Preeti Kapur vs Anshuman Kapur & Ors. on 8 October, 2009

[Cites 17, Cited by 0]

Delhi High Court

Preeti Kapur vs Anshuman Kapur & Ors. on 8 October, 2009

1. In challenge in this petition under Article 227 of the Constitution of India is the order dated 26.3.2009 passed by Shri Narinder Kumar, Additional District Judge-01 (West), Delhi dismissing the petitioner‟s Contempt Petition No.1/2009 seeking an order for making reference to this Court under Sections 11 and 12 of the Contempt of Courts Act on account of the alleged willful breach by the C.M.(M) No.427/2009 Page 1 of 41 respondent No.1 of the undertaking given by him on 31.8.2008 in H.M.A. Case No.550/2008. Respondent Nos.2 & 3 are proforma respondents. They acted as the counsel for respondent No.1 before the trial Court which passed the decree of divorce by mutual consent. The expression "parties" used in this order refers to the petitioner and respondent No.1 only, unless the content otherwise requires.

2. The petitioner was married to the respondent No.1 on 19.4.2000 according to Hindu rites and ceremonies. Two children, namely, Sanah Kapur and Aayana Kapur were born from the wedlock. Due to temperamental differences, the parties (i.e. the petitioner and respondent No.1) could not reconcile their disputes and started living separately since 15.9.2007. It appears that the parties, with a view to arrive at a mutual settlement which, inter alia, provided for divorce by mutual consent entered into an agreement on 13.9.2008. Under this agreement it was recorded that the petitioner herein is in occupation of premises situated at 121, Anupam Gardens, Sainik Farms, New Delhi-110062. This agreement also provided that if the petitioner pays to the respondent a sum of Rs. Two crores by 31st December, 2008 the said property would be transferred to the petitioner along with all rights, title and interest. The petitioner as per this agreement was to retain the custody of the two minor children without any interference by the respondent.

C.M.(M) No.427/2009 Page 2 of 41

3. The parties thereafter moved a petition jointly u/s 13B (2) of the Hindu Marriage Act. It was stated that the parties had settled all their disputes and claims amicably. They further stated that they have consented to grant divorce to each other without any force or undue influence and that there is not collusion between them.

4. The petitioner stated that she shall have no right in respect of permanent alimony for herself and that she would not claim any lien past, present or future whatsoever over the property, movable and immovable of the respondent herein, and similarly the respondent stated that he shall have no right, claim and lien past, present or future over the properties, both movable and immovable of the petitioner herein. The petitioner also gave up her right to any interim maintenance for the past or in future from the respondent herein. The parties also settled all their disputes regarding dowry, stridhan and stated that no dispute whatsoever regarding dowry items and stridhan is left between the parties. They also undertook to withdraw all their complaints against each other and their family members and stated that they have no dispute left against each other after this settlement is reached between the parties. The joint petition further provided that the petitioner herein shall not claim any right in the property of the respondent which he may inherit or he may acquire with his personal funds, and similarly the respondent shall not claim any right in the property which the petitioner may inherit or may acquire with her C.M.(M) No.427/2009 Page 3 of 41 personal funds. The respondent also agreed not to claim any right in property which the daughters may inherit or may acquire with their own funds.

5. The first motion was taken up by the Court on 24.10.2008. The statement of the respondent, Shri Anshuman Kapur was recorded as PW-1 wherein he, inter alia, stated as follows:-

"I have settled all my disputes and claims of any nature what so ever (past, present and future) with petitioner no.2 amicably and there will be no claim in future after transfer of the house situated at 121, Anupam Gardens, Sainik farms, New Delhi-110062, in the name of petitioner no.2." (emphasis supplied)

6. The statement of the petitioner herein, Ms. Preeti Kapur was also recorded as PW-2 wherein she, inter alia, stated as follows:-

"I have settled all my disputes and claims of any nature what so ever (past, present and future) with petitioner no.1 amicably and there will be no claim in future after transfer of the house situated at 121, Anupam Gardens, Sainik farms, New Delhi-110062, in my name." (emphasis supplied)

7. The first motion petition was disposed of by the trial court on 24.10.2008. The parties thereafter moved the second motion petition along with an application u/s 151 C.P.C for waiving of the statutory period of six months for filing the second motion petition. The second motion petition was taken up by the Court on 31.10.2008.

8. On 31.10.2008 after hearing the parties and their counsel, the Court recorded its satisfaction that no fruitful purpose would be served C.M.(M) No.427/2009 Page 4 of 41 by waiting for six months period. Accordingly, the application filed by the parties u/s 151 C.P.C was allowed in the interest of justice and the Court proceeded to record the statement of the parties.

9. The Court recorded the statement of the respondent, Shri Anshuman Kapur as PW-1. The relevant portion from the said statement reads as follows:-

"I have settled all my disputes and claims of any nature what so ever (past, present and future) with petitioner no. 2 amicably and there will be no claim in future after transfer of the house situated at 121, Anupam Gardens, Sainik Farms, New Delhi-110062, in the name of petitioner no. 2. I undertake that this house shall be transferred in the name of the petitioner no. 2 as per agreement/settlement within six weeks. I have already handed over the possession of said house to petitioner no. 2. I also undertake to contribute for the maintenance and education of the children as far as possible. I will not claim any visitation rights with the children.

Petition is Ex. P1 which bears my signature at point A. My affidavit is Ex.P2. Four marriage photographs are Ex. P3 (collectively), copy of rent agreement is Ex. P4. Copy of the format of the agreement is Ex. P5 bearing my signature at point encircle A and of petitioner no.2 at point encircle B. The mutual consent has not been obtained by force, fraud, undue influence, threat to anyone and this petition has not been presented in collusion with each other. I undertake to abide by the terms and conditions settled between us."

(emphasis supplied) C.M.(M) No.427/2009 Page 5 of 41

10. Similarly the statement of the petitioner herein was also recorded as PW-2 and the relevant portion herein read as follows:-

"I have settled all my disputes and claims of any nature what so ever (past, present and future) with petitioner no. 1 amicably and there will be no claim in future after transfer of the house situated at 121, Anupam Gardens, Sainik Farms, New Delhi-110062, in my name by the petitioner no. 1. Petitioner no. 1 has undertaken that this house shall be transferred in my name as per agreement/settlement within six weeks. Petitioner no. 1 has already handed over the possession of said house to me.

