Delhi High Court

Som Datt Enterprises Limited vs Vijay Cable Industries & Ors on 28 November, 2016

*IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 28th November, 2016

+ CCP(O) No.146/1997 in EX.P. 126/1997
SOM DATT ENTERPRISES LIMITED ..... Decree Holder/Relator
Through: Mr. G.P. Thareja & Mr. Himanshu
Pathak, Advs.

Versus

VIJAY CABLE INDUSTRIES & ORS .... Judgment Debtors/
Alleged Contemnor
Through: Mr. Rajesh Banati & Mr. Vikram
Pratap Singh, Advs.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The Relator/Decree-holder Som Datt Enterprises Ltd. has filed this

petition averring:

(i) that the relator/decree-holder filed Execution Petition

No.126/1997 for execution of the consent decree dated 15th April, 1996 in

Suit No.2428/1995;

(ii) that Vide order dated 29th May, 1997 in the aforesaid execution

petition, various receivables of the judgment-debtors i.e. alleged

contemnors, from Director General of Supplies & Disposals (DGS&D) and

various Electricity Boards as well as the immovable property bearing No.A-

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 1 of 35
111, New Friends Colony, New Delhi were attached; accordingly the

DGS&D and various State Electricity Boards were restrained and prohibited

from making any payment to the judgment-debtors/alleged contemnors to

the extent of the decretal amount;

(iii) the judgment-debtors / alleged contemnors approached the relator /

decree-holder and offered to pay the decretal amount in installments with a

request to the relator / decree-holder that the interim restraint and attachment

order be withdrawn; the judgment-debtors / alleged contemnors assured that

a large amount was immediately due to them from the DGS&D and the

Andhra Pradesh State Electricity Board (APSEB) and that upon withdrawal

of the attachment, the amount would be paid by the judgment-debtors /

alleged contemnors to the relator / decree-holder;

(iv) that the relator/decree-holder agreed to the said offer and accordingly

a settlement / compromise was entered into whereunder the judgment-

debtors / alleged contemnors agreed to forthwith pay an amount of Rs.46

lacs to the relator / decree-holder and to pay the balance amount in 40 equal

bimonthly installments with effect from 31st August, 1997 till 31st March,

1999;

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 2 of 35
(v) that the judgment-debtors / alleged contemnors had further agreed to

pay overdue interest amount in the sum of Rs.10,62,000/- upto 30th June,

1997 and Rs.1,00,000/- towards partial cost of legal expenses incurred by

the relator / decree-holder - this amount of Rs.11,62,000/- was agreed to be

paid by the judgment-debtors / alleged contemnors in four equal installments

of Rs.2,90,500/- payable by 31st December, 1997, 31st May, 1998, 31st

October, 1998 and 31st March, 1999;

(vi) that the judgment-debtors/alleged contemnors had also agreed and

given an undertaking to this Court to the effect that they would faithfully

abide by the terms and conditions of the said settlement and shall punctually

discharge all their liabilities thereunder;

(vii) that in view of the said settlement, the parties jointly moved an

application before this Court in Execution Petition No.126/1997 for vacating

the order dated 29th May, 1997 attaching the assets and receivables of the

judgment-debtors / alleged contemnors;

(viii) that the aforesaid application being EA No.233/1997 came up before

this Court on 30th July, 1997 when judgment-debtors/alleged contemnors

through their counsel undertook to the Court that the judgment-debtors /

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 3 of 35
alleged contemnors shall remain bound by the terms and conditions as

contained in the compromise application and in the agreement dated 24 th

July, 1997;

(ix) that the undertaking given by the judgment-debtors / alleged

contemnors through counsel was accepted and acted upon by this Court and

the following order was passed:

"In view of the above statement given by the learned counsel for both
the parties before this Court today the Execution Petition
(Ex.No.126/97) is directed to be disposed of in terms of compromise
(Ex.C-1) arrived at between the parties. The parties shall remain
bound by the terms and conditions as contained in the application for
compromise (Ex.C-1) and also the Agreement executed between the
parties on 24th July, 1997 (Annexure A-1). The parties shall also
remain bound by the undertaking given by their respective Advocates
before this Court today. The attachment order dated the 29th May,
1997, in view of the fact that the parties have arrived at a compromise,
is hereby vacated. As a measure of abundant caution it is clarified that
in the event of any default by the Judgment Debtors the Decree Holder
is given the liberty to move an application for the revival of the
Execution Petition.
A copy of this order be also sent to the garnishees for information.
A copy of the order be also given „dasti‟ to the parties."

