Mohanan v. Salim M. Kabir (Contempt Case C No. 372 of 2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **& THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2014/2ND ASWINA, 1936** **Con.Case(C).No.372 of 2010 (S) ------------------------------------------** ## **WP(C)NO.26133/2009 OF THIS HONOURABLE COURT.** ## **PETITIONER/PETITIONER:** **-------------------------------------** **MOHANAN,SON OF VELAPPAN PILLAI,AGED 61 YEARS, SARASWATHY BHAVAN,MATHIRANKUZHY, KANJIRAMPARA,TRIVANDRUM.** **BY ADV. SRI.A.K.ALEX** ## **RESPONDENT/RESPONDENT NO.6:** **--------------------------------------------------** **SALIM M.KABIR, S/O.MUHAMMED KABIR, AGED 38 YEARS, GRANDTECH BUILDERS AND DEVELOPERS, KESAVADASPURAM,PATTOM,TRIVANDRUM.** **R1 BY ADVS.SRI.G.SUDHEER** **SRI.SABU S.KALLARAMOOLA** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 24-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **pk** ## **Con.Case(C).No.372 of 2010 (S)** ## **APPENDIX** ## **PETITIONERS ANNEXURES:** **ANNEXURE 1:CERTIFICATE COPY OF THE JUDGMENT DATED 26.11.2009 IN W.P.(C) NO.26133/2009 OF THIS HONOURABLE COURT.** **ANNEXURE 2:LAWYERS NOTICE DATED 24.2.2010 ISSUED BY THE RESPONDENT TO PETITIONER.** **ANNEXURE 3:REPLY NOTICE DATED 1.3.2010 SENT BY POETITIONER TO RESPONDENT.** **ANNEXURE 4:TELEGRAM SENT BY PETITIONER ON 27.2.2010 TO RESPONDENT.** **ANNEXURE 5:TELEGRAM SENT BY RESPONDENT TO PETITIONER ON 1.3.2010.** **RESPONDENTS ANNEXURES: NIL** **//TRUE COPY//** ## **P.S. TO JUDGE** **pk** Ashok Bhushan, Ag. C.J, A.M. Shaffique & ## A.K. Jayasankaran Nambiar JJ. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-= Contempt Case (C) No. 372 of 2010 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Dated this, the 24[th] day of September, 2014. ## J U D G M E N T ## Ashok Bhushan, Ag. C.J. This Full Bench has been constituted on a reference made by a Division Bench by its order dated 24[th] May, 2010 in Contempt Case (C) No. 372/2010. The brief facts giving rise to the contempt proceedings need be noted. 2. The applicant, who was the petitioner in W.P(C) No. 26133/2009, had filed the writ petition complaining police harassment. The Court hearing the writ petition, finding out an element of settlement, directed mediation of the dispute between the parties. The mediator, with the agreement of the parties, has come to a settlement and by judgment dated 26[th] November, 2009, the writ petition was disposed of in terms of the settlement. The following are the terms of settlement: “1. The 6[th] respondent Salim M. Kabir agrees to pay a sum of Rs. 25,00,000/- (Rupees Twenty five lakhs) to the petitioner by way of pay order or demand draft, on or before 28[th] February, 2010. The petitioner shall execute sale deeds in respect of the following two items of properties in the name of the 6[th] respondent or his nominee, on the same day and register the same on the next day. Contempt Case (C) No. 372 of 2010 -: 2 :- ## Items of properties. 1, 9 cents of property purchased as per sale deed No. 2809/2008 of S.R.O. Kanyakulangara. 2, 6 cents of property purchased as per sale deed No. 2452/2007 of S.R.O. Muttada, Trivandrum. 2. The parties agree to withdraw all the cases (both civil and criminal) filed against each other after the execution of sale deed and payment of Rs. 25 lakhs. Parties agree that there were no disputes pending against each other. 3. The parties further agreed that they will not raise any allegations or disputes against each other from today.” 3. The applicant filed contempt proceeding with the allegation that the respondent has violated the judgment of this Court wilfully and he having violated the judgment, be punished for contempt of court. The Division Bench of this Court hearing the contempt application also noted the review petition filed in the writ petition and the order dated 31[st] March, 2010 on the review petition. When the contempt case was taken up before the Division Bench, both the parties again made a statement that except some criminal cases registered against the respondent, other matters have been settled. Further, there was some dispute regarding the amount agreed upon. The Division Contempt Case (C) No. 372 of 2010 -: 3 :- Bench observed that there was abuse of process of court at every stage and all the issues are called upon to be settled by resorting to the contempt case. The court observed that disputed questions of fact which are otherwise required to be