Dr Hans Raj & Anr. v. Anand Kamal Goel

7.4. Subsequently, with a view to arrive at a settlement, the parties entered into the MoU, whereby, the Respondent agreed to pay a total sum of Rs. 2,66,85,028 along with interest at the rate of Rs. 12% per annum till 29.02.2020 to the complainant in both the cases collectively.

7.5. The breakup of this amount was (i) Rs. 1,97,62,499, i.e., the value of the stocks and; (ii) profits to the tune of Rs. 69,22,529, which had accrued till 17.07.2019 on the said stocks. In addition, the interest at 12% was also payable.

7.6. The Respondent agreed to pay a sum of Rs. 25,00,000/- (first installment), within a week from the date of the MoU and to continue to pay the remaining sum in instalments till 29.02.2020.

7.7. It was further agreed that, if the Respondent defaults in payment of the entire amount with interest by 29.02.2020, he will be liable to pay Rs. 30,00,000 over and above the aforesaid amounts.

7.8. The parties agreed that if the Respondent fails to pay the amount as mentioned in paragraphs 5.[4] and 5.5, the Petitioners would be free to take legal recourse available to them.

7.9. The Respondent also agreed that, if he defaults to pay the amount of Rs. 3 crores to the Petitioners by 31.03.2020, then the Petitioners herein would be free to sell the property No. B-7/111A, Extension Safdarjung Enclave, New Delhi, belonging to the Respondent, in any manner, without informing the Respondent about the same. The relevant portion of the MoU reads as under: “NOW THIS MOU WITNESSETH AS UNDER:

1. That the First Party has agreed to pay a total sum of Rs. 1,97,62,499, i.e., value of stocks along with profits to the tune of Rs. 69,22,529/- which has accrued till 17.07.2019 on the above stocks. He has further agreed to pay interest on the above amount @12% per annum till 29.02.2020. He has agreed to pay this amount latest by 29.02.2020. He has further agreed that he will pay a sum of Rs. 25,00,000/- within a week from the date of this MOU and would continue to pay the remaining sum in installments till 29.02.2020.

2. That the First Party has further agreed that in case he is unable to clear the entire balance by 29.02.2020 then he would be liable to pay Rs. 30,00,000/- over and above the amount mentioned in para 1 of the present MOU.

3. That the First Party has further agreed that if the total amount plus a sum of Rs. 30,00,000/- is not cleared by the First Party till 31.03.2020 then the Second Party and his family members would be free to take legal recourse available to them.

4. That the First Party has further assured that he owns Property No. B- 7/111A, Extension Safdarjung Enclave, New Delhi AND Flat No. 1552, AWHO, Sector 37, Noida, Gautam Budh Nagar (U.P) and Plot bearing NO. 984, Sector 7, Sonepat, Haryana admeasuring 185 SQ. Yards. The First Party today has handed over the original title document of the NOIDA Flat to the Second Party, the receipt of which the Second Party do hereby acknowledges. If the First Party fails to pay the total amount of Rs. 3 Crores to the Second Party and his family members by 31.03.2020 then the Second Party and his family members would be free to sell this Noida Flat or to deal with the same in any manner they like without informing the First Party about the same. He has further assured the Second Party that in case he is unable to pay the money of the Second Party, he will hand over the possession and title documents of Sonepat Property also to the second party and his family members and they would be free to sell the same to anyone they like.” (Emphasis supplied)

