any force or undue
influence and that there is not collusion between them.
4. The petitioner stated that she shall have no right in respect of
permanent alimony for herself and that she would not claim any lien
past, present or future whatsoever over the property, movable and
immovable of the respondent herein, and similarly the respondent
stated that he shall have no right, claim and lien past, present or
future over the properties, both movable and immovable of the
petitioner herein. The petitioner also gave up her right to any interim
maintenance for the past or in future from the respondent herein. The
parties also settled all their disputes regarding dowry, stridhan and
stated that no dispute whatsoever regarding dowry items and stridhan
is left between the parties. They also undertook to withdraw all their
complaints against each other and their family members and stated
that they have no dispute left against each other after this settlement
is reached between the parties. The joint petition further provided that
the petitioner herein shall not claim any right in the property of the
respondent which he may inherit or he may acquire with his personal
funds, and similarly the respondent shall not claim any right in the
property which the petitioner may inherit or may acquire with her
personal funds. The respondent also agreed not to claim any right in
property which the daughters may inherit or may acquire with their
own funds.
5. The first motion was taken up by the Court on 24.10.2008.
The statement of the respondent, Shri Anshuman Kapur was recorded
as PW-1 wherein he, inter alia, stated as follows:-
"I have settled all my disputes and claims of
any nature what so ever (past, present and
future) with petitioner no.2 amicably and there
will be no claim in future after transfer of
the house situated at 121, Anupam
Gardens, Sainik farms, New Delhi-110062,
in the name of petitioner no.2." (emphasis
supplied)
6. The statement of the petitioner herein, Ms. Preeti Kapur was
also recorded as PW-2 wherein she, inter alia, stated as follows:-
"I have settled all my disputes and claims of any
nature what so ever (past, present and future) with
petitioner no.1 amicably and there will be no claim
in future after transfer of the house situated at
121, Anupam Gardens, Sainik farms, New
Delhi-110062, in my name." (emphasis supplied)
7. The first motion petition was disposed of by the trial court on
24.10.2008. The parties thereafter moved the second motion petition
along with an application u/s 151 C.P.C for waiving of the statutory
period of six months for filing the second motion petition. The second
motion petition was taken up by the Court on 31.10.2008.
8. On 31.10.2008 after hearing the parties and their counsel, the
Court recorded its satisfaction that no fruitful purpose would be served
by waiting for six months period. Accordingly, the application filed by
the parties u/s 151 C.P.C was allowed in the interest of justice and the
Court proceeded to record the statement of the parties.
9. The Court recorded the statement of the respondent, Shri
Anshuman Kapur as PW-1. The relevant portion from the said
statement reads as follows:-
"I have settled all my disputes and claims
of any nature what so ever (past, present and
future) with petitioner no. 2 amicably and
there will be no claim in future after
transfer of the house situated at 121,
Anupam Gardens, Sainik Farms, New
Delhi-110062, in the name of petitioner
no. 2. I undertake that this house shall
be transferred in the name of the
petitioner no. 2 as per
agreement/settlement within six weeks. I
have already handed over the possession
of said house to petitioner no. 2. I also
undertake to contribute for the maintenance
and education of the children as far as
possible. I will not claim any visitation rights
with the children.
Petition is Ex. P1 which bears my
signature at point A. My affidavit is Ex.P2.
Four marriage photographs are Ex. P3
(collectively), copy of rent agreement is Ex. P4.
Copy of the format of the agreement is
Ex. P5 bearing my signature at point
encircle A and of petitioner no.2 at point
encircle B.
The mutual consent has not been
obtained by force, fraud, undue influence,
threat to anyone and this petition has not been
presented in collusion with each other. I
undertake to abide by the terms and
conditions settled between us."
(emphasis supplied)
10. Similarly the statement of the petitioner herein was also
recorded as PW-2 and the relevant portion herein read as follows:-
"I have settled all my disputes and claims of
any nature what so ever (past, present and
future) with petitioner no. 1 amicably and
there will be no claim in future after
transfer of the house situated at 121,
Anupam Gardens, Sainik Farms, New
Delhi-110062, in my name by the
petitioner no. 1. Petitioner no. 1 has
undertaken that this house shall be
transferred in my name as per
agreement/settlement within six weeks.
Petitioner no. 1 has already handed over
the possession of said house to me.
Petitioner no. 1 has undertaken to contribute
for the maintenance and education of the
children as far as possible. Petitioner no. 1
shall not claim any visitation rights with the
children.
Petition is Ex. P1 which bears my
signature at point B. My affidavit is Ex.P6.
Copy of ration card of petitioner no. 1 is Ex. P7.
Copy of my driving license is Ex. P8.
The mutual consent has not been
obtained by force, fraud, undue influence,
threat to anyone and this petition has not been
presented in collusion with each other. I
undertake to abide by the terms and
conditions settled between us."
(emphasis supplied)
11. After recording the aforesaid statements of the parties, the
Court allowed the second motion petition and dissolved the marriage
between the parties with immediate effect by passing a decree u/s 13B
of the Hindu Marriage Act. The Court recorded its satisfaction that
there is no possibility of the parties living together, who are living
separately since 15.9.2007. It was also recorded that the Court had no
reason to disbelieve the statement of the parties.
12. From the statement of the respondent it is seen that he
undertook to transfer the house bearing No.121, Anupam Gardens,
Sainik Farms, New Delhi in the name of the petitioner herein "as per
agreement/settlement within six weeks". In his statement the
respondent also exhibited the copy of the format of the agreement as
Exhibit P-5 which bear his signatures at point encircled `A‟.
13. The respondent got a legal notice issued to the petitioner
dated 16.1.2008. In this legal notice, the respondent took a stand that
against the settlement of all the disputes, claims and maintenance
(past, present and future), the respondent had agreed to transfer the
said house "as per agreement/settlement executed between" the
petitioner and the respondent on 13.9.2008. The respondent claimed
that as per the settlement/agreement, the petitioner had to pay a sum
of Rs. 2 crores to the respondent before the transfer of the property.