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 4 of 35
(x) that in terms of the aforesaid settlement / compromise and

undertaking, the judgment-debtors / alleged contemnors were required to

pay an amount of Rs.46 lacs with interest, with Rs.31 lacs being payable

immediately on lifting of the order of attachment and Rs.15 lacs being

payable within three weeks of the settlement and the balance decretal

amount as agreed;

(xi) that however in total disregard, willful disobedience and breach of

undertaking given to this Court, the judgment-debtors / alleged contemnors

did not honour their commitment; the cheques issued by the judgment-

debtors / alleged contemnors towards bimonthly installments payable on 31 st

August, 1997 and 30th September, 1997 were dishonoured and returned

unpaid due to insufficiency of funds in the account of the judgment-debtors /

alleged contemnors; and,

(xii) that as against the undertaking to pay the amount of Rs.46 lacs, the

judgment-debtors / alleged contemnors paid an amount of Rs.13 lacs only by

way of two cheques for Rs.5 lacs and Rs.8 lacs; that though thereafter two

cheques for Rs.16 lacs and Rs.15 lacs dated 4 th September, 1997 and 22nd

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 5 of 35
September, 1997 respectively were issued, however the said cheques also

were dishonoured and returned unpaid and no further amount has been paid.

2. The CCP(O) aforesaid was entertained and a reply dated 13 th

February, 1998 thereto has been filed by the judgment-debtors / alleged

contemnors tendering unqualified apology for not being in a position to

make the payment in accordance with the agreement dated 24 th July, 1997

and the order dated 30th July, 1997 and pleading:

(a) that according to the agreement dated 24th July, 1997, the

judgment-debtors/alleged contemnors were to make the payment of Rs.46

lacs out of the amounts received from DGS&D and APSEB and at the same

time to continue with their business which would enable them to make

payment of the installments as agreed;

Rs.25.5 lacs from their own private sources and deposited a sum of Rs.23

lacs in cash after entering into the said agreement;

(d) that the judgment-debtors / alleged contemnors however could

make a payment of Rs.13 lacs only to the relator / decree-holder and despite

their best efforts could not make any payment over and above the payment

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 6 of 35
of Rs.13 lacs - this was mainly due to non-release of the funds by the bank

in which payments were received;

(e) that a sum of about Rs.2 crores was adjusted by the bank

towards releasing the various Letters of Credits established by the bank on

behalf of M/s Vijay Cables;

(f) that from 1st August, 1997 till the filing of the reply, a sum of

Rs.5,48,000/- only had been withdrawn by the judgment-debtors / alleged

contemnors in cash for meeting their expenses and no funds have been

diverted by the judgment-debtors / alleged contemnors to their associate

companies, firms or sister concerns;

(g) that though there has been a default in making payment in

accordance with the schedule committed by the judgment-debtors / alleged

contemnors in their agreement dated 24th July, 1997 but the same was not

intentional or willful and owing to the reasons beyond their control;

(h) that the judgment-debtors / alleged contemnors are burdened

with heavy debt liabilities of various financial institutions and private parties

and their liabilities are of approximately Rs.13.5 crores besides the decretal

amount;

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 7 of 35
(i) that all the immovable properties of the judgment-debtors /

alleged contemnors are mortgaged to the financial institutions;

(j) that there are no recoverable / receivables from any of the

departments;

3. Though the petitioner has filed a rejoinder to the aforesaid reply but

need to refer thereto is not felt.

4. The contempt petition as aforesaid has remained pending in this Court

for the last nearly 18 years and was being taken up along with certain other

proceedings. On 20th September, 2016 the counsel for the relator / decree-

holder stated that though in this contempt petition there are six alleged

contemnors viz. M/s Vijay Cable Industries, Mr. V.K. Bhatia, Mr. V.K.

Bhatia & Sons (HUF), Mr. T.R. Bhatia, Priya Cable Pvt. Ltd., and Mrs.

Priya Bhatia, but the contempt petition is being pursued against the

judgment-debtor/alleged contemnor Mr. V.K. Bhatia only and that the

judgment-debtor/alleged contemnor No.4 Mr. T.R. Bhatia had died.

5. Vide order dated 20th September, 2016, while posting this petition for

hearing on 28th September, 2016, the judgment-debtor / alleged contemnor

V.K. Bhatia was directed to personally remain present in the Court.

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 8 of 35
6. On 28th September, 2016, the counsel for the relator / decree-holder

and the counsel for the judgment-debtor / alleged contemnor V.K. Bhatia

were heard.

7. The counsel for the judgment-debtor / alleged contemnor V.K. Bhatia

contended stated that the sum of Rs.46 lacs was payable by the judgment-

debtor / alleged contemnor V.K. Bhatia to the relator / decree-holder only on

receipt from DGS&D and APSEB and no amounts were received from

DGS&D and APSEB.

8. The hearing revolved around whether the payment by the judgment-

debtor / alleged contemnor V.K. Bhatia to the relator/decree-holder was

conditional or not. It was also the contention of the counsel for the

judgment-debtor / alleged contemnor V.K. Bhatia that because the

consequences of non payment was also provided, no action by way of

contempt lies and the remedy of the relator / decree-holder upon non-

payment by the judgment-debtor / alleged contemnor V.K. Bhatia is only to

take action which was stipulated. It was further contended that no

undertaking of the judgment-debtor / alleged contemnor V.K. Bhatia to the

Court was recorded and the undertaking given was only of the counsel.

