R.M.S. Khandeparkar, J.
1. Heard the learned Advocates for the parties. Perused the records. The grievance of the petitioners relates to the breach of undertaking given by the respondents and violation of the order passed by this Court on 29th January, 2002 in Summary Suit No. 3846 of 2001.
2. The petitioners are an Overseas Corporate Body registered in Mauritius and having its representative office at New Marine Line, Mumbai, and they are in the business of Shares and Securities through National Stock Exchange of India on repatriation basis under the portfolio investment scheme of Reserve Bank of India and they are registered Shares Brokers with the National Stock Exchange of India at Mumbai. In the course of their business, they entered into a transaction of buying, selling and dealing in securities of the Global Trade Systems Limited, Himachal Futuristics Communication Limited, etc., and in the process, had engaged the services of the respondent No. 1 as broker. In terms of the Reserve Bank of India's guidelines, the delivery of shares sold by the petitioners were effected through the respondent No. 1 in accordance with the contract and accordingly the petitioners were to receive payment from the respondent No. 1 on 2nd February, 2001 and 26th February, 2001 to the extent of sum of Rs. 70,71,15,154.03 ps. In discharge of the said liability, the respondent No. 1 issued three cheques in favour of the petitioners, namely, the first Cheque No. 859642 dated 22nd February, 2001 for Rs. 34,43,94,866.63 ps., the second Cheque No. 859643 dated 22nd February, 2001 for Rs. 23,57,27,498.65 ps. and the third Cheque No. 859662 dated 26th February, 2001 for Rs. 12,69,92,788.75 ps., aggregating to Rs. 70,71,15,154.03 ps. The cheques were deposited by the petitioners in the Global Trust Bank for realisation. However, the cheque dated 26th February, 2001 was returned with the remark 'Refer to Drawer' and both the cheques dated 22nd February, 2001 when presented with the bankers were returned with the remark 'Not arranged for'. By letter dated 21st March, 2001 by the respondent No. 1, expressed regrets for the delay and requested for some more days to clear the dues. The petitioners inquired about the required period for clearance of dues by letter dated 21st March, 2001. Simultaneously, the petitioners communicated to the RBI and SEBI about the dishonour of the said cheques by their letter dated 22nd March, 2001, while by letter dated 12th March, 2001 addressed to the respondent No. 1 warned about the serious consequences of the failure to honour the cheques, which was followed by further letter dated 20th March, 2001. The petitioners by their letter dated 10th April, 2001 communicated all the facts to the Chairman of Security and Exchange Board of India (SEBI) and requested for appropriate immediate steps. Similar letter was addressed to the Assistant Vice President of National Stock Exchange of India Limited on 18th April, 2001, 10th May, 2001 and 22nd May, 2001. The National Stock Exchange of India by its letter dated 20th June, 2001 informed the petitioners about fixing of joint meeting on 5th July, 2001. The petitioners did not receive any amount till August, 2001, and, therefore, their advocates served notice dated 20th August, 2001 upon the respondent No. 1 calling for payment of a sum of Rs. 70,71,15,154.03 ps. together with interest thereon at the rate of 24% per annum within 21 days from the date of receipt of the notice which was followed by the suit being Summary Suit No. 3846 of 2001 for recovery of the said amount along with the interest thereon at the rate of 18% per annum. In the said suit, the parties arrived at settlement and the respondents confirmed their liability in the said principle sum of rupees claimed by the petitioners and on 29th January, 2002 agreed to pay the same in 9 equal instalments of Rs. 7,85,68,350.44 ps. each commencing from 7th April, 2002 payable on 7th day of each subsequent month and last instalment being payable on or before the 7th December, 2002. The said settlement was recorded in the form of consent terms and were filed in the Court whereupon the order was passed by the learned Single Judge on 29th January, 2002 that all the parties along with their advocates had signed the consent terms and admitted the contents thereof and the decree was ordered to be passed in terms of the said consent terms. Prior thereto, an affidavit had already been filed by the respondent Nos. 3 and 4 on 21st December, 2001 confirming the settlement and the consent terms.