7.10. On 18.09.2019, the Respondent paid a total sum of Rs. 20 lakhs in favour of the Petitioners.

7.11. On 30.10.2019, the Respondent paid a sum of Rs. 14 lakhs by way of demand draft to the Petitioners and also undertook to pay a remaining sum without any fail. The order dated 30.10.2019 passed by the Trial Court reads as under: “I am accused in the present cases bearing number 27671/2019 & 27736/2019 filed by the complainant against me u/s 138 of NI Act. I have amicably settled all the claims of complainant against me, arising out of the cheque in question, I had agreed to pay full and final settlement amount of Rs. 2,66,85,028/- alongwith interest at the rate of 12% per annum to the complainant in both the cases collectively. I hereby undertake that I will make the whole payment of aforesaid settlement amount till 29.02.2020 without any fail. All the terms and conditions of the settlement has been recorded between the parties in an MOU which is Ex. X[1]. Till today, I had paid a sum of Rs. 34 lakhs to the complainant. I understand that only on the basis of aforesaid undertaking and MOU and in case of any breach of the said undertaking, proceedings for recovery of the amount may be initiated against me as per the provision of Section 421 read with Section 431 Cr.P.C. and I may also be held liable for contempt of this Court. Besides the complainant shall be at liberty to avail appropriate legal remedy for recovery of the aforesaid amount as may be available to him under the applicable law, I shall remain bound by our aforesaid statement.”

7.12. The said MoU was filed before the Trial Court. The Respondent recorded his statement undertaking to make the payment of the entire settlement amount by 29.02.2020 without any default. In the said statement, the Respondent admitted his liability to pay a full and final settlement of Rs. 2,66,85,028 along with interest at the rate of Rs. 12% per annum to the complainant in both the cases collectively. In the said statement, the Respondent also acknowledged that a default in the payment would make him liable for contempt of court.

7.13. The Trial Court vide order dated 30.10.2019, accepted the undertaking of the Respondent.

7.14. Thereafter, on 16.01.2020, the Respondent further paid a sum of Rs. 8 lakhs to the Petitioners. Undertakings given in this contempt petition

8. It was averred in the contempt petition that till the filing of the petition; the Respondent has paid only a sum of Rs. 42 lakhs out of total dues of Rs. 2,82,84,782.14.

8.1. Notice in the contempt petition was issued on 04.03.2020. The Respondent has filed reply dated 17.10.2020, tendering ‘unconditional apology’ for being unable to honor the undertaking dated 30.10.2019 given to the Trial Court. It was also stated in this reply that on 15.10.2020, the Respondent has again undertaken before the Trial Court to pay the Petitioner a sum of Rs. 35,00,000 by 04.12.2020 and Rs. 20,00,000 by the 20th of every month and the balance will be paid by 31.03.2021.

8.2. The aforesaid undertaking was accepted by this Court vide order dated 21.01.2021 (1st undertaking to this Court), the relevant portion whereof

3. The learned counsel for the respondent submits that the said undertaking shall be duly complied with by the respondent. The said undertaking is accepted.

4. List for compliance on 28.04.2021.”

8.3. However, the Respondent failed to make any payment in furtherance of the undertaking recorded on 21.01.2021.

8.4. In these circumstances, by order dated 13.07.2021, this Court has taken adverse note of the conduct of the Respondent in not even tendering a partial compliance in making the payments; and thereby held the Respondent guilty of contempt of Court. The relevant portion of the order dated 13.07.2021 reads as under: “3. The learned counsel for the petitioner submits that the respondent has defaulted in making the payment for the last 6 months, without any explanation. The counsel for respondent says that the respondent was going through some therapy for depression. However, there is not even partial compliance. Neither an affidavit, nor an application has been moved for extension of time. Clearly, the respondent is in deliberate contempt of this Court’s order. He is guilty of contempt of court.

4. List on 16.07.2021 for sentencing.

5. The respondent shall remain present in the Court on the next date.”

8.5. Thereafter, Respondent filed CM APPL. 20910/2021 dated 14.07.2021 seeking extension of time by a period of three (03) months for making payments to the Petitioners. This Court relying upon the submissions of the Respondent on 16.07.2021 deferred the sentencing.

8.6. However, the Respondent defaulted and did not comply with the undertaking given to this Court.

8.7. By the order dated 05.10.2021, this Court noted that the Respondent is making ‘excuses’ for not complying with the directions passed by this Court and imposed costs of Rs. 10,000 upon the Respondent. The relevant portion of the order dated 05.10.2021 reads as under: “1. By order dated 13.07.2021, the respondent was found guilty of having committed contempt of court. On 16.07.2021, the case was listed for orders on sentencing, whereby, the respondent had appeared with his counsel. The latter sought time to obtain instructions and make payments to the petitioners. xxx xxx xxx

3. The aforesaid order has not been complied with. The learned counsel for the respondent submits that some documents have been filed as of yesterday and he will pursue with the Registry to have the same brought on record.

