M/S BRANDS ACADEMY PVT LTD vs. RISHU MONGA & ORS

Full Judgment Text

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CONT.CAS(C) 451/2015 & CM APPL. 18312/2015

M/S BRANDS ACADEMY PVT LTD ..... Petitioner
Through: Mr. Bijender Singh, advocate with
Ms. Vidushi, Advocate.
versus

RISHU MONGA & ORS ..... Respondents
Through: Mr. Kirti Uppal, Senior Advocate with
Mr. Aman Bhalla and Ms. Wamika
Trehan, Advocates for respondents No.1
and 2
Mr. Dayan Krishnan, Senior Advocate
with Ms. Aakashi Lodha and Ms. Richa
Narain, Advocates for respondents No.3
to 6.
And

+ CONT.CAS(C) 522/2015 & CM APPL. 11818/2015

RISHU MONGA & ANR ..... Petitioners
Through: Mr. Kirti Uppal, Senior Advocate with
Mr. Aman Bhalla and Ms. Wamika
Trehan, Advocates.
versus

SANJAY KUMAR & ORS ..... Respondents
Through: Mr. Bijender Singh, advocate with
Ms. Vidushi, Advocate.

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% Date of Decision : 11 December, 2015

CORAM:
HON’BLE MR. JUSTICE MANMOHAN
CONT.CAS(C) 451/2015 & CONT.CAS(C) 522/2015 Page 1 of 14

J U D G M E N T
MANMOHAN, J: (Oral)
1. Cross contempt petitions have been filed alleging wilful disobedience
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of order dated 09 January, 2015 whereby the CS(OS) 7/2015 was disposed
of in terms of an oral agreement recorded in Court.
2. While Mr. Bijender Singh, learned counsel alleges that Mr. Rishu
Monga and his brother Mr. Amol Monga have breached their undertakings
of not using the database of M/s. Brands Academy Pvt. Ltd. and of not
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involving themselves in the 10 January, 2015 event; Mr. Kirti Uppal,
learned senior counsel for Mr. Rishu Monga states that accounts have not
been de-frozen by Mr. Sanjay Kumar of M/s. Brands Academy Pvt. Ltd. in
accordance with the aforesaid order.
3. On the last date of hearing, this Court had raised an issue about the
maintainability of the present contempt petitions on the ground that as
mutual obligations had to be performed by both the parties and each of the
parties in the present proceedings was alleging breach on the part of the
other party, which could constitute a valid defence for the contemnor not to
discharge their undertaking, would it not be appropriate if the parties were
directed to file execution proceedings against each other.
4. However, today, Mr. Bijender Singh, learned counsel for Mr. Sanjay
Kumar and M/s. Brands Academy Pvt. Ltd. states that his contempt petition
is maintainable as the cause of action for filing it is breach of an undertaking
given by Mr. Rishu Monga and Mr. Amol Monga to a Court. He submits
that just because an execution proceeding is also maintainable, this Court
cannot dismiss the contempt petitions on the ground of alternate remedy
CONT.CAS(C) 451/2015 & CONT.CAS(C) 522/2015 Page 2 of 14

being available to him. He contends that as his database has been misused,
his clients cannot get any relief in execution proceedings. In support of his
submissions, he relies upon a judgment of the Supreme Court in Rama
Narang vs. Ramesh Narang & Anr., (2006) 11 SCC 114 wherein it has
been held as under:-

“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 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.

