Delhi High Court
Shri Anil Kumar Gupta vs Shri Balbir Shergill @ Balbir ... on 4 September, 2014
* HIGH COURT OF DELHI AT NEW DELHI
+ Cont. Cas. (C) No.625 of 2014
Decided on : 04 September, 2014
SHRI ANIL KUMAR GUPTA ...... Petitioner
Through: Mr. M.G. Vacher, Advocate.
Versus
SHRI BALBIR SHERGILL @ BALBIR SINGH ...... Respondent
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 order
dated 5.10.2009.
2. I have heard the learned counsel for the petitioner and have also
gone through the record.
3. The contention of the learned counsel for the petitioner is that the
petitioner had filed a suit for eviction against the respondent which was
referred to the Mediation Centre, where a settlement was arrived at on
22.9.2009 and the matter was sent back to the court. On the basis of the
settlement arrived at before the Mediation Centre, the court passed the
following order on 5.10.2009 :-
"1. That the defendant shall be allowed to retain the
suit premises for a period of six years w.e.f.
01.07.07 upto 30.06.2013 on the same terms
and conditions of which the premises was
initially let out.
2. The defendant shall pay an amount of
Rs.7,000/- per month w.e.f. 01.07.07 upto the
period ending 30.06.13 to the plaintiff regularly
for the use and occupation of the suit premises.
3. The amount of Rs. 7,000/- paid to the plaintiff
by the defendant shall include house tax but
shall exclude electricity and other municipal
charges which are to be paid by the defendant
during this period.
4. That the defendant shall vacate the suit
premises on or before 30.06.13."
4. It is contended by the learned counsel for the petitioner that though
the petitioner has vacated the premises, however, he has failed to pay the
amount @ Rs.7,000/- per month in terms of the agreement with effect
from 1.7.2007 till 30.6.2013 and, therefore, he has violated the
undertaking having been given to the court and accordingly, he deserves
to be proceeded under the Contempt of Courts Act. For the purpose of
canvassing his submissions, the learned counsel for the petitioner has
referred to the judgment of the Supreme Court in Bank of Baroda vs.
Sadruddin Hasan Daya & Another; (2004) 1 SCC 360 and Surinder Kaur
& Ors. vs. Pritam Singh & Ors.; 154 (2008) DLT 598.
5. I have gone through both the judgments. In Bank of Baroda's case
(supra), no doubt the court has held that a wilful breach of an undertaking
given to the court would tantamount to civil contempt but in the instant
case, there is no undertaking or assurance given by the respondent to the
court. The undertaking and assurance which has been given by the
respondent, has been given to the petitioner before the Mediation Centre.
Apart from this fact that the undertaking recorded before the Mediation
Centre cannot be treated to be one given to the court unless and until a
follow-up statement of the parties is recorded in court in support of the
settlement. Therefore, so far as the judgment of Bank of Baroda's case
(supra) is concerned, that is not applicable to the facts of the present case.
6. As regards Surinder Kaur's judgment (supra), it is a case where a
compromise has been arrived at before the Mediation Centre in a suit for
partition, which is subsequently reduced into writing and, therefore, the
matter was sent to the court where, on the basis of the compromise
recorded before the Mediation Centre, the follow-up statement of the
parties has been recorded and a decree on the basis of settlement between
the parties has been passed.
7. The question which was involved before the court was with regard
to the validity of the statement which is recorded before the Mediation
Centre and as to how the same is to be dealt with. It was in this context
that the learned single judge of this court has observed in para 5 as
under:-
"5. It may be noted at this stage that this Court has
already framed Mediation and Conciliation Rules,
2004 which have been notified vide Notification
No.171/Rules/DHC dated 11th August, 2005. Rules 24
and 25 thereof are relevant of our purposes which are
reproduced below :
"Rule 24. Settlement Agreement -
(a) Where an agreement is reached between the
parties in regard to all the issues in the suit or
proceeding or some of the issues, the same shall
be reduced to writing and signed by the parties
or their constituted attorney. If any Counsel
has represented the parties, the
conciliator/mediator may obtain his signature
also on the settlement agreement.
(b) The agreement of the parties so signed shall be
submitted to the mediator/conciliator who shall,
with a covering letter signed by him, forward
the same to the Court in which the suit or
proceeding is pending.
(c) Where no agreement is arrived at between the
parties, before the time limit stated in Rule 18
or where the mediator/conciliator is of the view
that no settlement is possible, he shall report the
same to the Court in writing.
Rule 25. Court to fix a date for recording
settlement and passing decree -
(a) On receipt of any settlement, the Court shall fix
a date of hearing normally within seven days
but in any case not beyond a period of fourteen
days. On such date of hearing, (if the Court is
satisfied that the parties have settled their
disputes), it shall pass a decree in accordance
with terms thereof.
(b) If the settlement dispose of only certain issues
arising in the suit or proceeding, on the basis of
which any decree is passed as stated in Clause
(a), the Court shall proceed further to decide
remaining issues."
8. Rule Nos.24 and 25 of the Mediation and Conciliation Rules, 2004
which, if read in proper perspective, would show that the settlement
which has been arrived at between the parties has to be followed up by
the parties with the recording of their unequivocal statement before the
court that they would abide by the terms of settlement.
9. Curiously, in the instant case, although the settlement has been
recorded before the Mediation Centre but at the time when the matter was
listed before the court on 5.10.2009, none of the parties originally were
present and yet the court had passed a direction to the respondent that he
shall vacate the premises and pay the amount of Rs.7,000/- per month to
the petitioner/plaintiff.
10. I feel that the court ought to have, in the first instance, recorded the
statement of both the parties and only then a consent decree/compromise
decree could have been passed. But in the instant case, after the order
was passed by the court, the plaintiff/petitioner had only appeared and got
his statement recorded that he has settled the matter amicably with the
defendant/respondent and the terms of settlement were proved. Merely
by appearance of the plaintiff/petitioner before the court on 5.10.2009, I
feel the court was not justified in passing a decree or an order dated
5.10.2009. I do not feel that there is any undertaking which has been
given by the respondent to the court and, therefore, there is no question of
violating the said undertaking.
11. I feel that the present contempt petition is totally misconceived and
the same is accordingly dismissed leaving the petitioner free to take such
other remedies as may be available in law.
V.K. SHALI, J.
SEPTEMBER 04, 2014
'AA'