The respondent also stated that he is "ready and willing to transfer the
house in your name, subject to the payment of Rs.2 crores as per the
agreement". The respondent also stated that in case the said amount
is not paid on or before 31.12.2008, the petitioner should hand over
the possession of the said house to the respondent.
14. The petitioner responded to the said legal notice through her
advocate on 29.12.2008 disputing the stand taken by the respondent.
The petitioner stated that her consent was obtained on the pretext that
the respondent shall transfer the said house in her name as settlement
of all her claims and disputes. She made reference to the
undertaking/statement made by the respondent before the trial Court
on 31.10.2008 and stated that there was no relevance of the
agreement/settlement dated 13.9.2008. She specifically referred to
Exhibit P-5 and the changes made therein which were signed by both
the parties. She even expressed dismay at the conduct of the
respondent‟s counsel in issuing the notice when the said counsel was
involved in the mutual divorce case and the statement/undertaking for
transfer of the said property was given within the knowledge of, and in
the presence of the counsel. The sending of the notice by the
respondent was stated to be mal-intentioned. The respondent was
called upon to withdraw the notice dated 16.12.2008 and to transfer
the said property to the petitioner failing which she threatened action,
inter alia, for contempt of Court.
15. Since the respondent did no transfer the said property in her
name, the petitioner moved the trial court with the aforesaid
application for initiation of contempt proceedings under Sections 11
and 12 of the Contempt of Courts Act by making a reference to this
court on the foundation that despite the respondent having undertaken
to transfer the said property in favour of the petitioner with six weeks,
he had failed to do so. It was also alleged that contrary to the
aforesaid settlement, the respondent is now demanding an amount of
Rs. Two crores from the petitioner for transferring the said property in
favour of the petitioner.
16. The petitioner‟s application was disposed of in limine by the
trail court without even issuing notice to the respondent. The
reasoning adopted by the trial court while rejecting the application was
that the judgment dated 31.10.2008 did not contain a decision by the
Court regarding the agreement/settlement arrived between the parties
for the transfer of the said house by the respondent in favour of the
petitioner. There was nothing in the judgment to suggest that any
order in respect of the said property was passed by the Court. Only a
decree of divorce came to be passed in favour of the parties while
allowing the prayer made in the joint petition. It was held that the
statements of the parties to the divorce petition do not form part of the
judgment. It was also held that on a perusal of the judgment, there
was nothing to suggest that the Court had accepted the undertaking
given by the respondent. It was further held that only a copy of the
format of agreement was filed before the Court. The said format was a
format of an agreement to sell or transfer certain agricultural land
situated in Village Saidulajaib, Tehsil Hauz Khas, Mehrauli, New Delhi
between Dalip Kapur (HUF) acting through its Karta, Mr. Dalip Kapur
and Ms. Preeti Kapur. It was not an agreement executed between the
respondent and the petitioner. It being only a format of the agreement
to transfer the aforesaid property, merely because no transfer was
effected after the delivery of possession of the property to the
petitioner, the persons arrayed as respondents could not be said to
have violated any direction issued by the Court on 31.10.2008 or to
have violated any undertaking. On this basis, the application of the
petitioner was dismissed. The petitioner accordingly filed the present
petition.
17. In this petition, notice was issued to the respondent and the
respondent has filed his reply. I have heard counsel for the parties at
length and they have taken me through the record and made their
submissions on merits. While it has been contended by the petitioner
that the conduct of the respondent constitutes willful and deliberate
breach of his undertaking, as aforesaid, the submission of the
respondent is that the initially executed agreement dated 13.9.2008
referred above continued to bind the parties; that the said agreement
dated 13.9.2008 was never overridden or novated; that the form of the
agreement Exhibit P-5 was merely a format to which the respondent
was not even a party as the said format itself shows that the same was
to be executed between Dalip Kapur (HUF) acting through its Karta,
Mr. Dalip Kapur on the one hand and the petitioner on the other hand.
It is also argued that the payment of Rs. two crores from the petitioner
is justified as it is a term of the agreement dated 13.9.2008 that she
would pay to the respondent the said amount for the transfer of the
said property in her favour. Mr. Jayant Nath, learned senior counsel for
the respondent has also argued that the said property is worth much
more. However, while settling the claims of the petitioner, as
aforesaid, it was agreed that the said property would be transferred to
her upon her making payment of Rs. Two crores only, by 31st
December, 2008. He has submitted that there was no undertaking
given by the respondent, which came to be accepted by the Court. It
is essential that the undertaking should have been accepted by the
Court before the same can bind the person giving the undertaking,
such that its willful breach can be said to constitute civil contempt of
court. Mr. Nath relied on various decisions in support of his
submissions, to which I shall make reference a little later.
18. Having heard the learned counsel for the parties, perused the
records and the decisions relied upon by the respondents, I am of the
view that the impugned order passed by the learned Trial Court is not
in accordance with law and the Trial Court has erred in its approach
while dealing with the petitioner‟s application to seek reference to this
Court under Section 11 and 12 of the Contempt of Courts Act with
regard to the aforesaid conduct of the respondents.
19. The sequence of events which took place between the parties
was as follows:
A. The parties initially entered into an agreement on 13 th
September, 2008, wherein they recorded their agreement to
obtain divorce by mutual consent. The parties also
acknowledged the fact that the petitioner is in occupation of 121,
Anupam Gardens, Sainik Farms, New Delhi-110062. The parties
also agreed that if the petitioner pays to the respondents a sum
of Rs. 2 crores by 31st December, 2008 the said property shall be
transferred to the petitioner forthwith along with all rights, title
and interest. Pertinently, this agreement did not specifically deal
with any other claim of the petitioner towards interim
maintenance and permanent alimony. It also did not deal with
the aspect of return of dowry articles and stridhan by the
respondents to the petitioner. The rights of the petitioner to
claim a share in the respondent‟s property, that he may inherit
was also not curtailed in any manner.