CONT.CAS(C) 451/2015 & CONT.CAS(C) 522/2015 Page 3 of 14

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.”

of the Apex Court in The Board of Trustees of the Port of Mumbai vs.
Nikhil N. Gupta & Anr., 2015 (9) Scale 334 wherein it has been held that
breach of solemn undertaking given in a Court is a serious matter which has
to be sternly dealt with.
6. On the other hand, Mr. Kirti Uppal, learned senior counsel submits
that in the present case the undertaking had been given by the parties to each
other and not to the Court. He also contends that as the undertakings given
by the parties were neither accepted by the Court nor the parties had been
held bound by the same, the contempt petition filed by M/s Brands Academy
Pvt. Ltd. is not maintainable. In support of his submission, he relies upon a
judgment of this Court in Hindustan Motors Ltd. vs. Amritpal Singh Nayar
& Anr., 100 (2002) DLT 278 , wherein it has been held as under:-
“8. There exists a distinction between an undertaking given to
a party to the lis and an undertaking given to a Court.
9. An undertaking given to a Court attracts the provisions of the
Contempt of Courts Act, whereas an undertaking given to a
CONT.CAS(C) 451/2015 & CONT.CAS(C) 522/2015 Page 4 of 14

party to the lis by way of an agreement of settlement or
otherwise would not attract the provisions of the said Act.

7. Mr. Uppal states that there was breach of the consensual order dated
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09 January, 2015 by Mr. Sanjay Kumar and M/s. Brands Academy Pvt.
Ltd. as they had terminated the services of the old employees of the
company and had not released the dues of the vendors for the past events.
He also contends that in breach of their undertakings, Mr. Sanjay Kumar and
M/s. Brands Academy Pvt. Ltd. had neither shared the domain name with
his clients nor de-frozen the bank accounts of the company in the manner
agreed.
8. Mr. Uppal points out that subsequent to disposal of CS(OS) 7/2015,
Mr. Amol Monga had filed civil suit being CS(OS) 2204/2015 and the same
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Bench on 07 September, 2015 which had disposed of CS(OS) 7/2015
restrained M/s. Brands Academy Pvt. Ltd. from putting any impediment in
the event under the name and style of Brands Impact. He points out that
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even on 04 November, 2015, the same Bench which passed the earlier
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orders dated 09 January, 2015 and 07 September, 2015 extended the
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protection to Mr. Amol Monga till 26 February, 2016.
9. In the opinion of this Court, definition of civil contempt under Section
2(b) of the Contempt of Courts Act, 1971 includes breach of an undertaking
given to a Court. The expression ‘undertaking’ has extensively been dealt
with by the Supreme Court in second Rama Narang vs. Ramesh Narang &
Anr., (2009) 16 SCC 126 wherein it has been held as under:-

“35.Black's Law Dictionary, 5th Edn. defines “undertaking” in
the following words:

CONT.CAS(C) 451/2015 & CONT.CAS(C) 522/2015 Page 5 of 14

36.Osborn's Concise Law Dictionary, 10th Edn. defines
“undertaking” in the following words:

	“A promise, especially a promise in the course of legal
	proceedings by a party or his counsel, which may be
	enforced by attachment or otherwise in the same manner
	as an injunction.”

37. In M. v. Home Office, All ER at p. 132g, the expression
“undertaking” has been dealt with in the following manner:

	“[I]f a party, or solicitors or counsel on his behalf, so act
	as to convey to the court the firm conviction that an
	undertaking is being given, that party will be bound and it
	will be no answer that he did not think that he was giving it
	or that he was misunderstood.”

38. Hudson, In re, the English court observed as under: (All ER
pp. 112 I-113 A)
	“An undertaking to the court confers no personal right or
	remedy on any other party. The only sanctions for breach
	are imprisonment for contempt, sequestration or a fine.”

39. Similarly, in Shoreham-by-Sea Urban District
Council v. Dolphin Canadian Proteins Ltd. the Court observed
as under:
	“Failure to comply with an undertaking to abate a
	nuisance may be visited with a substantial fine.”

