Madras High Court
M/S.Kotak Mahindra Bank Ltd vs A.Ravi Shankar Prasad on 27 April, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.04.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU Contempt Petition No.1183 of 2009 M/s.Kotak Mahindra Bank Ltd., Dass India Tower, 1st Floor, No.3, Second Line Beach, Parrys, Chennai-600 001. .. Petitioner Vs. 1.A.Ravi Shankar Prasad 2.A.Manohar Prasad .. Respondents This contempt petition is preferred under Section 11 of Contempt of Court Act to punish the respondents for willful breach of the undertaking, making a false representation, promise and undertaking to the Court and made this Court to pass a compromise decree dated 26.03.2007 in C.S.No.33/1999 and thereby obstructing the course of justice. For Petitioner : .M/s.Ramalingam Associates For Respondents : Mr.Vineet Subramani - - - - ORDER
This contempt petition came to be filed by the petitioner for the alleged disobedience of the order passed by this Court in C.S.No.33 of 1999, dated 26.03.2007.
2.C.S.No.33 of 1999 was filed by the petitioner. It was finally disposed of by a judgment and decree, dated 26.3.2007 by this Court. The respondents in this contempt petition were the Managing Directors of the first defendant. They are also individual parties as second and third defendants. In that suit, when it came up for final disposal, a compromise memo was filed agreeing to certain terms between the parties. The terms of settlement between the petitioner and the respondents were also recorded by this Court and also the schedule of payment.
3.It is the case of the petitioner that the said terms have been violated by the respondents. It is also stated that as per the compromise terms, security over immovable properties of the land measuring 5 acres situated in Renga Reddy District, Andhra Pradesh was agreed to be provided. The suit property was owned by M/s.Prasad Properties and Investments Pvt. Ltd., which was promoted by the respondents. After passing the compromise decree, the respondents have not come forward to repay the amount in terms of the decree passed by this Court. Therefore, the contempt petition came to be filed.
4.It was the case of the petitioner that the property which had become a part of the compromise decree was alienated by the respondents already and that the security created by them was a false one. But, however, the respondents had stated that in a writ petition filed before the Andhra Pradesh High Court by one M/s.Nam Hotel (P) Ltd. and others, the petitioner was a party respondent in W.P.No.954 of 2008. In that writ petition, the petitioner themselves had stated in paragraphs 9 and 10 of their counter affidavit as follows:
"9.The petitioners, on enquiry, came to know that the Government has passed order G.O.Ms.No.128, dt.8.2.2006 (Ex-R12), exempting the subject land from the provisions of Chapter-III of the Urban Land Ceilings Act, 1976 and allotted the subject land in favour of 5th respondent U/s. 23(4) of the Urban Land Ceilings Act and Regulations Act. 1976. Further, the G.O. also says that the name of the allottee namely M/s.Prasad properties and Investment Private Limited, shall be incorporated in revenue registration and survey records. The endorsement dt.16.3.2006 (Ex-R13) issued by Special Officer and Competent Authority, Urban Land Celling, also was issued in favour of Prasad Properties and Investment Private i.e. 5th respondent herein. There is nothing stated in the said G.O. dated 08.02.2006 or endorsement dated16.03.2006 conferring any right, title or interest in the subject property in favour of any of the writ petitioners. To be precise, there is not even a reference to any of the petitioners in either of the said documents i.e., (Ex-R12 & Ex-R.13). Therefore, the petitioners' claim that the land had been allotted to them in terms of Section 23(4) of ULC Act is nothing but a myth. Thus, the claim of the petitioners is liable to be rejected, as it is nothing but a figment of imagination.