B. The parties thereafter moved a petition jointly under Section 13B
(2) of the Hindu Marriage Act. In this application the petitioner
gave up her right to claim interim maintenance for the past or in
future. She also gave up her right to claim permanent alimony
as well as her right to claim any lien past, present or future, over
the properties of the respondent. The petitioner also gave up all
her claims towards the dowry items and stridhan. The
respondent also made a similar declaration. The parties also
undertook to withdraw all complaints against each other and
their respective family members. The petitioner also gave up
her right to claim any right in the property of the respondent
which he may inherit or he may acquire with his personal funds,
and the respondent also made a similar declaration.
C. On 24.10.2008 the respondent made a statement on oath before
the Court, inter alia, stating that the petitioner would have no
claim in future after the house situated at 121, Aunpam Garden,
Sainik Farms, New Delhi is transferred in her name. The
petitioner also made a similar statement on oath.
In respect of the aforesaid joint petition under Section 13B (2) of
the Hindu Marriage Act and the statements made by the parties
the following salient aspects need to be noted: -
i. The settlement contained in the petition under Section 13B
(2) under the Hindu Marriage Act and the statements of the
parties recorded on 24.10.2008 provided for a more
comprehensive settlement covering various other rights
and claims that the parties could stake against each other,
when compared to the agreement arrived by between
them on 13th September, 2008.
ii. The settlement contained in the petition under Section 13B
(2) and in the statements of the parties recorded on
24.10.2008 made absolutely no reference to the
agreement dated 13.9.2008, even though it was a later
settlement in respect of, inter alia, the subject matter of
the agreement dated 13.09.2008.
iii. From the statement of the respondent recorded on
24.10.2008, it appears that the only consideration for
which the respondent had agreed to transfer the aforesaid
property in the name of the petitioner, was the full and
final settlement of all disputes and claims of the petitioner
of any nature whatsoever (past, present and future). The
said statement of the respondent does not even remotely
suggest that the petitioner was required to make payment
of any amount whatsoever, for the transfer of the said
property in favour of the petitioner.
iv. From the statement of the petitioner also it is clear that
she did not undertake to make payment of any amount
whatsoever to the respondent for the transfer of the said
property in her favour and the only consideration to flow
from her was the full and final settlement of all her
"disputes and claims and of any nature whatsoever (past,
present and future)."
D. Within about a week of the first motion being moved before the
Court, the second motion was taken up by the Court on
31.10.2008, as it was informed to the Court that there is no
possibility of reconciliation between the parties. The Court on
this occasion again recorded the statements of both the parties.
From the statement of the respondent, which was recorded as
PW1, the following aspects have emerged:
i. Once again the respondent stated that he had settled "all
his disputes and claims of any nature whatsoever (past,
present and future)" with the petitioner amicably and that
there would be no claim in future after transfer of the said
property in the name of the petitioner.
ii. The respondent specifically undertook "that this house
shall be transferred in the name of" the petitioner herein
"as per agreement/ settlement within six weeks." It is,
therefore, clear that there is an express undertaking given
by the respondent to transfer the said house in the name
of the petitioner as per the agreement/settlement within
six weeks. The said undertaking was not conditioned upon
the petitioner making payment of any amount to the
respondent. It is pertinent to note that under the initial
settlement dated 13.09.2008, the time available to the
petitioner for making payment of Rs.2 Crores was uptil
31.12.2008. From 31.10.2008, there were more than 8
weeks to go before the arrival of 31.12.2008. If there was
any truth in the version of the respondent, not only the
settlement arrived at on 31.10.2008 would have been
expressly referred to the agreement dated 13.09.2008; the
obligation of the petitioner to make the said payment
would have been specifically set out, and; the obligation of
the respondent to cause the transfer of the said property
been made conditional upon the said payment being
made, but the outer time limit for transfer of the said
property to the petitioner would not have been fixed as six
weeks (that too unconditionally), but would have been at
least eight weeks as there was still time of more than eight
weeks for the petitioner to make payment of Rs. 2 Crores
(i.e. if for the sake of argument only it is accepted that the
agreement dated 13.09.2008 was still valid and binding).
This clearly belies the stand of the respondent.
iii. The respondent exhibited the format of the agreement as
exhibit P5 which bears his signature at point encircled „A‟.
Pertinently, this exhibit P5 is markedly different from the
agreement dated 13.9.2008 executed by the parties. The
parties did not refer to, produce or exhibit the agreement
dated 13.9.2008, though it was dealing with the subject
matter of the said earlier agreement.
iv. A perusal of the Exhibit P-5 shows that the same is a
format with the title "AGREEMENT TO TRANSFER AS
SETTLEMENT". It is also pertinent to note that the title of
the said document as initially typed/printed read
"AGREEMENT TO SELL". The word "SELL" has been struck
off and replaced by "TRANSFER AS SETTLEMENT" in hand
and this correction on the very first page of Exhibit P-5 has
been counter signed by the respondent. Every page of this
document Exhibit P-5 bears the signature of both the
parties. The respondent has signed the document as the
first party. His signatures are encircled `A‟ below the
words "first party". What is of relevance to note is that on
internal page 3 of Exhibit P-5, the last recital read as
follows:-
"AND WHEREAS the first party, for heris
bonafide needs and in terms of settlement
requirements, has agreed to sell transfer the
said property i.e. agricultural land measuring
1536 square yards bearing Khasra No.119, with
the built up house thereon situated in the
revenue estate of village Saidulajaib, Tehsil
Hauz Khas (Mehrauli) New Delhi, with all rights
easement, patent or latent, including rights of
way, and access enjoyed and reputed to be
enjoyed in respect of the said property
together with all rights in electricity, water,
sanitary, fitting, fixtures connections, lawns,
compound, wall etc., and possession, into the
second party for a total sale consideration
Rs.17500000 (Rs.One crore seventy five lacs
only), and the second party has agreed to
purchase the same from the first party."