CONT.CAS(C) 451/2015 & CONT.CAS(C) 522/2015 Page 6 of 14

40. The Division Bench of the Bombay High Court
in Bajranglal Gangadhar Khemka v. Kapurchand Ltd. had an
occasion to deal with similar facts. Chagla, C.J., speaking for
the Court, observed as under: (AIR p. 337, para 4)

	“4. We are not prepared to accept a position which seems
	to us contrary to the long practice that has been
	established in this Court, and, apparently, also in England.
	There is no reason why even in a consent decree a party
	may not give an undertaking to the court. Although the
	court may be bound to record a compromise, still, when
	the court passes a decree, it puts its imprimatur upon those
	terms and makes the terms a rule of the court; and it would
	be open to the court, before it did so, to accept an
	undertaking given by a party to the court. Therefore, there
	is nothing contrary to any provision of the law whereby an
	undertaking cannot be given by a party to the court in the
	consent decree, which undertaking can be enforced by
	proper committal proceedings.”

41. In Noorali Babul Thanewala v. K.M.M. Shetty, a tenant
committed breach of undertaking given by him to the Supreme
Court to deliver vacant possession of certain premises. The
Supreme Court held the tenant guilty of contempt. Hon'ble V.
Ramaswami, J., delivering the judgment observed: (SCC pp.
265-66, para 11)
	“11. 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

CONT.CAS(C) 451/2015 & CONT.CAS(C) 522/2015 Page 7 of 14

42. In Mohd. Aslam v. Union of India this Court dealt with the
contempt proceedings raising the issues as to the amenability of
the State and of its Ministers for failure of obedience to the
judicial pronouncements. In this case, the Chief Minister of
Uttar Pradesh had made a statement before the National
Integration Council that the Government of Uttar Pradesh will
hold itself fully responsible for the protection of the Ram Janma
Bhumi-Babri Masjid structures. Upon this statement of the
Chief Minister, this Court had passed an order. However, in the
contempt proceedings it was alleged that the orders passed on
the basis of the statements made have been deliberately and
wilfully flouted and disobeyed by the State of Uttar Pradesh.
While dealing with the expression “undertaking”, this Court
observed as under: (SCC p. 453, para 22)
	“The Chief Minister having given a solemn assurance to
	the National Integration Council and permitted the terms
	of that assurance to be incorporated as his own
	undertaking to this Court and allowed an order to be
	passed in those terms cannot absolve himself of the
	responsibility unless he placed before the Court sufficient
	material which would justify that he had taken all
	reasonable steps and precautions to prevent the
	occurrence.”

CONT.CAS(C) 451/2015 & CONT.CAS(C) 522/2015 Page 8 of 14

guilty of committing contempt of court. The Court observed as
under: (SCC p. 20, para 12)
	“12. Law is well settled that if any party gives an
	undertaking to the court to vacate the premises from which
	he is liable to be evicted under the orders of the court and
	there is a clear and deliberate breach thereof it amounts to
	civil contempt but since, in the present case, the
	respondent did not file any undertaking as envisaged in the
	order of this Court the question of his being punished for
	breach thereof does not arise. However, in our considered
	view even in a case where no such undertaking is given, a
	party to a litigation may be held liable for such contempt if
	the court is induced to sanction a particular course of
	action or inaction on the basis of the representation of
	such a party and the court ultimately finds that the party
	never intended to act on such representation or such
	representation was false.”

45. This Court again had occasion to deal with a case in Bank
of Baroda v.Sadruddin Hasan Daya. In that case, the Court
clearly observed as under: (SCC p. 361g)
	“The wilful breach of an undertaking given to a court
	amounts to „civil contempt‟ within the meaning of Section
	2(b) of the Contempt of Courts Act. The respondents
	having committed breach of the undertaking given to the
	Supreme Court in the consent terms they are clearly liable
	for having committed contempt of court.”