Petitioner no. 1 has undertaken to contribute for the maintenance and education of the children as far as possible. Petitioner no. 1 shall not claim any visitation rights with the children.

Petition is Ex. P1 which bears my signature at point B. My affidavit is Ex.P6. Copy of ration card of petitioner no. 1 is Ex. P7. Copy of my driving license is Ex. P8.

The mutual consent has not been obtained by force, fraud, undue influence, threat to anyone and this petition has not been presented in collusion with each other. I undertake to abide by the terms and conditions settled between us."

(emphasis supplied)

11. After recording the aforesaid statements of the parties, the Court allowed the second motion petition and dissolved the marriage between the parties with immediate effect by passing a decree u/s 13B of the Hindu Marriage Act. The Court recorded its satisfaction that there is no possibility of the parties living together, who are living C.M.(M) No.427/2009 Page 6 of 41 separately since 15.9.2007. It was also recorded that the Court had no reason to disbelieve the statement of the parties.

12. From the statement of the respondent it is seen that he undertook to transfer the house bearing No.121, Anupam Gardens, Sainik Farms, New Delhi in the name of the petitioner herein "as per agreement/settlement within six weeks". In his statement the respondent also exhibited the copy of the format of the agreement as Exhibit P-5 which bear his signatures at point encircled `A‟.

13. The respondent got a legal notice issued to the petitioner dated 16.1.2008. In this legal notice, the respondent took a stand that against the settlement of all the disputes, claims and maintenance (past, present and future), the respondent had agreed to transfer the said house "as per agreement/settlement executed between" the petitioner and the respondent on 13.9.2008. The respondent claimed that as per the settlement/agreement, the petitioner had to pay a sum of Rs. 2 crores to the respondent before the transfer of the property. The respondent also stated that he is "ready and willing to transfer the house in your name, subject to the payment of Rs.2 crores as per the agreement". The respondent also stated that in case the said amount is not paid on or before 31.12.2008, the petitioner should hand over the possession of the said house to the respondent.

14. The petitioner responded to the said legal notice through her advocate on 29.12.2008 disputing the stand taken by the respondent. C.M.(M) No.427/2009 Page 7 of 41 The petitioner stated that her consent was obtained on the pretext that the respondent shall transfer the said house in her name as settlement of all her claims and disputes. She made reference to the undertaking/statement made by the respondent before the trial Court on 31.10.2008 and stated that there was no relevance of the agreement/settlement dated 13.9.2008. She specifically referred to Exhibit P-5 and the changes made therein which were signed by both the parties. She even expressed dismay at the conduct of the respondent‟s counsel in issuing the notice when the said counsel was involved in the mutual divorce case and the statement/undertaking for transfer of the said property was given within the knowledge of, and in the presence of the counsel. The sending of the notice by the respondent was stated to be mal-intentioned. The respondent was called upon to withdraw the notice dated 16.12.2008 and to transfer the said property to the petitioner failing which she threatened action, inter alia, for contempt of Court.

15. Since the respondent did no transfer the said property in her name, the petitioner moved the trial court with the aforesaid application for initiation of contempt proceedings under Sections 11 and 12 of the Contempt of Courts Act by making a reference to this court on the foundation that despite the respondent having undertaken to transfer the said property in favour of the petitioner with six weeks, he had failed to do so. It was also alleged that contrary to the C.M.(M) No.427/2009 Page 8 of 41 aforesaid settlement, the respondent is now demanding an amount of Rs. Two crores from the petitioner for transferring the said property in favour of the petitioner.

16. The petitioner‟s application was disposed of in limine by the trail court without even issuing notice to the respondent. The reasoning adopted by the trial court while rejecting the application was that the judgment dated 31.10.2008 did not contain a decision by the Court regarding the agreement/settlement arrived between the parties for the transfer of the said house by the respondent in favour of the petitioner. There was nothing in the judgment to suggest that any order in respect of the said property was passed by the Court. Only a decree of divorce came to be passed in favour of the parties while allowing the prayer made in the joint petition. It was held that the statements of the parties to the divorce petition do not form part of the judgment. It was also held that on a perusal of the judgment, there was nothing to suggest that the Court had accepted the undertaking given by the respondent. It was further held that only a copy of the format of agreement was filed before the Court. The said format was a format of an agreement to sell or transfer certain agricultural land situated in Village Saidulajaib, Tehsil Hauz Khas, Mehrauli, New Delhi between Dalip Kapur (HUF) acting through its Karta, Mr. Dalip Kapur and Ms. Preeti Kapur. It was not an agreement executed between the respondent and the petitioner. It being only a format of the agreement C.M.(M) No.427/2009 Page 9 of 41 to transfer the aforesaid property, merely because no transfer was effected after the delivery of possession of the property to the petitioner, the persons arrayed as respondents could not be said to have violated any direction issued by the Court on 31.10.2008 or to have violated any undertaking. On this basis, the application of the petitioner was dismissed. The petitioner accordingly filed the present petition.

17. In this petition, notice was issued to the respondent and the respondent has filed his reply. I have heard counsel for the parties at length and they have taken me through the record and made their submissions on merits. While it has been contended by the petitioner that the conduct of the respondent constitutes willful and deliberate breach of his undertaking, as aforesaid, the submission of the respondent is that the initially executed agreement dated 13.9.2008 referred above continued to bind the parties; that the said agreement dated 13.9.2008 was never overridden or novated; that the form of the agreement Exhibit P-5 was merely a format to which the respondent was not even a party as the said format itself shows that the same was to be executed between Dalip Kapur (HUF) acting through its Karta, Mr. Dalip Kapur on the one hand and the petitioner on the other hand. It is also argued that the payment of Rs. two crores from the petitioner is justified as it is a term of the agreement dated 13.9.2008 that she would pay to the respondent the said amount for the transfer of the C.M.(M) No.427/2009 Page 10 of 41 said property in her favour. Mr. Jayant Nath, learned senior counsel for the respondent has also argued that the said property is worth much more. However, while settling the claims of the petitioner, as aforesaid, it was agreed that the said property would be transferred to her upon her making payment of Rs. Two crores only, by 31st December, 2008. He has submitted that there was no undertaking given by the respondent, which came to be accepted by the Court. It is essential that the undertaking should have been accepted by the Court before the same can bind the person giving the undertaking, such that its willful breach can be said to constitute civil contempt of court. Mr. Nath relied on various decisions in support of his submissions, to which I shall make reference a little later.