The words in italics and underlined in the above extract
have been added in hand by the parties. The changes
made in the original print, in hand, have all been
countersigned by both the parties. It is, therefore, beyond
any doubt that the respondent had undertaken to the
Court that he would cause the transfer of the said property
in favour of the petitioner in terms of the format exhibit P5.
Exhibit P5 does not provide for the `sale‟ of the said
property in favour of the petitioner. It does not provide for
payment of any consideration in terms of money by the
petitioner to the transferor. The consideration for the
transfer of the said property in favour of the petitioner as
per exhibit P5, is stated to be the settlement terms. The
settlement terms as per the statement of the respondent is
that the petitioner, in lieu of the transfer of the said
property, finally settled all her "disputes and claims of any
nature whatsoever (past, present and future)" with the
respondent amicably and consequently declared that ,
"there will be no claim in future" raised by the petitioner.
v. The respondent again undertook to the Court that he shall
abide by the terms and conditions settled between him and
the petitioner.
E. After recording the statements of the parties the Court decreed
the divorce petition. From the judgment dated 31.10.2008, it is
seen that the Trial Court takes notice of the facts that the
statement of the parties have been recorded. It is also taken
note of that the parties have stated that they have settled all
their claims and disputes amicably. The Court further recorded
that it had no reason to disbelieve the statement of the parties.
Pertinently, though the petitioner could have claimed, inter alia,
pendent lite maintenance and permanent alimony, apart from
raising her claim for dowry and stridhan, only in view of the
settlement, no such claim was made by her either under Section
24 or Section 25 of the Hindu Marriage Act or any other provision
of law.
F. It is, therefore, patent and clear to me that the undertaking given
by the respondent to the Court to transfer the said property in
favour of the petitioner in consideration of settlement of all her
claims as aforesaid, forms the very bedrock of the amicable
settlement between the parties. The Trial Court acted upon the
said settlement and undertaking given by the parties and it is
only on the basis of the said settlement and undertaking that the
Trial Court proceeded to pass the decree for divorce by mutual
consent. It is also obvious that but for the said amicable
settlement, the parties would not have agreed to obtain the
divorce by mutual consent, as, apart from the mutual consent for
divorce, issues with regard to the settlement of the claims,
particularly of the petitioner, towards maintenance, alimony,
stridhan and dowry articles, and her rights in the properties of
the respondent would have remained unsettled.
20. I may at this stage refer to the judgment of the Supreme
Court in Bank of Baroda V. Sadruddin Hasan Daya and Another,
(2004) 1 SCC 360. The facts of this case in brief may be noted first:-
(i) Bank of Baroda filed a summary suit against the respondent for
recovery of money. Against the grant of unconditional leave to
defend, Bank of Baroda preferred the Special Leave Petition
before the Supreme Court. During pendency of the appeal, the
parties arrived at a settlement. The minutes of the decree were
drawn by the counsel for the parties and placed before the Court.
The Supreme Court disposed of the appeal with a direction that
there shall be a decree in terms of the minutes of the decree as
drawn by the counsel for the parties. As per the consent terms,
the respondent agreed to make certain payments to the
appellant bank. Clause 7 of the consent terms provided:
"7. The defendants undertake not to sell,
mortgage, alienate, encumber or charge the
said properties described hereinabove to
anyone until the decree as per clause 2 above
is satisfied."
(ii) Another creditor bank filed a summary suit against the
respondent. In the said proceeding, a settlement was arrived at
by the respondent with the said creditor bank, namely, Oman
International Bank at the appellate stage before the Division
Bench of the High Court. On 5.10.99 the Division Bench of the
High Court passed the order, the relevant extract whereof reads:
"Undertaking given to this Court by the
Appellants in terms of the Consent Terms is
accepted. The Consent Terms taken on record
and marked 'X'. The appeal is disposed of in
terms of the Consent Terms which would be
binding on the parties............"
(iii) The respondent defaulted in making payment in terms of the
decree passed by the Supreme Court in favour of Bank of
Baroda. The appellant Bank of Baroda initiated execution
proceedings to recover the amount in terms of the settlement.
The respondent contended that the decree passed by the
Supreme Court was a nullity. Thereafter, the appellant bank
initiated the contempt petition before the Supreme Court on the
ground, inter alia, that in the suit instituted by Oman
International Bank, the respondent, without disclosing the
consent decree passed by the Supreme Court entered into a
settlement with Oman International Bank and a consent decree
was passed on 5.10.1999 by the Bombay High Court which
thereby violated the undertaking given in clause 7 of the consent
decree passed by the Supreme Court, and further that the
respondent made a contumacious statement before the Debt
Recovery Tribunal, Bombay that the decree passed by the
Supreme Court was a nullity.
21. While negating the reliance placed by the respondent on
Babu Ram Gupta Vs. Sudhir Bhasin (1980) 3 SCC 47 (which has
been discussed later), the Supreme Court referred to clause 7 of the
Settlement terms as extracted hereinabove and held "It is, therefore,
clear that by the consent terms filed by the respondents before the
Bombay High Court in the suit instituted by Oman International Bank,
SAOD, on the basis of which the said suit was disposed of, the
undertaking given before this Court in Civil Appeal No.4138 of 1999 not
to encumber or charge the aforesaid three properties to any one until
the decree was satisfied was clearly violated."
