ELGI Finance Limited vs Coronation Printing Ink Manufacturing Company and D.G. Dharmar

M. Karpagavinayagam, J.—A situation has arisen in the present case where I shall take a serious view of the conduct of the contemners in

committing a breach of the undertaking given by him before this Court in the light of the growing tendency to trifle with the Court''s orders based on

undertakings with impunity.

The questions that arise for consideration in this case are these:-

(1)Whether the undertaking given by the contemners to this Court is voluntary?

(2)Whether the breach of the said undertaking amounts to contempt?

M/S. ELGI Finance Limited. Coimbatore has filed this petition u/s 12 of the Contempt of Courts Act. 1971 praying this Court to punish M/S.

Coronation printing Ink Manufacturing Company. Sivakasi and D.G. Dharmar. partner of the said Company, the contemners 1 and 2 for the act of

breach of undertaking given by them in pursuance of which the order has been passed by this Court in Crl. O.P. No. 12621 of 1997 dated

11.9.1998.

The petitioner filed a complaint u/s 138 of the Negotiable Instrument Act against the contemners and two other partners before the learned

Judicial Magistrate-VI. Coimbatore on the accusation that the cheque issued by them to the tune of Rs. 23.03.781/- was dishonoured due to

insufficiency of fluids. As against the said proceedings, the contemners and other two partners filed a quashing application in Crl. O.P. No. 12621

of 1997 u/s 482 Cr.P.C. before this Court. After hearing the counsel for the parties, this Court quashed the proceedings in so far as the other

partners are concerned and held that the contemners 1 and 2 are liable to face the trial, while dismissing their application.

After the pronouncement of the above said order, the contemners 1 and 2 filed an affidavit of undertaking to settle the cheque amount of Rs.

23.03.781/- by way of making payment of Rs. 1.00.000/- on every English Calendar month commencing from 15.12.1998 onwards. The

complainant/petitioner also agreed for this settlement. Accordingly, this Court directed the trial Court to verify the compliance of the undertaking

given by the contemners and also directed to go on with the trial only when there is a non-compliance of the undertaking.

In pursuance of the said undertaking, the contemners paid Rs. 1,00,000/- every month, that is on 15.12.1998, 15.1.1999 and 15.2.1999.

totalling the amount of Rs. 3.00.000/-. but. thereafter they did not pay for the months of March, April. May and June Therefore, in July 1999. the

complainant filed this petition seeking to punish the contemners for the contempt committed by them.

D.G. Dharmar. the second contemner, who is in charge of the Company, appeared for himself and on behalf of the first contemner Company

and counter-affidavit has been filed on behalf of both the contemners pleading that there is no contempt.

Mr. Robert J. Bernabas would cite the authorities Sardari Lal Vs. Ram Rakha, and Dr. (Mrs.) Roshan Sam Joyce Vs. S.R. Cotton Mills Ltd.

and others, and submit that the undertaking through an affidavit sworn to by the second contemner agreeing to pay the amount of Rs. 1.00.000/-

for every month to settle the dispute and on the basis of which the order has been passed by this Court directing the trial Court not to go on with

the trial on verification of the compliance of the undertaking, has been deliberately and knowingly breached and the same would tantamount to

contempt of Court and as such, the contemners are liable to be punished.

Mr. Gopal Raj. the learned counsel appearing lot the contemners, on the strength of the counter-affidavit filed by them, would make the

following contentions:-

(i) The undertaking affidavit was not filed by the contemners voluntarily as the same was signed due to the undue influence of one Mr. Thangaraj,

the erstwhile counsel, who appeared in the quashing application in this Court and one Sargunam, the advocate from Shivilliputhur. Therefore, it

cannot be said that there is a breach of the undertaking.

(ii) By filing such an affidavit of undertaking, the contemners were not given any benefit. As a matter of fact, the quashing application filed by the

contemners had been dismissed and the proceedings as against the other partners alone had been quashed When no benefit was gained by the

contemners, the breach of the said undertaking would not amount to contempt.

(iii) Subsequent to the order passed on 11.9.1998, the contemners had made three payments totalling about Rs.3,00.000/- in December 1998,

January 1999 and February 1999. Though a demand draft for Rs 1,00,000/- for March 1999 was sent, the petitioner refused to receive the same

stating that the payment was made after the due date Thereafter, the contemners could not arrange for the instalment amount from April 1999

onwards due to the financial crisis. So, non-payment of monthly instalments was neither willful nor wanton Therefore, there is no contempt.

The main base to decide the point for determination in the present case is regarding the act of filing an affidavit of undertaking given by the

contemners before this Court on the basis of which the order has been passed giving some directions to the trial Court.

Strangely, the contemners have now 7 raised a point through the counter-affidavit that the undertaking affidavit was filed by them not willingly,

but under the undue influence and insistence by local advocate Mr. Sargunam and Mr. Thangaraj. the advocate appeared for the contemners

before the High Court in the quashing application and as such, breach of undertaking would not give rise to the cause of action for taking action of

contempt against the contemners.