3. It is the case of the petitioners that since the respondent No. 1 did not hand over the cheque which was required to be handed over to the petitioners in accordance with the consent terms, the cheque which was issued by the respondent No. 3 dated 7th April, 2002 was deposited with their bankers. However, the same was returned with the endorsement 'insufficient funds'. The respondent No. 1 did not hand over the 2nd cheque and the petitioners therefore, deposited the cheque dated 7th May, 2002 along with the 1st cheque issued by the respondent No. 3 with their bankers but both the cheques returned with an endorsement 'Account Frozen Income Tax Attachment'. The respondent No. 1 also did not hand over further cheque to the petitioners and hence the cheque dated 7th June, 2002 issued by the respondent No. 3 was deposited by the petitioners with their bankers and the same was also returned with an endorsement 'insufficient funds'. The same was the story in the case of cheque dated 7th July, 2002. It is the case of the petitioners that on inquiry made by the petitioners, it was learnt that the Bank of India had filed the suit against the respondent No. 3 prior to 29th January, 2002 before the Debt Recovery Tribunal at Mumbai wherein an order was passed by the said Tribunal restraining the respondent No. 3 from operating any bank account or disposing of any assets and further that for the purpose of recovery of the income tax dues, the income tax department had attached the bank account of the respondent No. 3 in the Global Trust Bank on which the said cheques were issued by the respondent No. 3 and the said attachment was issued prior to 29th January, 2002. It is the case of the petitioners that the respondents had failed to pay the said amount due to the petitioners, in wilful disobedience of the order of the Court as well as wilful breach of the undertaking given to the Court on 29th June, 2002 in Summary Suit No. 3846 of 2001, and the respondents are, therefore, liable to be punished for Contempt of Court.
4. Prima facie case being made out the show cause notices were issued to the respondents and in reply thereto, while admitting the liability in terms of the consent terms, it is sought to be contended that there has been neither wilful default in compliance with the said order nor there has been any breach of any undertaking, besides that there was no undertaking in the manner it is sought to be contended by the petitioners and the order is purely an executable order relating to the monetary liability and therefore, the question of commission of wilful disobedience or non-compliance thereof does not arise inasmuch as that the petitioners, could seek the execution of the said order, which remedy is very well available to the petitioners, and secondly that on account of financial constraints, the respondents are being handicapped in complying with the consent terms and the various proceedings and complaints filed by the petitioners have made their life miserable and impossible for them to comply with the said consent terms. It is the case of the respondents that there has been neither deliberate nor wilful non-compliance of the order or breach of any undertaking given to the Court by any of the respondents. It is also sought to be contended that there has been no undertaking as such as alleged by the petitioners and certainly there is no undertaking to the Court by the respondent Nos. I and 2 or 5 and 6 to the Court and if at all it could be said to have been given, the same is confined to the respondent Nos. 3 and 4. Besides there being the consequences for non-compliance of the alleged undertaking provided in the said consent terms itself, mere non-compliance of such undertaking cannot amount to wilful violation thereof. It is further the case of the respondents that the matter exclusively related to the monetary claim and in such cases, it is well settled that there cannot be proceedings for Contempt of Court and more particularly in the cases where the decreeholder had not even tried to recover the money by filing the execution proceedings.
5. The learned advocate for the petitioners has sought to contend that the contempt proceedings cannot be said to be alternative remedy to the petitioners and even assuming it is so considered then it will have to be considered as more effective remedy. He has further submitted that when the consent terms are accepted by the Court and the Court passes order on the basis of the consent terms, it discloses the acceptance of the consent terms by the Court and the consent terms thereupon partakes the nature of the Court's order. He has further submitted that any undertaking given in such consent terms would amount to an undertaking to the Court. Mere expression of inability to comply with the order cannot relieve the party from its obligation to comply with the order and in case of any such difficulty, the party raising plea regarding the difficulty has to plead the facts and establish the same in the manner known to law and in the absence thereof, the contemner is liable to be punished. He has sought to rely upon the decisions in the matter of (1) Bajranglal Gangadhar Khemka and Anr. v. Kapurchand Ltd., reported in : AIR1950Bom336 Abdul Kadar v. Abbasbilai, reported in 77 BLR 107, (3) All Mahomed Adamalli v. Emperor, reported in Tejkumar Balakrishna Ruia v. A. K. Menon and Anr., reported in : AIR1997SC442 , (5) Capt. Dushyant Somal v. Smt. Sushma Somal and Anr., reported in : 1981CriLJ719 , (6) Pushpaben and Anr. v. Narandas V. Badiani and Anr., reported in : 1979CriLJ960 , (7) Vishwanath Ramkrishna Rajwade v. Shri Cordeiro, Additional Chief Metropolitan Magistrate, and Anr., reported in ILR 1977 (Bom.) 1658 , and (8) The Aligarh Municipal Board and Ors. v. Ekka Tonga Mazdoor Union and Ors., reported in : 1970CriLJ1520 .