18. Having heard the learned counsel for the parties, perused the records and the decisions relied upon by the respondents, I am of the view that the impugned order passed by the learned Trial Court is not in accordance with law and the Trial Court has erred in its approach while dealing with the petitioner‟s application to seek reference to this Court under Section 11 and 12 of the Contempt of Courts Act with regard to the aforesaid conduct of the respondents.

19. The sequence of events which took place between the parties was as follows:

A. The parties initially entered into an agreement on 13 th September, 2008, wherein they recorded their agreement to C.M.(M) No.427/2009 Page 11 of 41 obtain divorce by mutual consent. The parties also acknowledged the fact that the petitioner is in occupation of 121, Anupam Gardens, Sainik Farms, New Delhi-110062. The parties also agreed that if the petitioner pays to the respondents a sum of Rs. 2 crores by 31st December, 2008 the said property shall be transferred to the petitioner forthwith along with all rights, title and interest. Pertinently, this agreement did not specifically deal with any other claim of the petitioner towards interim maintenance and permanent alimony. It also did not deal with the aspect of return of dowry articles and stridhan by the respondents to the petitioner. The rights of the petitioner to claim a share in the respondent‟s property, that he may inherit was also not curtailed in any manner.

B. The parties thereafter moved a petition jointly under Section 13B (2) of the Hindu Marriage Act. In this application the petitioner gave up her right to claim interim maintenance for the past or in future. She also gave up her right to claim permanent alimony as well as her right to claim any lien past, present or future, over the properties of the respondent. The petitioner also gave up all her claims towards the dowry items and stridhan. The respondent also made a similar declaration. The parties also undertook to withdraw all complaints against each other and their respective family members. The petitioner also gave up C.M.(M) No.427/2009 Page 12 of 41 her right to claim any right in the property of the respondent which he may inherit or he may acquire with his personal funds, and the respondent also made a similar declaration.

C. On 24.10.2008 the respondent made a statement on oath before the Court, inter alia, stating that the petitioner would have no claim in future after the house situated at 121, Aunpam Garden, Sainik Farms, New Delhi is transferred in her name. The petitioner also made a similar statement on oath.

In respect of the aforesaid joint petition under Section 13B (2) of the Hindu Marriage Act and the statements made by the parties the following salient aspects need to be noted: -

i. The settlement contained in the petition under Section 13B (2) under the Hindu Marriage Act and the statements of the parties recorded on 24.10.2008 provided for a more comprehensive settlement covering various other rights and claims that the parties could stake against each other, when compared to the agreement arrived by between them on 13th September, 2008.

ii. The settlement contained in the petition under Section 13B (2) and in the statements of the parties recorded on 24.10.2008 made absolutely no reference to the agreement dated 13.9.2008, even though it was a later C.M.(M) No.427/2009 Page 13 of 41 settlement in respect of, inter alia, the subject matter of the agreement dated 13.09.2008.

iii. From the statement of the respondent recorded on 24.10.2008, it appears that the only consideration for which the respondent had agreed to transfer the aforesaid property in the name of the petitioner, was the full and final settlement of all disputes and claims of the petitioner of any nature whatsoever (past, present and future). The said statement of the respondent does not even remotely suggest that the petitioner was required to make payment of any amount whatsoever, for the transfer of the said property in favour of the petitioner.

iv. From the statement of the petitioner also it is clear that she did not undertake to make payment of any amount whatsoever to the respondent for the transfer of the said property in her favour and the only consideration to flow from her was the full and final settlement of all her "disputes and claims and of any nature whatsoever (past, present and future)."

D. Within about a week of the first motion being moved before the Court, the second motion was taken up by the Court on 31.10.2008, as it was informed to the Court that there is no possibility of reconciliation between the parties. The Court on C.M.(M) No.427/2009 Page 14 of 41 this occasion again recorded the statements of both the parties. From the statement of the respondent, which was recorded as PW1, the following aspects have emerged:

i. Once again the respondent stated that he had settled "all his disputes and claims of any nature whatsoever (past, present and future)" with the petitioner amicably and that there would be no claim in future after transfer of the said property in the name of the petitioner.

ii. The respondent specifically undertook "that this house shall be transferred in the name of" the petitioner herein "as per agreement/ settlement within six weeks." It is, therefore, clear that there is an express undertaking given by the respondent to transfer the said house in the name of the petitioner as per the agreement/settlement within six weeks. The said undertaking was not conditioned upon the petitioner making payment of any amount to the respondent. It is pertinent to note that under the initial settlement dated 13.09.2008, the time available to the petitioner for making payment of Rs.2 Crores was uptil 31.12.2008. From 31.10.2008, there were more than 8 weeks to go before the arrival of 31.12.2008. If there was any truth in the version of the respondent, not only the settlement arrived at on 31.10.2008 would have been C.M.(M) No.427/2009 Page 15 of 41 expressly referred to the agreement dated 13.09.2008; the obligation of the petitioner to make the said payment would have been specifically set out, and; the obligation of the respondent to cause the transfer of the said property been made conditional upon the said payment being made, but the outer time limit for transfer of the said property to the petitioner would not have been fixed as six weeks (that too unconditionally), but would have been at least eight weeks as there was still time of more than eight weeks for the petitioner to make payment of Rs. 2 Crores (i.e. if for the sake of argument only it is accepted that the agreement dated 13.09.2008 was still valid and binding).

