V.K. Bali, J.
1. The respondent, Multi Metal Udyog, through the present miscellaneous application filed by it under section 151 of the Code of Civil Procedure, 1908, read with the provisions of the Contempt of Courts Rules, 1973, seeks vacation of the stay order dated June 8, 1998. While admitting the appeal preferred by the appellant, Vivek Sarin, the Bench stayed operation of the impugned judgment under appeal till further orders. C.A.C.P. No. 3 of 1998 was filed by Vivek Sarin against the judgment of the learned single judge, vide which he has been held guilty of committing contempt and ordered to pay a fine of Rs. 500 within a period of two months or in default thereof to undergo simple imprisonment for one month. He was further directed to pay the entire balance amount within two months from the date of order.
2. Before the contentions raised by counsel for the parties in support or opposition to the civil miscellaneous application are noticed, it will be useful to trace, although in brevity, the facts giving rise to C.A.C.P. No. 3 of 1998. The respondent, Multi Metal Udyog, had filed a petition under section 433 read with section 434 of the Companies Act, 1956, for winding up of Apex Multitech Limited said to be indebted to the respondent for a sum in the tune of Rs. 12 lakhs. The petition was admitted and was ordered to be published in two newspapers. Aggrieved, Apex Multitech preferred an appeal. During the currency of the appeal the appellant gave an undertaking that the entire amount of Rs. 10 lakhs would be paid in ten monthly instalments of Rs. 1 lakh each and the first instalment was to be paid before July 1, 1997, and, thereafter, each instalment on the first of every month. An undertaking was also given that if Apex Multitech Limited failed to make the payment of even one instalment on any account, the proceedings under the Contempt of Courts Act could be initiated against it. The order of the court depicting the undertaking of the appellant that came to be passed by the court reads thus :
'Counsel for the parties are agreed that this appeal be disposed of on the following terms and conditions :
The appellant would be liable to pay in all a sum of Rs. 10 lakhs to the respondent. This amount shall include interest, excess discounting, etc. However, the appellant will give all the 'C' forms within one week from today.
The appellant undertakes to pay the entire amount of Rs. 10 lakhs in ten monthly instalments of Rs. 1 lakh each and further undertakes to pay the first instalment on or before July 1, 1997, and, thereafter, each instalment on the first of every month. If the appellant fails to make payment of even one instalment on any account, the proceedings would revive on an application in addition to the initiation of contempt proceedings.
In view of the aforementioned agreement, the present appeal stands disposed of and the order passed by the learned company judge would stand nullified.'
3. It is stated by learned counsel for the parties that a sum of Rs. 5 lakhs was paid and, thereafter, there was default in making the payment. That constrained the respondent to file a contempt petition in this court with the result as indicated above.
4. Goyal, learned senior advocate representing the respondent, contends that at this stage he is not seeking vacation of stay so far as it pertains to payment of fine and the consequence of non-payment thereof nor is asking for the recalling of the order of admission. All that the respondents are claiming at this stage is that directions issued by the learned single judge with regard to payment of the remaining amount should not be stayed and staying the operation of the impugned judgment, i.e., judgment under appeal, has certainly resulted into staying payment of the admitted remaining amount which was undertaken to be paid by the appellant. The court issued notice of this application to counsel for the appellant and reply to the miscellaneous application has been filed. There is, however, no need to give any reference to the pleadings made in the miscellaneous application and the reply thereto as, in so far as the facts are concerned, there is hardly any dispute between the parties.