The said counter-affidavit has been filed through the new counsel Mr. Gopal Raj. Virtually in this counter-affidavit, the contemners have made

a very serious allegation against the erstwhile counsel Mr. S.N. Thangaraj of Chennai and Mr. Sargunam of Sriviliiputhur stating that the affidavit of

undertaking had been obtained by the said counsel through undue influence and by way of abuse of process of Court.

Under these circumstances, before going into the question as to whether the breach of undertaking would amount to contempt or not. this

Court has to find out whether the affidavit of undertaking was filed by the contemners due to undue influence by the said erstwhile counsel.

In this peculiar situation, this Court was constrained to issue notice dated 27.9.1999 directing the erstwhile counsel Mr. Thangaraj of Chennai

and Mr. C. Sargunam of Srivilliputhur to appear before this Court and file an affidavit regarding what actually happened at the time of filing of

affidavit of undertaking sworn to by the second contemner. Accordingly, both the counsel Mr. Thangaraj and Mr. Sargunam filed affidavits.

Though there are some variations between the affidavits of the counsel Mr. Thangaraj and Mr. Sargunam. the crux of the affidavits would

reveal that the contemners agreed to pay monthly instalment of Rs. 1,00.000/- from the month of December 1998 and consequently, an affidavit of

undertaking was drawn and the same was signed by the contemners in their presence and filed.

On the basis of these materials available, the counsel for the parties were heard at length.

In order to decide the first question, as 1 indicated earlier, as to whether the undertaking was voluntary or not, it would be better to give

chronological events leading to the willing of the present contempt application:

(a) M/S. ELGI Finance Limited, Coimbatore, the complainant extended revolving purchase bill discounting facility to the contemners amounting to

Rs. 20.00.000/-.As per the bill discounting facility, if the party fails to make repayment on due date, he with be liable to pay 42% penal interest.

As on 22 4 1997 the contemners were liable to pay a sum of Rs. 23,03,781/-. They issued a cheque dated 22.4.1997 for the said sum and asked

the complainant to present the cheque for encashment. On presentation, the same was returned with an endorsement ""funds insufficient

(b) Then, the statutory notice was sent on 30.4.1997 demanding the payment of the cheque amount Though this notice was received by them, the

contemners did not pay the amount. Therefore, the petitioner filed a complaint in C.C. No. 251 of 1997 before the Judicial Magistrate No. d.

Coimbatore and the same was taken on file on 22.5 1997 and summons were issued to the accused, the contemners 1 and 2 and two other

partners

(c) The accused persons after appearance before the criminal Court and after receipt of the copies from the lower Court tiled Crl. O.P. No.

12621 of 1997 before this Court for quashing the above said proceedings and obtained stay in Crl. M.P. No. 4641 of 1997 by the order dated

18.9.1997.

(d) The matter came up for final disposal before this Court on 29.8.1998, 31.8.1998, 1.9.1998 and 2.9.1998. Mr. Thangaraj. the learned counsel

for all the four accused including the contemners and Mr. Rupert J. Barnabas, the learned counsel for the complainant were heard at length. Then,

the matter was posted for orders on 11.9.1998.

(e) This Court pronounced the pre-delivery order on 11.9.1998 dismissing the application for quashing so far as the petitioners 1 and 2. viz.,

contemners 1 and 2 are concerned and allowed the quashing application so far as the other partners, who are the sleeping partners, are concerned.

This Court directed the lower Court to go on with the trial in so far as the petitioners 1 and 2/contemners 1 and 2 are concerned and dispose of

the matter in accordance with law.

(f) After the pronouncement of the order, Mr. S.N. Thangaraj, the learned counsel appearing for the present contemners submitted that the

petitioners 1 and 2 would undertake to settle the entire amount of Rs. 23.03.781/- by way of making payment of Rs. 1,00,000/- on every English

Calender month commencing from 15.12.1998 onwards and requested this Court, to direct the trial Court not to go on with the trial 1 He also

submitted that the petitioners (contemners) are ready to file an affidavit of undertaking. For tins course of settlement. Mr. Rupert Barnabas

appearing for the complainant also had agreed Accordingly, the affidavit of undertaking attested by the counsel Mr. Sargunani and identified by the

counsel Mr. Thangaraj, was filed.

(g) On the basis of the said affidavit, this Court passed further order directing the trial court to verify the compliance of the terms of the settlement

for even month and to go on with the trial, only in the event of failure in the compliance of the undertaking. This order has also became part of the

main order.

(h) Subsequently, in pursuance of the order of this Court, the trial Court periodically adjourned the matter to several dates. On 7.12.1998 the

matter was adjourned to 15.12.1998. On that date, a memo was tiled on behalf of the complainant stating that the first instalment of Rs.