22. In Bank of Baroda (supra), the Supreme Court quoted with
approval the decision of the Bombay High Court in Bajranglal
Gangadhar Khemka V. Kapurchand Ltd.,AIR 1950 Bombay 336. In
a suit for specific performance of an agreement for sale, the parties
entered into a compromise, and consent terms were reduced to writing
and were signed by counsel for the parties. One of the terms required
the execution of a lease within two months by the defendants in favour
of the plaintiff. The defendants further undertook to have M/s
Paradise Cinema Ltd to join as a conforming party to the lease. As the
lease was not executed as agreed, the execution proceedings were
taken out. The plaintiff called upon the defendants to get M/s.
Paradise Cinema Ltd to join as a conforming party to the lease. As this
request was not complied with, action for contempt of court was
initiated. The trial Judge held that there was willfull default on the part
of the defendants and ordered that the defendants should carry out
their undertaking within one month, otherwise a warrant was to issue
for the committal of the defendants to prison. On appeal the Division
Bench of the High Court held:
"There is no reason why even in a consent
decree a party may not give an undertaking to
the Court. Although the Court may be bound to
record a compromise still, when the Court
passes a decree, it puts its imprimatur upon
those terms and makes the terms a rule of the
Court; and it would be open to the Court,
before it did so, to accept an undertaking given
by a party to the Court. Therefore, there is
nothing contrary to any provision of the law
whereby an undertaking cannot be given by a
party to the Court in the consent decree, which
undertaking can be enforced by proper
committal proceedings."
23. The Supreme Court after quoting the aforesaid extract held:
"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 1-11-
1999 to 1-8-2001. 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."
24. In Rama Narang V Ramesh Narang & Another, (2006) 11
SCC 114, the Supreme Court referred to the aforesaid decision in Bank
of Baroda (supra) and also extracted the following paragraphs from
the decision of the Bombay High Court in Bajranglal (supra):-
"[T]he expression „undertake‟ has come to
acquire through long practice, a technical
meaning. In all orders and decrees of the
Court, whenever the expression "a party
undertakes" has been used, it has always
borne the meaning that the undertaking has
been to the Court....... What is more, it has
been held by Bhagwati J. - an opinion with
which I entirely agree - that it has been the
long standing practice on the original side that,
whenever counsel wishes to give an
undertaking to the Court, he never expressly
uses the words „to the Court‟ but merely states
that he undertakes on behalf of his client,...."
25. Accordingly it was concluded: (AIR pp. 338-39, paras 7 & 8).
"[W]e can only construe the undertaking given
by the defendants as an undertaking given to
the Court and not given to the other side.
.......The very fact that the Court passed a
decree after an undertaking was embodied in
the consent terms clearly shows that the Court
did sanction a particular course; and that
course was the putting of its imprimatur upon
the consent terms. The Court was led to pass
an order upon the defendants to execute a
lease in view of the fact that an undertaking
was given by the defendants to get the
Paradise Cinema, Limited, to join the lease.""
26. In my view, the aforesaid observations of the Supreme Court
are a complete answer to the submission of the respondent that the
undertaking given by the respondent did not form a part of the decree
passed by the trial Court; that the undertaking of the respondent had
not been accepted by the Court; that, therefore, its willful breach did
not constitute civil contempt of Court, and; that the said undertaking
did not have the sanction of the Court. It is clear that the very fact
that the trial Court passed a decree of divorce by mutual consent after
the parties gave their express undertakings to the Court clearly shows
that the Court did sanction the particular case i.e. that the parties
would act according to their respective undertakings. The Court put its
imprimatur upon the consent terms which are reflected, inter alia, in
the respective undertakings of the parties. The Court was led to pass
the decree of divorce by mutual consent on the basis of the settlement
arrived at between the parties which was, inter alia, reflected in the
undertakings given to the Court.
27. I, therefore, have no difficulty in rejecting the submission of
the learned senior counsel for the respondent to the effect that the
undertaking given by the respondent had not been accepted by the
Court and that therefore, the willful breach of the said undertaking, in
any event, cannot constitute civil contempt of Court. In my view, the
reasoning of the Trial Court, that because the judgment of the Court
granting decree of divorce did not contain a decision on the
agreement/settlement arrived at between the parties with regard to
the transfer of the said property in favour of the petitioner, and
because the judgment did not contain a specific order requiring the
respondent to transfer or cause transfer of the said property in favour
of the petitioner, the conduct of the respondent could not be termed as
contemptuous, is not correct. No doubt, there was no express order or
direction of the Court requiring the respondent to transfer or cause
transfer of the said property in favour of the petitioner. However, the
statement of the parties, which contained their respective
undertakings to the Court, does form the basis of the judgment.
Without the said statements the Court could not have proceeded to
pass the decree for divorce by mutual consent. The fact that the Court
acted upon the undertaking given by the parties, clearly shows that
the said undertakings were accepted by the Court. Without accepting
the undertaking, the Court possibly could not have acted upon it and
proceeded to pass the decree for divorce by mutual consent.
28. The reasoning given by the Trial Court for disregarding the
format of the agreement Exhibit P5 is equally specious. From the
settlement arrived at between the parties, it is evident that six weeks‟
time was granted to the respondent to cause the transfer of the said
property in favour of the petitioner. It is not that the transfer of the
said property, as per the mutual agreement between the parties, had
to take place simultaneously with the recording of the settlement of
the parties on second motion. Obviously, therefore, only the format of
the agreement could have been filed in terms whereof the respondent
had undertaken to cause the transfer of the suit property in favour of
the petitioner.
