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Central Bank of India Vs. Current Transport Finance (P) Ltd. - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 0.87 of 1972
Reported in1977CriLJ266; 13(1977)DLT164; 1978RLR34
ActsContempt of Court Act, 1971 - Sections 20; Code of Civil Procedure (CPC), 1908 - Order 39, Rule 2(3)
AppellantCentral Bank of India
RespondentCurrent Transport Finance (P) Ltd.
Advocates: C.L. Chopra,; R.M. Gupta,; M.S. Gandhi,;
Cases ReferredIn Gurumurthi v. Perumal
contempt of court--section 20 of the contempt of courts act, order xxxix, rule 2(3), of the code of civil procedure and article 215 of the constitution of india compared--whether and wherefore breach of undertaking constitutes contempt--limitation for punishing for contempt--why not applicable to the case under any of the three provisions--undertaking not to alienate--whether parting with possession tantamount to alienation in this case--whether breach of undertaking is also breach of injunction--continued disobedience of court's order whether punishable by attachment of contemner's property--necessity of power of courts to punish for contempt.; the plaintiff-bank sued the defendants 1 and 2 and the directors hereof on money advanced on the hypothecation of certain buses, and.....avadh behari rohatgi, j. (1) these are contempt of court proceedings. on 19/11/1974, yogeshwar dayal j. issued a notice to kuldip singh (defendant no. 7) calling upon him to show cause why he should not be punished for contempt for breach of the undertaking given to this court on 17/07/197 2/10/1972 and 4/05/1973.(2) on 26/05/1972, the central bank of india brought a suitfor the recovery of rs. 4,73,873 against (1) current transport andfinance private limited, and (2) current transport service and(3) the directors of the company. one of the directors admittedly iskuldip singh, defendant no. 7. the suit is for the recovery ofmoney which the bank had advanced to the defendants on the hypothecation of the following five buses : (i)vehicle no. dlp 4128 make t.m.b. model 1968 chassisno......

Avadh Behari Rohatgi, J.

(1) These are contempt of court proceedings. On 19/11/1974, Yogeshwar Dayal J. issued a notice to Kuldip Singh (defendant No. 7) calling upon him to show cause why he should not be punished for contempt for breach of the undertaking given to this court on 17/07/197 2/10/1972 and 4/05/1973.

(2) On 26/05/1972, the Central Bank of India brought a suitfor the recovery of Rs. 4,73,873 against (1) Current Transport andFinance Private Limited, and (2) Current Transport Service and(3) the directors of the company. One of the directors admittedly isKuldip Singh, defendant No. 7. The suit is for the recovery ofmoney which the bank had advanced to the defendants on the hypothecation of the following five buses :

(I)Vehicle No. Dlp 4128 make T.M.B. Model 1968 ChassisNo. 342.050.86.14299, engine No. 312.978.86.07011.(ii) Vehicle No. Dlp 4265 make T.M.B. Model 1969 ChassisNo. 342.050.86.14299, engine No. 312.978.86.14979.(iii) Vehicle No. Dlp 4383 make T.M.B. Model 1969 ChassisNo. 342.050.96.03021, engine No. 312.978.86.02779.(iv) Vehicle No. Dlp 4488 make T.M.B. Model 1969 ChassisNo. 342.050.96.03854, Engine No. 312.978.96.03958.(v) Vehicle No. Dlp 4091 make T.M.B. Model 1968 ChassisNo. 342.050.86.03183, Engine No. 312.978.86.02148.

(3) On 26/05/1972, itself the bank moved an application under0.38 rule 5 (IA 991 of 1972) praying that the aforesaid buses maybe attached before judgment. This application came up for ex partehearing on 17/07/1972 before B. C. Misra J. He ordered notice ofthe application to issue to defendants 1 and 2. For the meanwhilehe passed an order restraining them from transferring, alienating orparting with the possession of the motor vehicles in suit. The suitwas adjourned to 9/10/1972.