1,00,000/- was received. Therefore, it was adjourned to 18.1.1999. On 18.1.1999 another memo was tiled by the complainant intimating that the

second instalment of Rs. 1.00,000/- was received by him. Therefore, it was again adjourned to 15.2.1999. On that date also, another memo

regarding the receipt of third instalment of Rs. 1,00,000/- was tiled. Thereafter, it was adjourned to 15.3.1999 Again, the matter was adjourned to

16.3.1999. The complainant tiled a memo stating that the amount for March was not paid by the accused persons to the complainant. Therefore

the trial Court sent an intimation to this Court on 16.3.1999 about the noncompliance of the. terms of the undertaking given by the contemners and

the matter was adjourned to 22.3.1999 for the examination of the witnesses. On 1.4.1999 P.W.1 was examined and subsequently, it was

adjourned to several dates for examining the witnesses. Even subsequently, no payment was made by the accused, the contemners 1 and 2. At this

juncture, in July 1999, the petitioner herein tiled this contempt application.

The above narration of the events would give out the following factors:-

(1) The contemners, in pursuance of the affidavit of undertaking, paid only three instalments for the months of December 1998. January 1999 and

February 1999 For the subsequent months there was no payment.

(2) The contemners have neither filed a petition before the trial Court setting out the reasons for non-compliance nor filed any petition before this

Court seeking for extension of time of payment of the instalment amounts for the subsequent period.

(3) From 11.9.1998. on which date the order had been passed by this Court on the basis of the undertaking affidavit till the filling of the counter-

affidavit through the new counsel on 20.9.1999. the contemners have never whispered anything through the notice sent to the other side indicating

that they are not bound to comply with the undertaking, as the said undertaking was not voluntary nor filed any application before this Court

seeking for modification of the order dated 11.9.1998 stating that the said affidavit of undertaking was not given wilfully nor sent any notice to the

erstwhile counsel, viz., Mr. Thangaraj of Chennai or Mr. Sargunani of Srivilliputhur stating that the said affidavit was obtained from them by undue

influence.

In the light of the above three factors, let us now consider the questions posed before this Court.

According to Mr. Gopal Raj, the present counsel appearing for the contemners, the undertaking given by the contemners was not voluntary

and even resuming that the undertaking was voluntary and the said breach of undertaking would not amount to contempt of Court, as the

contemners have not gained anything due to the order passed by this Court dated 11.9.1998.

In the event of accepting the first phase of the arguments of Mr. Gopal Raj. namely, the undertaking was not voluntary there is no difficulty for

this Court to hold that there cannot be any contempt. On the other hand, if this Court holds that the said undertaking was voluntary, then this Court

is bound to enter into the second question as to whether the breach of the said undertaking would amount to contempt.

To decide the first question, it shall be necessary for this Court to go into averments in the affidavit filed by the contemners and the affidavits by

the erstwhile counsel.

Except the averments contained in the counter-affidavit filed by the contemners, there is no other material placed before this Court to establish

that the undertaking was not voluntary. As noted above, it is quite pertinent to notice that the accusation regarding the undue influence as against

the erstwhile counsel was never made earlier and for the first time such a statement has been made only when the counter-affidavit was filed before

this Court on 20.9.1999.

Under those circumstances, let us now go into the averments of the affidavits of the parties and the counsel.

The relevant averments in the counter-affidavit filed by the contemners are these:

So, on 11.9.1998, morning I came to this Hon''ble Court with Mr. Sargunam. Advocate. The Junior Advocate of the counsel engaged by me in

Crl. O.P. No. 12621 of 1997 met me in the Court and told me that I must swear to an affidavit promising to pay Rs. 1,00,000/- p.m. to the

complainant. I expressed my inability to pay Rs. one lakh per month in view of my business crisis. But the said Advocate told me that unless I filed

an affidavit to that extent nobody can save me. My local advocate Mr. Sargunam also advised me to file such an affidavit. Hence I had no other

option but to sign the affidavit prepared by the said Advocates. I do not know what prompted my counsel to get such an affidavit for me. I state

that the affidavit dated 11.9.1998 was not signed by me voluntarily and it was signed due to the said undue influence.

The above averments would make it clear that the second contemner has made a specific accusation against Mr. Thangaraj and Mr. Sargunam

that they put undue influence on him to file the undertaking affidavit, though he expressed his inability to pay the monthly instalments.

Let us see the reply affidavit filed by Mr. Thangaraj of Chennai. the erstwhile counsel, who appeared for the accused in the quashing

application. Paragraph 3 of the said affidavit is. as follows:-

I state that after hearing the arguments of the complainant''s counsel the 2nd contemner himself came with an offer that he will repay the cheque

amount by paying Rs. 1.00.000/- per month from the month of December 1998 onwards Being the counsel for him at that time I have placed his

submissions before this Hon''ble Court and to that effect an affidavit was prepared as per the clear instructions of Mr. D.G. Dharmar. the 2nd

contemner herein and the above said D.G. Dharmar after reading the affidavit signed the affidavit dated 11-9-1998. which was filed before this

Hon''ble Court and the same was attested by an Advocate. So I submit that absolutely there was no force or compulsion at any point of time as

alleged by the 2nd contemner herein.