4. The court would notice that this is yet another excuse from the respondent for not complying with the court’s directions.

5. At request of the learned counsel for the respondent, renotify on 15.11.2021.

6. Let copy of the documents filed by the respondent be supplied to the learned counsel for the petitioner. Costs of Rs.10,000/- is imposed upon the respondent which shall be paid to the petitioners within two weeks.”

8.8. Thereafter by a detailed order dated 20.12.2021, this Court recorded the conduct of the Respondent in not complying with the orders of the Court, even after being provided with sufficient opportunities to pay the Petitioners and mitigate the difficult circumstances. This Court specifically observed that the order on sentencing was deferred so as to bring about some rapprochement and some action from the Respondent to pay the outstanding dues to the Petitioners, as undertaken before this Court. Even on the said date (20.12.2021), this Court granted one last and final opportunity to the Respondent to make the payments to the Petitioners. The relevant portion of the order dated 20.12.2021 is reproduced herein under: “2. It is evident from the aforesaid orders that despite the court holding the respondent guilty of contempt of court, it provided the respondent with sufficient opportunity to pay the petitioners and mitigate their difficult circumstances.

3. The case has been adjourned on four occasions post holding the respondent guilty. The order on sentencing was deferred, so as to bring about some rapprochement and some movement from the respondent to pay the monies. Albeit costs of Rs.10,000/- have been paid, the monies owed to the petitioner are still due. The respondent, who is present in court, continues to state that he does not have the monies to pay the outstanding amount.

4. The learned counsel for the petitioners submits that the respondent has a history of conviction for fraud and has undergone a jail term for eight months. She refers to an order of the learned Session Judge dated 02.12.2015, in Criminal Appeal No. 24/1/15 dated 28.09.2015, FIR NO. 650/1997, P.S. Sarojini Nagar, New Delhi, under section 420/471 IPC. She states that in the said case, one Smt. Usha Suri had given shares held by her in companies, for management by the respondent, but she was dishonestly cheated and wrongful loss was caused to her, resultantly, said court held the respondent guilty for committing fraud.

5. The petitioners are medical practitioners who invested monies with the respondent, are interested in getting their money back. The respondent has not paid the said monies despite his undertaking to the court. The monies are due since 2018. xxx xxx xxx

10. As recorded in the previous orders and as quoted hereinabove, the respondent sought time before the learned Trial Court on 30.10.2019 and undertook to pay all due monies by 29.02.2020, in terms of Memorandum of Understanding dated 07.09.2019. Having failed to do so, he filed an unconditional apology in the instant petition and gave another undertaking before this court to make payments to the petitioner. The said undertaking was accepted by this court on 20.01.2021. Eleven months have gone by; the respondent has not paid any monies due to the petitioner. The case was passed over for the learned counsel for the respondent to find some solutions. Despite the court repeatedly putting to the learned counsel for the respondent as to whether any solution could be found in the matter, his answer is in the negative. It is thus clear from the respondent’s conduct that he had no intentions of complying with orders of the court. His undertaking given to the court was a false promise to mislead the petitioners and an act of fraud played upon the court. The respondent’s conduct, as recorded hereinabove, constitutes as wilful disobedience.

11. In view of the above, the respondent is guilty of contempt of court under section 2(b) read with section 10 and 12 of the Contempt of Courts Act,

1971. Nevertheless, the court provides one last opportunity to the respondent to mitigate his circumstances by making the payments before the next date, failing which, the respondent shall be present in court on the next date for orders on sentencing. No further opportunity shall be granted.”

