Narinder Singh vs UCO Bank and Others

M. Srinivasan, J.—The first Respondent herein filed civil suit No. 29 of 1989 against the Appellant and proforma Respondents Nos. 2 and 3. In that suit an application was moved under Order 38 Rule 5 read with Order 39 Rules 1, 2 and 6 of the CPC for the attachment and sale of the hypothecated truck. The Appellant herein gave an undertaking in that application on 8th May, 1990, that he would deposit regularly a sum of Rs. 4,000/ - per month from July 1990 onwards. The undertaking was recorded and accepted by the Court on 8th May, 1990 pursuant to which the vehicle was released and given to the Appellant. The Appellant paid seven instalments in full and on instalment in part to the extent of Rs. 2725/ -. The last instalment was paid by him only on 30th March, 1992. But even before that the first Respondent filed an application in this Court on 5th August. 1991 to punish the Appellant for contempt as he has committed breach of the undertaking given by him.

When the Appellant filed a reply in the application for contempt he had only stated that he could not make the deposit as undertook by him for bona fide reasons and he had prayed ultimately that unqualified apology submitted by him should be accepted and he should be permitted to make good the default by paying Rs. 8000/ - per month instead of Rs. 4,000/ - per month till the default is cleared and thereafter he may be permitted to deposit Rs. 4,000/ - per month as per his undertaking.

On 3rd December, 1992. an order was passed by this Court that the Appellant should go on paying the amount in accordance with the undertaking dated 8th May, 1990 and with regard to the prior defaults, they should be cleared by 31st August, 1993 and the matter was posted to 3rd September, 1993. On that date, learned Counsel for the Appellant sought adjournment to find out whether there was compliance of the earlier order. The adjournment was granted and the matter was posted to 5th November, 1993. On that date the Court recorded that several opportunities were given to the Appellant to deposit the defaulted instalments as per his undertaking but he failed to comply with the same. The counsel prayed for one more opportunity and the same was granted by the Court. The matter was posted to 10th December, 1993, on which date the Court passed an order adjourning the matter to 17th December, 1993, giving last chance to comply with the undertaking given to the Court On 17th December, 1993, the counsel prayed for further chance and the matter was adjourned to 24th December, 1993. On that date learned Counsel for the Appellant reported that he had not received any instructions from the Appellant and he was totally helpless in the matter. Thereafter, the Court proceeded to look into the records and came to the conclusion that the Appellant was guilty of wilful disobedience of the undertaking given by him to the Court. Consequently, the Court passed a sentence of simple imprisonment for six months and payment of fine of Rs. 2,000/. It is the said order which is challenged in this appeal.

Learned Counsel for the Appellant contends that the Appellant had bona fide reasons for not making the payment as undertook by him. According to learned Counsel, the Appellant was ill and for sometime and in-patient in the Hospital and therefore he could not comply with the order passed by this Court. No material has been placed before us in support of said contention. In the memorandum of appeal in ground No. (e) it is stated that the Appellant could not contact his counsel or respond to the communications addressed to him due to the fact that he remained ill firstly, under the treatment of Dr. Prashar at Solan and thereafter at Narag under the treatment of Dr. Kamal Sood and thereafter in the Government Hospital at Narag. It was also sated that at the time of the appeal the Appellant was undergoing treatment in the hospital. In ground No. (h) the same is repeated and it is stated that the Appellant remained ailing for more than two years and could not contact his counsel. It is also alleged that some of the letters sent by the counsel returned undelivered and some of the letters might have been received by his relations who did not intimate the Appellant in that behalf. In the application for stay it is stated that the Appellant remained ailing for sufficiently long time and in the meantime the vehicle in question also met with an accident and the vehicle is lying with Police Station, Pinjore. In the affidavit filed in support of the application for stay it is stated by him that the facts set out in paragraph 1 to 4 in the application for stay are true and correct to the best of his personal knowledge.

Significantly the Appellant has not even chosen to mention the particulars of the alleged illness or the dates on which he was taking treatment of the various doctors and the hospitals. The Appellant has nowhere staled as to what exactly happened which prevented him from contact by his counsel. It should be noted that as soon as the order was passed by this Court punishing the Appellant fro contempt of Court he was able to contact his counsel and till then he remained absent and he did not want to see his counsel at all. There is no bona fide in the statement made by the Appellant particularly when he has not chosen to produce any record along with the appeal to show that he was really ill.

The second ground urged by learned Counsel is that if during the pendency of the suit an undertaking is given by a party and if there is a breach of such undertaking it would not amount to contempt of Court within the meaning of Section 2(b) of the Contempt of Courts Act. In this connection reliance is placed on two judgments of a learned single Judge of this Court. In Contempt Petition (C) 43 of 1992, State Bank of Patiala v. C.R. Verma. an order was passed on 13 th July, 1993. In that case on the basis of settlement arrived at between the Petitioner, and the Respondent during the pendency of the suit the Respondent therein admitted the claim of the Petitioner. On that basis the suit was decreed and in the course of execution proceedings a statement was made by the Respondent before the trial Court undertaking to pay off the decretal amount in instalments. The petition for contempt was filed as he failed to comply with the said undertaking. The learned single Judge observed that in his opinion the petition for contempt was wholly misconceived as by no stretch of imagination a failure on the part of a judgment debtor to pay off the decretal amount in accordance with the terms of an undertaking given by him, could be treated as a wilful disobedience of any stipulation made in the decree on the basis of the said undertaking.