6. The learned Advocates for the respondents, on the other hand, have submitted that the petitioners' appropriate remedy is in the nature of execution proceedings and admittedly such proceedings have not been initiated. There is no explanation for non-initiation of such proceedings. It is further contention that the petitioners have nowhere stated that the non-payment of money is deliberate and wilful or that the same has not been paid in spite of the respondents having means to pay the same. On the contrary, according to the learned Advocates for the respondents, the records disclose that the respondents presently have no means to pay the dues. The entire assets of the respondents have also been frozen consequent to the proceedings which are initiated by the petitioners themselves and the petitioners having brought about such a situation that it has created absolute inability for the respondents to pay the money, and that with the sole aim of harassing the respondents, that the present proceedings have been filed. In any case, the consent terms specifically provides for the consequences of non-compliance of the alleged undertaking, and, therefore, there cannot be any occasion of accusing the respondents of commission of act of Contempt of Court. Reliance is sought to be placed on behalf of the respondent No. 1 in the decisions in the matter of (9) R. N. Dey and Ors. v. Bhagyabati Pramanik and Ors., reported in : (2000)4SCC400 , (10) Mohammad Salam Anamul Haque v. Shri S. A. Azmi and Ors., reported in 2000 (3) ALL MR 762, (11) Abdul Razack Sahib v. Mrs. Azizunnissa Begum and Ors., reported in : AIR1970Mad14 , (12) Jitesh Trading Co. v. Gita Fabrics P. Ltd., reported in 1996 GC Cases 453 K. J. Pathare v. S. J. Pathare, reported in 1977 M.L.J. 774 : (1977) 73 BLR 616, (14) Niaj Mohammad and Ors. v. State of Haryana and Ors., reported in : AIR1995SC308 , (15) M/s Ashok Paper Kamgar Union v. Dharam Godha and Ors., reported in JT 2003 (7) SCc 381. Whilst the respondent Nos. 2 to 4 have sought to rely upon the decisions in the matter of (16) Chhotu Ram v. Urvashi Gulati and Anr., reported in : 2001CriLJ4204 , (17) Supreme Court Bar Association v. Union of India and Anr., reported in : [1998]2SCR795 , and (18) Bank of Baroda v. Sadruddin Hasan Daya and Anr., reported in : (2004)1SCC360 .
7. Before proceeding to consider the rival contentions in the matter, it would be appropriate to scan through of the decisions relied upon by the learned Advocates for the parties and to ascertain the law laid down therein.
8. In Bajranglal Gangadhar Khemka's case (supra), the Division Bench of this Court has held that when the Court passes a decree based on compromise by the parties, it puts its imprimatur upon the consent terms and makes the terms a rule of the Court. When any such undertaking is given by a party to the Court, it becomes an order of the Court and the proceedings for contempt can be taken out for the enforcement of that order. It was further held that 'In all orders and decrees of the Court, whenever the expression 'a party undertakes' has been used, it has always borne the meaning that the undertaking has been to the Court.' Dealing with the issue regarding the Court's approval to the undertaking embodied in the consent terms, it was ruled that 'the very fact that the Court passed a decree after an undertaking was embodied in the consent terms clearly shows that the Court did sanction a particular course; and that course was the putting of its imprimatur upon the consent terms.' Dealing with the issue regarding the burden of proof in the contempt proceedings, it was held by the Division Bench that 'the party that comes to Court must satisfy the Court that the other side had deliberately refused to carry out the undertaking given by him to Court.'
9. In Abdul Kadar's case (supra), it was held by the Division Bench of this Court that though a party is at liberty to execute the decree on account of default committed by the opposite party, it does not mean that the contempt proceedings for wilful default in complying with the undertaking would be an alternative remedy. It was specifically held that it would obviously be an additional remedy and not an alternative one.
10. The Division Bench in Abdul Kadar Fidahussein's case (supra), while holding that an undertaking given to the Court cannot be considered as alternative remedy but it is to be held as additional remedy, it was observed that the respondents may be held liable in contempt and may also be punished and still the petitioner may not succeed in obtaining any relief in his favour in terms of the decree or undertaking.
11. The Privy Council in Ali Mohomed Adamalli's case (supra), while holding that in a case of an offence created by statute, and the procedure for punishment is prescribed, that such procedure should alone be followed and committal for contempt should not be resorted to for inflicting collateral or additional punishment and that if there be two remedies, one by indictment and the other by committal for contempt, the former ought to prevail, it was also observed that the desirability of speed and the necessity of ensuring that the orders of the Court should be obeyed are also matters of importance.
12. The Apex Court in Tejkumar Balakrishna Ruia's case (supra), it was held that the income or usufruct of attached property would also be attached property and therefore if the property is in the form of shares, dividends and bonus, rights shares thereon would also be attached property. It was simultaneously held that it was only income generated by a notified person by dint of his own labour which falls outside the net of Section 3(3) and in respect of such income, the attachment under Section 3(3) of Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, would not operate.
13. The Apex Court in Capt. Dushyant Somal's case (supra), it was observed that no person should be punished for Contempt of Court for disobeying an order of Court except when the disobedience is established beyond reasonable doubt, the standard of proof being similar, even if not the same, as in a criminal proceeding.
14. The Apex Court in Pushpaben's case (supra), held that before a Court passes the extreme sentence of imprisonment, it must give special reasons after a proper application of its mind that a sentence of imprisonment alone is called for in a particular situation and that therefore, the sentence of imprisonment is an exception while sentence of fine is the rule.
