JUDGMENT - KHANDEPARKAR R.M.S., J.:—The grievance of the petitioner relates to disobedience of the order dated 15-4-1999, passed in Summary Suit Nos. 1794 of 1999, 1985 of 1999, 1792 of 1999 and 1793 of 1999 and breach of undertaking given in the said suits by the respondent Nos. 2 to 4.

2. Few facts relevant for the decision are that certain promissory notes came to be executed by the respondent No. 1 through the respondent No. 3 and the respondents having failed and neglected to pay the amounts on being demanded by the petitioner under the said promissory notes, the suits came to be filed wherein the motions were taken out and the same were disposed of while accepting the statements made by the learned Advocate appearing for the defendants, who are the respondent Nos. 1 to 3, in the said suits, further requiring the defendants to file a written undertaking. The relevant portion of the order which was passed on 15-4-1999 reads thus:

"The learned Counsel appearing for defendants 1 and 3 after taking instructions from defendant No. 3, who is present in Court, states that defendant No. 1 will not transfer, dispose of or sell or create any third party interests in respect of the Suit Premises No. 82 described in item No. 1 of the Schedule to the motions. The learned Counsel states that written undertakings to the above effect will be filed within two weeks. In view of the statement and undertakings, Notices of Motion are disposed of.

It is clarified that this order is without prejudice to the rights and contentions of the parties in the main suits. It is also clarified that the above statements and undertakings are relating to shop only and not the stock in trade."

The defendant No. 3, who is the respondent No. 3 herein, consequently filed the undertaking on 21-4-1999 which reads thus :

"That as per the order of the Honourable Court passed by His Lordship Mr. Justice A.R. Shah dated 15th April, 1999 in the above notice of motion, I hereby give a written undertaking to the effect that the defendant Nos. 1 and I shall not transfer, dispose off, sell or create any third party interest in respect of the suit shop premises i.e. Shop No. 82, Nagdevi Cross Lane, 2nd Floor, Mumbai 400 003."

It is the case of the petitioner that the respondent No. 1 and its partners 2 to 4 inspite of full knowledge of the said order and the undertaking have disposed of and/or transferred their interest in the said premises in favour of the third party i.e. the respondent No. 5 and this was revealed to the petitioner consequent to removal of the board of the respondent No. 1 which was displayed at the said premises till the date of filing of the undertaking and therefore there has been wilful breach of the undertaking as well as wilful violation of the order of the Court.

3. It is not in dispute that the respondent Nos. 2 and 4 were the partners of the respondent No. 1 at the time of filing of the suits as well as when the undertakings were given. The respondent No. 3 retired from the firm since April, 1997. The respondent No. 5 is the landlady in relation to the suit premises. It is also a matter of record that during the pendency of these proceedings before the Court, the respondent No. 3 and the respondent No. 5 expired.

4. On issuance of the show cause notices on prima facie being satisfied about the violation of the order and the breach of the undertaking, the respondents filed their replies and the respondent Nos. 1, 2 and 4 have come out with the case that the building wherein the suit premises are situated was in a dangerous state and the said fact was verified by the departmental engineers of the Municipal Corporation and pursuant to their direction to vacate the building for repairs thereof, a letter came to be issued to the said respondents by the respondent No. 5 which was followed by eviction proceedings on the ground of non-user as in fact the said respondents had stopped using the suit premises. In the said eviction proceedings after having brought

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