Hukum Chand Deswal vs Satish Raj Deswal

REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION

CONTEMPT PETITION (CIVIL) NO. 591/2019 IN SPECIAL LEAVE PETITION (CIVIL) NO. 5350/2019

Hukum Chand Deswal …Petitioner(s)

Versus

Satish Raj Deswal ...Respondent(s)

JUDGMENT

A.M. Khanwilkar, J.

1. This contempt petition has been filed by the original plaintiff

(in CS(OS) No. 2041/2013 filed in High Court of Delhi at New

Delhi1), under Article 129 of the Constitution of India read with

Sections 12 and 14 of the Contempt of Courts Act, 1971 2 and

read with Rule 3 of the Rules to Regulate Proceedings for

Contempt of the Supreme Court, 1975 3 in reference to the order

dated 22.2.2019 passed by this Court in SLP(C) Nos. 5147/2019 Signature Not Verified

and 5350/2019, which reads thus: ­ Digitally signed by DEEPAK SINGH Date: 2020.05.06 16:03:17 IST Reason:

1 For short, “the High Court” 2 For short, “the 1971 Act” 3 For short, “the 1975 Rules” 2

“We are not inclined to interfere with the Special Leave Petition.

However, we accede to the request made by the petitioner to grant four weeks’ time to vacate the suit premises. That shall be subject to payment of all the outstanding dues/arrears and filing undertaking before this Court within two weeks’ from today.

It is made clear that if the premises are not vacated as per the undertaking, it will be viewed sternly. The Special Leave Petition is disposed of accordingly. All IAs are also disposed of.”

2. The gravamen of the grievance of the petitioner/original

plaintiff is that the respondent [defendant in CS(OS) No.

2041/2013] failed to file undertaking, as also, to pay the

outstanding dues before vacating the suit premises and further,

caused damage to the property before handing over possession

thereof to the petitioner on 22.3.2019. Thus, the respondent

committed wilful disobedience of and violated the directions given

by this Court vide order dated 22.2.2019.

3. Shorn of unnecessary factual details, suffice it to observe

that the petitioner – M/s. Jingle Bell Amusement Park Pvt. Ltd.

(represented by its Director – Mr. Hukum Chand Deswal) had

filed the aforementioned suit for permanent injunction,

possession and for recovery of rent and damages/mesne profits

till the recovery of possession in respect of the property bearing 3

No. 41/24, 25, 42/20, 50/1, 51/4 min at Village Alipur, Tehsil­

Delhi, Delhi against the respondent – Sagu Dreamland Pvt. Ltd.

(represented by its Managing Director – Mr. Satish Raj Deswal).

4. The respondent/defendant, on the other hand, filed a suit

being CS(OS) No. 1592/2014 in the High Court against Splash

Island Pvt. Ltd. and its two Directors – Hukum Chand Deswal

[present petitioner/original plaintiff in CS(OS) No. 2041/2013]

and Karandeep Singh Deswal, seeking permanent injunction

restraining them from infringing the trademark acquired by the

respondent.