This clearly belies the stand of the respondent.

iii. The respondent exhibited the format of the agreement as exhibit P5 which bears his signature at point encircled „A‟. Pertinently, this exhibit P5 is markedly different from the agreement dated 13.9.2008 executed by the parties. The parties did not refer to, produce or exhibit the agreement dated 13.9.2008, though it was dealing with the subject matter of the said earlier agreement.

iv. A perusal of the Exhibit P-5 shows that the same is a format with the title "AGREEMENT TO TRANSFER AS SETTLEMENT". It is also pertinent to note that the title of C.M.(M) No.427/2009 Page 16 of 41 the said document as initially typed/printed read "AGREEMENT TO SELL". The word "SELL" has been struck off and replaced by "TRANSFER AS SETTLEMENT" in hand and this correction on the very first page of Exhibit P-5 has been counter signed by the respondent. Every page of this document Exhibit P-5 bears the signature of both the parties. The respondent has signed the document as the first party. His signatures are encircled `A‟ below the words "first party". What is of relevance to note is that on internal page 3 of Exhibit P-5, the last recital read as follows:-

"AND WHEREAS the first party, for heris bonafide needs and in terms of settlement requirements, has agreed to sell transfer the said property i.e. agricultural land measuring 1536 square yards bearing Khasra No.119, with the built up house thereon situated in the revenue estate of village Saidulajaib, Tehsil Hauz Khas (Mehrauli) New Delhi, with all rights easement, patent or latent, including rights of way, and access enjoyed and reputed to be enjoyed in respect of the said property together with all rights in electricity, water, sanitary, fitting, fixtures connections, lawns, compound, wall etc., and possession, into the second party for a total sale consideration Rs.17500000 (Rs.One crore seventy five lacs only), and the second party has agreed to purchase the same from the first party."

The words in italics and underlined in the above extract have been added in hand by the parties. The changes made in the original print, in hand, have all been C.M.(M) No.427/2009 Page 17 of 41 countersigned by both the parties. It is, therefore, beyond any doubt that the respondent had undertaken to the Court that he would cause the transfer of the said property in favour of the petitioner in terms of the format exhibit P5. Exhibit P5 does not provide for the `sale‟ of the said property in favour of the petitioner. It does not provide for payment of any consideration in terms of money by the petitioner to the transferor. The consideration for the transfer of the said property in favour of the petitioner as per exhibit P5, is stated to be the settlement terms. The settlement terms as per the statement of the respondent is that the petitioner, in lieu of the transfer of the said property, finally settled all her "disputes and claims of any nature whatsoever (past, present and future)" with the respondent amicably and consequently declared that , "there will be no claim in future" raised by the petitioner. v. The respondent again undertook to the Court that he shall abide by the terms and conditions settled between him and the petitioner.

E. After recording the statements of the parties the Court decreed the divorce petition. From the judgment dated 31.10.2008, it is seen that the Trial Court takes notice of the facts that the statement of the parties have been recorded. It is also taken C.M.(M) No.427/2009 Page 18 of 41 note of that the parties have stated that they have settled all their claims and disputes amicably. The Court further recorded that it had no reason to disbelieve the statement of the parties. Pertinently, though the petitioner could have claimed, inter alia, pendent lite maintenance and permanent alimony, apart from raising her claim for dowry and stridhan, only in view of the settlement, no such claim was made by her either under Section 24 or Section 25 of the Hindu Marriage Act or any other provision of law.

F. It is, therefore, patent and clear to me that the undertaking given by the respondent to the Court to transfer the said property in favour of the petitioner in consideration of settlement of all her claims as aforesaid, forms the very bedrock of the amicable settlement between the parties. The Trial Court acted upon the said settlement and undertaking given by the parties and it is only on the basis of the said settlement and undertaking that the Trial Court proceeded to pass the decree for divorce by mutual consent. It is also obvious that but for the said amicable settlement, the parties would not have agreed to obtain the divorce by mutual consent, as, apart from the mutual consent for divorce, issues with regard to the settlement of the claims, particularly of the petitioner, towards maintenance, alimony, C.M.(M) No.427/2009 Page 19 of 41 stridhan and dowry articles, and her rights in the properties of the respondent would have remained unsettled.

20. I may at this stage refer to the judgment of the Supreme Court in Bank of Baroda V. Sadruddin Hasan Daya and Another, (2004) 1 SCC 360. The facts of this case in brief may be noted first:-

(i) Bank of Baroda filed a summary suit against the respondent for recovery of money. Against the grant of unconditional leave to defend, Bank of Baroda preferred the Special Leave Petition before the Supreme Court. During pendency of the appeal, the parties arrived at a settlement. The minutes of the decree were drawn by the counsel for the parties and placed before the Court.

The Supreme Court disposed of the appeal with a direction that there shall be a decree in terms of the minutes of the decree as drawn by the counsel for the parties. As per the consent terms, the respondent agreed to make certain payments to the appellant bank. Clause 7 of the consent terms provided:

"7. The defendants undertake not to sell, mortgage, alienate, encumber or charge the said properties described hereinabove to anyone until the decree as per clause 2 above is satisfied."

(ii) Another creditor bank filed a summary suit against the respondent. In the said proceeding, a settlement was arrived at by the respondent with the said creditor bank, namely, Oman International Bank at the appellate stage before the Division C.M.(M) No.427/2009 Page 20 of 41 Bench of the High Court. On 5.10.99 the Division Bench of the High Court passed the order, the relevant extract whereof reads:

"Undertaking given to this Court by the Appellants in terms of the Consent Terms is accepted. The Consent Terms taken on record and marked 'X'. The appeal is disposed of in terms of the Consent Terms which would be binding on the parties............"

(iii) The respondent defaulted in making payment in terms of the decree passed by the Supreme Court in favour of Bank of Baroda. The appellant Bank of Baroda initiated execution proceedings to recover the amount in terms of the settlement. The respondent contended that the decree passed by the Supreme Court was a nullity. Thereafter, the appellant bank initiated the contempt petition before the Supreme Court on the ground, inter alia, that in the suit instituted by Oman International Bank, the respondent, without disclosing the consent decree passed by the Supreme Court entered into a settlement with Oman International Bank and a consent decree was passed on 5.10.1999 by the Bombay High Court which thereby violated the undertaking given in clause 7 of the consent decree passed by the Supreme Court, and further that the respondent made a contumacious statement before the Debt Recovery Tribunal, Bombay that the decree passed by the Supreme Court was a nullity.