(4) On 9/10/1972, Mr. R. M. Gupta, Advocate appearedon behalf of some of the defendants. He filed his power of attorneyon behalf of defendants 1, 2, 7, 8, 15 to 19 dated 9/10/1972.This power of attorney is admittedly signed by Kuldip Singh defendant No. 7. It appeared that the service of the application wasnot affected on all the defendants. The court thereforee ordered noticeto issue again to the defendants. At this stage Mr. R. M. Gupta gavean undertaking to T. P. S. Chawla J. who was seized of the case.The order reads:

'MR.Gupta gives an undertaking that the buses mentioned inpara 2 of this application will not be alienated in anymanner whatsoever until this application is heard anddecided.'

(5) is 991 of 1972 then came up before V. D. Misra, J. In hisorder dated 4/05/1973 he said :

'MR.R. M. Gupta states that he was under the impressionthat his undertakings not to sell away the vehicles inquestion would be enough to decide the application. Itwas for that reason that he did not file the reply. Herequests for an opportunity to file a detailed reply becauseMr. Chopra is not willing to accept any undertaking givenby Mr. Gupta.'

(6) The defendants were allowed to file their reply. On 9/05/1973, a reply to the attachment application wa.s filed on behalf ofdefendants 1and 2. In this reply it was stated in paragraph 3 that

'PARA3 of the application is not denied. But it is suggestedthat the possession of defendants 1 and 2 is actual withrespect to some and constructive with respect to theothers.'

(7) On 17/05/1973, the application for attachment before judgment came up for hearing before me. I took the view that defendan!.iI and 2 should not be allowed to ply the vehicles as that will dimmishthe security of the plaintiff bank. I, thereforee, ordered that the fivevehicles be taken into possession by a receiver. I appointed Mr. H. S-Mac as the receiver to take possession of the five vehicles.

(8) Mr. Mac made his report on 23/05/1973. He made efforts tofind out the vehicles. He went to the premises of defendants 1and 2.He met Kuldip Singh. He enquired from him about the whereaboutsof the vehicles. Kuldip Singh made a statement which the receiverrecorded. In his statement Kuldip Singh stated that he did not knowwhere the vehicles were. He was also unable to state whether otherdirectors were aware of the whereabouts of the vehicles or not. Hiswords are:

'Ican help the court in securing the possession of the vehiclesonly if I am made aware of the whereabouts of these vehicles. So far as I am concerned I do not know where theyare.'

He gave the names and addresses of other four directors and said :

'Icannot say whether these directors will be able to give information about these vehicles.'

(9) On 30/07/1973, the bank made another application underOrders 38, 39 and 40 and s. 151, Code of Civil Procedure (IA 1860of 1973). In this application the bank prayed that defendants 1 and 2be asked to produce the vehicles in court so that the receiver may takepossession.

(10) On 30/08/1973, V. D. Misra J. passed a detailed order.The learned judge felt satisfied that defendants 1 and 2 and someof their directors were trying to flout the order of the court dated 17/05/1973, directing the receiver to take possession of the vehicles.He, thereforee, directed all the directors to file their affidavits. In theaffidavits the directors were required to state the whereabouts of thevehicles in question and the names of the persons in whose possessionthese have been from time to time. This order was made in order totrace the vehicles so that the orders of the court could be enforced andpossession of the vehicles obtained.

(11) Kuldip Singh, defendant No. 7, Sukhpal Ahluwalia defendantNo. 3, Narain Dass Khattar defendant No. 8, Jassa Singh defendantNo. 9, and Amar Singh defendant No. 4 filed their affidavits. They areall directors of the company defendant No. 1.

(12) Kuldip Singh in his affidavit denied all knowledge about thewhereabouts of the vehicles. In paragraph 4 he said :

'THATI do not know the present whereabouts of the followingvehicles that are in dispute, but after the death ofShri Arnrit Lal Dhingra, the Transport Department waslooked after by Shri Jassa Singh, director of Current Transport & Finance Private Ltd. and he was also in possessionof the same.1. DLP-40912. DLP-41283. DLP-42654. DLP-43835. DLP-4488'

This was the stand of Kuldip Singh.

(13) Other defendants positively stated on oath that Kuldip Singhwas in complete control of the affairs of the company and that theentire fleet of vehicles including the vehicles in dispute was in hispossession and control. Jassa Singh in his affidavit stated that he hadnever participated in the business or management of the company andthat 'Kuldip Singh and his associates' were managing and controllingthe affairs of the company. As regards the vehicles he said : 'These buses are being run Kuldip Singh Along with his associates.'