29. The reasoning of the Trial Court that the said format was one
between Dalip Kapur (HUF) through its karta Mr. Dalip Kapur and the
petitioner, and not between the petitioner and the respondent is
equally unintelligible. Pertinently, the stand of the respondent
throughout has been that the respondent is willing to cause the
transfer of the said property in favour of the petitioner, provided she
makes payment of Rs. 2 crores to him. It has not been his stand that
he has no concern that the said property and that he has no control
over the karta of Dalip Kapur (HUF), or that he has no concern with the
said HUF. Pertinently, Mr. Dalip Kapur is none other than the father of
the respondent. Obviously, the respondent is a member and
beneficiary of the HUF of his father, of which his father is the Karta.
The respondent, therefore, has an interest in the HUF properties which
includes the said property. If the respondent had no concern with the
said property, and did not have the power to cause its transfer in
favour of the petitioner, why, and in what capacity, has he been
demanding the amount of Rs. 2 crore from the petitioner? Even before
me, the stand of the respondent has categorically been that if the
amount of Rs. 2 crores is paid by the petitioner, the property would be
transferred to the petitioner. This itself is an acknowledgement of the
authority that the respondent wields in the matter of completing the
transfer of the said property in favour of the petitioner notwithstanding
the fact that the same stands in the name of Dalip Kumar (HUF) of
which his father Dalip Kapur is the karta.
30. In Bank of Baroda (supra), the Supreme Court while dealing
with the issue of legality of the decree passed by it on consent terms
observed:-
"10. A legal plea taken by a party that a decree
passed by a court (including Supreme Court) is
without jurisdiction and therefore a nullity, will
not normally amount to a contemptuous
statement. However, the written submission
made by the respondents before the Debts
Recovery Tribunal, wherein they said that the
Supreme Court had no jurisdiction to pass the
decree dated 28.7.1999 and the decree had no
validity and is a nullity, has to be seen in the
factual background of the case. It may be
noted that the decree had been passed
on the basis of consent terms. It is not
the case of the respondents that any
fraud was played upon them by any party
when they entered into a settlement and
signed the minutes of the decree. It
appears that the respondents from the
very inception had no intention of paying
the amount, but they agreed for a
settlement and consent terms only for the
purpose of gaining time whereunder
instalments were fixed. They adopted the
same procedure in the suit instituted by
Oman International Bank, SAOD, wherein
they offered the same property to remain
under attachment till the decree was
satisfied. Placing the same property
under attachment is bound to create
problems for the decree holders of either
of the suits as no one wants to buy such
property in court auction which may land
him in further litigation. The respondents
intentionally and deliberately adopted
such a course of action so that further
hurdles may come in the way of execution
of the decree and therefore it is clearly a
case of willful breach of an undertaking
given to the Court." (emphasis supplied)
31. Similarly, to me it is clear that it is not open to the respondent
to raise any such argument, having himself undertaken to the Court
that the said property would be transferred to the petitioner within six
weeks of the giving of his undertaking, in terms of Exhibit P-5. The
decree of divorce by mutual consent had been passed on the basis of
the consent terms. It is not the case of the respondent that any fraud
was played upon him by the petitioner when he entered into a
settlement and signed the consent terms and gave his undertaking
before the Court. It is clear that the respondent, from the very
inception, had no intention of causing the transfer of the said property
in terms of his undertaking and Exhibit P-5 but he agreed for the
settlement and the consent terms only for the purpose of obtaining a
decree of divorce by mutual consent. The respondent intentionally and
deliberately adopted such a course of action so as to resile from his
obligations towards the petitioner to pay temporary and permanent
alimony, istridhan and dowry, and for denying her rights in the
properties of the respondent. It is therefore clearly a case of willfull
breach of an undertaking given to the Court.
32. In this regard, I may also refer to the decision of the Supreme
Court in Rosnan Sam Boyce V. B.R. Cotton Mills Ltd & Others,
(1990) 2 SCC 636. The Supreme Court held that where the
undertaking was based on an implication or assessment known by the
contemnor to be false, and the implication or assumption is made
explicit by the conduct of the contemner in trying to mislead or
deceive the Court and the person in whose favour the undertaking is
given, the same would amount to civil contempt of Court as the Court
would not allow the contemnor to thwart execution of a decree for
eviction passed by a lower Court by giving an undertaking before the
Court which he knew fully well to be false.
33. Learned senior counsel for the respondent has argued that
the agreement dated 13.9.2008 cannot be said to be novated or
substituted by the agreement contained in Exhibit P5. In support of
this submission, learned senior counsel for the respondent has sought
to place reliance upon Bharat Sanchar Nigam Ltd. & Ors. Vs. B.P.
L Mobile Cellular Ltd. & Ors (2003) 13 SCC 597. This decision in
turn quotes para 66 of the Supreme Court decision in DDA Vs. Joint
Action Committee, Allottee of SFS Flats & Ors. (2008) 2 SCC 672.
34. The Supreme Court in DDA's case (supra) held that the
terms and conditions of a contract can indisputably be altered or
modified. However, the same cannot be done unilaterally, unless there
exists any provision either in the contract itself or in law. The Court
held that if one contracting party i.e the DDA intended to alter or
modify the terms of the contract it was obligatory on its part to bring
the same to the notice of the allottee. i.e. the other party. Having not
done so, on the basis of some internal orders of the DDA which were
not backed by any statute, new terms of contract could not be thrust
upon the allottee/other party to the contract.
35. I cannot appreciate how the aforesaid decision helps the
respondent to advance his argument. The Supreme Court in DDA's
case (supra) has held that the contract cannot be unilaterally altered
or modified, something that the respondent is seeking to do vis-à-vis
the agreement arrived at between the parties on 31.10.2008. In the
present case, the parties did modify the terms of the earlier contract
dated 13.9.2008 by mutually agreeing that the respondent shall cause
the transfer of the said property in favour of the petitioner in
settlement of all her claims, as aforesaid, and for no other
consideration. This modification was brought about with the clear
understanding of the parties, as is evident from the settlement made
by the parties on 31.10.2008 and from Exhibit P5 produced by the
respondent himself. It is evident that the agreement dated 13.9.2008
stood overridden and novated by the settlement mutually arrived at
between the parties as is reflected in their petition under Section 13B,
their statements recorded before the Court on 31.10.2008 and by
Exhibit P5.