C.M.(M) No.427/2009 Page 21 of 41

21. While negating the reliance placed by the respondent on Babu Ram Gupta Vs. Sudhir Bhasin (1980) 3 SCC 47 (which has been discussed later), the Supreme Court referred to clause 7 of the Settlement terms as extracted hereinabove and held "It is, therefore, clear that by the consent terms filed by the respondents before the Bombay High Court in the suit instituted by Oman International Bank, SAOD, on the basis of which the said suit was disposed of, the undertaking given before this Court in Civil Appeal No.4138 of 1999 not to encumber or charge the aforesaid three properties to any one until the decree was satisfied was clearly violated."

22. In Bank of Baroda (supra), the Supreme Court quoted with approval the decision of the Bombay High Court in Bajranglal Gangadhar Khemka V. Kapurchand Ltd.,AIR 1950 Bombay 336. In a suit for specific performance of an agreement for sale, the parties entered into a compromise, and consent terms were reduced to writing and were signed by counsel for the parties. One of the terms required the execution of a lease within two months by the defendants in favour of the plaintiff. The defendants further undertook to have M/s Paradise Cinema Ltd to join as a conforming party to the lease. As the lease was not executed as agreed, the execution proceedings were taken out. The plaintiff called upon the defendants to get M/s. Paradise Cinema Ltd to join as a conforming party to the lease. As this request was not complied with, action for contempt of court was C.M.(M) No.427/2009 Page 22 of 41 initiated. The trial Judge held that there was willfull default on the part of the defendants and ordered that the defendants should carry out their undertaking within one month, otherwise a warrant was to issue for the committal of the defendants to prison. On appeal the Division Bench of the High Court held:

"There is no reason why even in a consent decree a party may not give an undertaking to the Court. Although the Court may be bound to record a compromise still, when the Court passes a decree, it puts its imprimatur upon those terms and makes the terms a rule of the Court; and it would be open to the Court, before it did so, to accept an undertaking given by a party to the Court. Therefore, there is nothing contrary to any provision of the law whereby an undertaking cannot be given by a party to the Court in the consent decree, which undertaking can be enforced by proper committal proceedings."

23. The Supreme Court after quoting the aforesaid extract held:

"14. The respondents had filed consent terms in this Court but the same contained an undertaking that they would not alienate, encumber or charge the properties to anyone until the decree was satisfied. Acting upon this undertaking and the consent terms, this Court passed the decree whereunder the respondents (defendants) were given the facility of depositing the amount in eight quarterly installments commencing from 1-11- 1999 to 1-8-2001. This Court, therefore, put its imprimatur upon the consent terms and made it a decree of the court. The violation or breach of the undertaking which became part of the decree of the court certainly amounts to contempt of court, irrespective of the fact that it is open to the decree-holder to execute the decree. Contempt is a matter between the court and the alleged contemner and is not C.M.(M) No.427/2009 Page 23 of 41 affected in any manner by the rights or obligations of the parties to the litigation inter se."

24. In Rama Narang V Ramesh Narang & Another, (2006) 11 SCC 114, the Supreme Court referred to the aforesaid decision in Bank of Baroda (supra) and also extracted the following paragraphs from the decision of the Bombay High Court in Bajranglal (supra):-

"[T]he expression „undertake‟ has come to acquire through long practice, a technical meaning. 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....... What is more, it has been held by Bhagwati J. - an opinion with which I entirely agree - that it has been the long standing practice on the original side that, whenever counsel wishes to give an undertaking to the Court, he never expressly uses the words „to the Court‟ but merely states that he undertakes on behalf of his client,...."

25. Accordingly it was concluded: (AIR pp. 338-39, paras 7 & 8).

"[W]e can only construe the undertaking given by the defendants as an undertaking given to the Court and not given to the other side. .......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. The Court was led to pass an order upon the defendants to execute a lease in view of the fact that an undertaking was given by the defendants to get the Paradise Cinema, Limited, to join the lease.""

C.M.(M) No.427/2009 Page 24 of 41

26. In my view, the aforesaid observations of the Supreme Court are a complete answer to the submission of the respondent that the undertaking given by the respondent did not form a part of the decree passed by the trial Court; that the undertaking of the respondent had not been accepted by the Court; that, therefore, its willful breach did not constitute civil contempt of Court, and; that the said undertaking did not have the sanction of the Court. It is clear that the very fact that the trial Court passed a decree of divorce by mutual consent after the parties gave their express undertakings to the Court clearly shows that the Court did sanction the particular case i.e. that the parties would act according to their respective undertakings. The Court put its imprimatur upon the consent terms which are reflected, inter alia, in the respective undertakings of the parties. The Court was led to pass the decree of divorce by mutual consent on the basis of the settlement arrived at between the parties which was, inter alia, reflected in the undertakings given to the Court.

27. I, therefore, have no difficulty in rejecting the submission of the learned senior counsel for the respondent to the effect that the undertaking given by the respondent had not been accepted by the Court and that therefore, the willful breach of the said undertaking, in any event, cannot constitute civil contempt of Court. In my view, the reasoning of the Trial Court, that because the judgment of the Court granting decree of divorce did not contain a decision on the C.M.(M) No.427/2009 Page 25 of 41 agreement/settlement arrived at between the parties with regard to the transfer of the said property in favour of the petitioner, and because the judgment did not contain a specific order requiring the respondent to transfer or cause transfer of the said property in favour of the petitioner, the conduct of the respondent could not be termed as contemptuous, is not correct. No doubt, there was no express order or direction of the Court requiring the respondent to transfer or cause transfer of the said property in favour of the petitioner. However, the statement of the parties, which contained their respective undertakings to the Court, does form the basis of the judgment. Without the said statements the Court could not have proceeded to pass the decree for divorce by mutual consent. The fact that the Court acted upon the undertaking given by the parties, clearly shows that the said undertakings were accepted by the Court. Without accepting the undertaking, the Court possibly could not have acted upon it and proceeded to pass the decree for divorce by mutual consent.