5. CS(OS) No. 2041/2014 was eventually disposed of on

30.6.2015 on the basis of settlement arrived at between the

parties on 28.5.2015. As per the said settlement, the respondent

had agreed to vacate the suit property on or before 31.12.2017

and handover peaceful and vacant possession thereof to the

petitioner herein. The respondent was permitted to take away

civil structures and movable fixtures installed by it in the suit

property. It could also offer the same to the petitioner for

consideration on or before September, 2017. The petitioner

would have sole discretion to purchase the same or not. The 4

agreement also records that an amount of Rs.25,00,000/­

(Rupees twenty­five lakhs only) deposited by the respondent with

the petitioner as security amount without interest, shall be

returned to the respondent after handing over the vacant

peaceful possession of the suit property. The parties also agreed

for revised monthly rent and the respondent paid the outstanding

dues in terms of the said agreement by way of cheque(s) and

future rent by way of post­dated cheque(s). The agreement also

records that the petitioner herein or any of the Directors of the

petitioner shall not use the trademark ­ “SPLASH” in any manner

and the cases filed by either of the parties in this regard shall be

withdrawn by the concerned party in Delhi or elsewhere. It is

also noted in the agreement that breach of terms and conditions

of the settlement/agreement/compromise deed by either party,

shall entitle the other party to take legal recourse before the

competent Court/authority for legal remedy. Another crucial

condition stipulated in the agreement is that if the respondent

failed to vacate and handover peaceful vacant possession of the

suit premises on or before 31.12.2017 or after the termination of

tenancy, the petitioner herein would be entitled to recovery of

double the amount of last paid rent as unauthorised occupation 5

charges from the respondent. The monthly rent payable as on

December, 2017 in terms of the agreement was fixed at

Rs.9,25,000/­ (Rupees nine lakhs twenty­five thousand only) per

month. Resultantly, in case of default, the petitioner would

become entitled for recovery of double the amount of

Rs.9,25,000/­ (Rupees nine lakhs twenty­five thousand only)

every month as unauthorised occupation charges. This

agreement was reached as final settlement of all the past, present

and future claims between the parties and to be effective only

after appropriate order was passed in CS(OS) No. 2041/2013

filed by the petitioner herein.

6. Even the suit filed by the respondent being CS(OS) No.

1592/2014 came to be disposed of as withdrawn on 31.8.2015 in

terms of the settlement arrived at between the parties.

7. Before the time to vacate the suit premises specified in the

settlement had expired, the respondent filed Contempt Case

(Civil) No. 225/2017 before the High Court against the petitioner,

alleging wilful violation and disobedience of the settlement terms

dated 28.5.2015 by illegally using the word “SPLASH” and

continued infringement of the trademark of the respondent. The 6

High Court disposed of the said petition on 20.3.2017 giving

liberty to the respondent to take recourse to execution

proceedings.

8. The respondent then filed an application bearing I.A. No.

14331/2017 in CS(OS) No. 1592/2014 seeking recall of the order

dated 30.6.2015 and to restore the said suit to its original

number on the assertion that the Settlement Agreement arrived

at between the parties on 28.5.2015 has been frustrated by the

petitioner by continuing to infringe the trademark of the

respondent. That application came to be disposed of on

12.7.2018 after recording the second agreement arrived at

between the parties, whereunder the petitioner herein undertook

to abstain from using the word “SPLASH” or any deceptively

similar word, either as a part of the trademark, trade

name/corporate name or with a prefix or suffix in any manner

whatsoever. It was also agreed by the petitioner that the

company – Splash Island Pvt. Ltd. will apply to the Registrar of

Companies within a period of ten days for change of name

wherein it could adopt any name without the word “SPLASH” or a

deceptively similar word. That was to be done on or before 7

31.10.2018 and that use of the word “SPLASH” by the petitioner

would be completely stopped on or from 31.10.2018. The Court

also recorded the assurance given by the respondent herein that

it would handover vacant and peaceful possession of the suit

property on or before 30.11.2018 to the representatives of M/s.

Jingle Bell Amusement Park Pvt. Ltd. and shall not cause any

damage to the constructed area while vacating the property and

abide by clause 6(b) of the Settlement Agreement.

9. The respondent then filed another application(s) in October,

2018, being I.A. Nos. 13958/2018 and 13957/2018 in CS(OS)

Nos. 2041/2013 and 1592/2014 respectively before the High

Court seeking intervention of the Court in implementing the

Settlement Agreement dated 28.5.2015 in an equitable manner,

as the respondent was suffering losses because of the wilful

disobedience and violation of the Settlement Agreement by the

petitioner herein, by continuing to use the trademark “SPLASH”,

which belonged to the respondent and also because the

respondent was required to pay enhanced monthly rent as per

the revised agreement, of Rs.9,25,000/­ (Rupees nine lakhs

twenty­five thousand only) per month. The respondent, 8

therefore, prayed for modification of the order dated 12.7.2018 to

the extent that the time given to it to vacate the suit premises be

extended for a period of two years in terms of the Settlement

Agreement between the parties. These applications were rejected

by the learned single Judge of the High Court on 8.10.2018 after

noting that no ground was made out for extending time to

handover possession as prayed for. The essence of the grievance

made in the applications filed by the respondent was to

compensate the respondent for the damage suffered due to

continued violation of the obligation by the petitioner by not

abstaining from using the trademark “SPLASH” belonging to the

respondent.