15. In Vishwanath Ramkrishna Rajwade's case (supra), it was held that the principal distinction between the civil contempt and the criminal contempt is that while the function of taking action against a contemner, in a civil contempt is to enforce compliance and not so much as to punish him, the function of proceedings in a criminal contempt is to behold the majesty of law and the dignity of Courts and further that in a civil contempt when there is compliance, rarely punishment is imposed, except levying costs.
16. In Aligarh Municipal Board's case (supra), the Apex Court ruled that 'contempt proceeding against a person who has failed to comply with the Court's order serves a dual purpose; (1) Vindication of the public interest by punishment of contemptuous conduct and (2) coercion to compel the contemner to do what the law requires of him. The sentence imposed should effectuate both these purposes.'
17. The Apex Court in R. N. Dey's case (supra), has held that weapon of contempt should not be used in abundance or misused. Normally, it cannot be used for execution of a decree or implementation of an order for which another remedy in law is provided for. Discretion given to the Court is to be exercised for maintenance of the Court's dignity and majesty of law. The aggrieved party has no right to insist that the Court should exercise such jurisdiction as contempt is between a contemner and the Court. Under the coercion of contempt proceeding, the parties cannot be directed to pay the compensation amount which they are disputing by asserting that claimants were not entitled to the same and that the decree was obtained by suppressing the material fact and by fraud. The decree holder, who does not take steps to execute the decree in accordance with the procedure prescribed by law, should not be encouraged to invoke contempt jurisdiction of the Court for non-satisfaction of the money decree. It was a case wherein the grievance related to the non-compliance of the decree passed in a land acquisition matter.
18. The learned Single Judge of this Court in Mohammad Salem Anamul Hague's case (supra) held that the question whether the petitioner had any other mode or forum available to him for enforcing the order and whether he has taken any steps in that direction is a relevant consideration for the High Court for deciding whether to initiate proceedings under the Contempt of Courts Act.
19. The Division Bench of Madras High Court in Abdul Razack Sahib's case (supra) held that '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.'
20. The Division Bench of Gujarat High Court in Jitesh Trading Co's case (supra) while holding that the contempt proceedings are not intended to be a substitute of the execution process and, therefore, care should have been taken before entertaining the contempt petition to examine the maintainability of such action, observed that when the party can execute the order passed by the Court, the contempt proceedings being not a substitute much less not intended to be substitute, the contempt petition should not be entertained.
21. The Division Bench of this Court in K. J. Pathare's case (supra), held that in order to amount to Contempt of Court and to be punishable as such, mere breach of an undertaking given to, or disobedience of the order passed by the Court is not enough and it must further be proved that the breach of disobedience was wilful or contumacious and the act of the contemner therefore signified disrespect to the Court.
22. The Apex Court in Niaz Mohammd's case (supra), has held that before any contemner is held guilty and punished, the Court has to record a finding that such disobedience was wilful and intentional, and further that if from the circumstances of a particular case brought to the notice of the Court, the Court is satisfied that although there has been a disobedience but such disobedience is the result of some compelling circumstances under which it was not possible for the contemner to comply with the order, the Court may not punish the alleged contemner. It was ruled that in a case where it is impossible to obey the order, the Court will not be justified in punishing the alleged contemner.
23. In Ashok Paper Kamgar Union's case (supra), while dealing with the definition of the word 'civil contempt', it was held that wilful means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law and it signifies a deliberate action done with evil intent or with a bad motive or purpose. It was further held that in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances and it should not require any extra ordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance and this has to be judged having regard to the facts and circumstances of each case.
24. The Apex Court in Chhotu Ram's case (supra), while dealing with the issue of burden of proof, has held that 'the common legal phraseology 'he who asserts must prove' has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the 'standard of proof', be it noted that a proceeding under the extra-ordinary jurisdiction of the Court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.'
25. The Apex Court in Supreme Court Bar Association's case (supra), while reiterating the views expressed in Pushpaben's case (supra), held that 'the Contempt of Court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely affects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely affects the majesty of law or dignity of the Courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of law.'
26. In Bank of Baroda's case (supra), it was held that 'the violation of the breach of the undertaking which became part of the decree of the Court would certainly amount to contempt of Court, irrespective of the fact that it is open to the decree holder to execute the decree. The contempt is a matter between the Court and the alleged contemner is not affected in any manner by rights or obligations of the party to the litigation inter se.'