(14) On 17/10/1973, the statement of Kuldip Singh wasrecorded by V. D. Misra, J. In his examination-in-chief Kuldip Singh admitted that he had signed a power of attorney on behalf of thecompany in favor of his lawyer, Mr. R. M. Gupta. As regards theundertaking he said:

'IT is correct that I directed Mr. Gupta to make a statementbefore the court that buses in question will not be allienatedin any manner whatsoever. These included the buses whichwere either in actual or constructive possession. At thetime my lawyer made the statement in Court, Jassa Singh,director, was in actual possession of two of the buses in dispute and since I was acting on behalf of the company the statement that some were in actual possession wereto that extent correct, I had hoped that Jassa Singh orany other person will not be able to transfer these buseswithout my knowledge since I was the only person actingon behalf of the company. After the death of Arnrit LalDhingra, director, Jassa Singh was made in charge of allthe departments of the company. At that time the otherthree buses were lying in a most dilapidated condition.In the meantime application for winding up had beenmoved. I approached Jassa Singh and convinced him thatif he could use the buses and earn some money, we willbe able to pay off our debts. Jessa Singh also suggestedthat instead of selling the buses, we should be able toply them because the sale in those circumsta.nces wouldnot fetch adequate price. In these circumstances JassaSingh got the three buses repaired at his own cost andthereafter started plying them. Before the CompanyCourt, Jassa Singh director had made an application alleging that he wanted to dispose of these buses. I told theCompany Court that I was not going to sell or disposeof these buses.At the rime my lawyer made the statement in Court, thosethree buses were being got repaired and it is in these circumstances that the statement was made. It was thereafterthat Jassa Singh suddenly took those buses out of Delhi.I say that' all the five buses are in the possession of JassaSingh.'

(15) While Kuldip Singh was being cross-examined by Mr. P. C.Khanna, counsel for Jassa Singh, V. D. Misra J. asked Kuldip Singhif he was willing to act as a receiver and help in finding out the busesin dispute. Kuldip Singh agreed to act as a receiver. V. D. Misra, J.adjourned the remaining cross-examination. He made an order appointing Kuldip Singh and Prithvi Raj Sachdeva, Advocate, as joint receiversof the buses in dispute.

(16) Prithvi Raj Sachdeva made efforts to search the vehicles inquestion. He went to Hapur. He made enquiries. He also met JessaSingh and talked to him. Jassa Singh told Mr. Sachdeva that

'KULDIPSingh the co-receiver had taken away the vehicles andhad disposed them of after probably changing the numberson their engines and chassis.'

Sachdeva was of opinion that both Jassa Singh and Kuldip Singhwere blaming each other and it was not possible for him to find outthe vehicles. He submitted his report staling all this on 22/11/1973.

(17) On 27/11/1973, Kuldip Singh appeared before V. D.Misra, J. He stated the buses in question were at Hapur and hewas ready to point out the buses to the receiver and the officials ofthe bank. Kuldip Singh expressed his willingness to go to Hapur on 3/12/1973, to point out the buses in question. V. D. Misra, J.directed the co-receivers to go to Hapur or such other place as ispointed out by Kuldip Singh in order to find out the buses.On 11/12/1973, Sachdeva reported that while they wereproceeding to Hapur their car met with an accident. In the accidentKuldip Singh was injured. Kuldip Singh was again directed to locate-the buses and take them in his possession as a receiver.

(18) On 25/02/1974, I directed defendants 3, 7, 8, 9 and12 to be present in person on 6/03/1974. On that date KuldipSingh appeared. He again appeared on 11/04/1974. On that dateI recorded the statement of Kuldip Singh. In his statement he saidthis:

'INthe winding up proceedings launched by Jassa Singh, JassaSingh made an application restraining the company fromtransferring the vehicles including the vehicles mortgagedwith the Central Bank. I made a reply in the companycourt and I said that vehicles Dlp 4069, Dlp 4128and Dlp 4265 which are mortgaged with the Central Bankmay be allowed to be sold by me so that payment maybe made to the Central Bank. It is not correct that Isought permission to sell all the five vehicles mortgagedwith the bank. I sought permission only in respect of thethree vehicles numbers of which I have indicated above.The other two vehicles were already with Jassa Singh and,therefore, I did not ask for permission to sell them. It iscorrect that I did not make the assertion in my reply thatthe remaining two vehicles were with Jassa Singh. I didsay in my reply that I was in actual possession of theabove three vehicles and was constructively in possessionof two vehicles which were actually with Jassa Singh. Thesewere Dlp 4383 and Dlp 4488.'