10. Feeling aggrieved, the respondent carried the matter in

appeal before the Division Bench of the High Court, reiterating

the grievance made in the stated applications. In the appeals, it

was expressly stated that the respondent was suffering losses not

only because of the continued violation of the conditions/terms

specified in the Settlement Agreement in the form of infringement

of the trademark of the respondent, but also because the

respondent is required to pay enhanced rent to the petitioner as 9

per the agreement/settlement dated 28.5.2015. The Division

Bench, however, rejected the appeals vide order dated 28.1.2019

by observing as follows: ­

“5. We are not impressed by the said submission of Mr. Kaul for the simple reason that the Suits were disposed of in terms of the settlement entered between the parties. If there is a violation of the settlement/decree, it is for the appellant to seek execution of the decree or any other relief as permissible in law rather than seeking a benefit of further time on the premise that the respondent has violated the terms of agreement. This is clearly impermissible as any direction by us, shall also be at variance with the order disposing of the suits. We find that the learned Single Judge has rightly dismissed the applications seeking modification of the order dated 12 th July, 2018.

We do not find any merit in the appeals. The same are dismissed.

(emphasis supplied)

11. Against this decision, the respondent had approached this

Court by way of special leave petitions being SLP(C) Nos.

5147/2019 and 5350/2019, which came to be dismissed vide

common order dated 22.2.2019, as reproduced in paragraph 1

above.

12. It is not in dispute that the respondent vacated the suit

premises before the date prescribed in the order of this Court,

dated 22.2.2019. However, the grievance of the petitioner in the

present contempt petition is three­fold. First, the respondent

failed to file undertaking despite direction to do so within two 10

weeks. Second, the respondent failed to pay the outstanding

dues to the petitioner in the sum of Rs.1,32,48,794/­ (Rupees

one crore thirty­two lakhs forty­eight thousand seven hundred

ninety­four only) as on 22.3.2019. Third, while vacating the suit

premises, the respondent caused damage to the suit property.

Each of these acts of commission and omission of the respondent

was intentional and in wilful disobedience of the order passed by

this Court dated 22.2.2019.

13. The respondent besides tendering unconditional apology

has offered explanation pointing out that he was not in arrears

and no amount was outstanding or payable to the petitioner who

had continued to infringe the trademark “SPLASH” belonging to

the respondent, even after 31.10.2018. The revised settlement

arrived at between the parties on 12.7.2018, as recorded by the

High Court, clearly obligated the petitioner to stop using the

trademark “SPLASH” belonging to the respondent on and from

31.10.2018 whilst extending the time to vacate the suit premises

upto 30.11.2018 without altering the stipulation regarding

monthly rent set out in the Settlement Agreement dated

28.5.2015. In other words, the respondent was liable to pay only 11

Rs.9,25,000/­ (Rupees nine lakhs twenty­five thousand only) per

month even after December, 2017 until 30.11.2018 and

thereafter, because of the indulgence shown by the High Court in

the first place and later by this Court vide order dated 22.2.2019

giving time to the respondent to vacate the suit premises upto

22.3.2019. According to the understanding of the respondent,

the revised agreement dated 12.7.2018 was a comprehensive

arrangement worked out in the backdrop of the grievance of the

respondent that he had suffered huge losses due to the

continued infringement of trademark “SPLASH” by the petitioner,

despite the stipulation in the Settlement Agreement dated

28.5.2015 in that regard, and also due to the enhancement in the

monthly rent in respect of the suit premises. It is also pointed

out that the petitioner had moved the executing Court to direct

the respondent to pay double the amount of rent as

compensation for unauthorised occupation of the suit premises

beyond 30.11.2018. The said prayer was considered in execution

proceedings by the learned single Judge of the High Court and

was disposed of vide order dated 29.5.2019 passed in CM(M) No.

109/2019 and CM Appl. Nos. 3331/2019 and 3876/2019. The

said order reads thus:­ 12

“O R D E R 29.05.2019

1. This petition under Article 227 of the Constitution of India is directed against an order dated 21.12.2018 in execution proceedings.

2. The suit between the parties was initially disposed of, by a mediated settlement dated 28.05.2015. The respondent herein has filed for execution of that settlement agreement. However, the parties had approached this Court by way of certain interim applications in the suit after the settlement. Those applications were decided by an order of the learned Single Judge dated 12.07.2018. It appears that the petitioner had, then, sought modification of the order dated 12.07.2018, which was declined by an order dated 08.10.2018. Against this order, the petitioner filed FAO (OS) 172/2018 which was dismissed by the Division Bench vide the judgment dated 28.01.2019. The judgment dated 28.01.2019 was carried to the Supreme Court in SLP (Civil) No. 5147/2019, which was disposed of with the following order: ­ “We are not inclined to interfere with the Special Leave Petition. However, we accede to the request made by the petitioner to grant four weeks’ time to vacate the suit premises.