Through this paragraph. Mr. Thangaraj, the erstwhile counsel specifically denied the said allegation and he made submission before the Court

only on the instruction of the second contemner and the affidavit of undertaking was filed, signed by him only at his instance.

The relevant portion of the reply affidavit filed by Mr. Sargunam, the erstwhile counsel of Srivilliputhur, is as follows:-

Hence I came to Madras along with Mr. D.U. Dharmar and we were waiting in the corridors of the Court Hall. At about 11 ''O Clack Mr.

Thangaraj, Advocate, Junior of Mr. K. S. Ramachandran, Advocate, Madras came out of the Court Hall and asked Mr. Dharmar and me that the

court is asking as to the mode of repayment of the disputed cheque amount though an affidavit""'' Mr. Dharmar was very hesitant and informed us

that at present, it is very difficult for him to make any payment. But Mr. Thangaraj insisted on payment and told us that on failure, he cannot say

anything as to the result of the petition and at last, on my advice he agreed to pay a monthly instalment of Rs. One lakh only that too from the

month of December 1998 and thereafter an affidavit was drawn and it was duly signed by Mr. D.G. Dliarmar in my presence and I have attested

the same.

The above averments would indicate that Mr. Thangaraj insisted on payment as the Court is asking as to the mode of repayment of the

disputed cheque amount and on that he advised the party to agree to pay the monthly instalments and thereafter, the said affidavit of undertaking

was filed. Though there is some variations from the statement of Mr. Thangaraj in his affidavit, the counsel would admit in the reply that he advised

the accused (contemner) to file such an affidavit and thereafter, he agreed to pay the monthly instalments and consequently, the affidavit was filed

signed by the accused in his presence and he had also attested the same.

In this context, it is quite relevant to note that the pre- delivery order was pronounced by this Court on 11.9.1998. In the said order, the

proceeding as against the two partners was quashed and while dismissing the application so far as the other accused (contemners) are concerned,

this Court directed the trial Court to go on with the trial as against them.

Only alter dismissal. Mr. Thangaraj. the erstwhile counsel expressed willingness to file an affidavit of undertaking sworn to by the second

contemner to settle the cheque amount by making the monthly instalment of Rs. 1.00.000/- Since Rupert Barnabas, the counsel appearing for the

complainant agreed for the settlement, the affidavit of undertaking was filed

On the basis of the said affidavit of undertaking, the following order was passed:-

After the pronouncement of the order, Mr. S.N. Thangaraj, learned counsel for the petitioners has filed an affidavit sworn by the first and second

petitioners, stating that the second petitioner is a person, who is in-charge of the business transaction of the first petitioner and hence, he would

undertake to settle the cheque amount of Rs. 23,03,781/- by way of making payment of Rs. 1,00,000/- (Rupees one lakh only) on every English

Calendar month commencing from 15th December, 1998 onwards. The second petitioner is present before this Court. Mr. Rupert Barnabas

appearing for the respondent, who is also present before the court would agree for this settlement. Therefore, the trial court is directed to verify the

compliance of this undertaking and then proceed with the case, in accordance with law In the event of failure of this undertaking, the trial court is

directed to go on with the trial. Any non-compliance of the undertaking given by the second petitioner would certainly give liberty to the

respondent to file necessary petition to bring to the notice of this Court for necessary action

The reading of the above order dated 11.9.1998. which forms part of the main order, would clearly reveal that when the counsel Mr.

Thangaraj made a submission regarding the willingness for the terms of the settlement and for filing an affidavit of undertaking, the second

contemner was actually present. Furthermore, in view of the submission made by Mr. Rupert Barnabas, appearing for the complainant, agreeing

for the said settlement, the trial Court was directed not to go on with the trial so long as there is a compliance of the terms of the settlement by

making the monthly payments. Further, it is specifically mentioned that the complainant would be at liberty to approach this Court for necessary

action in the event of non- compliance of the undertaking given by the contemners.

Thus, there is not only the submission by the counsel Mr. Thangaraj in the presence of the second contemner in regard"" to the terms of the

settlement but also an affidavit has been filed by the second contemner giving the undertaking In such circumstances there is no reason for Mr.

Thangaraj, the erstwhile counsel for insisting any payment and cautioning that if there is no payment, nobody can save him.

Admittedly, as noticed from the impugned order of this Court, the affidavit of undertaking has been filed by the party only after the petition filed

by the Company and Dharmar, the accused/contemners, was dismissed. It is also an admitted fact that Mr. Sargunam, the erstwhile counsel also

came to Madras accompanying the second contemner only for this case. In such circumstances, it is quite unfortunate on the part of the second

contemner to state now that only under the undue influence of the counsel, he had filed such an affidavit.

