Sanjay Gupta vs Rajiv Gupta & Anr.
2014 Latest Caselaw 5968 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                               Cont. Cas (C) No.765/2012

                                       Decided on : 19th November, 2014

SANJAY GUPTA                                          ...... Petitioner
                        Through:     Mr. Manish Vashisht, Mr. Sameer
                                     Vashisht & Mr. Dhruv Rohatgi, Advs.

                            Versus

RAJIV GUPTA & ANR.                                    ...... Respondents
                        Through:     Mr. Rahul Gupta, Advocate.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. The present contempt petition has been filed by the petitioner,

Sanjay Gupta, against respondent No.1, Rajiv Gupta and his sister-in-law

(respondent No.2), Alka Gupta on account of the alleged wilful

disobedience of the judgment dated 9.1.2006.

2. Before dealing with the allegations of contempt, it would be

worthwhile to give brief background of the case. Rajiv Gupta,

respondent No.1 herein, filed a suit for partition, rendition of accounts

and injunction in respect of the properties allegedly owned and possessed

by his father L.R. Gupta in the capacity of karta of HUF. The details of

the immovable properties were mentioned in schedule 'A' attached to the

plaint and details some of the properties were given in schedule 'B'.

Sanjay Gupta, present petitioner and their mother, Smt. Pramod Gupta

was also impleaded as defendants.

3. In the year 2003, an application being I.A. No.220/2006 was filed

jointly by the parties under Order 23 Rule 3 CPC stating that the suit be

disposed of in terms of the compromise arrived at between the parties.

According to the compromise, the respondent, Rajiv Gupta, was to get

two properties, namely, Property No.4, Palam Marg, Vasant Vihar, New

Delhi and Property No.5, Vasant Marg, Vasant Vihar, New Delhi, as his

absolute properties and the present petitioner, Sanjay Gupta, who had

power of attorney in respect of Property No.4, Palam Marg, Vasant

Vihar, New Delhi, handed over the documents of the said property in

original to Rajiv Gupta and signed all the necessary documents in order to

perfect his title. In addition to this, Sanjay Gupta, the petitioner, also

gave an amount of Rs.3.50 crores through pay order dated 5.1.2006

drawn on American Express Bank Ltd and another sum of Rs.3 crores

through two post dated cheques of RS.1.50 crores each dated 5.1.2009,

which were subsequently replaced by a pay order dated 6.1.2009 for a

sum of Rs.3 crores drawn on Standard Chartered Bank. A sum of

approximately Rs.80 lacs was also paid to Rajiv Gupta on 5.1.2006 on

account of payment to DDA for conversion of Property No.4, Palam

Marg, Vasant Vihar, New Delhi, from lease hold to freehold. Thus, so far

as rights of respondent No.1, Rajiv Gupta, and his family members in

respect of the properties in HUF were concerned, those were allegedly

perfected by the present petitioner, Sanjay Gupta.

4. The respondent, Rajiv Gupta, and his other family members were

not to claim any remaining properties, the details of which are given in

schedules 'A' and 'B' of the suit. These properties were (i) 14, Anand

Lok, New Delhi; (ii) House No.A-2/14, Safdarjung Enclave, New Delhi;

(iii) 47, Amrita Shergill Marg, New Delhi; (iv) Dabur Farms, Village

Bijwasan; (v) Pramod Farms, Village Chadanhola, Delhi; (vi) Flat No.34,

Hailey Road, New Delhi and (vii) a plot in Vrindavan measuring 2000

square yards. These properties were either owned in the name of Sanjay

Gupta, L.R. Gupta or various companies, details of which are mentioned

in the contempt petition of which Rajiv Gupta and his wife, Alka Gupta,

were also the Directors. It is alleged that respondent Nos.1 and 2, that is,

Rajiv Gupta and his wife, Alka Gupta, after having got benefit in terms of

the compromise order having been passed by the court in I.A.

No.220/2006 have claimed themselves to be the Directors of the company

in terms of the compromise having been arrived at. For this purpose,

various letters/correspondence have been exchanged between the

respondents and the Registrar of Companies apart from lodging of FIRs,

etc. It is alleged that they are in wilful disobedience of the order passed

on 9.1.2006 by the court on the basis of the compromise application.

5. It may be pertinent here to refer to the exact language of the order

which was passed on the basis of compromise application, which reads as

under :-

"2. Now, the parties have resolved all those differences and disputes and have recorded the terms of compromise in the present application which is signed by the plaintiff as well as the defendants 2 and 3. Insofar as the defendant No.1 is concerned, it is common ground that the said HUF had already been dissolved in 1993. However, Mr. L.R. Gupta has signed on behalf of the defendant No.1 by way of abundant caution. Insofar as defendant No.4 is concerned, the learned counsel for the plaintiff states that no relief is claimed against the defendant No.4 and the learned counsel for both the plaintiff as well as the defendants state that there is no dispute with regard to defendant No.4 who happens to be the daughter of Mr. L.R. Gupta, the defendant No.2, and the sister of the plaintiff and she has also not chosen to appear in these proceedings throughout, despite

service. Therefore, this compromise which is being effected is essentially between the plaintiff on the one hand and defendants 2 and 3 on the other hand. Other terms of the compromise are set out in the application which is exhibited as Exhibit C-1.