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 9 of 35
9. To adjudicate the aforesaid contentions, it is important to peruse the

documents and records of Execution No.126/1997 attached to the CCP.

10. On 29th May, 1997, the following order was passed in Execution

Petition No.127/97:

"Let the execution be registered. Along with the execution
application the Decree Holder has filed the details of the assets of
Judgment Debtor No.1 (at pages 23A and 23B of the paper book).
Issue warrants of attachment in respect of monies payable to the
Judgment Debtors by the Delhi Vidyut Board, Delhi, the Director
General of Supplies & Disposals, New Delhi, M.P. State Electricity
Board, Jabalpur (M.P.), Andhra Pradesh State Electricity Board,
Hyderabad, Tamilnadu State Electricity Board, Chennai (Tamilnadu),
Maharashtra State Electricity Board, Mumbai and Kerala State
Electricity Board, Aluva (Kerala) to the extent of the decretal amount,
returnable on 16th August, 1997.
Also issue warrant of attachment under Order XXI Rule 4 CPC in
respect of property No.A-111, New Friends Colony, New Delhi,
returnable on 16th August, 1997.
Decree Holder to take steps within a week.
EA/187/97
List on 16th August, 1997."

11. EA No.215/1997 was filed by the relator/decree-holder for a direction

to the garnishees i.e. Delhi Vidyut Board (DVB), DGS&D, MPSEB,

APSEB, Tamilnadu State Electricity Board (TNSEB), Maharashtra State

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 10 of 35
Electricity Board (MSEB) and Kerala State Electricity Board (KSEB) to

deposit all the amounts payable to the judgment-debtors / alleged

contemnors into this Court. Vide order dated 16th July, 1997 notice of the

aforesaid application was issued to the judgment-debtors / alleged

contemnors as well as to the garnishees.

12. EA No.233/1997 was filed by the relator/decree-holder and the

judgment-debtors / alleged contemnors and paras 4 to 7 whereof are as

under:

"4. The parties to the Petition submit that the parties has
since entered into a settlement / compromise whereby and
whereunder Judgment Debtors have agreed to forthwith pay an
amount of Rs.46 lacs to the Decree Holder and further to pay the
amount punctually and regularly in 40 (forty) equal by-monthly
instalments with effect from August 31, 1997 till March 31, 1999.

5. That the Judgment Debtors have further agreed to pay an
overdue interest amount in the sum of Rs.10,62,000/- upto June 30,
1997 and Rs.1,00,000/- towards the partial cost of legal expenses
incurred by the Decree Holder in the present Execution proceedings.
The Second amount of Rs.11,62,000/- has been agreed to be paid by
the Judgment Debtors in four (4) equal instalments of Rs.2,90,500/-
payable on December 31; 1997, May 31, 1998; October 31, 1998
and March 31, 1999.

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 11 of 35
6. That the Judgment Debtors have also agreed to give an
Undertaking to this Hon‟ble Court, inter alia, to the effect that they
would faithfully abide by the terms and conditions of the said
settlement and shall punctually discharge all their liabilities
thereunder. A copy of the said Agreement is appended hereto as
ANNEXURE-A/1.

7. That in view of the said settlement, the applicants submit that
the undertaking of the Judgment Debtors may please be recorded in
terms thereof and the Order dated May 29, 1997 as rendered by this
Hon‟ble Court attaching thereby, the movable and immovable
properties of the Judgment Debtors may please be vacated."

The aforesaid application was accompanied with the affidavit of

judgment-debtor / alleged contemnor V.K. Bhatia.

13. The aforesaid application was also accompanied with agreement dated

24th July, 1997 between the relator/decree-holder and the judgment-debtors /

alleged contemnors and paras 1 to 4, 8 to 10, 12 & 13 whereof are as under:

"1) That the Judgment Debtors shall immediately pay an amount
in the sum of Rs.46,00,000/- (Rupees forty six lacs only) with
interest thereon at the rate of 2.5% per month with effect from July
01, 1997 to the Decree-Holder in part discharge of their liability
under the Decree dated April 15, 1996.

2) That the aforesaid amount of Rs.46,00,000/-, with interest as
detailed above, shall be paid by the Judgment Debtors from and out
of the following sources:-

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 12 of 35
a) DGS&D Rs.31.00 lacs payable immediately after release of
DGS&D to Judgment Debtors upon
lifting of the order of attachment.
b) APSEB Rs.15.00 lacs payable within 3 weeks from the date
of this settlement with interest at the
rate of 2.5% for the period from 1.7.97
till date of payment.