That shall be subject to payment of all the outstanding dues/arrears and filing undertaking before this Court within two weeks’ from today.

It is made clear that if the premises are not vacated as per the undertaking, it will be viewed sternly.

The Special Leave Petition is disposed of accordingly. All IAs are also disposed of.”

3. It is not disputed that the possession of the premises in question has been handed over by the petitioner to the respondent, pursuant to the order of the Supreme Court. The present dispute relates to the amount payable by the petitioner to the respondent, if any. Under the settlement agreement, the petitioner was liable to pay twice the amount of the last rent fixed, in the event it did not vacate the premises in question by the agreed date, i.e. 31.12.2017. According to the petitioner, by the order dated 12.07.2018, the time originally fixed 13

for vacation of the suit premises was extended until 30.11.2018, and the petitioner was, therefore, not liable to pay twice the amount of the last paid rent as unauthorized occupation charges until 30.11.2018. This contention is disputed by the learned counsel for the respondent, who submits that the order dated 12.07.2018 merely extended the time for vacating the premises, and did not alter the liability of the petitioner to pay twice the amount of the last rent paid for the period after 31.12.2017.

4. Be that as it may, I have also been informed that pursuant to the order of the Supreme Court, the petitioner has made a further payment to the respondent and given a statement of accounts by a letter dated 07.03.2019. In these facts and circumstances, counsel for the parties submit that they will file their respective statements of account before the executing Court, which would then determine whether any amount remains payable from the petitioner to the respondent.

5. All the rights and contentions of the parties in this regard are left open and the petition is disposed of in terms of the above.” (emphasis supplied)

According to the respondent, neither the learned single Judge nor

the Division Bench in the earlier proceedings had dealt with the

question of liability of the respondent to pay monthly rent over

and above mentioned in the Settlement Agreement dated

28.5.2015 at the rate of Rs.9,25,000/­ (Rupees nine lakhs

twenty­five thousand only) per month, which position was

reinforced vide order dated 12.7.2018. In that, double the

amount of last paid rent towards unauthorised occupation

charges would have become payable after 30.11.2018 but for the 14

protection extended to the respondent by the High Court and this

Court. As a matter of fact, the Division Bench in the judgment

dated 28.1.2019 (which was impugned in special leave petitions

before this Court), had left the parties to pursue their remedy

before the executing Court. Moreover, even this Court did not

adjudicate the question regarding the liability of the respondent

to pay further rent or so to say, outstanding dues payable to the

petitioner. That is a matter which ought to be considered by the

executing Court in view of the liberty granted by the learned

single Judge, as well as, the Division Bench of the High Court, in

the backdrop of the grievance made by the respondent about the

continued infringement of its trademark by the petitioner, for

which the petitioner must compensate the respondent

appropriately including to provide due adjustments. It is the

case of the respondent that the order dated 12.7.2018 extended

the time to vacate the suit premises until 30.11.2018 and

thereafter, considering the protection given by the High Court

and also by this Court in terms of order dated 22.2.2019, it must

follow that the possession of the respondent was lawful and not

unauthorised as such. It is urged that the order of this Court

could be understood to mean that “if” the respondent was in 15

arrears, it ought to pay such amount to the petitioner before the

specified date. A priori, the respondent would not be liable to pay

double the amount of rent in terms of the Settlement Agreement

dated 28.5.2015. To buttress this submission, reliance is placed

on the decision of this Court in Union of India vs. Banwari lal

& Sons (P) Ltd.4, wherein this Court opined that right to mesne

profits pre­supposes a wrong whereas a right to rent proceeds on

the basis that there is a contract. Further, there is an

intermediate class of cases in which the possession though not

wrongful in the beginning assumes a wrongful character when it

is unauthorizedly retained and in such cases, owner is not

entitled to claim mesne profits but only the fair rent.