8.9. On 24.02.2022, the Respondent issued demand draft for an amount of Rs. 70 lakhs to the Petitioners. It was submitted by the learned counsel for the Respondent that a further payment of Rs. 37 lakhs will be made by the Respondent within a week from 24.02.2022. He also undertook not to encumber and/or dispose of any property in which he may have an absolute or partial share or interest. In view of the assurances made and undertaking given before this Court, the orders on sentencing were deferred. The relevant portion of the order dated 24.02.2022, reads as under: “3. The learned counsel for the petitioner submits that after due adjustments, the total amount now due is Rs.2.89 crores, inclusive of all interest as of date. After setting off today’s payment of Rs.70 lacs and the promised payment of Rs.37 lacs, the total amount due will be Rs.1.82 crores.

4. The learned counsel for the respondent seeks time to obtain instructions in this regard.

5. The respondent undertakes not to encumber and/or dispose off any property in which he may have an absolute or partial share or interest.

6. In view of the above, the orders on sentencing are deferred.

7. List on 26.05.2022.

8. In the interim, the respondent would endeavour to make further payments.”

8.10. The matter was listed before the Court on 26.05.2022; however, the Respondent sought an adjournment to prepare an agreed schedule for the payment of the balance amount of Rs. 1.89 crores.

8.11. Thereafter, in compliance with the order dated 26.05.2022, an affidavit dated 30.05.2022 was filed by the Respondent providing a schedule of date of instalment by which payments of the outstanding amount of Rs.1.89 crores will be made to the Petitioners. The same was duly taken note in the order dated 02.06.2022 (2nd undertaking given to this Court), which

8.12. The Court accepted the said affidavit of undertaking filed by the Respondent and listed the matter for compliance.

8.13. On 08.08.2022, the learned counsel for the Petitioner submitted that the Respondent has not made any payments in terms of the order dated 02.06.2022. In fact, the Respondent defaulted on making the payment of the first instalment (dated 31.07.2022) itself and therefore, the Petitioner moved an application before this Court seeking advancement of hearing.

8.14. Thereafter, vide order dated 31.08.2022, the Respondent sought further time to make pending payments. In this manner the Respondent, yet again, undertook (3rd undertaking was given to this Court) to make payments of the outstanding amount to the Petitioners before 12.10.2022.

8.15. However, no payment was made in furtherance of 3rd undertaking as well.

8.16. Thereafter, on 17.11.2022, this Court gave one final opportunity to the Respondent to purge the contempt and to pay the requisite amount to the Petitioner within a period of three (3) weeks and noted that the orders on sentencing will be passed, taking into account the steps taken by the Respondent to purge the contempt. The order dated 17.11.2022 reads as under: “The respondent has not complied with the undertaking given vide order dated 31.08.2022 to the effect that the requisite amount will be paid to the petitioner on or before 12.10.2022. Last opportunity is granted to the respondent to purge his contempt and to pay the requisite amount to the petitioner within a period of three weeks from today. The orders on sentencing will be passed on the next date of hearing, taking into account the steps taken by the respondent to purge his contempt. List on 14.12.2022. The respondent shall remain personally present in court on the next date of hearing.”

8.17. However, no payment was made by the Petitioner and the matter was adjourned and arguments on sentencing were heard on 06.03.2023. Findings

9. This Court has heard the learned counsel for the parties and perused the paper book.

10. At the outset, it is pertinent to mention that there have been 26 listings of the present contempt petition. It has been categorically admitted by the Respondent that he is in arrears of Rs. 1.89 Crores towards the interest amount, as recorded in the order dated 02.06.2022.

10.1. A perusal of the order sheet evidences that in addition to the undertaking dated 30.10.2019 given to the Trial Court, the Respondent gave three (03) undertakings to this Court on 21.01.2021, 02.06.2022, 31.08.2022 affirming and acknowledging that he shall pay the amount agreed in the MoU dated 07.09.2019 to the Petitioners.

10.2. The order sheet also shows that even after the Respondent was held guilty of contempt of Court, this Court gave multiple opportunities to the Respondent on 20.12.2021 and 17.11.2022 to make the outstanding payments to the Petitioners and to purge the contempt. Additionally, the matter was also adjourned many a times to enable the Respondent to make the payments. It has, however, come on record that the Respondent has not made any payments even after providing a schedule of payment and giving an undertaking, as recorded in the order dated 02.06.2022 passed in the present proceedings.