Rs.46.00 lacs

3) That the balance decretal amount as on June 30, 1997, shall
be paid in the following rescheduled manner:-

Decree amount Rs. 300.00 lacs
Less: Received Rs. 54.16 lacs
Less: To be received Rs. 46.00 lacs
Net receivable Rs.199.84 lcas
To be paid in 40 (forty) equal bi-monthly instalments upto 31.3.99 of
Rs.4,99,600/- each payable on the last day of each English Calender
month with effect from August 31, 1997 and fresh post-dated
cheques shall be issued by the Judgment Debtors in respect thereof.

4) That in addition to the above the Judgment Debtors shall also
pay to the Decree Holder an amount in the sum of Rs.11,62,000/-
(Rupees eleven lacs sixty two thousand only) on account of overdue
interest for the period of default upto June 30, 1997 and towards
partial legal expenses incurred by the Decree Holder in the
Execution Petition, as detailed hereunder:-

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 13 of 35
(i) Over due interest for the
period of default, computed
upto 30.6.97 Rs.10.62 lacs
(ii) Legal Expenses towards
Execution Petition Rs.1.00 lacs

Total Rs.11.62 lcas
The above amount of Rs.11,62,000/- shall be paid by the Judgment
Debtors in four equal instalments of Rs.2,90,500/- each payable on
December 31, 1997; May 31, 1998; October 31, 1998 and March 31,
1999; respectively. The Judgment Debtors shall also issue post
dated cheques in respect thereof and any default on the part of the
Judgment Debtors in honouring the said cheques shall be deemed to
be a default within the meaning of the said expression as used herein,
and shall entail the same consequences, inter alia, as to the interests
thereon, as in regard to the default in payment of bi-monthly
instalments.

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

8) That in the event of non-payment of APSEB bills relating to
recovery of Rs.15 lacs within 21 days, referred to in para (3) above,
the Judgment Debtors shall make payment from their other sources
within 7 (seven) days, failing which, their receivables with all the
other parties shall get attached with immediate effect.

9) That the injunction / attachment order of movable and
immovable properties rendered by the Hon‟ble High Court of Delhi
on May 29, 1997 in Execution Petition No.126 of 1997 shall be
agreed to be lifted.

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 14 of 35
10) That out of the payment now due and receivable by the
Judgment Debtors from the APSEB, any amount received by the
Judgment Debtors shall first be paid to the Decree-Holder to the
extent of Rs.15 lacs in terms of clause (3) hereof and towards
payment of any monthly instalment that had fallen due for payment
and the Judgment Debtors are in arrears in respect thereof.

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

12) That in the event of any default or failure on the part of
Judgment Debtors to fulfill and discharge their commitments made
herein and / or to honour their undertaking before the Hon‟ble Court,
the existing attachment order shall be liable to be revived and re-
imposed again in the manner as prescribed in the existing order dated
May 29, 1997 of the Hon‟ble High Court of Delhi.

13) That all other existing terms of the Decree dated April 15,
1996, read with the Settlement dated March 18, 1996, shall continue
to be operative and binding upon all the parties unchanged."

14. The aforesaid joint application being EA No.233/1997 came up before

this Court on 30th July, 1997 when the following order was made:

"Execution application be numbered.
Submission made by the learned counsel for the parties that parties
have arrived at a settlement / compromise and that the parties have
filed a joint application to the above effect. Let the statement of the
learned counsel for the parties be recorded.
Sd/-
July 30, 1997 LOKESHWAR PRASAD, J.

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 15 of 35
STATEMENT OF Ms. BINDYA LOGANI, COUNSEL FOR
THE JUDGMENT DEBTORS (WITHOUT OATH):-
Under instructions from the Judgment Debtors, who are also
present in the Court today, whom I identify, I have to submit that the
parties have arrived at a compromise and have submitted a joint
application which is Ex.C-1 which bears the signatures of both the
parties. The terms of compromise arrived at between the parties are
reflected in the application Ex.C-1 and also in the Agreement dated
the 24th July, 1997 executed between the parties. A photo copy of
the above said agreement is annexed with the application Ex.C-1 and
is marked as Annexure A-1. In terms of the settlement / agreement
arrived at between the parties the Judgment Debtors have agreed to
pay forthwith to the Decree Holder a sum of Rs. forty six lacs with
interest thereon at the rate of 2.5% per month with effect from
1.7.1997 and have further agreed to pay the balance amount in 40
equal bi-monthly instalments each of Rs.4,99,600/- upto 31st March,
1999 payable on the last date of each English Calender month w.e.f.
31st August, 1997. It is also agreed that the Judgment Debtors shall
pay to the Decree Holder an amount of Rs.11,62,000/- on account of
over due interest for the period of default upto 30th June, 1997 and
towards partial legal expenses incurred by the Decree Holder in the
present execution proceedings. It is also agreed that the above
amount of Rs.11,62,000/- shall be paid by the Judgment Debtors in
four equal instalments each of Rs.2,90,500/- payable on 31st
December, 1997, 31st May, 1998, 31st October, 1998 and 31st March,
1999. It is also agreed between the parties that M/s Priya Cables Pvt.
Ltd. (J.D. No.5) shall furnish guarantee towards the payment of
decreetal amount as referred to above and for the payment thereof in
the manner as agreed upon between the parties on due dates failing

