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2007 DIGILAW 2043 (DEL)

Vijay Sharma v. Divine Entertainment

2007-12-20

SHIV NARAYAN DHINGRA

body2007
JUDGMENT This contempt petition under section 12 of Contempt of Court Act has been made by the decree-holder(for short “DH”) against Judgment-debtor (for short “JD”) because of undertaking given by the JD in the Court. 2. JD had suffered an award for a sum of Rs.27,30,792.46 with interest thereon @ 15% with effect from 20.1.2003. Since this amount was not paid by JD, in the execution petition of DH, this Court issued an order of attachment of payment which JD was to receive from Star TV Network Pvt. Ltd., Andheri East, Kurla Road, Mumbai. After this attachment order JD approached DH for compromise and matter was settled between the parties for a sum of Rs.21 lakhs. DH was paid Rs.3 lakhs by JD and remaining amount of Rs.18 lakhs was agreed to be paid by JD in the following manner:- i)Rs.40,000/- on the date of agreement; ii)Rs.50,000/-per month for 34 months w.e.f. 27.2.2006 and thereafter on 27th day of each succeeding month; and iii) On 35th month the balance of Rs.60,000/- was to be paid. 3. An application under Order 23 Rule 3 CPC containing the terms of settlement between the parties, was filed before the Court in July 2006. Parties appeared before the Court on 18.8.2006. One cheque of Rs.40,000/- earlier issued by the JD in terms of compromise had dishonoured. On 18.8.2006 a demand draft of Rs.40,000/- was handed over to DH. JD stated in the Court that the next cheque of Rs.50,000/- for July instalment be presented by the DH and the same shall be honoured. Mr.Ashim Khetrapal, MD of JD was called in the court on 28.8.2006 and he made following statement:- “ I say that the compromise terms as well as the presentation of the cheques furnished by me to the Decree Holder was done by me in advance as this was agreed to come into effect after the release of payments to me from Star TV. This is the reason for the dishonour of the cheques. I under take to the Honble Court that all the post-dated cheques shall be honoured on presentation. I am aware that if any of the post-dated cheques are dishonoured I shall be liable for imprisonment under the Contempt of Courts Act in addition to any other remedy that may be available to the decree holder.” 4. I under take to the Honble Court that all the post-dated cheques shall be honoured on presentation. I am aware that if any of the post-dated cheques are dishonoured I shall be liable for imprisonment under the Contempt of Courts Act in addition to any other remedy that may be available to the decree holder.” 4. After the undertaking was given by JD, this Court recalled the attachment orders, cautioned the JD that in case of breach of undertaking he would be liable for incarceration apart from any order that may passed. Liberty was given to the DH to approach the Court in the event of dishonour of the cheque. Another post dated cheque of the JD got dishonoured and DH had approached this Court for contempt and revival of the decretal proceedings. 5. JD in its reply to the contempt application admitted that JD had given an undertaking to the Court and submitted that JD was expecting some payments from companies but unfortunately JD became defaulter for no default of his. It is pleaded that payment of one cheque issued by Today Tea Ltd. was stopped by that company and for this reason the cheque got dishonoured. JD expressed unqualified apology and sincere regrets and stated that JD lost no time in getting the demand draft of Rs.50,000/- prepared in favour of DH and the same was presented to DH on 8.12.2006, but was refused to be accepted by DH. It was submitted that the JD had no intention to violate its undertaking or to breach the trust. 6. On 20.2.2007 JD told the Court that as per the earlier arrangement, JD was to make the payment of agreed amount in three years but now JD had made arrangement of finance and was ready to make the payment of balance amount of Rs.15.50 lakhs within one year. JD had brought 6 cheques to the Court. Details of which have been given in the order dated 20.2.2007. These cheques were accepted by DH without prejudice to his right. Out of the six cheques, one again got dishonoured. 7. DH contention is that after the dishonour of cheques, JD was liable for contempt in view of the breach of undertaking given by the JD and prays for punishing JD for contempt. 8. The execution petition filed by the DH was revived by this Court considering the breach of agreement. Out of the six cheques, one again got dishonoured. 7. DH contention is that after the dishonour of cheques, JD was liable for contempt in view of the breach of undertaking given by the JD and prays for punishing JD for contempt. 8. The execution petition filed by the DH was revived by this Court considering the breach of agreement. It is undisputed that JD had given an undertaking. At the time of undertaking, JD knew his financial position very well. One of the cheque issued by JD had already dishonoured when the undertaking was given. As per this undertaking every post dated cheque issued by JD was to be honoured and dishonour of even a single cheque would make JD liable for contempt of court. The plea of JD that cheque was dishonoured due to none of his fault, is not entertainable. Even out of the subsequent cheques issued by the JD which were accepted by the DH without prejudice, cheque for Rs.3.50 lakhs dated 20.5.2007, the very first cheque got dishonoured. DH made another application during the pendency of this application for sending JD to civil imprisonment till the payment was made. In reply to the subsequent application JD has given his own reasons for dishonour of the cheques and has as usual, sought to explain and take the plea that cheque was not dishonoured due to his fault. 7. I consider that looking into the fact that the application under Order 23 Rule 3 CPC between the parties itself provided that in case of two consecutive defaults, the entire awarded amount was recoverable and one of the primary condition of the agreement between the parties was that there shall be no default in payment of the amount as agreed, the DH is entitled to recover the entire decretal amount. As far as punishing JD for contempt is concerned, looking at the reasons for dishonour of cheques, readyness of JD to give draft in lieu of dishonoured cheque and regrets expressed by JD, I feel that the ends of justice would meet if a fine is imposed on JD for breach of undertaking given to the Court. A fine of Rs.2000/-is imposed on JD for breach of the undertaking. The fine be deposited with the Registry within two month. In case of non-deposit of fine, JD shall suffer civil imprisonment for a period of one week. A fine of Rs.2000/-is imposed on JD for breach of the undertaking. The fine be deposited with the Registry within two month. In case of non-deposit of fine, JD shall suffer civil imprisonment for a period of one week. CCP-155/2006 stands disposed of. E.A Nos.120/07 and 289/2007 8. DH has prayed for attachment of the properties. The file be sent to the Regular Bench for further directions on 4.1.2008, subject to the orders of Honble the Chief Justice.