As I said earlier, though Mr. Sargunam of Srivilliputhur admitted that he advised the second contemner to file such an affidavit of undertaking,

he stated in his reply for the reason best known to him that Mr. Thangaraj. erstwhile counsel insisted for payment of the cheque amount, as the

court wants the party to file an affidavit regarding the mode of repayment. This, in my view, is quite mischievous.

As a matter of fact, the contemners in their affidavit have not stated anything about the insistence of the court to file an affidavit regarding the

mode of repayment of the cheque amount. But, the reason for making such a statement by Mr. Sargunam. the counsel from Srivilliputhur is not far

to seek, as it is now admitted that the said Mr. Sargunam is none other than the brother-in-law of the second contemner.

From this, it is clear that the said Mr. Sargunam in a surreptitious way with a sinister motive wanted to help the second contemner, as if there

was an insistence by both on the part of the court as well as on the part of Mr. Thangaraj to file such an affidavit. However. I may deal with this

conduct of the counsel Mr. Sargunam and the second contemner later.

Now, it would suffice for me to mention that the second contemner has miserably failed to show that he was not a willing party in the affidavit

of undertaking. On the other hand, the past events and other circumstances mentioned above would clearly go to show that the affidavit of

undertaking was filed by the second contemner voluntarily through the erstwhile counsel before this Court, in order to get the order from this Court

to put off the trial and ultimately, to get himself relieved from the trial after making payment of all the instalments.

It would also be appropriate to mention, in this context, that after the pronouncement of the order dismissing the quashing application filed by

the petitioners (contemners), it is not necessary for Mr. Thangaraj, the erstwhile counsel to exert undue influence on the second contemner to file

such an affidavit, as Mr. Thangaraj does not gain anything over the said insistence.

Hence, while rejecting the claim of the contemners that the affidavit of undertaking was not voluntary, I fully accept the affidavit of Mr.

Thangaraj stating that the allegation made by the contemners against him is baseless and false and the affidavit of undertaking was filed by the

contemners without any insistence or compulsion.

As correctly pointed out by Mr. Thangaraj in his reply affidavit, if the allegation raised by the second contemner against the erstwhile.

Advocate was true, the contemners would not have complied with the terms of undertaking affidavit by making three payments from 15.12.198 to

15.2.1999. Thus, it is clear that the second contemner has put the blame on the erstwhile counsel by making false allegation in order to escape

from the punishment for contempt.

So, it shall be held that the affidavit of undertaking was voluntary and the same has been filed without any insistence from any quarters

whatsoever. In other words, a cumulative effect of all these facts and terms of the affidavit persuades me to hold that the second contemner filed

the affidavit of undertaking before this Court with a full knowledge voluntarily.

Mr. Gopal Raj, the counsel appearing for the contemners would in the alternative submit that even if the undertaking is voluntary, the breach of

the said undertaking would not amount to contempt, as the order resulting in the filing of the said affidavit would not confer any gain to the

contemners.

The counsel has also cited authorities, K.T. Chandy Vs. Mansa Ram Zade, , Chhaganbhai Norsinbhai Vs. Soni Chandubhai Gordhanbhai and

Others, Babu Ram Gupta Vs. Sudhir Bhasin and Another, and Smt. Pushpaben and Another Vs. Narandas V. Badiani and Another, ). In these

decision, it has been held that the act committed by the contemners was considered to be contempt, since on the basis of the undertaking, they

obtained some benefits. However, he is not able to show any authority to show that even though there is a breach of undertaking, absence of any

gain would not tantamount to contempt.

In the context of the present facts and circumstances of the case, it is not necessary to go into the question whether mere breach of undertaking

without any gain would result in the action under the Contempt Act for the reason that in the present case, in pursuance of the affidavit of

undertaking, the contemners obtained gain by way of getting a direction from this Court not to go on with the trial as against them so long as the

payment of Rs. 1,00,000/- for every month is being made.

In this context. I may refer to the Halbury''s Laws of England- Fourth Edition Vol.9 at page 44 (para 75) In the said decision, a law laid down

is stated as follows:-

An undertaking given to the Court by a person or corporation in pending proceedings, on the faith of which the court sanctions a particular course

of action on inaction, has the same force as an injunction made by the Court a breach of the undertaking is misconduct amounting to contempt.

This concept of law has been followed by the Apex Court in Chhaganbhai Norsinbhai Vs. Soni Chandubhai Gordhanbhai and Others, .

In the light of the above principle, it could be very well said that this Court, on the basis of the affidavit of undertaking filed by the contemners

for which the counsel for the complainant was also agreeable, sanctioned a particular course of action by directing the trial court not to go on with

the trial as against the contemners. This is purely on the basis of faith or reliance placed on the affidavit of undertaking. If that affidavit of

undertaking was not filed, this Court would not have given such a direction to the trial Court.

As indicated above, in pursuance of the said direction, even though the quashing application was dismissed, filed by the contemners, the trial

Court periodically adjourned without commencement of trial for about four months. In order to get that gain, the periodical payments were made at

least for three months.