28. The reasoning given by the Trial Court for disregarding the format of the agreement Exhibit P5 is equally specious. From the settlement arrived at between the parties, it is evident that six weeks‟ time was granted to the respondent to cause the transfer of the said property in favour of the petitioner. It is not that the transfer of the said property, as per the mutual agreement between the parties, had to take place simultaneously with the recording of the settlement of C.M.(M) No.427/2009 Page 26 of 41 the parties on second motion. Obviously, therefore, only the format of the agreement could have been filed in terms whereof the respondent had undertaken to cause the transfer of the suit property in favour of the petitioner.

29. The reasoning of the Trial Court that the said format was one between Dalip Kapur (HUF) through its karta Mr. Dalip Kapur and the petitioner, and not between the petitioner and the respondent is equally unintelligible. Pertinently, the stand of the respondent throughout has been that the respondent is willing to cause the transfer of the said property in favour of the petitioner, provided she makes payment of Rs. 2 crores to him. It has not been his stand that he has no concern that the said property and that he has no control over the karta of Dalip Kapur (HUF), or that he has no concern with the said HUF. Pertinently, Mr. Dalip Kapur is none other than the father of the respondent. Obviously, the respondent is a member and beneficiary of the HUF of his father, of which his father is the Karta. The respondent, therefore, has an interest in the HUF properties which includes the said property. If the respondent had no concern with the said property, and did not have the power to cause its transfer in favour of the petitioner, why, and in what capacity, has he been demanding the amount of Rs. 2 crore from the petitioner? Even before me, the stand of the respondent has categorically been that if the amount of Rs. 2 crores is paid by the petitioner, the property would be C.M.(M) No.427/2009 Page 27 of 41 transferred to the petitioner. This itself is an acknowledgement of the authority that the respondent wields in the matter of completing the transfer of the said property in favour of the petitioner notwithstanding the fact that the same stands in the name of Dalip Kumar (HUF) of which his father Dalip Kapur is the karta.

30. In Bank of Baroda (supra), the Supreme Court while dealing with the issue of legality of the decree passed by it on consent terms observed:-

"10. A legal plea taken by a party that a decree passed by a court (including Supreme Court) is without jurisdiction and therefore a nullity, will not normally amount to a contemptuous statement. However, the written submission made by the respondents before the Debts Recovery Tribunal, wherein they said that the Supreme Court had no jurisdiction to pass the decree dated 28.7.1999 and the decree had no validity and is a nullity, has to be seen in the factual background of the case. It may be noted that the decree had been passed on the basis of consent terms. It is not the case of the respondents that any fraud was played upon them by any party when they entered into a settlement and signed the minutes of the decree. It appears that the respondents from the very inception had no intention of paying the amount, but they agreed for a settlement and consent terms only for the purpose of gaining time whereunder instalments were fixed. They adopted the same procedure in the suit instituted by Oman International Bank, SAOD, wherein they offered the same property to remain under attachment till the decree was satisfied. Placing the same property under attachment is bound to create C.M.(M) No.427/2009 Page 28 of 41 problems for the decree holders of either of the suits as no one wants to buy such property in court auction which may land him in further litigation. The respondents intentionally and deliberately adopted such a course of action so that further hurdles may come in the way of execution of the decree and therefore it is clearly a case of willful breach of an undertaking given to the Court." (emphasis supplied)

31. Similarly, to me it is clear that it is not open to the respondent to raise any such argument, having himself undertaken to the Court that the said property would be transferred to the petitioner within six weeks of the giving of his undertaking, in terms of Exhibit P-5. The decree of divorce by mutual consent had been passed on the basis of the consent terms. It is not the case of the respondent that any fraud was played upon him by the petitioner when he entered into a settlement and signed the consent terms and gave his undertaking before the Court. It is clear that the respondent, from the very inception, had no intention of causing the transfer of the said property in terms of his undertaking and Exhibit P-5 but he agreed for the settlement and the consent terms only for the purpose of obtaining a decree of divorce by mutual consent. The respondent intentionally and deliberately adopted such a course of action so as to resile from his obligations towards the petitioner to pay temporary and permanent alimony, istridhan and dowry, and for denying her rights in the properties of the respondent. It is therefore clearly a case of willfull breach of an undertaking given to the Court.

C.M.(M) No.427/2009 Page 29 of 41

32. In this regard, I may also refer to the decision of the Supreme Court in Rosnan Sam Boyce V. B.R. Cotton Mills Ltd & Others, (1990) 2 SCC 636. The Supreme Court held that where the undertaking was based on an implication or assessment known by the contemnor to be false, and the implication or assumption is made explicit by the conduct of the contemner in trying to mislead or deceive the Court and the person in whose favour the undertaking is given, the same would amount to civil contempt of Court as the Court would not allow the contemnor to thwart execution of a decree for eviction passed by a lower Court by giving an undertaking before the Court which he knew fully well to be false.

33. Learned senior counsel for the respondent has argued that the agreement dated 13.9.2008 cannot be said to be novated or substituted by the agreement contained in Exhibit P5. In support of this submission, learned senior counsel for the respondent has sought to place reliance upon Bharat Sanchar Nigam Ltd. & Ors. Vs. B.P. L Mobile Cellular Ltd. & Ors (2003) 13 SCC 597. This decision in turn quotes para 66 of the Supreme Court decision in DDA Vs. Joint Action Committee, Allottee of SFS Flats & Ors. (2008) 2 SCC 672.

34. The Supreme Court in DDA's case (supra) held that the terms and conditions of a contract can indisputably be altered or modified. However, the same cannot be done unilaterally, unless there exists any provision either in the contract itself or in law. The Court C.M.(M) No.427/2009 Page 30 of 41 held that if one contracting party i.e the DDA intended to alter or modify the terms of the contract it was obligatory on its part to bring the same to the notice of the allottee. i.e. the other party. Having not done so, on the basis of some internal orders of the DDA which were not backed by any statute, new terms of contract could not be thrust upon the allottee/other party to the contract.