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 16 of 35
which Judgment Debtor No.5, namely M/S Priya Cable Pvt. Ltd.
shall be liable to the Decree Holder for all the amount due under the
decree dated 15th April, 1996 along with over due interest and other
charges. It is further agreed between the parties that the Judgment
Debtors shall pledge all their 17,000 shares as per details given in
Para 6 of the Agreement (Annexure A-1) by way of additional
security alongwith the document / papers.
It is also agreed that in the event of default as defined in the
original decree dated the 15th April, 1996 read with settlement dated
March 18, 1996 (namely three consecutive defaults), the entire
decreetal amount of Rs.4.59 crores, minus the instalment amounts
already paid by the Judgment Debtors together with costs and
interest thereon shall become due forthwith and payable by the
Judgment Debtors to the Decree Holder with all costs and interest @
2.5 per cent per month for the entire period of default computed with
effect from the first default in terms of and under the settlement
dated March 18, 1996.
It is further agreed between the parties that in the event of
non-payment of APSEB bills relating to the recovery of Rs.15 lacs
within 21 days, referred to in para (3) of the Agreement, the
Judgment Debtors shall make payment from their other sources
within seven days failing which their receivables with all other
parties shall be liable to be attached.
It is also agreed that the injunction / attachment order of
movable and immovable properties ordered by this Court vide order
dated 29th May, 1997 in Execution No.126/97 shall be vacated. It is
also agreed that in the event of default or failure on the part of the
Judgment Debtors to fulfill and discharge their commitments and / or
to honour their undertaking the existing attachment order shall be

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 17 of 35
liable to be revived and reimposed. I, on behalf of the Judgment
Debtors, undertake that the Judgment Debtors shall remain bound by
the terms and conditions as contained in the application Ex.C-1 ad
also the terms and conditions as contained in the Agreement dated
the 24th July, 1997 (Annexure A-1).
It is prayed that the present Execution Petition Ex.126/97
filed by the Decree Holder be ordered to be consigned to Record
Room as fully satisfied in terms of the Agreement arrived at between
the parties and referred to above. In the event of any default the
Decree Holder shall have the right to have the Execution Petition
revived.

R.O.& A.C. Sd/-
July 30, 1997 LOKESHWAR PRASAD, J.
RP

STATEMENT OF MR. S.K. MANIKTALA, COUNSEL FOR
THE DECREE HOLDER (WITHOUT OATH):-
I have heard the above statement of the learned counsel for
the Judgment Debtors. I, under instructions of my client, the Decree
Holder, states that the same is acceptable to the Decree Holder also.
The parties have arrived at a compromise and have moved a joint
application (Ex.C-1) which bears the signatures of both the parties
including the Decree Holder. The application Ex.C-1 is supported
by the affidavits which have been duly signed and sworn by the
parties. The Execution Petition (Ex.126/97) be disposed of in terms
of compromise (Ex.C-1) leaving the parties to bear their costs.

CCP(O) No.146/1997 in Ex. P. No.126/1997 Page 18 of 35
R.O.& A.C. Sd/-
July 30, 1997 LOKESHWAR PRASAD, J.
RP

ORDER

In view of the above statement given by the learned counsel for both the parties before this Court today the Execution Petition (Ex.No.126/97) is directed to be disposed of in terms of compromise (Ex.C-1) arrived at between the parties. The parties shall remain bound by the terms and conditions as contained in the application for compromise (Ex.C-1) and also the Agreement executed between the parties on 24th July, 1997 (Annexure A-1). The parties shall also remain bound by the undertaking given by their respective Advocates before this Court today. The attachment order dated the 29th May, 1997, in view of the fact that the parties have arrived at at compromise, is hereby vacated. As a measure of abundant caution it is clarified that in the event of any default by the Judgment Debtors the Decree Holder is given the liberty to move an application for the revival of the Execution Petition.

A copy of this order be also sent to the garnishees for information.

A copy of the order be also given „dasti‟ to the parties."

15. The counsel for the judgment-debtor / alleged contemnor V.K. Bhatia

in support of his contentions has relied on R.N. Dey Vs. Bhagyabati

Pramanik (2000) 4 SCC 400 and Northern Aromatics Ltd. Vs. Shahzeb

Khan 2006 (90) DRJ 23. In the former, it was held that the weapon of

contempt is not to be used in abundance or misused and normally cannot be

used for execution of the decree or implementation of an order for which

alternative remedy in law is provided for. It was further held that the

discretion given to the Court is to be exercised for maintenance of the

Court‟s dignity and majesty of law. In the latter judgment, it was held that

any person appearing before the Court can give an undertaking in two ways;

either by filing an application or an affidavit clearly setting out the

undertaking given and incorporated in the Court order or by a clear and

express oral undertaking incorporated in the Court order. It was further held

that to assume the nature of undertaking, there has to be acceptance thereof

by the Court and an order of the Court binding the person therewith.