Under these circumstances, having availed the facility or benefit of not facing the trial due to the orders of this Court because of the affidavit of

undertaking, it is quite ridiculous to say that there was no gain and as such, there is no contempt.

In fact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contemner by making a false

representation to the Court obtains a benefit for himself. 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.

Through this petition, the contemners are sought to be convicted for contempt of Court for committing willful breach of an undertaking given by

them to this Court u/s 2(b) of the Act.

54.Civil contempt"" is default in Section 2(b) of the Act as a ''wilful breach of the undertaking given to a court Section 2(b) defines thus:-

In this Act, unless context or otherwise requires,-

(b) ""Civil contempt"" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of

undertaking given to a court.

Therefore, mere breach of undertaking would not be enough to invoke the Contempt of Courts Act. But, it must be a wilful breach of the

same. In other words, it shall be a case of wilful, deliberate and flagrant breach of the undertaking given to a court of law.

As discussed earlier, the voluntary undertaking given by the contemners was obeyed only for the month of December 1998, January 1999 and

February 1999. Subsequently, there was no payment till date.

In the counter-affidavit, though in the earlier paragraph, it is stated that the affidavit of undertaking was not voluntary, in the last two

paragraphs, it is stated that due to financial crisis, he was not able to comply with the undertaking and his non-payment of monthly instalments from

March 1999 onwards was neither wilful nor wanton.

If this is actually true, the contemners should have filed an application before this Court narrating the various difficulties and sought either for

modification of the order or for extension of time. This was not done.

Even the diary extract called for from the lower Court by this Court would show that the second contemner for most of the hearings was

absent before the trial Court. On 16.3.1999 when the memo was filed by the complainant stating that the March instalment was not paid, the

accused was not present before the court. Again, on 30.3.1999 the accused was absent. On 1.4.1999 P.W.1 was examined and documents were

marked. Even on that date, the accused was absent. In almost all the hearings from 26.6.1997, the accused used to be absent and only

applications u/s 317 Cr.P.C. were filed. After the prosecution was closed, the matter was posted for questioning u/s 313 Cr.P.C. However, the

accused was absent on 18.11.1999, 22.11.1999 and on 24.11.1999. On 24.11.1999 the warrant had been issued against the

accused/contemners. Again, on 6.12.1999 a fresh warrant was issued. Ultimately, on 15.12.1999 the second accused surrendered before the trial

Court and got the warrant recalled. Therefore, this conduct of the accused would clearly show that they have not only committed breach of

undertaking given to this Court, but also they were consistently absent before the trial Court, in order to avoid the trial.

As noted above, if the contemners were really having regard and respect for the orders of this Court, they would have filed an application

before this Court for getting necessary orders in order to show that the breach of undertaking was not wilful or for extension of time.

The financial crisis has been shown as reason for non-payment only through the counter in the contempt application filed in September 1999.

Even subsequently, there was no whisper with reference to the present financial situation, thereby to show their willingness to make some more

payment by seeking for sufficient time. I could neither see regret for the conduct already committed nor find any inclination from the contemners to

make payment of the balance at least in the future.

It is quite unfortunate on the part of Mr. Gopal Raj. the present counsel appearing for the contemners, who is concentrating on the argument

that the contemners have not committed any contempt, as they did not get any gain and as such, the contempt application has to be dismissed.

The narration of the above facts would clearly indicate that the contemners have neither shown any regard for Courts nor any anxiety for

making repayment of the admitted amount due to the complaint.

In these circumstances, the contemners have undoubtedly committed wilful disobedience of the order of this Court by committing a serious

breach of the undertaking given to the court on the basis of which alone, the trial Court was directed not to go on with the trial as against the

contemners.

In this context, some of the observations of the Supreme Court are quite relevant.

In Noorali Babul Thanewala v. K.M.M. Shetty(1901 S.S.C.259), it has been observed as follows:

When a court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to

an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the court by or on behalf of a party to a civil

proceedings is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of

enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the

persons breaking that undertaking as would their disobedience to an order for an injunction. It is settled law that breach of an injunction or breach

of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is

misconduct amounting to contempt. The remedy in such circumstances may be in the from of a direction to the contemner to purge the contempt or

a sentence of imprisonment or fine or all of them.

In Kapildeo Prasad Sah v. State of Bihar (1997 (7) S.C.569), it has been held thus:-

For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been wilful disobedience of the

judgment or order of the court. Power to punish for contempt is to be resorted to when there is clear violation of the court''s order. Since notice of

contempt and punishment for contempt is of far-reaching consequence, these powers should be invoked only when a clear case of wilful

disobedience of the court''s order has been made out. Whether disobedience is wilful in a particular case depends on the facts and circumstances

of that case. Judicial orders are to be properly understood and complied with. Even negligence and carelessness can amount to disobedience

particularly when the attention of the person is drawn to the court''s orders and its implications. Disobedience of the court''s order strikes at the

very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of

effective legal system. It is exercised to prevent perversion of the course of justice

Of course, it is well settled that while it is the duty of the court to punish a person who tries to obstruct the course of justice or brings into a

disrepute the institution of judiciary, this power has to be exercised not casually or lightly but with great care and circumspection and only in such

cases where it is necessary to punish the contemner in order to uphold the majesty of law and dignity of the courts.