Then he said that Jassa Singh'took away the three vehicles from the company's office.'on the pretext that he would sell them in Meerut at much higherprices than what he (Kuldip Singh) had proposed. Kuldip Singh admitted that the statement made by him before Mr. H. S- Mac wascorrect.At the end of his statement Kuldip Singh said :

'Ideny the suggestion that the five disputed vehicles are withme or were sold by me. These five vehicles are with JassaSingh.'

Kuldip Singh had not stated before Mr. H. S. Mac that all thefive vehicles were with Jassa Singh. To this his reply was :

'SINCEthe receiver did not enquire from me as to whetherJassa. Singh had taken away the vehicles I did not stateso.'

(19) The statements of Sukhpal Ahluwalia, Narain Dass Khattarand Gurbux Singh were also recorded on 11/04/1974. Both Ahiuwalia and Narain Dass stated that Kuldip Singh was managing theaffairs of the company and that he had the possession of the buses.Narain Dass Khattar said :

'TOmy knowledge Jassa Singh did not take control of thebuses.'

In his affidavit dated 24/09/1973 Sukhpal Ahluwalia hadstated:

'THEentire fleet of vehicles, including the vehicles in disputehad always been in possession and under the control ofof Shri Kuldip Singh.'

(20) On 19/11/1974, Yogeshwar Dayal J. issued a showcause notice suo moto to Kuldip Singh, as I have said. On 20/12/1974, Kuldip Singh filed his reply. In defense he took anumber of objections. He denied that he had committed contemptor had in any manner disobeyed the orders of the court.

(21) Now the question is : Has Kuldip Singh committed contempt?Kuldip Singh's case is that he has not violated the orders of the courtand as such has incurred no liability.

(22) It will be recalled that on 9/10/1972, Kuldip Singh hadgiven the undertaking before T. P. S. Chawla, J. that the buses willnot be alienated. On the earlier date of hearing, 17/07/1972, defendants 1 and 2 had been 'restrained from transferring, disposing of orotherwise parting with the possession of the motor vehicles mentionedin the application.' It is in the backdrop of this order of B. C. MisraJ. that we have to see the value and worth of the undertaking givenby Kuldip Singh's counsel on 9/10/1972.

(23) The application for attachment before judgment came up beforeV. D. Misra J. on 4/05/1973, as we have seen. Counsel said thathe thought that his undertaking was sufficient to dispose of the application but if it was not so then he would file a reply. The reason forthis was that counsel for the bank was interested in the actual possessionof the vehicles. I accordingly on 17/05/1973, made an order appointing a receiver to take possession of the vehicles.

(24) This in brief is the course of the proceedings. Let me nowexamine the effect of the undertaking. Can a man set the authority oflaw at defiance That is the question.

(25) Kuldip Singh, it appears to me, has been shifting his standfrom time to time. It is an admitted case that on 9/10/1972, hiscounsel Mr. R. M. Gupta gave the undertaking at his instance. Thisex fade showed that Kuldip Singh had possession of the five buses.But when the court wanted to obtain possession of the vehicles andappointed H. S. Mac as the receiver, Kuldip Singh disclaimed allknowledge about the whereabouts of the buses. In his affidavit dated 24/09/1973 and in his examination on 17/10/1973 heset up this case. In para 4 of the affidavit he said :

'Ido not know the present whereabouts of the followingvehicles that are in dispute...............'

Then Kuldip Singh took another stand. Now he said that thesevehicles were in charge of Jassa Singh since after the death of AmritLal Dhingra, Jassa Singh had been put in charge of the transportsection of the company. Subsequently he again changed his position.Now his case was that out of the five vehicles three were with him andtwo were with Jassa Singh. Later on in his statements dated 17/10/1973 and 11/04/1974 his final stand was that all the fivebuses were in the possession of Jessa Singh.