27. The law laid down by the above referred decisions can be summarised as that the contempt proceedings in case of non-compliance of an order of the Court or undertaking given to the Court is not to be considered as an alternative or substitute for execution proceedings of such order or undertaking, nor such default or non-compliance to be presumed to be wilful or deliberate but it is primarily for the complainant to plead and prove the same, besides being that on such establishment of disobedience or default being wilful, direction for payment of fine coupled with the compliance of the order-and/or undertaking should be the rule and the imprisonment shall be an exception. Such an act shall not be encouraged prior to the initiation of the execution proceeding by the party in case of executable orders particularly in respect of money decrees. In case of impossibility to comply with the order or undertaking to be established by the deemed contemner or it being prima facie established that the order or undertaking was obtained by suppression of the facts or by fraud, that the Court shall refrain itself from exercising such powers. The availability of the remedy of the execution proceeding does not bar the contempt proceedings since it is an additional remedy, however, availability of other remedy is an important factor to be considered while dealing with the complaint for Contempt of Court. Besides that such proceedings are between the Court and the deemed contemner and that the complainant therein may not receive any relief to his benefit. The discretion given to the Court in that regard is to be exercised for the maintenance of the Court's dignity and majesty of law. Any undertaking incorporated in the consent terms irrespective of the phraseology used in that regard, once accepted by the Court and the order is passed based on such undertaking/consent terms, the same would partake the nature of the order of the Court as the Court puts its imprimatur upon the consent term/undertaking and, therefore, could be executed as any other order of the Court and the same could be subject matter of contempt proceedings in case of wilful violation or breach thereof.
28. In the case in hand, the complaint regarding non-compliance of the order and breach of the undertaking relate to the order dated 29th January, 2002 in Suit No. 3846 of 2001. The said order was passed pursuant to the consent terms filed by the parties. Perusal of the said order apparently discloses that the Court on being satisfied that the parties had duly signed the consent terms and had admitted the contents thereof disposed of the said suit in terms of the said consent terms. Under the clause 3 of the consent terms, the respondents agreed and undertook to jointly and/or severally pay to the plaintiffs the said sum of Rs. 70,71,15,154/- on or before 7th December, 2002 in nine (9) equal instalments of Rs. 7,85,68,350.44 payable monthly commencing from 7th April, 2002. The Clause (4) of which violation is pleaded, reads thus:--
'4. The defendant No. 1 hereby record and confirm to this Hon'ble Court that they shall hand over to the plaintiffs cheques for the instalments payable in each month as mentioned in clause 3 above, time being of the essence, 3 working days prior to the date on which each amount shall become payable. The defendant Nos. 3 and 4 hereby record and confirm that they have jointly handed over cheques issued by defendant No. 3 in respect of each of the aforesaid instalments mentioned in clause 3 above on the execution hereof to the plaintiffs separately, as per the particulars annexed hereto and marked 'ANNEXURE No. 1'. The defendant Nos. 3 and 4 hereby agree and undertake to this Hon'ble Court that in case the defendant No. 1 either do not hand over the cheques, 3 working days prior to the due date to the plaintiffs or the cheques issued by defendant No. 1, on the respective date/s is/are not cleared for any reason whatsoever, then only the plaintiffs shall be entitled to deposit the cheques of defendant No. 3, and defendants 3 and 4 hereby give a solemn undertaking to this Hon'ble Court that the cheques issued by defendant No. 3 shall be definitely encashed by his Bankers. The plaintiffs agree and confirm that the cheque if given by the defendant No. 1 and encashed by its Bankers in respect of the concerned instalment, then in that event the plaintiffs will not encash the cheques issued against such instalment by the defendants and shall return such cheques to the defendant No. 3.'
29. Plain reading of the clauses of the said consent terms along with the order passed thereon would apparently disclose that there has been a clear agreement arrived at between the parties in relation to the payment of the sum of Rs. 70,71,15.154/- and the period within which it was to be paid as well as the instalments by which the same was to be cleared. At the same time, the defendant No. 1 had confirmed before the Court that he would hand over the three cheques in relation to the three instalments to the plaintiffs to enable the plaintiffs to encash them on the due dates. The recording and confirmation of the said fact before the Court by the defendant No. 1 is nothing but an assurance to the Court that the defendant No. 1 had taken due care to ensure the petitioners about the payment of the said three instalments out of the total amount due and payable to the petitioners. Likewise, the respondent Nos. 3 and 4 had given a clear solemn undertaking to the Court that in case the cheques submitted by the respondent No. 1 are not cleared for any reason whatsoever or that the respondent No. 1 fails to give cheques regarding further instalments, then the cheques given by the respondent Nos. 3 can be encashed, and in case, the cheques issued by the respondent No. 1 are encashed, then the cheques given by the respondent No. 3 should be returned to the respondent Nos. 3 and 4. The said assurance and the undertaking to the Court also finds confirmation in the form of the affidavits filed by the respondent Nos. 3 and 4 on 21st December, 2001, prior to submission of the consent terms to the Court, wherein it was clearly stated that they had voluntarily executed the consent terms and had given undertaking that the amount would be paid in accordance with the consent terms in 9 equal instalments commencing from 7th April, 2002 and ending on 7th December, 2002. Therefore, the respondents cannot contend that there was no undertaking given by the respondents in relation to the payment of the said amount, the manner in which and the period within which it was required to be paid. The contents of the consent terms along with the undertaking incorporated therein are very clear and the same having been accepted by the Court and having passed the order accordingly, the said terms eventually formed part of the said order, and, therefore, it cannot be said that there was no order or undertaking in relation to the payment of the said amount. In fact, the contention on behalf of the respondents about absence of undertaking by the respondent No. 1 is purely after thought. It was clearly understood even before filing of the consent terms that the respondents were required to give the said undertaking and in fact, it was incorporated in the consent terms and those facts clearly stood established by the affidavits filed by the respondent Nos. 3 and 4 for themselves and on behalf of the respondent Nos. 1 and 2.