36. Learned senior counsel for the respondent also relies upon the
decision of the Supreme Court in Babu Ram Gupta Vs.Sudhir
Bhasin 1980 (3) SCC 47. On the basis of the said decision, the
respondent submits that in the absence of any express undertaking
given by the respondent which is incorporated in the order of the
Court, the respondent could not be held to have willfully disobeyed or
committed breach of the undertaking. He submits that the trial Court
had simply passed a compromise decree or a consent decree and mere
non-compliance of the said decree does not constitute contempt of
Court as held by the Supreme Court in Babu Ram (supra). He submits
that the non-compliance of the compromise decree, at worst, may
constitute a fraud against the petitioner but is not a fraud upon the
Court for which the petitioner could invoke the contempt jurisdiction of
the Court.
37. In my view this submission of the respondent is wholly
misplaced and is a result of a complete misunderstanding and
misreading of the judgment of the Supreme Court in Babu Ram
(supra). In Babu Ram (supra), the appellant Babu Ram did not given
any application or affidavit, or even a written undertaking that he
would conduct himself in a particular manner. The Supreme Court also
noted that apart from this, even the consent order did not incorporate
expressly or clearly that any such undertaking had been given either
by the appellant or by his lawyer before the Court that the appellant
would act in a particular manner. In this light, the Supreme Court
observed "in the absence of any express undertaking given by the
appellant or any undertaking incorporated in the impugned order, it
will be difficult to hold that the appellant willfully disobeyed or
committed breach of such an undertaking." In that case the High
Court took the consent order passed with the agreement of the parties
to include an undertaking given by the appellant to carry out the
directions contained in the order. It is this approach of the High Court
which was disapproved of by the Supreme Court. The facts of this
case, as narrated above, are totally different. In the present case
there is an express undertaking given by the respondent and recorded
by the Court on 31.10.2008 to the effect that "this house shall be
transferred in the name of petitioner no.2 as per the
agreement/settlement within six weeks. I have already handed over
the possession of the said house to petitioner no.2." The respondent
has further exhibited as Ex.P-5 the format of the agreement which is
the format of the title transfer document of the suit property in favour
of the petitioner herein. This undertaking has been duly signed by the
respondent and, as I have already concluded, has been accepted by
the Court, inasmuch as, the Court has acted upon it by passing a
decree of divorce by mutual consent.
38. In Babu Ram (supra), the Supreme Court quoted from its
earlier decision in Aligarh Municipal Board V. Ekka Tonga
Mazdoor Union AIR 1970 SC 1767. In the said decision, the Supreme
Court, inter alia, held that "it must also be clearly understood in this
connection that to employ a subterfuge to avoid compliance of a
Court's order about which there could be no reasonable doubt may in
certain circumstances aggravate the contempt". In my view, the
respondent by raising the pleas as aforesaid, particularly with regard
to his not being the owner of the said property and therefore not being
in a position to transfer the same in favour of the petitioner; that his
undertaking has not been accepted by the Court, and; that the
agreement dated 13.09.2008 did not stand novated, is merely
resorting to a subterfuge to avoid compliance with his own undertaking
to the Court which has been accepted and acted upon by the Court.
39. In Babu Ram (supra), the Supreme Court observed that the
reason why a breach of clear undertaking to the Court amounts to
contempt of court is that the contemnor by making a false
representation to the Court obtains a benefit for himself, and if he fails
to honour the undertaking, he plays a serious fraud on the Court itself
and thereby obstructs the course of justice and brings into disrepute
the judicial institution. This is precisely what the respondent has done
in the present case. By making an express undertaking to the Court
that the said property would be transferred within six weeks in favour
of the petitioner in terms of Exhibit P-5, and by not complying with the
same, it is clear that the respondent made a false representation to
the Court and obtained the benefit of a decree of divorce by mutual
consent without any obligation towards pendente lite or permanent
alimony or settlement of other claims of the petitioner towards dowry
and streedhan, by not only misleading the petitioner but also the trial
court into believing that the parties had arrived at a mutual
settlement/agreement by which they would stand and thereby the
respondent misled the Court into passing a decree of divorce by
mutual consent. Now he is failing to honour his undertaking given to
the Court and thereby playing a serious fraud on the Court itself and
obstructing the course of justice.
40. Reliance placed by the respondent on the decision reported
as Northern Aromatics Ltd. (M/s.) Vs. Mr. Shahzeb Khan and
Ors., 2006 VI AD (Delhi) 269 is of no avail. In this case, the
undertaking given to the Court by the defendant was not acted upon
by the Court. As aforesaid the situation in hand is markedly different.
41. Mr. Jayant Nath, learned senior counsel for the respondent has
also placed reliance on the decision of the Supreme court in Anil
Ratan Sarkar and others V Hirak Ghosh and Others, (2002) 4
SCC 21 to submit that this Court could not exercise its jurisdiction
under the Contempt of Courts Act or under Article 215 of the
Constitution of India unless the Court was satisfied beyond doubt that
the conduct of the respondent is willfully or otherwise contumacious in
nature. He submits that if a doubt is raised with regard to the nature
of the conduct, question of success in a contempt petition would not
arise. He submits that the issue whether the original agreement
entered into between the parties dated 13.8.2009 stood novated or
not by the settlement recorded before the trial court is a debatable
issue and, therefore, the insistence of the respondent that the
petitioner should comply with the agreement dated 13.9.2008 cannot
tantamount to contempt of Court.