3. The only two formalities which remained to be completed were the handing over of the pay order and two postdated cheques. The pay order is of the sum of Rs.3.50 crores and the two cheques are for Rs.1.50 crores each. This pay order and the two cheques have been handed over to the plaintiff who is present in court and he acknowledges the receipt of the same. The defendant No.3 has signed these two cheques and he undertakes that the same shall be honoured on presentation on the due dates. The keys of 4, Palam Marg, Vasant Vihar, New Delhi are also handed over by the defendant to the plaintiff who is present in court and who had taken the same. It is clear that handing over of the keys means that the plaintiff now will have vacant physical possession of the said premises. In addition to the pay order and the two cheques which have been handed over in court today, the defendants have earlier made a payment of Rs.80,65,861/- by way of pay order dated 5.1.2006 favouring the DDA which is a payment on account of the plaintiff.

...............................

sd/-"

6. I have heard the learned counsel for the parties and have also gone

through the record.

7. The main contention of Mr. Vashisht, the learned counsel for the

petitioner is that respondent Nos.1 and 2, after having obtained the

benefit in terms of the said compromise order by perfecting their title in

respect of two properties at Vasant Vihar and taken substantial amount of

money, have wilfully disobeyed the orders of the court by writing letters

to the Registrar of Companies, Delhi, copies of which are placed at page

Nos.143, 158, 174, 182, 190 and 197 of the paper book. In these letters

Rajiv Gupta, respondent No.1, has written to the Registrar of Companies

that he continues to be the Director of various companies which are

claimed to be the owners of properties other than the two properties

which have been received by Rajiv Gupta in terms of the compromise

decree. Similar letters are purported to have been written by respondent

No.2, Alka Gupta, wife of Rajiv Gupta, copies of which are placed at

page Nos.150 and 160.

8. It is contended by Mr. Vashisht that notwithstanding the fact that

he has already filed an execution petition in respect of this very

compromise decree before the concerned court, which is pending

adjudication, it does not detract from proceeding being taken against the

respondents for contempt on account of the alleged wilful disobedience of

the order passed by the court on 9.6.2006. For this purpose, the learned

counsel has sought to place reliance on case titled Rama Narang vs.

Ramesh Narang & Anr.; (2006) 11 SCC 114.

9. It is also contended by the learned counsel for the petitioner that

merely because a formal decree is not drawn, that is not a ground for the

respondents to refuse to obey the orders passed by the court. In this

regard, it has been contended that drawing of a decree is a ministerial act

which is to be performed by the court and not by the petitioner. In this

regard, reliance is placed by the learned counsel on the judgment passed

in C.S. (OS) No.1938/2008 titled Radhesh Singh vs. Vineet Singh decided

on 22.5.2014 as well as on Union of India & Others vs. Subedar Devassy

PV; (2006) 1 SCC 613.

10. It is also contended by Mr. Vashisht that so far as the contention of

the learned counsel for the respondents that there is no undertaking given

by the respondents or that there is an arbitration agreement in the

compromise application or that the present contempt petition is barred by

limitation having been filed on 8.11.2012, are of no consequence

inasmuch as on the face of it, the respondents have failed to carry out

their respective obligations in terms of the order passed by the court.

11. The learned counsel for the respondents have vehemently contested

the contempt petition. A short reply has been filed apart from various

objections regarding the maintainability of the petition on the ground of

limitation and availability of an alternative efficacious remedy by way of

arbitration. Further, it is stated that the petitioner can seek execution of

the decree which has already been availed of.

12. The respondents have also taken the plea that in terms of the

compromise, Sumangli Gupta, daughter of L.R. Gupta has already filed

an application for setting aside the judgment dated 9.1.2006 to the effect

that she had been made as a party to the suit yet she was not served and a

compromise was arrived at, at her back without her knowledge and

acceptance.

13. It is also contended by Mr. Rahul Gupta, the learned counsel for

the respondent that Sonakshi Gupta, daughter of Rajiv Gupta, respondent

No.1, has also filed an independent suit for partition being C.S. (OS)

No.1965/2012 titled Sonakshi Gupta vs. L.R. Gupta (HUF) & Ors. in

respect of subject properties which are shown in annexures A and B to

the suit which is purported to have been compromised between the

parties. It has also been disputed by the learned counsel that any

undertaking, whatsoever has been given by the respondents and

consequently, there is no question of their being any wilful disobedience

of the order having been passed by the court.

