Partial compliance with a settlement agreement, substantial benefits received by the petitioner, and the pursuit of both contempt and execution proceedings may impact the court's decision on initiating contempt proceedings.

V.K. Shali, J. (Oral):

1. This is a contempt petition filed by the petitioner against the respondent on account of the alleged wilful disobedience of the purported undertaking given to the court pursuant to which a compromise decree in terms of the settlement arrived at before the mediation centre between the parties was passed on 23.3.2009.

2. I have heard Mr. Nigam, the learned counsel for the petitioner as well as Mr. Manoj Arora on behalf of the respondent and have also gone through the judgments relied upon by Mr. Nigam in respect of his contention.

3. The case of the petitioner is that he had filed a suit being C.S. (OS) No.661/2007 for specific performance of an agreement dated 16.8.1998, for rendition of accounts and mandatory injunction against the respondent. During the pendency of the said suit, the parties arrived at a settlement before the mediator, a copy of which is Ex. CW 1/1, and pursuant to the said settlement, a joint application was filed by all the parties under Order 23 Rule 3 CPC for disposal of the suit in terms of the settlement. This application was accepted and an order was passed disposing of the suit in terms of the settlement on 23.3.2009.

4. The grievance of the petitioner is that the respondent had given an undertaking by way of an affidavit to the court to abide by the terms and conditions of the settlement but she has not adhered to all the terms and conditions of the settlement. Four terms and conditions of settlement, contained in clause 10 of the settlement, are alleged to have not been performed by the respondent. These terms are that the respondent is stated to have undertaken to incorporate the name of the present petitioner also as a franchiser in the agreement in respect of franchisee (Arvind Mills), who happens to be an occupant of the premises in question situated in Connaught Place where a showroom of Arvind Mills is being run. It may be pertinent here to mention that the centre of controversy, in the instant case, pertains to sharing of profits/sale proceeds/rentals of a showroom being run by Arvind Mills as a franchisee. The present petitioner and the respondent are the landlord and the tenant respectively while as the property in question is owned by somebody else, meaning thereby, that Arvind Mills is a sub-tenant in the premises in question.

5. It is the case of the petitioner that according to the terms and conditions of the settlement, which is stated to have expired somewhere in 2011, the respondent was obligated to include the name of the present petitioner also in the agreement as a franchiser with Arvind Mills and this was not done deliberately to keep the present petitioner out of the picture.

6. The third act of wilful disobedience is that the respondent is not giving the details of the expenditure incurred by her or the sale proceeds as a consequence of which the petitioner does not know for certain whether the amount of rentals/money realised from Arvind Mills is being shared by the respondent equally in terms of the settlement.

7. The fourth grievance of the petitioner is that the respondent was under an obligation to give the TDS certificate to the petitioner and yet the respondent is neither giving TDS certificate to the petitioner nor is acknowledging the same and thus, she is guilty of contempt.

8. The learned counsel for the respondent has filed a detailed reply running into 18 pages and denied all the allegations. It has been contended by the respondent that not only the monies are being paid to the petitioner every month, though the same are being received by her on quarterly basis from Arvind Mills, but the accounts are being and audited and the petitioner, till date, after passing of the order, has received a sum of more than Rs.6.5 crores, which clearly shows that the respondent has been complying with the order of the court, both in letter and spirit. It has also been contended by the learned counsel that the agreement with Arvind Mills never came