In Contempt Petition (C) No. 28 of 1992 Sri Ram Bansal v. Om Parkash, the same learned Judge passed an order on 16th July, 1993 on similar facts. The learned Judge observed that in the event of the failure of a party to keep up an undertaking the only course open to the Petitioner-decree holder was to proceed with the execution application and realise the decretal amount in the manner provided in the Code of Civil Procedure. Learned Judge held that the disobedience of an undertaking given to a Court would not fall within the meaning of the definition of the term ''civil contempt'' contained in Clause (b) of Section 2 of the Contempt of Courts Act, 1971.

We are unable to agree with the reasoning of the learned Judge. In our opinion the view express by the learned Judge is not good law in view of the judgments of the Supreme Court and the judgments of the other Courts also.

9.In Sm. Lajuklata v. Nrihingha Prosad 1952 Cri. L.J. 1385 a Bench of Calcutta High Court held that breach of an undertaking would amount to contempt of Court. The Court said that litigants before the High Court ought to understand that they will not be permitted to give undertakings to the Court and then break them with impunity; far less will they be permitted to have recourse to such dubious means as arming themselves with the orders of a subordinate Court in prosecution of a scheme to flout the order of the High Court.

In Chhaganbhai Norsinbhai Vs. Soni Chandubhai Gordhanbhai and Others, the Supreme Court had occasion to deal with a case for wilful breach of undertaking given to Court which had induced the Plaintiff to compromise the matter and the Court held that it would amount to contempt of Court within the meaning of Contempt of Courts Act. The Court also held that the fact that the contemnor fulfilled the undertaking after initiation of contempt proceedings was wholly immaterial.

The decision of the Supreme Court was referred to and followed by the Virochan Vs. Ram Saran Dass, . A single Judge of that Court held that the breach of undertaking given to a Court would amount to contempt within the meaning of Contempt of Courts Act. In that case the undertaking was given to the Court for vacating the premises by a particular date. There was a deliberate breach of undertaking by the tenant and he failed to vacate the premises. The Court held that the tenant was guilty of contempt. The Court also made a reference to the judgment of Delhi High Court in Saleemuddin and Others Vs. Sharafuddin and Others,

The Supreme Court had another occasion to deal with the matter of an undertaking in Smt. Pushpaben and Another Vs. Narandas V. Badiani and Another, . A complaint was filed u/s 420 IPC against the Appellants before the Court by the Respondent. When the complaint was pending before the Court of the Magistrate the parties entered into a compromise in which the Appellants undertook to pay a loan of Rs. 50,000/ - with simple interest at a particular rate on or before a particular date. An application was filed before the court for allowing the parties to compound the case and acquit the accused. The Court accepted that application and passed an order accordingly. Thereafter; there was a breach of the undertaking. The Court held that it amounted to contempt. The Court (in paragraph 4) observed:

Mr. V.S. Desai appearing in support of the appeal has raised two short points before us. He has submitted that there is no doubt that the Appellants had violated and undertaking but in the circumstances it cannot be said that the Appellant shad committed a wilful disobedience of the orders of the Court. So far as this point is concerned, we fully agree with the High Court. In the circumstances, the Appellants undoubtedly committed wilful disobedience of the order of the Court by committing a serious breach of the undertaking given to the Court on the basis of which alone, the Appellants had been acquitted. For these reasons, the first contention put forward by Mr. Desai, is overruled.

Thus it is settled law by the Supreme Court that breach of an undertaking would amount to contempt of Court within the meaning of the Contempt of Courts Act. Hence the ruling of this Court in the two cases referred to above is not good law.

On the facts of this case we have no hesitation to agree with the learned Judge that the Appellant is guilty of contempt of the Court. However, learned Counsel for the Appellant prays for modification of the sentence. It is submitted by him that the Appellant is only aged about 40 and is having young children to be maintained. No doubt, there is no material on record at present to show that the Appellant is having young children but the fact that his age is 40 is evident from the affidavit filed by him. Having regard to the young age of the Appellant we are of the opinion that the sentence of imprisonment could be set aside and the sentence could be confined to that of fine. In the circumstances, the judgment of the learned Judge in so far as the sentence of simple imprisonment for six months is concerned, is set aside and the sentence of fine of Rs. 2000/ - is confirmed. It is stated by the learned Counsel for the Appellant that the amount of Rs. 2,000/ - has already been deposited in this Court. In the circumstances, the appeal is allowed partly as above, accordingly.