investigated upon by appropriate forum are called upon to be examined and settled invoking contempt proceedings. In the above background, the Division Bench made a reference to the Full Bench. It is relevant to note the last paragraph of the Division Bench order: “The above narration, in our view, clearly demonstrates a thorough abuse of the process of this Court at every stage and all these issues are called upon to be settled by resorting to the instant Contempt Case. In substance, the jurisdiction of this Court under Article 226 is sought to be manipulated by the parties herein and in many other similar cases for the settlement of disputed questions of fact which are otherwise required to be investigated and adjudicated upon by appropriate forum. The learned counsel for the petitioner, however, insists this Court to examine all these issues and settle all the disputes between the parties herein. It is a process which in our view, prima facie, is surely disruptive of the system. We are, therefore, of the opinion that the entire issues require examination by a Full Bench of this Court. Registry is therefore directed to place the matter before a Full Bench.” Contempt Case (C) No. 372 of 2010 -: 4 :- 4. The order, which was passed by the Division Bench dated 26[th] November, 2009, was an order passed on a writ petition in exercise of jurisdiction under Article 226 of the Constitution. It is well settled that even if the judgment and order passed by this Court under Article 226 of the Constitution is based on settlement, the disobedience of the said order can be made subject matter of the contempt. In this context, reference is made in the judgment of the Supreme Court in **Rama Narang v. Ramesh Narang and another** , (2006) 11 SCC 114. Paragraphs 23, 24 and 31 are to the following effect: **“23.** The question which was before the Court in Babu Ram Gupta case was limited to the issue whether the appellant had given any undertaking to the Court, either expressly or impliedly, which he had violated. In other words it was limited to the second category of cases mentioned under Section 2(b) of the Act. The Court was not called upon to decide whether there was any contumacious conduct as envisaged by the first category of cases under that section. The observations made in that regard, are strictly speaking, obiter. The Court was not called upon to consider nor did it construe the language of Section 2(b) of the Act. If we were to accept the observations of the Court as an enunciation of the law, it would run contrary to the express language of the statute. As we have earlier noted, the section itself provides that wilful violation of any order or decree, etc. would tantamount to contempt. A compromise decree is as much a decree Contempt Case (C) No. 372 of 2010 -: 5 :- as a decree passed on adjudication. It is not as has been wrongly held by the Calcutta High Court in Nisha Kanto Roy Chowdhury merely an agreement between the parties. In passing the decree by consent, the court adds its mandate to the consent. A consent decree is composed of both a command and a contract. The Bombay High Court’s view in Bajranglal Gangadhar Khemka correctly represents the law that a consent decree is a contract with the imprimatur of the court. “Imprimatur” means “authorised” or “approved”. In other words by passing a decree in terms of a consent order the court authorises and approves the course of action consented to. Moreover, the provisions of Order 23 Rule 3 of the Code of Civil Procedure require the court to pass a decree in accordance with the consent terms only when it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement. **24.** All decrees and orders are executable under the Code of Civil Procedure. Consent decrees or orders are of course also executable. But merely because an order or decree is executable, would not take away the court’s jurisdiction to deal with a matter under the Act provided the court is satisfied that the violation of the order or decree is such, that if proved, it would warrant punishment under Section 13 of the Act on the ground that the contempt substantially interferes or tends substantially to interfere with the due course of justice. The decisions relied upon by the respondents themselves hold so as we shall subsequently see. **31.