30. The respondent No. 1, however, is justified in contending that the consent terms and the undertaking clearly provide for the consequences for failure on the part of the respondent No. 1 to honour his undertaking regarding the payment of the said amount. The first part of the Clause 4 of the consent terms speaks of the obligation and of the assurance by the respondent No. 1 in relation to the payment of money. The second part of the said clause speaks of the consequences of failure on the part of the respondent No. 1 to comply with his obligation and assurance, simultaneously, incorporating the undertaking by the respondent Nos. 3 and 4 to comply with their obligation to pay the said amount. Indeed, the second part of the Clause 4 provides that in case the respondent No. 1 fails to hand over the cheques within the time stipulated or the cheques issued by the respondent No. 1 are not cleared for any reason whatsoever, then the petitioners shall be entitled to deposit the cheques issued by the respondent No. 3. In other words, the consent terms and eventually the order passed thereon do provide for the consequences which are to follow in case of failure on the part of the respondent No. 1 to comply with the said order and the undertaking incorporated in the said consent terms.
31. The consent terms further disclose the consequences to follow in case of dishonour of cheques issued by the respondent No. 3. Clause 5 thereof provides that in case of any two defaults in payment of instalments, the petitioners would be entitled to execute the decree against the respondents Nos. 1 to 4 or any of them for the balance amount without requiring any further order of the Court. Evidently, in case of failure to give the cheques by the respondent No. 1 or dishonour of the cheques issued by the respondent No. 3 in relation to any two instalments, would immediately entitle the petitioners to execute the entire decree against the respondent Nos. 1 to 4 or any of them.
32. In addition to the option to seek execution of the decree, the petitioners have also been assured the right to continue with the prosecution under Section 138 of the Negotiable Instruments Act which had already been initiated by the petitioners but the proceedings were required to be suspended in view of the filing of the consent terms. The consent terms, therefore, ex facie provide the remedy in the form of execution as well as for the prosecution under Section 138 of the Negotiable Instruments Act, in case of failure to comply with the undertaking given by the respondents under Clauses 3 and 4 of the consent terms.
33. Undoubtedly, the provision made for consequences of the failure on the part of the person giving undertaking or person failing to comply with the order passed on the basis of the consent terms do not and cannot be said to be sufficient to impose restrictions on the powers of the Court for prosecution of such defaulters and to punish them for Contempt of Court. In a case where the consequences are specifically provided under the consent terms for their non-compliance or breach of the undertaking incorporated therein, certainly whether an action for contempt would lie or not would depend upon the facts of each case, and will be a relevant factor to be considered while dealing with the matter under the Contempt of Courts Act. Mere provision in the consent terms for consequences in case of breach of undertaking would not disentitle the Court from enforcing its powers under the Contempt of Courts Act when wilful violation of the order and/or wilful breach of the undertaking is brought to its notice and it would all depend upon the facts of the case placed before the Court. Besides, when the contumacious conduct in non-compliance of the order and the undertaking is established, the provision for consequences in the consent terms could hardly be an obstacle in the process of contempt proceedings.
34. As already seen above, the law on the point of burden of proof regarding the contumacious conduct on the part of the deemed contemners in respect of disobedience of the order or breach of the undertaking is upon the petitioners, and in the case in hand, in order to discharge the said burden, the two facts have been brought on record by the petitioners, firstly that on 11th April, 2001, the Debt Recovery Tribunal had passed the order restraining the respondent No. 3 from operating any Bank Account or disposing its assets, and secondly, the Income Tax Department on 31st October, 2001 had sought attachment of the Bank Account of the respondent No. 3 with the Global Trust Bank Limited at Nariman Point Branch. Both these events occurred prior to 29th January, 2002 on which date, the consent terms were filed and undertaking was given. It is the case of the petitioners that they have every reason to believe that the respondent Nos. 3 and 4 had full knowledge of the said order of the Debt Recovery Tribunal and that of the Income Tax Department much prior to the execution of the consent terms as well as even prior to the affidavits which were filed affirming the consent terms. It is, therefore, the case of the petitioners that the undertaking was given by the respondents knowing well that they would not be able to honour the assurances given under the consent terms.