14. In substance, the respondent besides offering unconditional

apology, has offered explanation to persuade this Court to take a

view that the respondent had not committed any act, much less

intentional, amounting to wilful disobedience. As regards the

allegation regarding the damage caused to the suit property,

while handing over possession to the petitioner, it is stated on

affidavit supported by contemporaneous record and photographs

to indicate that the respondent has taken away only those 4 (2004) 5 SCC 304 16

fixtures which he was permitted to do under clause 24 of the first

agreement dated 21.3.2003, which reads thus: ­

“Clause 24: “That the second party shall hand over the premises of the water sports in full and with all infrastructure in running conditions at the end of the period of 8 years. That any additional equipments/sports facility installed by the 2nd party shall be the property of the 2nd party, which he has been to take away after expiry of lease period.”

This clause has been referred to in the Settlement Agreement

dated 28.5.2015. Further, it is manifest from the record that the

allegation regarding damage was based on misleading

photographs produced alongwith contempt petition, whereas the

photographs of the same site taken by the respondent at the time

of vacating the suit property would reveal that what was left

behind was only debris without causing any permanent damage

to the structure or the suit property. As a matter of fact, the

petitioner immediately (in less than 2­3 months) after taking

possession of the suit property, started operating the water park

in the suit premises. The case made out by the petitioner about

defacement of the suit property is entirely misleading and

mischievous. It is urged that no case for initiating contempt

action has been made out by the petitioner and the amount

deposited by the respondent in this Court in the sum of 17

Rs.1,50,00,000/­ (Rupees one crore fifty lakhs only) pursuant to

direction given by this Court in the present contempt petition on

25.9.2019, be refunded to the respondent alongwith interest

accrued thereon, forthwith. The respondent has also invited

appropriate direction in I.A. No. 152785/2019 filed by it to

modify the amount deposited in this Court to Rs.87,37,677/­

(Rupees eighty­seven lakhs thirty­seven thousand six hundred

seventy­seven only), based on calculations given in the said

application.

15. We have heard Mr. Nakul Diwan, learned senior counsel for

the petitioner and Mr. Parag Tripathi, learned senior counsel for

the respondent.

16. At the outset, we must advert to the contours delineated by

this court for initiating civil contempt action in Ram Kishan vs.

Tarun Bajaj & Ors.5. In paragraphs 11, 12 and 15 of the

reported decision, this Court noted thus: ­

“11. The contempt jurisdiction conferred on to the law courts power to punish an offender for his wilful disobedience/contumacious conduct or obstruction to the majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen that his rights shall be protected and the entire democratic fabric of the society

5 (2014) 16 SCC 204 18

will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the Act. The proceedings are quasi­criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of the contempt jurisdiction on mere probabilities. (Vide V.G. Nigam v. Kedar Nath Gupta, (1992) 4 SCC 697, Chhotu Ram v. Urvashi Gulati, (2001) 7 SCC 530, Anil Ratan Sarkar v. Hirak Ghosh, (2002) 4 SCC 21, Bank of Baroda v. Sadruddin Hasan Daya, (2004) 1 SCC 360, Sahdeo v. State of U.P., (2010) 3 SCC 705 and National Fertilizers Ltd. v. Tuncay Alankus, (2013) 9 SCC 600.

12. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is “wilful”. The word “wilful” introduces a mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one's state of mind. “Wilful” means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bona fide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a “bad purpose or without justifiable excuse or stubbornly, obstinately or perversely”. Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. “Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct.” (Vide S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591, Rakapalli Raja Ram Gopala Rao v. Naragani Govinda Sehararao, (1989) 4 SCC 255, Niaz Mohammad v. State of 19

Haryana, (1994) 6 SCC 332, Chordia Automobiles v. S. Moosa, (2000) 3 SCC 282, Ashok Paper Kamgar Union v. Dharam Godha, (2003) 11 SCC 1, State of Orissa v. Mohd. Illiyas, (2006) 1 SCC 275 and Uniworth Textiles Ltd. v. CCE, (2013) 9 SCC 753.

xxx xxx xxx

15. It is well­settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable. The effect and purport of the order is to be taken into consideration and the same must be read in its entirety. Therefore, the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act. [See Sushila Raje Holkar v. Anil Kak, (2008) 14 SCC 392 and Three Cheers Entertainment (P) Ltd. v. CESC Ltd., (2008) 16 SCC 592.”