10.3. The Respondent in the present proceedings has filed reply dated 17.10.2020, a separate affidavit of unconditional apology dated 17.10.2020, CM APPL. 20910/2021 dated 14.07.2021 and affidavit of undertaking dated 30.05.2022. The list of applications/reply filed by the Respondent are illustrated herein under:

┌────────────────────────────────────────────────────────────────────────────────────────────────────────────┐
│                            Sl.            Application/Reply                       Content                  │
│                            No.                                                                             │
├────────────────────────────────────────────────────────────────────────────────────────────────────────────┤
│                              1       Reply dated 17.10.2020       Reply filed in pursuance to the notice   │
│                                                                   issued vide order dated 05.10.2020.      │
│                                                                   In the said reply, the Respondent        │
│                                                                   undertook to pay the Petitioners Rs.     │
│                                                                   35,00,000 by 04.12.2020 and Rs.          │
│                                                                   20,00,000 by 20th every month and        │
│                                                                   balance     by    31.03.2021.    The     │
│                                                                   Respondent acknowledges the payment      │
│                                                                   of outstanding amount under the MoU.     │
│                              2       Affidavit             of Affidavit tendering unconditional            │
│                                      unconditional    apology apology to this Court for non-               │
│                                      dated 17.10.2020         compliance of the MoU dated                  │
│                                                               07.09.2019 and the order dated               │
│                                                               30.10.2019.                                  │
│                              3       CM APPL. 20910/2021          Application tendering unconditional      │
│                                      dated 14.07.2021 was         apology and extension of time by three   │
│                                      filed by the Respondent      (03) months for making payments to       │
│                                      after the Respondent was     the Petitioner under the MoU.            │
│                                      held guilty of contempt                                               │
│                                      vide      order    dated                                              │
│                                      13.07.2021                                                            │
│                              4       Affidavit of undertaking     Affidavit of undertaking whereby the     │
│                                      dated 30.05.2022 filed by    Respondent undertook to pay a sum of     │
│                                      the    Respondent       in   Rs. 1,89,00,000 as per the schedule      │
│                                      compliance with the          agreed between the parties. Also         │
│                                      order dated 26.05.2022.      tendered an unconditional apology to     │
│                                                                   this Court.                              │
│                           10.4. In each of these pleadings referred to above, the Respondent has never     │
│                           disputed the validity of the MoU and has in fact duly acknowledged his           │
└────────────────────────────────────────────────────────────────────────────────────────────────────────────┘

10.4. In each of these pleadings referred to above, the Respondent has never disputed the validity of the MoU and has in fact duly acknowledged his liability to pay the outstanding amounts to the Petitioners. In addition to acknowledging the outstanding amount payable to the Petitioners, the Respondent has also repeatedly assured and undertook to this Court that the said amount which is due, will be paid to the Petitioners.

10.5. In view of the acknowledgment, assurances and the undertakings given by the Respondent in these proceedings, the submission of the Respondent during the hearing dated 06.03.2023; that the MoU was signed under coercion is clearly a dishonest plea. This Court is, therefore, unable to accept the submission of the learned counsel for the Respondent, that the MoU was executed under coercion. In fact, the said submission of the Respondent clearly evidences that the apology tendered by the Respondent on 14.07.2021 after he was held guilty of contempt is not bona fide. In this affidavit of apology dated 14.07.2021, the Respondent had admitted his liability and sought further time to honor his undertaking.

10.6. This Court is of the opinion that the Respondent has only been biding time after he was held guilty of contempt vide orders dated 13.07.2021 and 20.12.2021. The last payment was made on 24.02.2022 and despite giving two undertakings on 02.06.2022 and 31.08.2022, not a single paisa has been paid by the Respondent.

10.7. Even after providing multiple opportunities to make the payment to the Petitioners, the Respondent has failed to comply with the undertakings given and the orders passed by this Court.