10.The allegation in the writ petition that proceedings under Urban Land Ceilings Act, 1976 did not attain finality till 2005 and subsequently subject land was determined as surplus and surplus land stood vested in 6th respondent i.e., State Government, U/s.10(3) of the Urban Land Ceilings Act, 1976, free from all encumbrances, are not admitted in the absence of any material being produced by the petitioners in relation thereto. The allegation of the petitioners that title of the subject land got vested in the 6th respondent by operation of law is not admitted as true and correct. At any rate, the petitioners claim that they had purchased the said land on the strength of the alleged re-grant made in G.O.Ms.No.128, dt.8.2.2006, is not true and correct. An analysis of various sale deeds allegedly executed in favour of the petitioners demonstratively shows that almost all the documents were made prior to the issue of the said G.O. By G.O.Ms.No.128, dt.8.2.2006, the Government categorically states that exemption was being granted in favour of 5th respondent to retain 17,016.33 sq. mtrs. in Survey No.11 of Gulttala Begumpet under the provisions of Urban Land Ceilings Act. To the same effect is the endorsement dated 16.03.2006 issued by Special Officer and Competent Authority under Urban Land Ceiling Act. It is beyond ones comprehension as to how the petitioners could lay a claim over the subject property, by purporting to rely on G.O.Ms.No.128. By G.O.Ms.No.128, the right title or interest of 5th respondent, over the subject property eclipsed by Urban Land Ceiling Act, is deemed to have been vacated or obliterated, culminating in accession of absolute right, title and interest in favour of 5th respondent over the subject property. It is settled law by decisions of various courts, that any subsequent accession or enlargement of right, title and interest of the mortgagor over the mortgaged property should enure to the benefit of mortgagee in whose favour the mortgage had been created. Applying this principle, the benefit conferred under G.O.128 in favour of 5th respondent should enure to the benefit of this respondent."
5.It was also stated that having taken a stand that the properties are still covered by the security, they cannot file the present contempt petition. The compromise decree also covered the suit in C.S.Nos.1023 of 1998 and 52 of 1999. Even in those suits, the respondents have complied with the undertaking and that the present contempt has been filed only to harass them.
6.In order to support the maintainability of the contempt, the learned counsel for the petitioner relied upon a judgment of the Supreme Court in Bank of Baroda Vs. Sadruddin Hasan Daya and another reported in (2004) 1 SCC 360 and placed reliance upon the following passages found in paragraphs 12 and 13, which reads as follows:
"12..... The law in England on the subject of breach of undertaking given to court is same. In Halsburys Laws of England, Vol. 9(1), para 482, it has been stated as under:
An undertaking given to the court in pending proceedings by a person or corporation (or by a government department or Minister of the Crown acting in his official capacity) on the faith of which the court sanctions a particular course of action or inaction, has the same force as an injunction made by the court and a breach of the undertaking is misconduct amounting to contempt.
13..... The plaintiff called upon the defendants to get Paradise Cinema Ltd. to join as a confirming party to the lease and the defendants having failed to comply with that requisition, a motion was taken out for contempt of court. The trial Judge (Justice N.H. Bhagwati) held that there was a wilful default on the part of the defendants and thereupon he ordered that the defendants should carry out their undertaking within one month from the date on which the order was passed, otherwise a warrant was to issue for the committal of the defendants to prison. In appeal against the said order Chagla, C.J. and Gajendragadkar, J., after a detailed consideration of the law on the subject, held as under: (AIR p.337, para 4) 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.
7.The learned counsel also placed reliance upon another judgment of the Supreme Court in Rama Narang Vs. Ramesh Narang and another reported in AIR 2007 SC 2029. In that case after referring to all previous cases, including the Bank of Baroda's case (cited supra), the Supreme Court in paragraphs 36 and 40 had observed as follows:
"36.The Court even in this case observed that "in fact, the reason why a breach of clear undertaking given 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".
The critical analysis of the decided cases of this Court clearly leads to the conclusion that wilful breach of an undertaking given to the Court amounts to contempt of court under Section 2(b) of the Act.
.....
40.In order to maintain sanctity of the orders of the highest court of the country, it has become imperative that those who are guilty of deliberately disregarding the orders of the Court in a clandestine manner should be appropriately punished. The Majesty of the Court and the Rule of Law can never be maintained unless this Court ensures meticulous compliance of its orders."
8.There is no quarrel with the proposition laid down therein. But the question to be decided is whether the respondents have committed any contempt. The respondents have given an affidavit that they have not done any contempt. The court is of the opinion that it is not a fit case where any contempt proceedings can be initiated against the respondents for the alleged willful disobedience of the undertaking given by the respondents.
9.In the light of the above, the contempt petition cannot be maintained. Hence the contempt petition will stand dismissed. However, it is always open to the petitioner to execute the decree in the manner known to law and certainly the contempt petition cannot be treated as a substitute for filing the execution petition. No costs.
27.04.2011 Index : Yes Internet : Yes vvk K.CHANDRU, J.
vvk ORDER IN Cont.P.No.1183 of 2009 27.04.2011