5. Sahni, learned counsel representing the appellant, however, contends that the order passed by the learned single judge directing payment of the defaulted amount is without jurisdiction as the learned single judge while exercising his jurisdiction under the Contempt of Courts Act, 1971, could only convict the appellant for contempt but through the said coercive measures could not order payment of the remaining amount. His other contention is that once the appeal has been admitted and the stay granted by the motion Bench, the stay must continue till the lis may last and cannot be vacated in between. He has raised some submissions with regard to applicability of the provisions of the Contempt of Courts Act in entertaining the contempt petition and holding the appellant guilty of contempt, but at this stage we are not concerned with the said contention of learned counsel as any expression of opinion on the said point would certainly prejudice either of the parties when the matter is to be finally heard. At this stage, the only question that needs to be determined is as to whether the learned single judge had jurisdiction to order payment of the defaulted amount and if so, as to whether the order of the Division Bench while admitting the petition staying operation of the judgment as such needs modification in the facts and circumstances of this case. After hearing learned counsel representing the parties and going through the records of the case, we are of the firm view that the order staying the operation of the judgment passed by the learned single judge needs modification and neither under law nor equity the appellant does not deserve withholding payment of the defaulted amount. Sahni, for his proposition that the learned single judge could not pass order regarding payment, relies upon the judgment of the Madras High Court in Abdul Razack v. Azizunnissa Begum, AIR 1970 Mad 14. The facts of Abdul Razack's case would reveal that a revision was filed for a direction to the respondent to deposit the arrears of rent for four years at the rate of Rs. 226.37 per year and future rent at the rate of Rs. 250 per year pending the civil revision. In a civil miscellaneous petition filed in the revision aforesaid, the court on January 28, 1986, after hearing counsel on both sides passed the following order :
'The respondent will deposit the arrears of rent at Rs. 226.37 due up-to-date in the Rent Court within two months from this date and continue to deposit future rent at the same rate as and when falls due.'
6. The respondent failed to deposit the arrears of rent in terms of the order aforesaid and applied for extension of time. This prayer was declined. Thereafter, a petition was made for committal of the tenant for contempt of court inasmuch as he had disobeyed the order of the court dated January 28, 1966. In response to the notice issued in the contempt petition, the contemner filed an affidavit pleading, inter alia, that he was unable to pay the amount as he was not in possession of the land and that he was very old and had paralytic attack and was bedridden. When the application for committal came for hearing the learned single judge who passed the original order for deposit, time was granted to deposit the amount in the following terms :
'Adjourned two weeks to enable the respondents to pay as directed by this court.'
7. On November 13, 1967, when the matter was taken up again, learned counsel representing the appellant reported no instructions. The following order was passed by the court :
'On the facts stated above, it is clear that the respondent has not deposited the amount as directed. He also admitted his liability and prayed for extension of time for depositing the amount. Till now, it does not appear that the respondent has deposited any amount as directed by this court. The respondent is, therefore, guilty of contempt of court.'
8. Even though the contemner had not appeared on the date aforesaid his son who appeared represented to the court that some amount had been deposited and he would arrange to make the deposit as per orders of the court. On the representation made by the son of the contemner, the court observed that if the amount is deposited as directed, it would not be necessary to inflict any punishment on the respondent taking into consideration that he was 82 years old. The petition was then fixed on November 27, 1967. When the matter came up for hearing on November 28, 1967, the court passed the following order :
'The pronouncement of punishment was adjourned so as to enable the respondent or his son to deposit the amount directed. The money has not been deposited. The respondent is clearly guilty of contempt. Considering the extreme old age of the respondent, I sentence the respondent to two weeks simple imprisonment.'
9. It is this order of the learned single Bench that came up for hearing in appeal before the Division Bench of the Madras High Court in Abdul Razack's case, AIR 1970 Mad 14. From the facts as have been detailed above, it was held that 'non-compliance of the appellant with the order of this court directing him to deposit the arrears of rent due to the petitioners within the time prescribed and continue to deposit the future rent, does not amount to any contempt of court. The penal sanction under the contempt procedure should not be invoked for default of compliance with such an order. It is not for us to suggest the processes that may be resorted to in such a case. The appeal is therefore allowed.'