** The decision in R.N. Dey v. Bhagyabati Pramanik also relied upon by the respondents, disposed of an appeal filed from an order directing the appellants to deposit certain amounts of money towards compensation money payable in respect of land acquisition proceedings. The directions were given while disposing of contempt proceedings initiated by the respondent after the Court had accepted the Contempt Case (C) No. 372 of 2010 -: 6 :- unqualified apology tendered by the appellants. The appellants urged that instead of filing a contempt application, the respondent should have proceeded with the execution of the decree or award made in the land acquisition proceedings. The Court said that: (SCC p. 404, para 7) “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.” Furthermore, it has also said that: (SCC p. 404, para 8) “The decree-holder, who does not take steps to execute the decree in accordance with the procedure prescribed by law, should not be encouraged to invoke contempt jurisdiction of the court for non-satisfaction of the money decree.” Having regard to the facts of the case the Court felt that the contempt proceedings should not have been resorted to and that in any case since the unconditional apology has been tendered and accepted by the appellant further proceedings should have been dropped.” The Apex Court, in **Rama Narang's case** (supra) has clearly laid down that merely because an order or decree is executable, would not take away the court's jurisdiction to deal with a matter under the Contempt of Courts Act, 1971, provided the Court is satisfied that Contempt Case (C) No. 372 of 2010 -: 7 :- violation of the order or decree is such that if proved, it would warrant punishment under the Contempt of Courts Act. As observed by the Apex Court, while proceeding under the Contempt of Courts Act, the Court has to be satisfied that violation of the order or decree is such that it amounts to contempt and punishment has to be awarded. We are, thus, of the opinion that the proceedings under the Contempt of Courts Act, 1971 can also be resorted for disobedience of an order passed by this Court under Article 226 of the Constitution on settlement. Courts have accepted the proposition laid down by the Apex Court in several cases, as referred in **Rama Narang's case** (supra). 5. Now, coming to the facts of the present case. It is clear that the settlement between the parties was, as quoted above, regarding payment of amount of Rs.25,00,000/- and execution of sale deed apart from parties agreement to withdraw the civil cases and criminal cases filed by each other. Learned counsel for the applicant submitted that the entire payment, as promised to be paid as per the agreement, has not been paid, which has been denied by the learned counsel for the respondent, who submitted that the entire payment Contempt Case (C) No. 372 of 2010 -: 8 :- has already been made. The Division Bench of this Court, while making in its reference order, has also noted the fact that before the Court, both parties have agreed that all the issues are settled between the parties except some criminal cases registered by the police against each of the parties and certain dispute demanding payment of part of the amount. The issues between the parties can be solved by taking evidence. 6. Having regard to the circumstances, we are of the view that this is not a fit case where this Court may proceed with proceedings for disobedience and thus we are of the view that the contempt proceedings are deserved to be dropped. 7. The learned counsel for the applicant expressed an apprehension that the order dated 26[th] November, 2009 does not mention that the decree has been passed in terms of the settlement. He submits that in view of the above, the judgment may not be capable of execution. 8. The writ petition has already been finally disposed of and we are considering reference in a contempt proceeding. It is open for the petitioner to take steps as permissible regarding execution of the Contempt Case (C) No. 372 of 2010 -: 9 :- order arrived at settlement as permissible under law. We need not say anything more in this contempt proceedings in that regard. The applicant is always at liberty to take steps as per law. In view of the above observation, we are not inclined to examine the issues and settlement of the parties in this contempt proceedings. Reference is answered accordingly. The contempt proceedings are dropped. Sd/- Ashok Bhushan, Ag. Chief Justice Sd/- A.M. Shaffique, Judge. Sd/- Jayasankaran Nambiar, Judge. Tds/