No person can defy the court''s order. Wilful would exclude causally, accidental, bona fide or unintentional acts or genuine inability to comply

with the terms of the order. In my view, each case shall be decided on the peculiar facts and circumstances with back drop of earlier proceedings.

In the light of the peculiar facts of the present case. I am not able to hold that the act of the contemners was only as a result of the causal or

bona fide or genuine inability to comply with the terms of the order.

The very fact that there is no explanation for non-payment by filing necessary application at the earliest and having regard to the fact that the

contemners have gone to the extent of making false accusation against the erstwhile counsel, who obtained ordered from this Court by his effective

submission by getting the proceedings of at least, two partners quashed and by getting the trial put off to a considerable period to enable the

contemners to make the repayment of the cheque amount, would clearly indicate that the breach of undertaking by the contemners is wilful,

deliberate and contumacious disobedience of this Court''s order. Thus, in my judgment, this is a case of grossest contempt and blatant breach of

the undertaking given to and accepted by this Court.

The Court has the duty of protecting the interest of the public in the due administration of justice. It is hence entrusted with the powers to

commit for contempt of court, not only in order to protect the dignity of the court against insult or injury, but to protect and vindicate the right of the

public with the administration of justice shall not be prevented, prejudiced or interfered with. It is a mode of vindicating the majesty of law in its

active manifestation against obstruction and outrage.

In the words of the Apex Court as laid down in Dr. (Mrs.) Roshan Sam Joyce Vs. S.R. Cotton Mills Ltd. and others, ""the party giving

undertaking to Court based on implications or assumptions which are false to its knowledge is guilty of misconduct amounting to contempt"".

In fact, the entire course of conduct adopted by the contemners is only with one aim in view and that was to frustrate or to at least delay

indefinitely the trial against the contemners. The conduct of the contemners mentioned above speaks volumes for the dishonest attitude adopted by

the contemners.

In the circumstances set out earlier, it has to be stated that our hands are not so tied and. where there is a patent dishonesty on the part of the

contemners, the law does not require that the Court should sit back with folded hands and fail to take any action in the matter, merely accepting the

artificial belated statement of the contemners regarding the financial crisis.

Consequently, I am of the view that the contemners are guilty of misconduct amounting to contempt and they shall be held to have committed

the contempt by giving the said undertaking by instructing their counsel to file the affidavit and even after fully knowing the consequences, the

contemners have failed to comply with the order of this Court by committing the breach of the undertaking given to this Court. Therefore, the

contemners have to be suitably punished.

The object and purpose of contempt jurisdiction is to uphold the majesty and dignity of law Courts in the minds of public. If, by contumacious

words or writing, the common man is led to lose his respect for the Judge, then the confidence reposed in the course of justice is rudely shaken and

the offender shall be adequately punished. In essence, the law of contempt is the protector of the seat of justice more than a person of the Judge

sitting in that seat. There is double purpose to punish the contemner for wilful disobedience of the order. The first purpose is the vindication of

public interest by the punishment of contemptuous conduct. The second is the coercion to dompel the contemner to do what the law requires of

him. So, the sentence imposed must effectuate both these purposes. But, this power shall be exercised with great care and circumspection.

The maximum punishment u/s 12(2) of the Act is six months imprisonment or Rs. 2,000/- fine. It is seen from the counter- affidavit that the age

of the second contemner is 68 years and is suffering from heart ailment. Though in the last paragraph of the affidavit, the contemners have stated

tendering unconditional apology for the inability to make the payment of instalments, no such statement was made by the counsel appearing for the

contemners.

As a matter of fact, Mr. Gopal Raj, the counsel appearing for the contemners was so vehement only in harping on the submission that the

undertaking was not voluntary and breach of such undertaking in the absence of gain would not amount to contempt. This would show that there is

no regret on the part of the present counsel as well as the contemners in regard to the act of blatant breach of undertaking given to this Court,

committed by the contemners. The counsel has not even pleaded to consider the question of sentence in the event of the contemners being found

guilty of contempt.

However, having regard to the fact that the second contemner is aged about 68 years and suffering from heart ailment, as stated in his affidavit,

I am of the view that instead of sending him to jail, it would be appropriate to convict both the contemners for the offence u/s 2(b) read with 12(2)

of the Act and sentence them to pay a fine of Rs. 2,000/- each and accordingly, it is ordered. This amount shall be paid within one week from

today, in default, the second contemner is liable to undergo simple imprisonment for six months.

Regarding the conduct of the contemners in filing the affidavit making false allegation against Mr. Thangaraj, erstwhile counsel appeared for the

contemners, I shall mention with fuming anguish that the contemners must not only be found to be guilty of committing contempt but also must be

held to be guilty of filing false affidavit, that too, against his former advocates who helped him all along. To make the matter worse. Mr. Sargunam

was also made to file a false affidavit, as if the said Mr. Thangaraj insisted for filing an affidavit.

