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2001 Supreme(Cal) 347
HIGH COURT OF CALCUTTA
Kalyan Jyoti Sengupta, J.
Peerless General Finance & Investment Company Limited
vs.
Bijoy Kumar Swaika & Ors.
C.C. No. 72 of 2001
Decided On: June 22, 2001
An undertaking given to a court, whether it involves payment of money or not, can support contempt proceedings if it is breached.
Headnote:
CONTEMPT OF COURT - UNDERTAKING - BREACH - INTERPRETATION - LEGAL PRINCIPLES - ESSENCE OF LEGAL FRAMEWORK:
Fact of the Case:
Decree-holder sought to initiate contempt proceedings against judgment debtors for breach of an undertaking given to the court regarding payment of money in installments. The undertaking was recorded in a compromise and agreement of the parties and accepted by the court.
Finding of the Court:
The court held that the undertaking was given to the decree-holder, not to the court, and that it was not part of the court's order. Therefore, the court found that the undertaking was not one for which contempt proceedings could be drawn up.
Issues: 1. Whether the undertaking was given to the court or to the decree-holder. 2. Whether the court accepted the undertaking as the basis of disposal of the execution application. 3. Whether contempt proceedings can be drawn up for breach of an undertaking given to the court involving payment of money.
Ratio Decidendi: 1. The court relied on several precedents to hold that an undertaking must be expressly or impliedly given to the court in order to support contempt proceedings. 2. The court found that the undertaking in this case was not given to the court, but rather to the decree-holder. 3. The court held that contempt proceedings can be drawn up for breach of an undertaking given to the court, even if the undertaking involves payment of money.
Final Decision: The court dismissed the application for contempt proceedings.
Kalyan Jyoti Sengupta, J.: The petitioner decree-holder in this case has brought this application for committing the respondents for trial for contempt of court on the allegation of breach of undertaking given by them. When the application was moved affidavits were invited without issuing any Rule as prayed for, to decide the preliminary issue as to whether undertaking given by the respondents in this matter tantamount to breach of undertaking so as to warrant drawing up of contempt proceedings or not.
2. This has come for hearing after affidavits are filed. Before dilating the respondents' contentions it would be appropriate to reproduce the text of the undertaking on which this contempt proceeding is founded.
3. The undertaking contained in the Terms of Settlement in clause (2) of the compromise and agreement of the parties.
The judgment debtors agree and undertake before this Hon'ble Court to pay to the decree holder a total sum of Rs.4,75,000/-(Rs.4,00,000/-as remaining interest payable under the Decree dated September 21, 1992 and Rs.75,000/- as processing fee of the plaintiff) as per the following
Schedule:-
i) On or before 15.12.98 Rs. 1,00,000/-
ii) On or before 15.01.99 Rs. 1,00,000/-
iii) On or before 15.02.99 Rs. 1,00,000/-
iv) On or before 15.03.99 Rs. 1,00,000/-
v) On or before 15.04. 99 Rs. 37,500/-
vi) On or before 15.05.99 Rs. 37,500/-
4. Admittedly none of the instalments has been paid as mentioned in the said agreement.
5. Mr. Abhijit Chatterjee, learned Counsel appearing in support of this application contends that undertaking though recorded in the agreement has been accepted by this court passing an order. The court did not proceed with the execution application because of the aforesaid undertaking being given. Therefore, according to him, the moment such agreement containing undertaking, is accepted by the court the same amounts to an undertaking given to the court itself.
6. Mr. Chatterjee is fair enough to concede that if the aforesaid undertaking is construed to be an undertaking to the parties decree-holder then of course this contempt application may not be maintainable. In support of his contention he has relied on two decisions of this Court reported in ILR 1946 499 and AIR 1976 Cal. 475.
7. He contends that the undertaking given to a court amounts to contempt of court even in case of payment of money as well. He refers to the decisions of Supreme Court on this proposition reported in AIR 1979 SC 1536, AIR 1955 Cal. 182 and 1997 Cr.L.J 1051.
8. Mr. Chatterjee further contends that though in this case there may be alternative method to proceed against the defaulting judgment debtor, of successive failure to honour their promise or undertaking previously given to the court this court should deal with them in the contempt application itself. He has drawn my attention to the previous order of this court dated 16th September, 1998 which records another terms of settlement that too visited with non-compliance.
9. Mr. P.K.Roy, learned Senior Counsel with Mr. Basak, Advocate contends that breach of all kinds of undertaking does not invite contempt proceedings. Unless it is shown that undertaking given to the court itself no contempt proceedings can be drawn up for breach thereof. He urges in this case upon careful reading of my order as well as the language of the undertaking that this undertaking was not given to court and this will appear on the face of the wordings thereof. It is an undertaking given to the party and the court has not accepted the aforesaid undertaking to be one being given to it. In support of his contention he has relied on the decisions of the Division Bench of this Court reported in AIR 1948 Cal. 294, AIR 1952 Cal. 591 and AIR 1979 SC 1528.
10. Mr. Roy further contends that even mere failure to deposit any amount in terms of the court's order does not amount to contempt and he has drawn my attention to a Division Bench judgment of the Madras High Court reported in AIR 1970 Mad. 14.
11.