(26) The affidavits of the directors and their statements recordedcourt clearly prove the following :

1.Kuldip Singh was in control of the buses of the company.2. That Kuldip Singh had possession of the buses.3. That at least three buses were with Kuldip Singh in his actualpossession at one time on his own admission.4. According to the statement of Kuldip Singh two buses werewith Jessa Singh.5. But Jassa Singh denies the possession of any bus and in thishe is supported by other directors.

(27) Kuldip Singh was given several opportunities both by JusticeV. D. Misra and myself to help the court in getting possession of thebuses. While his statement was being recorded on 17/10/1973by V. D. Misra J. Kuldip Singh showed his willingness to help thecourt in getting possession of the buses. V. D. Misra J. adjourned thehearing. Kuldip Singh was asked to assist' the court receiver Sachdevain getting possession of the vehicles. Similarly, when this case came upbefore me on 3/02/1977, February, 14, 1977 and March 3,[977 each time Kuldip Singh prayed for time to find out the where-abouts of the buses. I gave him as much as three months' time tofind out the buses. These opportunities were of no avail. Indulgenceshown bore no fruit. The court was faced with a difficult situation.The buses eluded its grasp. The solemm undertaking given to a courtwas proving an empty formality, devoid of all content. Ultimately Idecided to hear arguments on the show cause notice.

(28) From the affidavits and the statements of the directors it isclear beyond doubt that it is Kuldip Singh who has been in chargeand control of the business of the company and that he had the possession of buses. On his own showing he had actual possession of threebuses at one time and constructive possession of the remaining twowhich he said were with Jassa Singh on behalf of the company. Lateron he came out with the story that the three buses were being repairedwhen Jassa Singh took them away from the premises of the company.He does not deny that these three buses were with him. If three buseswere with Kuldip Singh, as he admits them to be at one time, he isresponsible to the court for their production. The court is not concernedwith Jassa Singh. The undertaking was given at the instance of KuldipSingh by his counsel. The undertaking means that the buses will notbe alienated. The bank had moved this court for attachment beforejudgment. The application was not pressed for immediate hearing inview of the undertaking given. On 4/05/1973 counsel insisted thatthat undertaking was not enough and that his application for attachmentshould be decided. Mr. Gupta then said that he would file the reply.Reply was actually filed on 9/05/1973.But the undertaking dated 9/10/1972 remains binding. Thecourt has accepted it. Kuldip Singh is bound to produce the buses interms of his undertaking.

(29) Counsel for Kuldip Singh has taken several points in defense.I will deal with them one by one.

THEfirst and foremost is the question of limitation. Counsel forKuldip Singh argued that the show cause notice issued by YogeshwarDayal J. on 19/11/1947 was barred by time as under s. 20 of the Contempt of Courts Act, 1971 (the Act) proceedings for contempt had to be initiated within one year 'from the date on whichthe contempt is alleged to have been committed.' Counsel argued thatin this case limitation began from the following dates :-(i) Either from 9/05/1973 when the reply was filed byKuldip Singh to the application for attachment beforejudgment under O. 38 r. 5, Civil Procedure Code ; or(ii) 30/08/1973, from the order of V. D. Misra J. whenthe learned judge was considering the report of the receiverMr. H. S. Mao; or(iii) 17/10/1973 when Kuldip Singh made his statementdenying the possession of the buses ; or(iv) from 24/09/1973 when Kuldip Singh made hisaffidavit denying that he had the possession of the buses.It is true that all these four dates take the show cause notice beyondthe period of one year. But the question is : When did limitation start ?What is the date on which contempt is alleged to have been committed ?

(30) The question of limitation can be viewed from three angles.Kuldip Singh is in contempt of court's order dated 9/10/1973.In the first place, it is a contempt under the Act. Under s. 2(b) Civilcontempt means

'willfulbreach of an undertaking given to a court'.

Section 20 will apply to it.Secondly, the breach of the undertaking can be said to be underthe provisions of O. 39, rule 2(3) of the Code of Civil Procedure..Instead of making an order for attachment the court granted an adinterim injunction on 17/07/1972. It was in terms of order thatthe undertaking was given. This is a case of disobedience and breachof the terms of the undertaking.Thirdly, under Article 215 of the Constitution this court being acourt of record has 'the power to punish for its contempt'. Neitherunder O. 39 of the Code nor under Article 215 of the Constitution hasany limitation been prescribed. The powers to punish under the Codeand the Constitution are in addition to and not in derogation of theprovisions of the Act (section 20).