16. Per contra, the counsel for the relator / decree-holder relied on Bank

of Baroda Vs. Sadruddin Hasan Daya (2004) 1 SCC 360 rejecting the

contention that the Court having passed a consent decree, the remedy of the

petitioner lay in executing the same and there was no occasion for initiating

contempt proceedings against the respondents and reiterating that willful

breach of an undertaking given to a Court amounts to civil contempt within

the meaning of Section 2(b) of the Contempt of Courts Act.

17. I will first deal with the question whether the payments to be made by

the judgment-debtors / alleged contemnors to the relator/decree-holder were

dependent upon receipt by the judgment-debtors / alleged contemnors of

monies from DGS&D and the various Electricity Boards.

18. For the reasons hereinafter appearing, I am of the view that the

payments by the judgment-debtors / alleged contemnors to the relator /

decree-holder as agreed to in EA No.233/1997 and agreement dated 24th

July, 1997 were not dependent on receipt of monies by the judgment-debtors

/ alleged contemnors from DGS&D and the Electricity Boards:

(i) In para 4 of EA No.233/1997, the judgment-debtors / alleged

contemnors agreed to "forthwith pay an amount of Rs.46 lacs to the Decree

Holder and further to pay the amount punctually and regularly in 40 (forty)

equal by-monthly instalments with effect from August 31, 1997 till March

31, 1999." The said payments were not made dependent or contingent in any

manner whatsoever.

(ii) Similarly in para 5 of EA No.233/1997, the judgment debtors /

alleged contemnors agreed to pay overdue interest and costs, in four equal

instalments on 31st December, 1997, 31st May, 1998, 31st October, 1998 and

31st March, 1999. The said payments were also not made dependent or

contingent in any manner whatsoever.

(iii) Thereafter in para 6 of EA No.233/1997, judgment-debtors /

alleged-contemnors "agreed to give an undertaking inter alia, to the effect

that they would faithfully abide by the terms and conditions of the said

settlement and shall punctually discharge all their liabilities thereunder."

The settlement referred to has necessarily to be what is recorded in

preceding paras 4&5.

(iv) Though in para 2 of the agreement dated 24th July, 1997

annexed to EA No.233/1997 the aforesaid application, it was stated that the

amount of Rs.46 lacs with interest as detailed in para 1 shall be paid by the

judgment-debtors / alleged contemnors from the sources mentioned

thereunder i.e. from the monies released by DGS&D on lifting of the order

of attachment and from APSEB within three weeks from the date of

settlement but mere mention of source from which judgment-debtors /

alleged contemnors intended to make payments, does not make the payment

undertaken to be made contingent on monies being received from that

source. Had that been the intention, it would have been stated so.

Moreover, in para 8, it was provided that in the event of non-payment by

APSEB, the judgment-debtors / alleged contemnors shall make payment

from other sources.

(v) The context in which the aforesaid settlement was made is also

relevant. As aforesaid, this Court had vide order dated 29th May, 1997

attached the monies payable by the DGS&D and Electricity Boards to the

judgment-debtors / alleged contemnors and vide order dated 16th July, 1997,

notice of the application of the relator / decree-holder for a direction to the

DGS&D and Electricity Boards to deposit in this Court monies due from

them to the judgment-debtors / alleged contemnors was issued. The

judgment-debtors / alleged contemnors did not wait for the said garnishees

to respond to the Court and within less than 10 days thereof compromised

with the relator / decree-holder. Had the intention been of the relator /

decree-holder receiving monies subject to the garnishees depositing the

same, there was no need for the settlement and undertaking.

(vi) The only inference is that the judgment-debtors / alleged

contemnors wanted to avoid the said garnishees depositing the monies due

from them to the judgment-debtors / alleged contemnors in this Court.

(vii) Once the judgment-debtors / alleged contemnors made the

relator / decree-holder agree to the lifting of the attachment, the relator/

decree-holder, but for the undertaking of the judgment-debtors / alleged

contemnors, was left with no say over the said garnishees and no right to

restrain the said garnishees from making payment to the judgment-debtors /

alleged contemnors or to ensure that the judgment-debtors / alleged

contemnors on receiving such payments from the said garnishees would

abide by their word.

(viii) No source of payment of the balance amount in any case was

stipulated; that amount also admittedly has not been paid.