As I stated earlier, once the petition for quashing was dismissed and disposed of, there is no necessity for Mr. Thangaraj, the erstwhile counsel

to insist the contemners to file an affidavit regarding the mode of payment and the affidavit has been filed through the counsel giving undertaking

only at the instance of the contemners. Therefore, the conduct of the contemners, who went to the extent of filing of false affidavit through the

present counsel is highly condemnable and reprehensible.

Only because of the said affidavit, this Court was constrained to issue notice to Mr. Thangaraj, who made his appearance before this Court

and filed an affidavit giving the factual true details which enabled this Court to arrive at a correct finding. In fact, Mr. Thangaraj was present on

every hearing as a wounded soldier. Therefore, for the inconvenience and damage cause to him by the conduct of having filed false affidavit, I feel

that he must be suitably compensated in the from of costs.

Though an order awarding costs in contempt proceedings cannot be enforced under either of the Codes, but it can be enforced as a part of the

inherent jurisdiction. It is held by the several High Courts and the Supreme Court that the High Court has got the inherent power to award costs in

contempt proceedings. The power of Court is not restricted only to punishing the contemner. It extends to granting of consequential relief also. This

is settled law, as laid down in Ch. Shyam Sunder Vs. Daw Dayal Khanna, , Basanta Chandra Ghose Vs. Collector of Patna, Sebastian M.

Hongray v. Union of India ( AIR. 1984 SC. 1026), Noorali Babul Thanewala Vs. Sh. K.M.M. Shetty and others, and Tarafatullah Mandal and

Others Vs. S.N. Maitra and Others,

Mr. Thangaraj, the erstwhile counsel must have undergone mental agony and suffered very much because of the false accusation made by the

contemner in his affidavit against him. As a matter of fact, the second contemner would state in the counter-affidavit ""I do not know what prompted

my counsel to get such an affidavit from me quash proceedings before this Hon''ble Court do not contemplate filing of any such affidavit of

undertaking. The said affidavit has been obtained by my counsel by way of abuse of process of this Hon''ble Court"". This statement made by the

second contemner in his affidavit would not only be an accusation against the Advocate but also reflect on the integrity of the counsel who

appeared for him.

As detailed above, the affidavit making scandalous allegation against Mr. Thangaraj, the erstwhile counsel was only with the fond hope of

escaping from the contempt proceedings. The contemners are on the wrong impression that if the blame is put on the erstwhile counsel, they would

be let off without any punishment, without understanding that the Court of justice would ultimately find out the truth. This conduct of the contemners

would clearly show that the contemners not only indulged in throwing mud on the erstwhile counsel but also tried to hook-wink the Court of Law.

Therefore, the order of exemplary costs, in my opinion, would not only make the contemners to feel the pinch but also put down the tendency of

the litigants to trifle with the Court''s orders based on undertaking with impunity.

Hence, I direct the contemners to pay Rs. 2,00,000/- (Rupees two lakhs) to Mr. Thangaraj, the erstwhile counsel of the contemners, as costs

and atonement fee within four weeks from today.

Before parting with this case, I cannot but mention about the attitude of Mr. Sargunam of Srivilliputhur, the local counsel for the contemners,

who became amenable for the contemners to file a false affidavit against his colleague Mr. Thangaraj stating that only at the instance of Mr.

Thangaraj, he advised the contemners to file an affidavit of undertaking. This is purely in order to help the second contemner,"" who is his brother-

in-law for escaping from the clutches of the contempt action. This attitude is unbecoming of a lawyer.

The profession of law is a great profession. Lawyers have rightly been called as the backbone of justice in the courts of law. The lawyer should

therefore endeavour to keep his head high, chest forward and feet firm. The lawyers should carry in mind that they have glorious tradition behind

them left by the past generations of lawyers. The profession of the lawyer is one of the noblest. Like other professions it has its own code of

professional conduct. The essence of it in one word is that he should act as a GENTLEMAN. An advocate who is a gentleman to his fingertips

commands the respect of the court and the public. A client is entitled to the skill of an advocate but not his conscience. An advocate who is

conscious of being a party to the act of making false accusation, would lose his moral strength.

For a lawyer, the paramount interest shall be only on law. But in this case, Mr. Sargunam has shown such an interest not on law, but on his

brother-in-law. This is quite unfortunate. On seeing the conduct of the said counsel, originally I thought of directing him also to pay costs to Mr.

Thangaraj. However, I do not propose to do so, since already his brother-in-law (second contemner) has been suitably punished.

At the end, I cannot but appreciate the patience and courage with which Mr. Thangaraj, the erstwhile counsel of the contemners withstood the

unsavory and untrue accusation levelled against him. the fearlessness, honesty and earnestness of an advocate are always bound to elicit the

admiration of the court of justice.

With the above observations, the contempt application is allowed.