CONT.CAS(C) 451/2015 & CONT.CAS(C) 522/2015 Page 9 of 14

46. The respondents placed reliance on Babu Ram
Gupta v. Sudhir Bhasin. In this case admittedly no application,
affidavit or any undertaking were given by the appellant.
Therefore, this case is of no assistance to the respondents. In
this case, the Court observed that: (SCC p. 53, para 10)
	“[E]ven the consent order does not incorporate expressly
	or clearly that any such undertaking had been given either
	by the appellant or by his lawyer before the court that he
	would hand over possession of the property to the receiver.
	In the absence of any express undertaking given by the
	appellant or any undertaking incorporated in the order
	impugned, it will be difficult to hold that the appellant
	wilfully disobeyed or committed breach of such an
	undertaking.”
The Court even in this case observed that: (SCC p. 53, para 10)
	“In fact, the reason why a breach of clear undertaking
	given to the court amounts to contempt of court is that the
	contemnor by making a false representation to the court
	obtains a benefit for himself and if he fails to honour the
	undertaking, he plays a serious fraud on the court itself
	and thereby obstructs the course of justice and brings into
	disrepute the judicial institution.”
(emphasis in original)

47. The critical analysis of the decided cases of this Court
clearly leads to the conclusion that wilful breach of an
undertaking given to the court amounts to contempt of court
under Section 2(b) of the Act.

48. The orders of this Court dated 12-12-2001 and 8-1-2002
are based on undertaking given by the petitioner and the
respondents to this Court. Apart from several other conditions it
is explicitly incorporated in the undertaking given to this Court
that the petitioner and the respondents shall jointly operate the
bank accounts (if the amount of any transaction exceeded Rs 10
lakhs) in order to ensure that both the petitioner and the
respondents have the joint control on the affairs of the

CONT.CAS(C) 451/2015 & CONT.CAS(C) 522/2015 Page 10 of 14

Company. In the undertaking given by the petitioner and the
respondents, it is clearly mentioned that if the amount of any
transaction exceeds Rs 10 lakhs the same shall be undertaken
through a cheque signed jointly by Rama Narang and
Ramesh/Rajesh Narang.

10. Consequently, breach of undertaking given to a Court certainly gives
rise to a cause of action to file a contempt petition.
11. However, in the present case, the undertakings given by both the
parties are either reciprocal or concurrent in nature. If one of the parties did
not comply with his undertaking, it would give a defence to the other party
to avoid performing its undertaking/obligation.
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12. Moreover, as subsequent to the order dated 09 January, 2015, a
number of new proceedings have been filed against each other and
injunction/restraint orders have been passed on the original side and by the
Company Law Board, this Court is of the view that either of the parties
would be well justified in taking the defence that there was a
misapprehension as to the scope of the order or there was an unintentional
wrong for the reason that the order was ambiguous and reasonably capable
of more than one interpretation or the party never intended to disobey the
order but conducted himself in accordance with the interpretation of the
order. [See : Sahdeo alias Sahdeo Singh vs. State of Uttar Pradesh & Ors.,
(2010) 3 SCC 705 ].

13. Though this Court in contempt proceedings could have asked the
parties to go through elaborate trial, but as different proceedings are pending
between the parties, this Court is of the view that it would be appropriate if
they are relegated to execution proceedings.
CONT.CAS(C) 451/2015 & CONT.CAS(C) 522/2015 Page 11 of 14

14. This Court is also of the opinion that in the present case execution
proceedings are an alternate efficacious remedy as even Mr. Sanjay Kumar
and M/s. Brands Academy Pvt. Ltd. can seek the relief of compensation/
damages on account of alleged misuse of data base.
15. In fact, a Coordinate Bench of this Court in Jamna Datwani vs.
Kishin Datwani & Ors., Cont.Cas.(C) 652/2014 has held as under:-