42. I find no merit in this submission of Mr. Nath. From the
analysis of the factual matrix of this case, it is clear that though the
parties had initially entered into an agreement on 13.9.2008 in relation
to the said property and in relation to some of their inter se disputes,
while moving the trial court to obtain a decree of divorce by mutual
consent they entered into another and much more comprehensive
agreement which completely overshadowed and over-rode the said
agreement dated 13.9.2008. There is not an iota of mention of the
agreement dated 13.9.2008 in the settlement recorded on 31.10.2008
before the Court, even though the subject matter of the agreement
dated 13.09.2008 is very much covered by the settlement of
31.10.2008. Even if there could be any doubt about the meaning of
the expression "agreement" or "settlement" referred to in their
respective statements by the parties recorded by the trial court on
31.10.2008, the same stood completely put to rest by the exhibition of
Ex.P-5, which was the format of the agreement to be executed in
favour of the petitioner for the transfer of the said property in her
favour. There was absolutely no scope for any doubt in anybody‟s
mind that the transfer of the said property in favour of the petitioner,
to be done within six weeks of the making of the statement before the
Court on 31.10.2008, was for no other consideration other than the
settlement of all claims (past, present and future) of the petitioner
towards alimony, permanent alimony etc. The pretence put up by the
respondent with regard to his so-called understanding and
interpretation of his own undertaking given to the Court cannot be
accepted, as no reasonable or prudent person would comprehend the
undertaking given by the respondent in the manner as contended by
the respondent. It is clear to me that the respondent is merely trying
to act smart and outwit the petitioner and the Court after misleading
the Court as well as the petitioner into believing his undertaking, which
he never intended to live upto.
43. I must record my anguish at the approach of the trial Court
while dealing with the application filed by the petitioner to seek the
making of a reference to this court under Sections 11 and 12 of the
Contempt of Courts Act. The approach of the trial Court was to
somehow conclude that no contempt is made out against the
respondent. The trial court found all reasons it possibly could, to avoid
making the reference, all of which are wrong. In such cases the
endeavour of the Court should be to see that no party is able to get
away with perpetuation of fraud upon the Court and the opposite
party.
44. In Salkia Businessmen's Association & Others V.
Howrah Municipal Corporation and Others, AIR 2001 SC 2790, the
Supreme Court took the view that where there is a breach of an order
of a Court or compromise terms, the same should be strictly enforced
by the Court. Disregard to the same would have disastrous effect on
the rule of law. It was inter alia held:
"8. ...............If Courts are not to honour and
implement their own orders, and encourage
party litigants - be they public authorities, to
invent methods of their own to short circuit and
give a go-bye to the obligations and liabilities
incurred by them under orders of the Court -
the rule of law will certainly become a
casualty in the process - a costly consequence
to be jealously avered by all and at any rate by
the highest Courts in States in the Country."
45. It is writ large from the record that the respondent was only
trying to be over smart by demanding an amount of Rs. Two crores,
completely contrary to his undertaking given to the trial court on
31.10.2008. Unfortunately the trial court has taken a very narrow and
superficial approach while passing the impugned order.
46. I am also constrained to record my displeasure and
dissatisfaction in the manner in which the trial Court passed the decree
for divorce by mutual consent. There was no reason why Shri Vinay
Kumar Khanna, ADJ Delhi should merely have recorded "I have no
reason to disbelieve the statement of the parties". By making such
vague orders, he has unnecessarily given rise to an avoidable debate.
When he was recording the undertaking of the parties he was very well
aware about the purpose of recording the same. The only purpose of
recording the undertaking was to bind the parties such that its
deliberate violation would be contemptuous. Otherwise, there was no
need for the parties to give their respective undertakings to the Court
or for the Court to record the same. The undertakings were not given
as a mere formality or just to humour the petitioner or the Court.
There could have been no manner of doubt in his mind that the
respondent had given an undertaking to the Court that he would
transfer the said property to the petitioner within six weeks. The said
undertaking of the respondent constituted the bed rock of the
settlement arrived at before him, which led to the passing of the
decree for divorce by mutual consent. There was no reason why he
should not have expressly bound down the parties to their
undertaking. It ought to have been his concern to see that neither of
the parties is able to even attempt to misconstrue the undertaking
and his judgment and play with the language employed by him while
passing his judgment and decree.
47. Lastly, I may also express my disapproval at the manner in
which the counsel for the respondent Shri L.M. Asthana conducted
himself while issuing the notice dated 16.12.2008. Shri L.M. Asthana
had acted as the counsel for the respondent No.1 herein in the divorce
proceedings. He was aware of the scope of the undertaking given by
his client. Despite that being the position, he knowingly issued the
notice dated 16.12.2008 on behalf of his client taking a patently
dishonest and false stand with regard to the settlement/undertaking
recorded before the trial Court on 31.10.2008. He could not have
claimed to be ignorant about the background of the said compromise.
The mere fact that a counsel acts on the instructions of and on behalf
of his client cannot be an excuse for Shri Asthana to have sent the said
notice dated 16.12.2008 on behalf of the respondent, when he was
personally aware of the scope and meaning of the compromise and the
undertaking given to the Court by his client.
48. I, therefore, allow this petition and quash the impugned order.
The petitioner has also sought initiation of contempt action against the
respondent. In view of my aforesaid discussion I hold the respondent
guilty of contempt. The respondent is directed to purge the contempt
by causing the transfer of the property bearing No.121, Anupam
Gardens, Sainik Farms in the name of the petitioner within two weeks
from today. In case of his failure to do so the respondent shall remain
present in court in person on 30.10.2009 to receive notice for initiation
of contempt proceedings against him and to show cause as to why he
should not be punished for contempt of court. The petitioner is also
entitled to costs quantified at Rs.50,000/-, to be paid by respondent
no.1 within two weeks from today.
49. List on 30.10.2009.
VIPIN SANGHI, J.
OCTOBER 08, 2009
as/dp/rsk