(31) Even under s. 20 of the Act I am of the view that contemptproceedings are within time. Contempt was committed when V. D.Misra J. appointed P. R. Sachdeva as the co-receiver with KuldipSingh on 17/10/1973. This was done when Kuldip Singh showedhis willingness to act as a scout in the search of buses. He was willingto lend a helping hand to the court. The court accepted the preferredaid. But Kuldip Singh did not keep his word. On 22/11/1973Sachdeva made the report expressing his inability to find out thebuses. I think limitation begins from the date of this report i.e. 22/11/1973- I hold thereforee that the show cause notice is withintime : See Sudesh Kumar v. Jai Narain 1974 PLR23.

(32) Even today Kuldip Singh is in contempt as he continues to bein breach of the undertaking. willfully and contumaciously he has refused to hand over the vehicles. He refuses to abide by the undertaking.This is a case of breach of the undertaking.

(33) In the second place, counsel for Kuldip Singh argued thatthere is no breach of the undertaking at all. He submitted that hisclient's undertaking 'not to alienate the buses' means that Kuldip Singhwas not to transfer the proprietory rights of the buses and that thebuses will remain in the name of defendants 1 and 2. Counsel saidthat is so even now as there is no change in the registration of thebuses with the Transport Authority. I cannot accept this submission.The power to alienate means the power of disposition. Disposing powermeans actual possession. How else will a man have control, managementor administration of a thing. Possession is the kernel. The rest is husk.The power to alienate cannot be conceived apart from possession, atleast in movables like motor vehicles. Proprietory rights in the busesare of little help to us in this case. The court is concerned with theiractual possession since the claim in suit is on the basis of hypothecationof the buses with the bank. Seen in this light possession is all important.Possession is nine-tenths of law.

(34) Next it was argued that the show cause notice dated 19/11/1974, is illegal as it does not set out precisely the specific actscomplained of. Precise breaches of the order and specific acts mustbe stated before a party can be held in contempt, counsel argued. Hereferred me to Ramesh Chandra v. Lt. Governor Delhi 1977 Cr. L.J.4, Roshanlal Thakur v. Kishanlal Kapoor 1977 Cr. L.J. 9,Jayantilal Hiralal & Co. v. Waman Narayan Velinkar, Air 1932 Born.638 and Kilachand Devehand and Co. v. Ajodhyaprasad Sukhanand. Air 1934 Bom 452 in support of his submission. In myopinion, the notice sets out clearly the contempt Kuldip Singh is allegedto have committed. There is one act of contempt. It is the breach of theundertaking which he gave to the court on 9/10/1972. Thisorder is specifically referred to in the show cause notice. This orderhas to be read in the light of what preceded 17/07/1972 and whathappened subsequently on 4/05/1973. Those two other orders arealso mentioned in the show cause notice. Nothing more is required tobe stated in order to inform a contemner of the case he is to meet.

(35) Next it was argued that the undertaking dated 9/10/1972 was never accepted by the bank. My attention in this connectionwas invited to the orders dated 4/05/1973 and 17/05/1973. AsI read those two orders, it does not mean that the undertaking waswashed out or completely effaced from the record of the court. On 4/05/1973, opportunity to file a reply to the application for attachment before judgment was given. On 17/05/1973, I appointed thereceiver to take possession of the vehicle. The solid fact remains thatthe court accepted the undertaking. This is why no order of attachment before judgment was made immediately on the application.

(36) Lastly, it was submitted that Kuldip Singh cannot be said tobe in contempt as he is defendant No. 7 to the suit while the application under Order 38 rule 5 was made against defendants 1 and 2. do not agree. On behalf of, defendants 1 and 2 the undertaking wasgiven by Kuldip Singh. Defendant No. 1 is the company incorporatedunder the Companies Act (Current Transport and Finance PrivateLimited). Defendant N6. 2 (Current Transport Service) is owned bythe company, defendant No. 1. thereforee, on behalf of the company itwas Kuldip Singh who was appearing. In his statement on 17/10/1973 he had said :

'......Iwas the only person acting on behalf of the company.'

