V.K. Shali, J.@mdashThis 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
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
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
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.