Similarly, in R.N. Dey & Ors. vs. Bhagyabati Pramanik &

Ors.6, this Court expounded in paragraph 7 as follows: ­

“7. We may reiterate that the weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the court is to be exercised for maintenance of the court's dignity and majesty of law. Further, an aggrieved party has no right to insist that the court should exercise such jurisdiction as contempt is between a contemner and the court. It is true that in the present case, the High Court has kept the matter pending and has ordered that it should be heard along with the first appeal. But, at the same time, it is to be noticed that under the coercion of contempt proceeding, appellants cannot be directed to pay the compensation amount which they are disputing by asserting that claimants were not the owners of the property in question and that decree was obtained by suppressing the material fact and by fraud. Even presuming that the claimants are entitled to recover the amount of compensation as awarded by the trial court as no stay order is granted by the High Court, at the most they are entitled to recover the same by executing the

6 (2000) 4 SCC 400 20

said award wherein the State can or may contend that the award is a nullity. In such a situation, as there was no wilful or deliberate disobedience of the order, the initiation of contempt proceedings was wholly unjustified.”

Keeping the settled legal principle expounded in the aforesaid

decisions, in mind, we may now proceed to consider the three

stated violations of the order dated 22.2.2019 by the respondent

to ascertain whether the same is intentional and wilful

disobedience of the order/direction passed by this Court.

17. Reverting to the first violation of not filing undertaking

within two weeks, as directed, that per se cannot be the basis to

initiate contempt action against the respondent. Indeed, the

undertaking was required to be filed “if” the respondent wanted

to avail of the time granted by this Court in terms of the order

dated 22.2.2019. In this case, admittedly, the respondent

vacated the suit property before the time specified in the order of

which contempt has been alleged. Hence, non­filing of

undertaking does not take the matter any further nor do we find

any reason to precipitate the matter on that count alone.

18. We now turn to the grievance about non­payment of

outstanding dues in terms of the direction in the order dated

22.2.2019. It is not in dispute that in the application filed by the 21

respondent before the High Court, specific grievance was made

that it was suffering huge losses on two counts, namely, on

account of petitioner continuing to use the trademark “SPLASH”

even after 31.10.2018 unabated and second, on account of

liability of the respondent to pay enhanced rent in terms of the

Settlement Agreement dated 28.5.2015 of Rs.9,25,000/­ (Rupees

nine lakhs twenty­five thousand only) per month. The

respondent requested the High Court to pass an equitable order

in implementing the Settlement Agreement dated 28.5.2015. The

fact remains that neither the learned single Judge nor the

Division Bench clearly ruled on the factum of outstanding

dues/arrears payable by the respondent. On the other hand, the

Division Bench in its order dated 28.1.2019, left the parties to

pursue execution of the decree or any other relief, as may be

permissible in law, whilst rejecting the prayer of the respondent

to grant time to vacate the suit premises beyond the time

prescribed in the order dated 12.7.2018. The relevant

observation has been extracted in paragraph 10 above, which

reinforces this position. Similarly, while disposing of the

grievance of the respondent made in Contempt Petition No.

225/2017, the High Court noted that the respondent was free to 22

pursue the same in execution proceedings. And again, the

learned single Judge of the High Court vide order dated

29.5.2019, left the parties to pursue their claim on relevant

aspects before the execution Court by filing respective statements

of account for determination of liability of the respondent, if any,

as can be discerned from the observations in the said order

reproduced in paragraph 13 above.

19. Pertinently, the special leave petitions were filed by the

respondent against the order dated 28.1.2019, which as

aforesaid, did not deal with the question regarding the monthly

rent payable by the respondent but explicitly left the parties to

pursue the same before the executing Court. The

plaintiff/petitioner having acquiesced of that observation of the

High Court, cannot be allowed to contend to the contrary. This

Court in Jhareswar Prasad Paul & Anr. vs. Tarak Nath

Ganguly & Ors.7, in paragraph 11, opined thus: ­

“11. … The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition,

7 (2002) 5 SCC 352 23

be it stated here that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which is alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes levelled against the courts exercising contempt of court jurisdiction “that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute” in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts.”

20. Thus understood, we find force in the explanation offered by

the respondent that as per its bona fide understanding, there was

no outstanding dues payable to the petitioner. Moreover, as

observed by the High Court, these aspects could be answered by

the executing Court if the parties pursue their claim(s) before it

in that regard. Suffice it to observe that it is not a case of

intentional violation or wilful disobedience of the order passed by

this Court to initiate contempt action against the respondent.