(ix) The judgment-debtors / alleged-contemnors in their statement

before this Court, through their counsel, on 30th July, 1997 also, did not

make their commitment to pay contingent or dependent upon receiving

monies from the garnishees.

(x) The judgment-debtors / alleged-contemnors having made the

relator / decree-holder change its position i.e. to vacation of the order of

attachment, on the basis of the undertaking offered and given by judgment-

debtors / alleged contemnors and to the detriment of the relator / decree-

holder, even otherwise cannot be heard to interpret the language of EA

No.233/1997 and the agreement annexed thereto to defeat the only benefit

flowing to the relator / decree-holder therefrom.

19. For the reasons stated hereinafter, I am also of the view that the

judgment-debtors / alleged contemnors did furnish an undertaking to the

Court and by which they are bound and on violation thereof the judgment-

debtors / alleged contemnors are liable to be proceeded against for contempt

of Court:

(a) The decree for execution of which the execution petition was

filed was also a consent decree.

(b) The only advantage which the relator / decree-holder got by

compromising with the judgment-debtors / alleged contemnors was the

undertaking and the additional remedy of contempt available against the

judgment-debtors / alleged contemnors. If it were to be held that the only

remedy of the relator / decree-holder upon the judgment-debtors / alleged

contemnors defaulting from the compromise in execution also was to be to

execute the decree, there would have been no need for the decree-holder to

compromise with the judgment-debtor as the decree-holder already had the

order of attachment in its favour.

compromise application being EA No.233/1997 unequivocally "agreed to

give an Undertaking to this Hon‟ble Court, inter alia, to the effect that they

would faithfully abide by the terms and conditions of the said settlement and

shall punctually discharge all their liabilities thereunder."

(d) The relator / decree-holder in para 7 of the said application "in

view of the said settlement" prayed to the Court "that the undertaking of the

Judgment Debtors may please be recorded" in terms of the agreement dated

24th July, 1997 and to vacate the order dated 29th May, 1997.

(e) In the prayer paragraph of the compromise application also a

prayer was made for "recording the undertaking of the judgment-debtors."

(f) The judgment-debtor / alleged contemnor V.K. Bhatia filed his

own affidavit along with the compromise application aforesaid.

(g) In the order dated 30th July, 1997 the presence of V.K. Bhatia

alongwith his counsel is recorded.

(h) It matters not that the Court instead of recording the statement

of the judgment-debtor / alleged contemnor V.K. Bhatia recorded the

statement of his counsel.

(i) An advocate is the agent of his client and judgment-debtor /

alleged contemnor V.K. Bhatia present in Court at the time of recording of

statement of his advocate is bound by the statement recorded of his

advocate. Supreme Court in Salil Dutta Vs. T.M.& M.C. Private Ltd.

(1993) 2 SCC 185 held that a party cannot disown its advocate at any time

and seek relief.

(j) But for the reason of binding the judgment-debtor / alleged

contemnor with the undertaking, there was no need for recording the

statement in the Court.

(k) The statement in the Court exhibited the compromise

application EA 233/1997 as Exhibit C-1 and which as aforesaid contains the

undertaking.

(l) In the statement recorded also undertaking to "remain bound by

the terms and conditions as contained in the application Exhibit C-1 and also

to the terms and conditions as contained in the Agreement dated 24th July,

1997" is recorded.

(m) The Court disposed of the execution petition in terms of Exhibit

C-1 and ordered that "the parties shall remain bound by the terms and

conditions as contained in the application for compromise (Exhibit C-1) and

also the agreement executed between the parties on 24th July, 1997

(Annexure A-1)."

(n) The Court subsequently in the order dated 30 th July, 1997

recorded "the parties shall also remain bound by the undertaking given by

their respective advocates before this Court today.".

(o) The judgment-debtor / alleged contemnor V.K. Bhatia has

already availed benefits due to him from the order dated 30 th July, 1997 of

having the attachment earlier ordered lifted and now cannot deprive the

relator / decree-holder of the benefits thereof;

(p) Though the relator / decree-holder also attempted to execute the

decree but owing to the judgment-debtors / alleged contemnors having

arranged their affairs in a manner that nothing is available for execution of

the money decree, the same remained non-executed.

20. I am also of the view that merely because the compromise application,

the agreement, as well as the order thereon also recorded that upon breach

by the judgment-debtors / alleged contemnors of their undertaking, the

decree-holder / relator shall be entitled to execute the decree, does not

disentitle the decree-holder / relator from invoking the contempt jurisdiction

of this Court for punishing the judgment-debtor / alleged contemnor for

contempt of court by breach of undertaking. The reasons therefor are as

under:

(i) Bank of Baroda Vs. Sadruddin Hasan Daya supra relied upon

by the counsel for the relator / decree-holder.

(ii) The reasons as already given hereinabove.

(iii) A litigant is always entitled to claim alternative reliefs /

remedies available to him.