14. I have carefully considered the submissions made by the respective

sides and have also gone through the record. No doubt, Rajiv Gupta,

respondent No.1, had filed a suit for partition against L.R. Gupta (his

father) in the capacity of HUF, his mother and his brother, Sanjay Gupta,

which was compromised on 9.1.2006 in terms of which, a compromise

decree has been passed. Even if it is assumed that in terms of the

compromise, the respondent herein has been able to obtain title to two

properties situated in Vasant Vihar and has now tried to retrace his steps

so as to wriggle out of the compromise after having obtained an

advantage, it does not in my view result in any wilful disobedience of the

order passed by the court. In the language of court which passed the

order on 9.1.2006, there is no direction, order or judgment passed by the

court. All that it is noted in the order is that this is a suit which has been

settled in terms of the compromise arrived at between the parties. Thus,

in my view, prima facie there is no undertaking given to the court.

15. Before an action for contempt is sought to be taken, a party must

have given an undertaking to the court and further, it must be accepted by

the court, only then, an action for contempt can be taken. Similarly, there

is no order or direction or judgment giving a direction to the respondent

to do a thing or not to do a thing. Therefore, the court had rightly

observed that in terms of the compromise between the parties, a decree be

drawn and that decree has to be executed through normal processes of

law as provided under CPC and not under threat of imprisonment for

having allegedly violated the court order.

16. The petitioner in his petition has already observed that he has

already applied for execution of the decree. Having chosen to file an

execution petition for getting the decree executed, it is not open, in my

view, for the petitioner to file the present contempt petition or in other

words, it can be assumed that the present petition has been filed by the

petitioner only with a view to bring to bear pressure on the respondents to

succumbs to the settlement in terms of the compromise, which cannot be

permitted to be done at the instance of one of the parties. The purpose of

the contempt proceedings is not to satisfy the whims and fancies of one

party nor compel the other party to submit to the dictates of the party,

who has filed the contempt petition.

17. So far as reliance of the learned counsel for the petitioner on Rama

Narang's case (supra) to support his contention that the present contempt

proceedings are maintainable is concerned, I feel that the said judgment

does not help the petitioner in any manner. The reason for this is that in

Rama Narang's case (supra), it has been specifically noted that there

were undertakings given by the parties to the Apex Court while arriving

at a settlement that they would abide by the terms and conditions of the

compromise which undertaking, in the instant case, is missing. Secondly,

in Rama Narang's case (supra) there were as many as eight cases which

were pending mostly before Bombay High Court which were sought to be

given quietus in terms of the compromise between the warring factions,

who were members of the same family, out of which all except one, had

performed their respective obligations but the one who had tried to resile

from her undertaking, that the court was called upon to decide as to

whether he can be permitted to do so with impunity so as to flout the

entire compromise. It was in such a contingency that the Apex Court

observed that merely because a compromise decree is executable in a

court of law, does not take away the power of initiating the contempt

proceedings against the party, who is trying to resile from his or her

undertaking, therefore, the facts of the Rama Narang's case (supra) are

totally different from the facts of the present case where there is no

undertaking furnished by the respondents.

18. In addition to this, the compromise decree which has been passed

is stated to have been already assailed by Sumangli Gupta, the sister of

the parties, namely, Rajiv Gupta and Sanjay Gupta. The said application

for recall of that order is still pending and therefore, it is just and proper

for the petitioner to go back to the executing court and get the execution

clubbed along with the said application so as to have a comprehensive

view rather than use the contempt proceedings as a lever to bring to bear

pressure on the respondents.

19. As regards the judgments which have been relied upon by the

petitioner that drawing of a decree is a ministerial act, this court has no

dispute about the same. So far as the judgment passed in Subedar

Devassy PV's case (supra) is concerned, I have gone through the same

but that does not help the petitioner in any manner. Similarly, judgment

passed in Komal Nagpal vs. Kamal Nagpal; 206 (2014) DLT 745, in my

view, is of no help to the petitioner. I fail to understand in what respect

the learned counsel for the petitioner wants to derive the benefit from the

said two judgments.

20. For the reasons mentioned above, I am of the considered opinion

that the present contempt petition is totally misconceived. There is no

majesty of law which has been lowered. There is no undertaking having

been furnished by the respondent Nos.1 and 2 to the court which can be

said to be having been violated by them. This was a case where the

parties arrived at settlement and a compromise decree was passed which

has to be got executed from the civil court. Accordingly, the contempt

petition is dismissed and the contempt notice discharged. However, the

petitioner is free to take such appropriate action for execution of the

decree, if not already taken.

V.K. SHALI, J.

NOVEMBER 19, 2014 'AA'