Instead, we hold that it would be open to the parties to pursue 24

their claim(s) in execution proceedings or any other proceedings,

as may be permissible in law in respect of the issue(s) under

consideration. In such proceedings, all aspects can be

considered by the concerned forum/Court on merits in

accordance with law. We say no more.

21. Reverting to the allegation about damage caused to the suit

property by the respondent at the time of vacating the same, in

our opinion, the respondent has made out a formidable case that

it did not cause any damage, much less permanent damage to

the structure in the suit property. Whereas, the petitioner was

relying on photographs concerning the debris on the site left

behind at the time of vacating the suit property. The debris

cannot cause damage and it is certainly not a case of defacement

of the suit property. That position is reinforced from the fact that

the water park in the suit premises was started and became fully

functional within 2­3 months. Viewed thus, it is rightly urged

that it can be safely assumed that no damage was caused by the

respondent to the structure in question. Minor repairs required

to be carried out by the petitioner for making the water park

functional cannot be painted as intentional disobedience of the 25

order of this Court. In any case, that being a complex question of

fact, need not be adjudicated in the contempt proceedings. We

leave it open to the petitioner to pursue even that claim in

execution proceedings or such other proceedings as may be

permissible in law. We may not be understood to have expressed

any final opinion in respect of condition of the suit premises,

whilst handing over possession to the petitioner. We hold that

even this issue under consideration does not warrant initiation of

contempt action against the respondent.

22. Taking overall view of the matter, therefore, we decline to

precipitate the matter any further against the respondent.

Instead, we deem it appropriate to discharge the show cause

notice(s) and relegate the parties to such remedies as may be

permissible in law to espouse their cause(s)/claim(s) including

mentioned in the present contempt petition. All questions in that

regard are left open to be decided by the concerned forum/Court

appropriately as per law.

23. The next aspect is about the prayer of the respondent to

refund the amount of Rs.1,50,00,000/­ (Rupees one crore fifty

lakhs only) alongwith interest accrued thereon. In I.A. No. 26

152785/2019 filed by the respondent, it is prayed that the

deposit amount be reduced to Rs.87,37,677/­ (Rupees eighty­

seven lakhs thirty­seven thousand six hundred seventy­seven

only), in terms of the calculations given therein. Considering the

fact that we have relegated the parties before the executing Court

to pursue their claim(s) in respect of and arising from the

agreement/settlement, in particular the Settlement Agreement

dated 28.5.2015 and order of the High Court dated 12.7.2018

recording the revised agreement, we accede to the request of the

respondent to retain sum of Rs.87,37,677/­ (Rupees eighty­seven

lakhs thirty­seven thousand six hundred seventy­seven only) and

interest accrued thereon out of the total amount deposited in this

Court in the sum of Rs.1,50,00,000/­ (Rupees one crore fifty

lakhs only) alongwith interest accrued thereon.

24. Accordingly, the amount of Rs.87,37,677/­ (Rupees eighty­

seven lakhs thirty­seven thousand six hundred seventy­seven

only) and interest accrued thereon be transferred to the executing

Court, who in turn, after considering the rival claim(s), may pass

appropriate orders in that regard in accordance with law. The

respondent, however, is permitted to withdraw the excess 27

amount [in excess of Rs.87,37,677/­ (Rupees eighty­seven lakhs

thirty­seven thousand six hundred seventy­seven only) and

interest accrued thereon], subject to filing an undertaking in this

Court to the effect that if the executing Court so directs, the sum

so withdrawn or portion thereof would be deposited in the

executing Court as and when required and not later than four

weeks from the date of such direction. In addition, the

respondent shall furnish a solvent security commensurate with

the amount to be withdrawn by the respondent, but not less than

Rs.75,00,000/­ (Rupees seventy­five lakhs only) as pre­condition.

The solvent security should be to the satisfaction of the executing

Court. This arrangement would meet the ends of justice and also

secure the interests of both sides.

25. Accordingly, the contempt petition and I.A. No.

152785/2019 are disposed of in the above terms. The show

cause notice(s) issued to the respondent stand(s) discharged.

Pending interlocutory applications, if any, shall stand disposed

of.

..................................J. 28

(A.M. Khanwilkar)

..................................J. (Dinesh Maheshwari) New Delhi;

May 6, 2020.