(iv) The peculiar facts of this case whereby the judgment-debtor /

alleged contemnor has taken advantage of the process of the

Court to ward off action against himself and thereafter arrange

his affairs in a manner to defeat the money decree against him.

(v) The Court cannot allow any party before it to make a mockery

of the procedure and to render the process of the Court a farce.

(vi) The judgment-debtor / alleged contemnor no.2 V.K. Bhatia, as

has become evident from his statement in the other executions

against him, is residing in a house in South Delhi leading a life

not of penury and living comfortably by defrauding his

creditors.

(vii) The courts if do not ensure that their orders are enforced and

complied with will lose their efficacy and purpose and lead the

people to jungle raj.

(viii) Supreme Court, in Rama Narang Vs. Ramesh Narang (2009)

16 SCC 126, merely on the basis of the order disposing of the

proceedings recording that "All the parties have undertaken

before us that they will implement the terms of the „MINUTES

OF CONSENT ORDER‟ on or before 1.1.2002 and that no

further time will be sought for in the matter" and that "All the

above are now being disposed of in terms of the minutes of

consent order incorporated in the proceedings......... The

decree will be drawn up in terms of the minutes of the consent

order" held that if a party, or solicitor or counsel on his behalf,

so act as to convey to the court the firm conviction that an

undertaking is being given, that party will be bound and it will

be no answer that he did not think that he was giving it or that

he was misunderstood. It was further held that there is no

reason why even in a consent decree a party may not give an

undertaking to the Court and that 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. It was further held that when a party gives a solemn

assurance and permits the terms of that assurance to be

incorporated as his own undertaking to the Court and allows an

order to be passed on those terms, he cannot absolve himself of

the responsibility unless he places before the Court sufficient

material to justify that he had taken all reasonable steps and

precautions to prevent the occurrence. I am afraid the judgment

debtors/alleged contemnors in the present case have not done

so.

(ix) In Rita Markandey Vs. Surjit Singh Arora (1996) 6 SCC 14, it

was concluded that even if the parties do not file an undertaking

before the Court but if the Court is induced to sanction a

particular course of action or inaction on the basis of the

representation of such party and the Court ultimately finds that

the party never intended to act on such representation or such

representation was false, then the party would be guilty of

committing contempt of Court.

(x) In Babu Ram Gupta Vs. Sudhir Bhasin (1980) 3 SCC 47 it

was held that if a person, 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.

(xi) In Rama Narang Vs. Ramesh Narang (2006) 11 SCC 114 it

was held that all decrees and orders are executable under the

Code of Civil Procedure, including consent decrees and orders;

but merely because an order or decree is executable would not

take away the Court‟s jurisdiction to deal with the matter under

the Contempt of Courts Act provided the Court is satisfied that

the violation of the order or decree is such that if proved it

would warrant punishment under Section 13 of the Contempt of

Courts Act on the ground that the contempt substantially

interferes or tends substantially to interfere with the due course

of justice. It was further held that in such circumstances it

would neither be in consonance with the statute, judicial

authority, principle or logic to draw any distinction between the

wilful violation of the terms of the consent decree and wilful

violation of the decree which is passed on adjudication and that

the fact that the petitioner can execute the decree can have no

bearing on the contempt committed by the respondents.

(xii) In the subsequent Rama Narang Vs. Ramesh Narang supra it

was held that in order to maintain sanctity of the orders of the

court, it has become imperative that those who are guilty of

deliberately disregarding the orders of the Court in a

clandestine manner should be appropriately punished. It was

further held that the Majesty of the Court and the Rule of Law

can never be maintained unless this Court ensures meticulous

compliance of its orders.

(xiii) The Division Bench of this Court in Mohan Nair Vs. Rajiv

Gupta 220 (2015) DLT 332 held that to say that the orders of

the Courts are unimplementable and unenforceable has the

tendency of making the law and the Court, a laughing stock and

it is the duty of every Court to prevent its machinery from being

made a sham, thereby running down the Rule of Law and

rendering itself an object of ridicule. It was further held that

public interest requires that we have a legal system and courts

which command public respect and if the courts were to make

orders manifestly incapable of achieving their avowed purpose,

law would indeed be an ass.

(xiv) Here, we have a judgment debtor/alleged contemnor namely

Mr. V.K. Bhatia who, when faced with orders of attachment of

monies payable to him by DGS&D and the State Electricity

Boards having been issued by the Court, made the Court vacate

the said orders of attachment by promising to make the

payment to the decree holder as provided therein and who

thereafter has neither made the payment nor left the

Relator/Decree Holder in a position to execute the money

decree in any other way. Supreme Court in Krishnadevi

Malchand Kamathia Vs. Bombay Environmental Action

Group (2011) 3 SCC 363 observed that justice is only blind or

blindfolded to the extent necessary to hold its scales evenly; it

is not and must never be allowed to become blind to the reality

of the situation, lamentable though that situation may be.