10. We are of the view that the judgment rendered by the Madras High Court in Abdul Razack's case, AIR 1970 Mad 14, is not at all relevant for deciding the point raised by Sahni, learned counsel representing the appellant. The point under consideration in the present case is whether the learned single judge could order payment of the defaulted amount which was undertaken to be paid while deciding the contempt petition for violating the undertaking, as such, never came for consideration. It was, of course, observed in para. 3 of the judgment, 'having regard to the high function of a court of justice, proceedings by way of contempt of court should not be used as a 'legal thumbscrew' by a party against his opponent for enforcement of his claim.' But the said observations came to be made in the context of the facts of the case. It may be recalled that by an order, the contemner was asked to pay the rent for the last four years and to continue paying it in future. If this order could be executed, the provisions of the Contempt of Courts Act should not have been pressed into service appears to be the strain of judgment and the portion of judgment as extracted above.
11. Mr. Goyal, learned counsel representing the applicant, has relied upon four judgments of the Supreme Court in Delhi Development Authority v. Skipper Construction Co. (P.) Ltd. [1997] 89 Comp Cas 362, Mohammad Idrias v. Rustam Jahangir Babuji, AIR 1984 SC 1826, Ram Pyari v. Jagdish Lal, AIR 1992 SC 1537 and Firm Ganpat Ram Raj Kumar v. Kalu Ram, AIR 1989 SC 2285. The apex court in Delhi Development Authority's case [1997] 89 Comp Cas 362 held that for violation of the orders of the court, in additioii to punishing the contemners, the court could pass directions to remedy the breach of its orders. It was further held that it is a well settled principle that a contemner ought not to be permitted to enjoy and/or keep the fruits of his contempt. The facts of the case reveal that a plot was put to auction by the Delhi Development Authority in October, 1980. Skipper Construction Company offered the highest bid in a sum of Rs. 9.82 crores. The company deposited one-fourth of the amount payable but did not deposit the balance. It asked for extension repeatedly which was granted. But since the company failed to deposit the balance consideration amount even within the last extended period, proceedings were taken for cancelling the bid. The company went to court and obtained stay of cancellation. The Delhi Development Authority then applied for vacation of stay. The company was simultaneously making representations to the Delhi Development Authority to give it more time. In January, 1983, the Delhi Development Authority constituted a committee to consider the request of the company to devise a formula to ensure timely payments by such purchasers. The committee reported that cancellation of bids in such matters usually land the Delhi Development Authority in protracted litigation and suggested that for enabling them to pay the amount due to the Delhi Development Authority, the purchasers be given permission to commence development/construction on the plot subject to the condition that the property in the land would remain with the Delhi Development Authority until the entire consideration was paid. If the entire consideration was not paid according to the revised schedule, the Delhi Development Authority should be entitled to re-enter the plot and take over along with construction, if any, made thereon. The company was, thus, asked to sign a revised agreement. The company, however, raised all sorts of objections and executed the revised agreement only in 1987. Even before permission to enter upon the plot and to make construction thereon was granted, the company started selling the land to various persons and receiving monies. It did not pay the first instalment in time but paid it after some delay, It did not pay the second instalment. Thereafter ensued a long correspondence between the company and the Delhi Development Authority. Meanwhile the company filed a civil writ petition in the High Court asking for a writ of mandamus directing the Delhi Development Authority to sanction the building plans or in the alternative to grant permission to start construction at its own risk. In March, 1990, the High Court passed an order permitting the company to commence construction in accordance with the sanctioned plan subject to deposit of a sum of Rs. 1,94,40,000 within one month. Against the said order the Delhi Development Authority filed a special leave petition. Meanwhile, CWP No. 2371 of 1989 came up for hearing before the Delhi High Court. The High Court made an order on December 21, 1990, directing the company to pay to the Delhi Development Authority a sum of Rs. 8,12,88,798 within thirty days. and to stop all further construction with effect from January 9, 1991, if the said amount was not paid. It was provided that in default of such payment, the licence (revised agreement) would stand determined and the Delhi Development Authority would be entitled to re-enter the plot. The company failed to deposit the amount as per directions of the High Court. It