He instructed his counsel to give the undertaking on behalf ofdefendants 1 and 2. In his statement Kuldip Singh admitted that: as hehad substantial stake in the company he was defending the legal proceedings in this court as well as in the company court. If the undertakingwas given at his instance by the counsel he cannot escape his liability.In Halsbury's Laws of England it is said :

'THEbreach of an undertaking given to the court by a personor corporation, in pending proceedings, on the faith ofwhich the court sanctions a particular course of action orinaction has the same force as an injunction made by thecourt and a breach of the undertaking is misconductamounting to contempt.'

[4th (Hailsham) ed. Vol. 9 para 75].

(37) Disobedience of an undertaking is contempt. The power ofCourts of Record to punish contempt brevi manu and of inferior courtsto punish cases of contempt in facia curiae are parts of the same thing.The power in either case is necessary, so that justice may not be obstructed and the majesty of Law is not jeopardised by the disrespect andcontumacy of people.

(38) This court cannot allow itself to be trifled with. Litigants beforethis court ought to know that they will not be permitted to give anundertaking to this court and then break it with impunity. Both V. D.Misra J. and I formed the impression that the order of the court wasbeing intentionally and deliberately flouted. Both he and I gave ampletime to Kuldip Singh to fulfill his undertaking. But he has not cared toproduce even those three buses which admittedly were in his 'actualpossession'. The dichotomy of 'actual' and 'constructive' possessioninvented by him in the pleadings is a snare and a delusion. It is asubterfuge employed in an attempt to get away with the serious consequences of his own Act the court cannot allow the buses to be spirited away in this fashion.Buses are not ether. They are huge substantial things. If a contemnerthinks that he can spirit the buses out of the reach of the court thecontemner will be sternly dealt with.

(39) I am of opinion that not only Kuldip Singh has taken the matterlightly but has also exhibited a complete defiance and willful disobedienceto the orders of the court. He believes that the arm of the law is notlong enough to reach him. But is law powerless to defend itself againstonslaughts on its majesty

Iwould thereforee hold that Kuldip Singh is guilty of civil contemptand there is a contumacious and willful breach on his part of theundertaking given by him to this court on 9/10/1972.

(40) Now remains the question of punishment. S. 12 of the Act of1971 prescribes punishment for contempt. I am for awarding the severest punishment in a case like this. If it were the case of an individualassociated with a company I would have awarded the maximum sixmonths imprisonment and fine of rupees two thousand. But as defendant No. 1 is a company I would order that Kuldip Singh (defendantNo. 7) be detained in a civil prison for a period of six months. Thebank will pay the subsistence allowance. Kuldip Singh will be taken indetention forthwith.

If the company or Kuldip Singh have property the bank can applyfor its sequestration and attachment under O. 39 rule 2(3), of theCode.

(41) Contempt covers a multitude of sins. A breach of an undertakingis also a breach of the injunction order. The reason is that an undertaking amounts in substance to an injunction order. Malsbury says this.Indian decisions also take this view. In Gurumurthi v. Perumal : AIR1936Mad651 Varadacharia J. said :

'WHETHERwhat has happened in any particular case amountsto an injunction or not must be decided with referenceto the substance of the Court's order and not as a merematter of form. In the view that I am bound to upholdthe authority of the Court so far as is reasonable andwithin the limits permitted by law, I would hold that whena Court accepts an undertaking given by a party its orderamounts in substance to an injunction restraining him fromacting in breach thereof. The form only implies that thecourt is prepared to deal with him honourably in the expectation that he will treat his undertaking as equivalentto an order of Court. If does not seem to me to comewith any grace from the mouth of a person who has givensuch an undertaking to say that because the Court was goodenough to accept that undertaking and did not pass anorder of its own he is not in the position of a person boundby an order of the Court.'

(42) A breach of the undertaking is also punishable under sub-rule(3) of O. 39 rule 2, Code of Civil Procedure. The power to punishunder the Contempt of Courts Act is in addition to the Code. TheCode permits attachment of the property of a contemner if he is incontinued disobedience. I think this is a case of continued disobedience.Attachment of property can also be ordered. This is my conclusion.

(43) On an application moved by Kuldip Singh I have by a separateorder suspended the punishment as he intends to prefer an appealagainst my order.

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