“5. It was pointed out to the learned counsel for the petitioner
that the respondent is stated to have paid a sum of
Rs.3,60,000/- out of a sum of Rs.5 lacs and for realization of the
balance amount, the petitioner is free to go to the civil court by
invoking the provisions of Order 39 Rule 2A CPC or to seek
execution of the order passed by the court for recovery of
money. However, the learned counsel, instead of accepting the
said course had contended that this is a case of gross contempt
on the part of the respondent inasmuch as the directions of the
court have not been complied. For this purpose, the learned
counsel for the petitioner has relied on Lopaben Patel vs.
Hitendra Rambhai Patel; 2000 Cri. LJ 2709, Shankerpuri
Chanpuri Goswami vs. Abdulhakim Asmadmahamad; (1985)
ILLJ 281 Guj., Mira Bose vs. Santosh Kumar Bose; AIR 1973
Calcutta 483 (V 60 C 111), Jyotirmoyee Debi vs. Assistant
Settlement Officer and Others; AIR 1973 Calcutta 486 (V 60 C
112) and Sarladevi Bharatkumar Rungta vs. Bharatkumar
Shivprasad Rungta & Anr.; 1988 Cri. L.J. 558.

6. I have carefully considered the submissions made by the
learned counsel for the petitioner and have also gone through
the judgments cited. The questions which arise for
consideration, in the instant case, are firstly, whether a case for
initiation of contempt proceedings against respondent No.1 is
made out and secondly, even if it is prima facie made out,
whether the petitioner has an alternate efficacious remedy
available to her in getting the order implemented, then she
must, in the first instance, resort to the same. Moreover, the
grievance of the petitioner is essentially for recovery of monies
CONT.CAS(C) 451/2015 & CONT.CAS(C) 522/2015 Page 12 of 14

which can be resorted to by filing an execution under Order 21
CPC in the court where the suit is pending adjudication.
Reliance in this regard can be placed on the judgment of the
Apex Court in Kanwar Singh Saini vs. High Court of Delhi;
(2012) 4 SCC 307.

xxxx xxxx xxxx xxxx

8. The provisions of Order 39 Rule 2A CPC not only deal with
a situation where an injunction order has been passed by the
civil court but it also deals and contemplates to deal with a
situation where an order passed by the court, of which there is
alleged to be willful disobedience, can be dealt with.

9. The only difference between the provisions under Order 39
Rule 2A CPC and the power of the court to punish for contempt
under Sections 10, 11 and 12 of the Contempt of Courts Act,
1971, is the quantum of incarceration which a person can be
sentenced to. Under the Contempt of Courts Act, 1971, a person
can be sentenced for a period of six months, while under the
provisions of Order 39 Rule 2A CPC, he can be sentenced to
only three months apart from the fine component under both the
provisions. Therefore, one of the remedies which is already
available to the petitioner is under Order 39 Rule 2A CPC. She
can also seek execution of the order for recovery of monies
from respondent No.1 by getting his share in the property in
Friends Colony attached or getting his other properties
attached and getting recovery effected. Therefore, there is
ample mechanism prescribed under the CPC for the purpose of
implementation of an order.

10. The contempt power under the Contempt of Courts Act is
not only discretionary but is also to be used sparingly. A trend
which has been noticed by this court is that parties invariably
try to invoke the provisions of the Contempt of Courts Act in
order to get orders implemented while there is machinery
provided under the CPC for the purpose of getting orders,
decrees or directions executed.”

CONT.CAS(C) 451/2015 & CONT.CAS(C) 522/2015 Page 13 of 14

16. This Court may also mention that in Cont.Cas(C) 451/2015 filed by
Ms. Brands Academy Pvt. Ltd. and Mr. Sanjay Kumar, the Managing
Director and Chief Executive Officer as well as Regional Head and other
senior officials of ICICI Bank have been impleaded as respondents, even
though they had not given any undertaking or commitment before any Court
in any proceeding. This Court has no doubt that by impleading the senior
management of ICICI Bank Ltd., M/s. Brands Academy Pvt. Ltd. has
endeavoured to coerce the senior management to follow its instruction with
regard to operation of bank account.
17. Consequently, both the contempt petitions are dismissed. However, if
either of the petitioners have any grievance with regard to non-compliance
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of order dated 09 January, 2015, they are at liberty to file execution
proceedings.

MANMOHAN, J
DECEMBER 11, 2015
js
CONT.CAS(C) 451/2015 & CONT.CAS(C) 522/2015 Page 14 of 14