approached the Supreme Court by way of a special leave petition and the court granted an interim order subject to the company depositing a sum of Rs. 2.5 crores. Another sum of Rs. 2.5 crores was to be deposited before April 8, 1991. Inspite of the prohibitory orders of the court, the company issued an advertisement on February 4, 1991, in leading news-papers of Delhi inviting persons to purchase the space in the proposed building. The special leave petition was ultimately dismissed on January 25, 1993. The Delhi Development Authority re-entered the plot and took physical possession of property on February 10, 1993, along with the building thereon. Before January 29, 1991, the company had, however, collected rupees fourteen crores from various parties agreeing to sell the space in the proposed building. Even after January 29, 1991, the company issued several advertisements and collected substantial amounts. The orders of the court dated January 29, 1991 were violated. When this conduct of the company was reported to the Supreme Court suo motu contempt proceedings were initiated against Tejwant Singh and his wife, Surinder Kaur, directors of the company. They were asked to explain why they instituted Suit No. 770 of 1993 in respect of the very same subject matter which was already adjudicated by the Supreme Court on January 23, 1993, and why they entered into agreements for sale and created interest in the third parties in defiance of the order of the Supreme Court dated January 29, 1991. The Supreme Court found them guilty and they were punished. It was further ordered that all the properties and the bank accounts standing in the names of the contemners and the directors of the company and their wives, sons and unmarried daughters would stand attached. Subject to the conditions indicated by counsel representing the appellants, the Supreme Court deferred the sentence of imprisonment. The contemners thereafter also even though deposited a sum of rupees two crores but failed to deposit the balance. They also failed to furnish the bank guarantee. As a result of their failure to abide by commitments made by them, they were committed to prison. Thereafter, a number of miscellaneous applications from various concerned parties came to be filed in the Supreme Court giving rise to some substantial questions to be decided. One such question was as to whether the contemner should not be allowed to enjoy or retain the fruits of his contempt. While dealing with the said point, the Supreme Court held that the court must ensure full justice between the parties before it and it is duty of the court to set the wrong right and not allow the perpetuation of the wrong doing. The Supreme Court placed reliance upon a judgment of the Madras High Court in Century Flour Mills Ltd. v. S. Suppiah [1975] 45 Comp Cas 444 (Mad) [FB]. There is no need to refer to other judgments cited by learned counsel representing the applicant/ respondent. It is too well settled a principle of law by now that with a view to ensure full justice between the parties that wherein an act is done in violation of the order, it is the duty of the court to set the wrong right and not allow the perpetuation of the wrong.
12. In the present case, while giving an undertaking to the court to pay an amount of rupees ten lakhs in instalments, the appellant had further stated that if default was made, he could be hauled up for contempt. The learned single judge, in our view, rightly ordered the appellant to pay the defaulted amount. Such a direction was required to be given in this case. By no legitimate means it could at all be argued by Sahni that there was any justification in withholding of payment of defaulted amount by the appellant. We may mention here that in case the directions referred to as passed by the learned single judge are stayed, it would virtually amount to even non-execution of the order passed by the learned company judge. Surely, the appellant by simply filing the present appeal cannot get away from his liability to pay the amount which he undertook to pay to the court. To stay the payment of such an amount would be doing injustice to the respondent.
13. In so far as the contention of Sahni that once an appeal has been admitted and stay granted, it should continue till the appeal might last is concerned, suffice it to say that it is no judicial heroism to stick to an order having been earlier passed particularly when the same was passed without hearing the other side and has manifestly caused injustice to the party not heard in the matter. Such an order whenever might come to the notice of the court either on application made by the affected party or otherwise has to be recalled or modified as the circumstances may be.
14. In view of what has been said above, we modify order dated June 8, 1998 to say that whereas the order of conviction recorded by the learned single judge shall remain stayed during the pendency of the appeal, the direction given by the learned single judge for payment of the defaulted amount shall stand. In other words, there shall be no stay with regard to the payment aforesaid. The application stands disposed of accordingly.