35. In relation to the averments regarding the said order of the Debt Recovery Tribunal and the Income Tax Department and the knowledge about the same to the respondents prior to the execution of the consent terms on affidavits are to be found in paragraph Nos. 19 and 21 of the petition. The respondents in their replies with reference to the contents of the said two paragraphs denied the knowledge of the said two orders and have merely contended that the petitioners were also aware of the facts stated therein. Undoubtedly, they have also contended that they had taken steps to contest the proceedings in the Debt Recovery Tribunal and have contended that the said respondents had reason to believe that the attachment by the Income Tax Department would not have continued for a period more than six months. They have also stated that they had option of operating other bank accounts at the relevant time; however, they have not disclosed any details thereof, nor have produced any material in support of their claim in that regard. As regards the respondent No. 3, there is no denial of the contents of the said paragraph Nos. 19 and 21 and he has also contended that the petitioners has full knowledge about the said fact.
36. The fact remains that at the time when the consent terms were executed by the respondents, they had full knowledge about the attachment of the Bank Account of the respondent No. 3 in the Global Trust Bank as well as the order passed by the Debt Recovery Tribunal and both the said orders had continued to be in force and the respondent No. 3 therefore on 29th January, 2002 had no authority to operate the account in the said Bank nor the respondents had authority to deal with their assets and the properties without the consent of the Debt Recovery Tribunal and, yet, the respondents had executed the consent terms agreeing to repay the amount as was specified in the consent terms and further had given undertaking to pay the amount within the specified period and in the manner specified in the consent terms. It clearly discloses that in spite of the full knowledge about the restraints imposed upon the respondents in the matter of dealing with their assets and money, they ventured to assure payment of money to the extent it was claimed by the petitioners within the specified period and even given undertaking in that regard to secure the order from the Court on the basis of such undertaking. It is true that the respondents have contended that they honestly believed that the restraints would be lifted within six months or on the expiry of the period of six months from the date of its imposition. Certainly the period of six months had not expired on 29th January, 2002 from the date when the Bank Account was frozen as it was frozen on 30th October, 2001. There is also nothing on record to show that there was any reason for the respondents to believe that the order of the Debt Recovery Tribunal passed on 11th April, 2001 was to be vacated at or prior to execution of the consent terms. In other words, knowing fully well about the restraints imposed upon the respondents, without disclosing those restraints, they gave a solemn assurance about the payment of money and gave undertaking in that regard in the consent terms which was accepted by this Court, and based thereon, the order dated 29th January, 2002 was passed.
37. Perusal of the affidavits in reply by the respondents nowhere discloses any positive act or action on the part of the respondents or any one of them to ensure the compliance of the consent terms and the undertaking given therein nor the replies disclose the steps that were taken by the respondents or any one of them in that regard, and if so, the cause for failure to have fruitful results of such efforts. The only answer by the respondents is that there are financial constraints and, therefore, the same make themselves impossible to comply with the order and the undertaking. It is pertinent to note that the respondents have not come out with all details with cogent and reliable material disclosing their assets and/or properties, nor the defence raised and the materials placed on record disclose any sort of remorse to the respondents or any one of them for non-compliance of the order passed by this Court while approving the consent terms and accepting the undertaking given by the respondents in Suit No. 3846 of 2001. Does it not disclose contumacious conduct on the part of each of the respondents in not complying with the undertaking and the order passed, based on such undertaking by this Court? Certainly, in the absence of cogent and convincing explanation for non payment of money due and payable under the said order and the undertaking comprised therein, mere contention about the financial constraints that too, without necessary details and materials in support thereto, the alleged inability to comply with the order regarding payment of money can hardly be considered to be a satisfactory explanation for non-compliance of the order. On the contrary, the conduct; of the respondents discloses wilful disobedience on the part of the respondents in not complying with the said order and committing breach of the undertaking. Indeed, if the respondents were genuinely interested in complying with the order and the undertaking, nothing prevented them from making efforts in that regard during all those times. The very fact that they have not come out with the efforts discloses lack of bona fide in not complying with the said order and the undertaking, which in turn reveals wilful disobedience of order and breach of undertaking.
38. As regards the contention about the executability of the decree and it being a money decree, the efficacious remedy in the form of execution proceeding being available and that, therefore, the Court should be rather hesitant to proceed with the contempt proceeding, as already observed above, the execution proceeding is not an alternative remedy but an additional remedy, and therefore, merely because the petitioners have not proceeded to initiate the execution proceedings, that would not by itself create any bar for the Court from proceeding against the respondents for Contempt of Court. The contention that there has been no undertaking to the Court by the respondent No. 1 is also devoid of substance. It is not the phraseology like 'undertaking to the Court' that is relevant to consider whether it amounts to the undertaking to Court. Once the consent terms wherein the undertaking is embodied are accepted by the Court and based on such acceptance, the order is passed, the consent terms along with such undertaking, partake the nature of the order of the Court and even assuming that the undertaking is to the opposite party, since such an undertaking is accepted by the Court and it forms part of the consent terms, it would partake the nature of the order of the Court, violation of which, when is wilful, would warrant action for Contempt of Court.