35. I cannot appreciate how the aforesaid decision helps the respondent to advance his argument. The Supreme Court in DDA's case (supra) has held that the contract cannot be unilaterally altered or modified, something that the respondent is seeking to do vis-à-vis the agreement arrived at between the parties on 31.10.2008. In the present case, the parties did modify the terms of the earlier contract dated 13.9.2008 by mutually agreeing that the respondent shall cause the transfer of the said property in favour of the petitioner in settlement of all her claims, as aforesaid, and for no other consideration. This modification was brought about with the clear understanding of the parties, as is evident from the settlement made by the parties on 31.10.2008 and from Exhibit P5 produced by the respondent himself. It is evident that the agreement dated 13.9.2008 stood overridden and novated by the settlement mutually arrived at between the parties as is reflected in their petition under Section 13B, their statements recorded before the Court on 31.10.2008 and by Exhibit P5.

C.M.(M) No.427/2009 Page 31 of 41

36. Learned senior counsel for the respondent also relies upon the decision of the Supreme Court in Babu Ram Gupta Vs.Sudhir Bhasin 1980 (3) SCC 47. On the basis of the said decision, the respondent submits that in the absence of any express undertaking given by the respondent which is incorporated in the order of the Court, the respondent could not be held to have willfully disobeyed or committed breach of the undertaking. He submits that the trial Court had simply passed a compromise decree or a consent decree and mere non-compliance of the said decree does not constitute contempt of Court as held by the Supreme Court in Babu Ram (supra). He submits that the non-compliance of the compromise decree, at worst, may constitute a fraud against the petitioner but is not a fraud upon the Court for which the petitioner could invoke the contempt jurisdiction of the Court.

37. In my view this submission of the respondent is wholly misplaced and is a result of a complete misunderstanding and misreading of the judgment of the Supreme Court in Babu Ram (supra). In Babu Ram (supra), the appellant Babu Ram did not given any application or affidavit, or even a written undertaking that he would conduct himself in a particular manner. The Supreme Court also noted that apart from this, even the consent order did not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that the appellant C.M.(M) No.427/2009 Page 32 of 41 would act in a particular manner. In this light, the Supreme Court observed "in the absence of any express undertaking given by the appellant or any undertaking incorporated in the impugned order, it will be difficult to hold that the appellant willfully disobeyed or committed breach of such an undertaking." In that case the High Court took the consent order passed with the agreement of the parties to include an undertaking given by the appellant to carry out the directions contained in the order. It is this approach of the High Court which was disapproved of by the Supreme Court. The facts of this case, as narrated above, are totally different. In the present case there is an express undertaking given by the respondent and recorded by the Court on 31.10.2008 to the effect that "this house shall be transferred in the name of petitioner no.2 as per the agreement/settlement within six weeks. I have already handed over the possession of the said house to petitioner no.2." The respondent has further exhibited as Ex.P-5 the format of the agreement which is the format of the title transfer document of the suit property in favour of the petitioner herein. This undertaking has been duly signed by the respondent and, as I have already concluded, has been accepted by the Court, inasmuch as, the Court has acted upon it by passing a decree of divorce by mutual consent.

38. In Babu Ram (supra), the Supreme Court quoted from its earlier decision in Aligarh Municipal Board V. Ekka Tonga C.M.(M) No.427/2009 Page 33 of 41 Mazdoor Union AIR 1970 SC 1767. In the said decision, the Supreme Court, inter alia, held that "it must also be clearly understood in this connection that to employ a subterfuge to avoid compliance of a Court's order about which there could be no reasonable doubt may in certain circumstances aggravate the contempt". In my view, the respondent by raising the pleas as aforesaid, particularly with regard to his not being the owner of the said property and therefore not being in a position to transfer the same in favour of the petitioner; that his undertaking has not been accepted by the Court, and; that the agreement dated 13.09.2008 did not stand novated, is merely resorting to a subterfuge to avoid compliance with his own undertaking to the Court which has been accepted and acted upon by the Court.

39. In Babu Ram (supra), the Supreme Court observed that the reason why a breach of clear undertaking to the Court amounts to contempt of court is that the contemnor by making a false representation to the Court obtains a benefit for himself, and if he fails to honour the undertaking, he plays a serious fraud on the Court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution. This is precisely what the respondent has done in the present case. By making an express undertaking to the Court that the said property would be transferred within six weeks in favour of the petitioner in terms of Exhibit P-5, and by not complying with the same, it is clear that the respondent made a false representation to C.M.(M) No.427/2009 Page 34 of 41 the Court and obtained the benefit of a decree of divorce by mutual consent without any obligation towards pendente lite or permanent alimony or settlement of other claims of the petitioner towards dowry and streedhan, by not only misleading the petitioner but also the trial court into believing that the parties had arrived at a mutual settlement/agreement by which they would stand and thereby the respondent misled the Court into passing a decree of divorce by mutual consent. Now he is failing to honour his undertaking given to the Court and thereby playing a serious fraud on the Court itself and obstructing the course of justice.

40. Reliance placed by the respondent on the decision reported as Northern Aromatics Ltd. (M/s.) Vs. Mr. Shahzeb Khan and Ors., 2006 VI AD (Delhi) 269 is of no avail. In this case, the undertaking given to the Court by the defendant was not acted upon by the Court. As aforesaid the situation in hand is markedly different.

41. Mr. Jayant Nath, learned senior counsel for the respondent has also placed reliance on the decision of the Supreme court in Anil Ratan Sarkar and others V Hirak Ghosh and Others, (2002) 4 SCC 21 to submit that this Court could not exercise its jurisdiction under the Contempt of Courts Act or under Article 215 of the Constitution of India unless the Court was satisfied beyond doubt that the conduct of the respondent is willfully or otherwise contumacious in nature. He submits that if a doubt is raised with regard to the nature C.M.(M) No.427/2009 Page 35 of 41 of the conduct, question of success in a contempt petition would not arise. He submits that the issue whether the original agreement entered into between the parties dated 13.8.2009 stood novated or not by the settlement recorded before the trial court is a debatable issue and, therefore, the insistence of the respondent that the petitioner should comply with the agreement dated 13.9.2008 cannot tantamount to contempt of Court.

