Kapil Kumar Ahluwalia vs Sunita Devi
2014 Latest Caselaw 6030 Del

*                   HIGH COURT OF DELHI AT NEW DELHI

+            Cont. Cas (C) No.219/2010 & C.M. Nos.14271/2010,
                   6914/2011, 20352/2011, 8734/2012

                                   Decided on : 21st November, 2014

KAPIL KUMAR AHLUWALIA                  ...... Petitioner
             Through: Mr. Samrat Nigam, Ms. Ayshwarya
                      Chandar & Ms. Ankita Mahajan,
                      Advocates.

                        Versus

SUNITA DEVI                                       ...... Respondent
                      Through:   Mr. Manoj Arora, Advocate.

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

V.K. SHALI, J. (ORAL)

1. This is a contempt petition filed by the petitioner against the

respondent on account of the alleged wilful disobedience of the purported

undertaking given to the court pursuant to which a compromise decree in

terms of the settlement arrived at before the mediation centre between the

parties was passed on 23.3.2009.

2. I have heard Mr. Nigam, the learned counsel for the petitioner as

well as Mr. Manoj Arora on behalf of the respondent and have also gone

through the judgments relied upon by Mr. Nigam in respect of his

contention.

3. The case of the petitioner is that he had filed a suit being C.S. (OS)

No.661/2007 for specific performance of an agreement dated 16.8.1998,

for rendition of accounts and mandatory injunction against the

respondent. During the pendency of the said suit, the parties arrived at a

settlement before the mediator, a copy of which is Ex. CW 1/1, and

pursuant to the said settlement, a joint application was filed by all the

parties under Order 23 Rule 3 CPC for disposal of the suit in terms of the

settlement. This application was accepted and an order was passed

disposing of the suit in terms of the settlement on 23.3.2009.

4. The grievance of the petitioner is that the respondent had given an

undertaking by way of an affidavit to the court to abide by the terms and

conditions of the settlement but she has not adhered to all the terms and

conditions of the settlement. Four terms and conditions of settlement,

contained in clause 10 of the settlement, are alleged to have not been

performed by the respondent. These terms are that the respondent is

stated to have undertaken to incorporate the name of the present

petitioner also as a franchiser in the agreement in respect of franchisee

(Arvind Mills), who happens to be an occupant of the premises in

question situated in Connaught Place where a showroom of Arvind Mills

is being run. It may be pertinent here to mention that the centre of

controversy, in the instant case, pertains to sharing of profits/sale

proceeds/rentals of a showroom being run by Arvind Mills as a

franchisee. The present petitioner and the respondent are the landlord and

the tenant respectively while as the property in question is owned by

somebody else, meaning thereby, that Arvind Mills is a sub-tenant in the

premises in question.

5. It is the case of the petitioner that according to the terms and

conditions of the settlement, which is stated to have expired somewhere

in 2011, the respondent was obligated to include the name of the present

petitioner also in the agreement as a franchiser with Arvind Mills and this

was not done deliberately to keep the present petitioner out of the picture.

6. The third act of wilful disobedience is that the respondent is not

giving the details of the expenditure incurred by her or the sale proceeds

as a consequence of which the petitioner does not know for certain

whether the amount of rentals/money realised from Arvind Mills is being

shared by the respondent equally in terms of the settlement.

7. The fourth grievance of the petitioner is that the respondent was

under an obligation to give the TDS certificate to the petitioner and yet

the respondent is neither giving TDS certificate to the petitioner nor is

acknowledging the same and thus, she is guilty of contempt.

8. The learned counsel for the respondent has filed a detailed reply

running into 18 pages and denied all the allegations. It has been

contended by the respondent that not only the monies are being paid to

the petitioner every month, though the same are being received by her on

quarterly basis from Arvind Mills, but the accounts are being and audited

and the petitioner, till date, after passing of the order, has received a sum

of more than Rs.6.5 crores, which clearly shows that the respondent has

been complying with the order of the court, both in letter and spirit. It

has also been contended by the learned counsel that the agreement with

Arvind Mills never came to an end and consequently, there was no

renewal of the same and, therefore, there was no occasion to incorporate

the name of the present petitioner as a franchiser.

9. In any case, it has been stated that the monies are being shared by

the respondent with the petitioner and, therefore, his interest are being

taken care of and the rental receipts from Arvind Mills are also being

shared. It has been contended that the present proceedings have been

initiated by the petitioner only with a view to harass the respondent.

10. So far as TDS is concerned, it is the case of the respondent that no

TDS is being deducted and moreover the accounts are already being

audited. The petitioner has already filed an execution petition before the

learned trial court which passed the decree where he has been permitted

to take inspection of the audited accounts with the help of a Chartered

Accountant. It has been stated that the petitioner, having chosen to file

execution petition, cannot continue with these contempt proceedings

especially in the light of the fact when substantial portion of the

obligation in terms of the decree has already been complied with by the

respondent and the substantial amount of money is paid to the petitioner.

11. I have considered the rival contentions of the parties. I am also of

the view that the petitioner cannot continue with the present proceedings

for contempt after having chosen to file the execution petition against the

respondent. More so, when the petitioner has already derived the benefit

of more than six and a half crores of rupees in terms of the settlement

which tantamounts to substantial and material compliance of the

settlement/undertaking on the basis of which the compromise decree has

been passed by the court.

12. It may be pertinent here to mention that the learned counsel for the

petitioner has disputed the fact that the lease agreement has never come to

an end with the franchisee and consequently, there was hardly any

occasion for the respondent to include the name of the present petitioner.