10.8. By relying upon the judgment of Supreme Court in Smt. Pushpaben and Another (supra), the Respondent has sought to contend that his conduct of violating his undertaking and non-payment of the admitted amounts does not merit imposition of sentence of imprisonment. In the opinion of this Court, the said submission cannot be accepted. The Respondent herein has consistently acknowledged his liability towards the payment and reiterated before this Court that he will clear the outstanding payments to the Petitioners. Therefore, this Court is of the opinion that the non- payment of the admitted dues by the Respondent is without any cause.

10.9. In the aforesaid judgment, the Supreme Court had taken note that the complainant therein has not appeared before the Supreme Court to support the sentence given by the High Court. In the said judgment, the Supreme Court has held that the contemnors who violate the undertakings given to the court are undoubtedly guilty of contempt of court.

10.10. The Apex Court has time and again reiterated that non-compliance of ‘undertakings’ given to the Court will amount to contempt of orders of the Court. In this regard, it is instructive to refer to the judgment of Supreme Court in HSBC PI Holdings (Mauritius) Limited v. Pradeep Shantipershad Jain and Others, 2022 SCC OnLine SC 827, wherein it has been held that non-payment of the outstanding amount by the Respondent even after repeated opportunities and directions passed by the court will amount to punishment under contempt of Court. The relevant portion of the said judgment reads as under:

10.11. By subsequent order dated 11.07.2022, the Supreme Court had sentenced the contemnors in HSBC PI Holdings (Mauritius) Limited (supra) for simple imprisonment for a period of six (06) months for not complying with the orders passed by the court.

10.12. Similarly, in the case of Urban Infrastructure Real Estate Fund v. Dharmesh S Jain and Another, (2022) 6 SCC 662, it has been held that:

10.13. By subsequent order dated 12.05.2022, the Supreme Court sentenced the Respondent, Contemnor therein to undergo simple imprisonment of seven (07) days for wilful disobedience of the orders passed by the Court.

11. In this matter on 06.03.2023, on an enquiry to the Respondent with respect to the time required by him to sell his immovable property to raise the funds, the Respondent was non-committal and vague. He stated that he is still looking for a buyer and it was not possible to give a firm date. This Court did not find that the response of the Respondent was serious or made in good faith. The Respondent is owner of immovable properties and therefore, has sufficient means to make the payment undertaken by him; he, however, lacks the will to make the payment to the Petitioner.

12. In view of the aforesaid contumacious conduct of the Respondent, this Court is unable to accept the submission that the punishment of imprisonment should not be awarded to the Respondent. Sentencing

13. In so far as the order on sentence is concerned, as the Respondent has already been held guilty of contempt and considering his subsequent conduct as aforesaid, this Court sentences Respondent, Contemnor, Mr. Anand Kamal Goel, to undergo two (02) months imprisonment along with a fine of Rs. 2,000. In default of payment of the fine, he shall further undergo fifteen (15) days simple imprisonment.

14. I hereby direct the Registrar General of this Court to take necessary steps to have the convicted contemnor taken into custody and cause him to send to Central Jail, Tihar, under appropriate warrant of commitment for undergoing the sentence awarded as above.

15. A copy of this judgment shall also be furnished to the convicted contemnor free of cost. He shall be informed by the Superintendent, Central Jail that he has the right to prefer an appeal against the conviction and order on sentence passed by this Court.

16. The undertaking given by the Respondent vide order dated 24.02.2022, that he shall restrain from encumbering or disposing off any property in which he may have an absolute or partial share or interest including the property No. B-7/111A, Extension Safdarjung Enclave, New Delhi, is made absolute and shall continue to operate until the Respondent clears the admitted amount of Rs. 1.89 Cr., such properties cannot be sold by the Respondent without seeking written consent of the Petitioner herein and the prior permission of the Trial Court.

17. With these observations, the present contempt petition and all the pending applications, if any, are disposed of.

MANMEET PRITAM SINGH ARORA, J APRIL 28, 2023/hp/kv/asb