42. I find no merit in this submission of Mr. Nath. From the analysis of the factual matrix of this case, it is clear that though the parties had initially entered into an agreement on 13.9.2008 in relation to the said property and in relation to some of their inter se disputes, while moving the trial court to obtain a decree of divorce by mutual consent they entered into another and much more comprehensive agreement which completely overshadowed and over-rode the said agreement dated 13.9.2008. There is not an iota of mention of the agreement dated 13.9.2008 in the settlement recorded on 31.10.2008 before the Court, even though the subject matter of the agreement dated 13.09.2008 is very much covered by the settlement of 31.10.2008. Even if there could be any doubt about the meaning of the expression "agreement" or "settlement" referred to in their respective statements by the parties recorded by the trial court on 31.10.2008, the same stood completely put to rest by the exhibition of Ex.P-5, which was the format of the agreement to be executed in C.M.(M) No.427/2009 Page 36 of 41 favour of the petitioner for the transfer of the said property in her favour. There was absolutely no scope for any doubt in anybody‟s mind that the transfer of the said property in favour of the petitioner, to be done within six weeks of the making of the statement before the Court on 31.10.2008, was for no other consideration other than the settlement of all claims (past, present and future) of the petitioner towards alimony, permanent alimony etc. The pretence put up by the respondent with regard to his so-called understanding and interpretation of his own undertaking given to the Court cannot be accepted, as no reasonable or prudent person would comprehend the undertaking given by the respondent in the manner as contended by the respondent. It is clear to me that the respondent is merely trying to act smart and outwit the petitioner and the Court after misleading the Court as well as the petitioner into believing his undertaking, which he never intended to live upto.

43. I must record my anguish at the approach of the trial Court while dealing with the application filed by the petitioner to seek the making of a reference to this court under Sections 11 and 12 of the Contempt of Courts Act. The approach of the trial Court was to somehow conclude that no contempt is made out against the respondent. The trial court found all reasons it possibly could, to avoid making the reference, all of which are wrong. In such cases the endeavour of the Court should be to see that no party is able to get C.M.(M) No.427/2009 Page 37 of 41 away with perpetuation of fraud upon the Court and the opposite party.

44. In Salkia Businessmen's Association & Others V. Howrah Municipal Corporation and Others, AIR 2001 SC 2790, the Supreme Court took the view that where there is a breach of an order of a Court or compromise terms, the same should be strictly enforced by the Court. Disregard to the same would have disastrous effect on the rule of law. It was inter alia held:

"8. ...............If Courts are not to honour and implement their own orders, and encourage party litigants - be they public authorities, to invent methods of their own to short circuit and give a go-bye to the obligations and liabilities incurred by them under orders of the Court -

the rule of law will certainly become a casualty in the process - a costly consequence to be jealously avered by all and at any rate by the highest Courts in States in the Country."

45. It is writ large from the record that the respondent was only trying to be over smart by demanding an amount of Rs. Two crores, completely contrary to his undertaking given to the trial court on 31.10.2008. Unfortunately the trial court has taken a very narrow and superficial approach while passing the impugned order.

46. I am also constrained to record my displeasure and dissatisfaction in the manner in which the trial Court passed the decree for divorce by mutual consent. There was no reason why Shri Vinay Kumar Khanna, ADJ Delhi should merely have recorded "I have no C.M.(M) No.427/2009 Page 38 of 41 reason to disbelieve the statement of the parties". By making such vague orders, he has unnecessarily given rise to an avoidable debate. When he was recording the undertaking of the parties he was very well aware about the purpose of recording the same. The only purpose of recording the undertaking was to bind the parties such that its deliberate violation would be contemptuous. Otherwise, there was no need for the parties to give their respective undertakings to the Court or for the Court to record the same. The undertakings were not given as a mere formality or just to humour the petitioner or the Court. There could have been no manner of doubt in his mind that the respondent had given an undertaking to the Court that he would transfer the said property to the petitioner within six weeks. The said undertaking of the respondent constituted the bed rock of the settlement arrived at before him, which led to the passing of the decree for divorce by mutual consent. There was no reason why he should not have expressly bound down the parties to their undertaking. It ought to have been his concern to see that neither of the parties is able to even attempt to misconstrue the undertaking and his judgment and play with the language employed by him while passing his judgment and decree.

47. Lastly, I may also express my disapproval at the manner in which the counsel for the respondent Shri L.M. Asthana conducted himself while issuing the notice dated 16.12.2008. Shri L.M. Asthana C.M.(M) No.427/2009 Page 39 of 41 had acted as the counsel for the respondent No.1 herein in the divorce proceedings. He was aware of the scope of the undertaking given by his client. Despite that being the position, he knowingly issued the notice dated 16.12.2008 on behalf of his client taking a patently dishonest and false stand with regard to the settlement/undertaking recorded before the trial Court on 31.10.2008. He could not have claimed to be ignorant about the background of the said compromise. The mere fact that a counsel acts on the instructions of and on behalf of his client cannot be an excuse for Shri Asthana to have sent the said notice dated 16.12.2008 on behalf of the respondent, when he was personally aware of the scope and meaning of the compromise and the undertaking given to the Court by his client.

48. I, therefore, allow this petition and quash the impugned order. The petitioner has also sought initiation of contempt action against the respondent. In view of my aforesaid discussion I hold the respondent guilty of contempt. The respondent is directed to purge the contempt by causing the transfer of the property bearing No.121, Anupam Gardens, Sainik Farms in the name of the petitioner within two weeks from today. In case of his failure to do so the respondent shall remain present in court in person on 30.10.2009 to receive notice for initiation of contempt proceedings against him and to show cause as to why he should not be punished for contempt of court. The petitioner is also C.M.(M) No.427/2009 Page 40 of 41 entitled to costs quantified at Rs.50,000/-, to be paid by respondent no.1 within two weeks from today.

49. List on 30.10.2009.

VIPIN SANGHI, J.

OCTOBER 08, 2009 as/dp/rsk C.M.(M) No.427/2009 Page 41 of 41

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