13. It has been contended by the learned counsel for the respondent

that she has not deducted any TDS and moreover, she has already been

permitted by the executing court to give the necessary certificate to the

petitioner in case there has been any TDS deduction on the part of the

respondent. In the light of these facts, it has been contended that there is

no wilful disobedience of the undertaking purported to have been given

by the respondent.

14. I have carefully considered the submissions of the respective sides

and have also gone through the record. I find force in the submission of

the learned counsel for the respondent that the present contempt petition

is devoid of any merit on account of the fact that a person would be

deemed to be guilty of contempt on the allegation of having violated the

undertaking only if complete and gross disregard to the undertaking is

shown. In the instant case, admittedly, the petitioner has received the

monetary benefits in terms of the compromise decree itself, therefore, it

can be said that there is partial, if not substantial compliance of the

decree. Even if there is a partial compliance which, in my view, was a

material compliance inasmuch as the monies were paid to the petitioner,

that was sufficient enough to observe that no case for initiating contempt

against the respondent is made out. Further, the petitioner himself has

chosen to file execution petition and the executing court is seized of the

matter, therefore, the contempt court would not be going into the minute

details as to whether it has been complied with or not. I feel that this is

not a fit case where the court must initiate any action against the

respondent for having wilfully disobeyed the undertaking given by her.

15. So far as the judgments which have been cited by the learned

counsel for the petitioner are concerned, I have gone through all these

judgments but they are all distinguishable from the facts of the present

case.

16. In the case of Rama Narang vs. Ramesh Narang & Another; (2009)

16 SCC 126, there was a settlement arrived at before the Supreme Court

between various members of a family which would have given quietus to

as many as eight matters pending before the Bombay High Court and

Company Law Board but when all the parties had complied with their

part of obligation, one of the party had tried to wriggle out of the

agreement by trying to retrace his steps. It was at that stage, that the

court observed that merely because a compromise decree has been passed

and a decree can be executed in a civil court that would not prevent the

court from initiating an action for contempt. In the instant case, that is

not the situation. As a matter of fact, the respondent has already

complied with the material portion of the undertaking by giving monies

to the petitioner during all these years, the quantum of which has run into

crores. Therefore, the facts of Rama Narang's case (supra) cannot be

equated with the facts of the present case.

17. In Chintala Syamala vs. Chintala Venkata Satyanarayana Rao;

(2008) 10 SCC 711, the alleged contemnor, who had undertaken to pay a

sum of Rs.8 lacs to his wife before the Apex court; Rs.5 lacs by way of

maintenance and a sum of Rs.3 lacs to his unmarried daughter for the

purpose of her marriage, had resiled from his statement and expressed his

inability to pay even a single penny. It is then that the court was called

upon to hold the respondent/husband, who was working as a Joint

Secretary in Government of India, guilty of contempt, while as in the

instant case, the petitioner has admittedly received substantial amount of

money. Therefore, it could not be equated with a case where a party

incurs an obligation to pay any amount and does not pay even a single

penny with a case where a party agrees to pay an amount and pays

substantial amount of money.

18. The third case cited by the learned counsel for the petitioner is

Maruti Udyog Limited vs. Mahinder C. Mehta & Ors.; (2007) 13 SCC

220, where a party gives an undertaking to furnish property by way of

security and tries to mislead the court by not only disposing of the said

property but also encumbering the same to another financial institution.

The facts of Maruti Udyog's case (supra) are different than the facts of

the present case. Similarly, the facts of the two other cases, that is, David

Jude vs. Hannah Grace Jude & Ors.; (2003) 10 SCC 760 and Prominent

Advertising Services vs. Koutons Retail India Limited passed in CCP

(Co.) No.10/2013 in Co. Petition No.167/2011 are also different from the

one which are existing in the present case.

19. The Supreme Court in a catena of judgments has held that before a

law laid down in a particular case is made applicable to the facts of a case

at hand, the court must see the correlation in the facts of the two cases

before applying the law rather than doing so mathematically and

mechanically. Reliance in this regard can be placed on Haryana

Financial Corporation & Anr. vs. M/s. Jagdamba Oil Mills & Anr.; AIR

2002 SC 834 and Sushil Ansal vs. State through CBI; (2014) 6 SCC 173.

20. None of the judgments which have been cited by the learned

counsel for the petitioner are anywhere near the facts of the present case

so as to persuade this court to rely on these judgments and hold the

respondent prima facie guilty of contempt. On the contrary, I agree with

one contention of the learned counsel for the petitioner propounded in

Rama Narang's case (supra) that even if there is a compromise decree

passed, which can be executed in a civil court, yet a party can be held

guilty of contempt on the basis of the undertaking given by such a party.

But that fact also does not help the petitioner in any manner whatsoever.

The reason for this is that not only in the instant case I have observed that

the respondent has complied with the order substantially by paying the

monies to the petitioner and only certain minute details remain to be

implemented, if at all the version of the petitioner is correct, that can be

got done only by getting the decree executed in a civil court, which

process has already been availed of by the petitioner. Therefore, in

totality of circumstances, I am of the view that the petitioner having

availed of the remedy of execution of the decree, could not have

proceeded ahead to pursue the present contempt petition and de hors that

fact the petitioner is not able to make out any prima facie case of gross,

wilful and contumacious conduct on the part of the respondent of having

violated her undertaking.

21. I, accordingly, dismiss the present contempt petition and discharge

the contempt notice. In normal circumstances, the present contempt

petition, pending for the last more than six years, should have been

visited with imposition of some cost because during all these six years, a

lot of time and energy of the court and its Registry has been consumed

without any fruitful result by keeping the matter alive; however, keeping

the fact in mind that the petitioner is stated to be 75 years of age, I am

inclined to take a lenient view and not impose cost.

V.K. SHALI, J.

NOVEMBER 21, 2014 'AA'