39. Merely because the order is an executable order, it cannot be said that no contempt proceedings would lie against the defaulter in such cases nor it can be said that in case of monetary claim under a order or undertaking, the defaulter cannot be made to face contempt proceedings. The law laid down by the Apex Court and the decisions referred to above clearly reveal that the contempt proceedings are independent of the execution proceedings and are primarily made to ensure the compliance of the Court's order rather than giving a relief to the parties and, therefore, mere availability of the execution proceedings cannot be construed as bar for contempt proceedings as the remedies are not alternative remedies and they can be invoked simultaneously. The purpose behind the execution proceedings is solely to enable the decree holder to enjoy the fruits of the decree in his favour while the contempt proceedings are primarily to ensure the compliance of the Court's order and in case of failure thereof to punish the contemner.
40. It is true that the respondents have expressed the apology in their replies. However, the so called apology nowhere, discloses any sort of contrition nor remorse which is the essence of a apology to be honest and genuine and in absence thereof, the same is liable to be rejected.
41. As observed above, the order passed by this Court on 29th January, 2002 read with the consent terms and the affidavits filed by the respondent Nos. 3 and 4 clearly discloses the confirmation of their obligations and solemn assurance to the Court to discharge the said obligation in the manner specified in the consent terms and, yet, the records reveal that the respondents did not bother to perform their obligations under the consent terms and the undertaking and apart from expressing inability and while accusing the petitioners of having initiated different actions against the respondents, no cogent explanation has been given for the non-compliance of the said order and the undertaking.
42. The initiation of different proceedings or filing of the complaints with different authorities cannot be construed as an act on the part of the petitioners to compel the respondents not to comply with their obligations. The respondents were fully aware of their liability and knowing the same had given the said undertaking to the Court, In case the lawful authorities have taken coercive action against the respondents by following the procedure known to law, on account of the alleged violation of the various rules and regulations, it cannot be attributed to the acts of the petitioners to the prejudice of the respondents inasmuch as that it is the duty of a person to put the criminal law in motion when an offence committed by someone comes to his knowledge and the same principle would apply to the economic offences. Being so, the contention of the respondents that the alleged inability to pay the amount has been created on account of the acts on the part of the petitioners themselves is without any substance.
43. The excuses for non-compliance of the order, apart from accusing the petitioners of creating situation adverse to the respondents to comply with the said orders, include the contention to the effect that the accounts of the respondents have been frozen, by the Government and the assets are in frozen condition, and, therefore, the respondents are unable to comply with the said order. When the party faces certain restrictions on behalf of the authorities in his financial matters, that itself can hardly be a justification to contend that the party is unable to comply with the order. Otherwise, in every case before giving an undertaking or after giving an undertaking, the party would create such a situation which would make it difficult to the party to comply with the order on account of his assets being frozen or he being refused the operation of bank accounts in his name by such authorities. It is for the party to take all possible steps to ensure prompt compliance of the Court's order, and in that regard to disclose what steps have been taken by the party to comply with the order. Mere statement that the party is helpless is no answer to the charge of contempt when the party wilfully disobeys the order or discloses contumacious wilful breach of the undertaking given to the Court, and it is for such party to make out a defence with facts and figures duly supported by the materials on record. Failure in that regard would warrant conclusion about the wilful default in compliance with the order and the deliberate breach of the undertaking given to the Court, which is inevitable, in the case in hand, for the reasons stated above, as against the respondent Nos. 1 to 4.
44. It is also true that the respondents have moved for relieving them from their undertaking. That is totally different issue to be decided independently of this proceeding and the same cannot be a justification to avoid consequences of wilful disobedience of the order and wilful breach of undertaking.
45. In the result, for want of any case being made out against them, the notice issued to the respondent Nos. 5 and 6 is discharged and the proceedings against the said respondents are dropped. The respondent Nos. 1 to 4 are held to be guilty of Contempt of Court for wilful breach of the undertaking given to the Court in the course of the consent terms which were filed on 29th January, 2002 in Summary Suit No. 3846 of 2001, and for wilful disobedience of the order passed based thereon and, therefore, each of them are ordered to pay a fine of Rs. 2000/-, and further to pay all the dues payable in terms of the consent terms under the order dated 29th January, 2002 within a period of 12 weeks from today, and in case of failure to pay the same to undergo civil imprisonment for a period of two months by the respondent No. 3 as well as by No. 4. Order accordingly. The proceedings stand disposed of.