SHAW WALLACE AND COMPANY LIMITED Vs. REPUTE FERTILIZERS

JUDGEMENT

(1.) The petitioner had filed a Summary Suit No. 1175 of 1988 in City Civil Court, Ahmedabad for a sum of Rs. 8,16,451.35 and future interest at the rate of 18% p. a. On 16/02/1989, the suit was decreed against the defendant respondents. During the pendency of the execution proceedings, Miscellaneous Civil Application No. 217 of 1989 was filed before the trial Court for setting aside the ex parte decree. Ultimately, the parties settled the matter and filed consent terms in the Court and the Court passed the decree in terms of compromise pursis Ex. 20. The consent terms though dated 14/05/1989, were filed in the Court on 21/09/1989 and the Court had passed the decree on 21/09/1989. The consent terms provided that the defendants shall pay a sum of Rs. 5,42.875.04 towards the full and final settlement of the decretal dues and these payments were to be made by two post dated cheques for Rs. 3 lacs dated 30/12/1989 and for Rs. 2,42,875.04 dated 30/12/1990 drawn on Junagadh District Co-operative Bank Ltd., Vanzari Chowk Branch, being cheques No. 23889 and 23890 and the plaintiff shall acknowledge the receipts of the said cheques and agreed to give due credit on realisation of the cheques; the defendants were at liberty to make advance payment in instalments from time to time against post dated cheques and in such event, the plaintiff was to adjust such payment against the said cheques and exchange the cheques for the balance amount outstanding on the due date. In case of default, the entire decretal dues were to become due at once with compound interest at the rate of 18% p. a. till the date of payment. It was further provided that the partners of the firm shall be jointly and severally liable to pay the decretal amount and the decree shall be executed on the personal properties of the partners of the firm. Terms (vii) to (ix) are relevant for the present purpose and they read as follows :

(2.) The first cheque for Rs. Three lacs dated 30/12/1989 was presented on the due date. However, it was dishonoured and returned by the bankers with the "remarks insufficient funds". In lieu of the aforesaid cheque of Rs. Three lacs. the respondents issued three cheques of Rs. One lac each payable on 20/02/1 9/03/1990 and 20/04/1990. Only first two cheques were presented for payment and both the cheques were returned dishonoured with the remark "payment stopped by the drawer". It is, therefore, submitted that the respondents have deliberately in gross defiance of the Court's order, not complied with the same and committed breach of the undertaking given by the respondent no. 2 to the Court and not complied with the same and the respondents are, therefore, liable to be punished for contempt of the Court,

(3.) In the contempt petition, notice was issued on 16/04/1990 returnable on 1/05/1990. The original firm and the second respondent who has given the undertaking were parties to this contempt petition. On 12/12/1990, respondent No. 2 filed an affidavit-in-reply and the Court had passed an order directing all the partners of the respondent No. 1 excluding the lady partners to remain personally present on 26/12/1990 and the learned Counsel for the petitioner was directed to inform the parties to remain personally present. Leave to add such partners as respondents was granted and notice to them was made returnable on 26/12/1990 directing them to remain personally present. On 26/12/1999, no partner had remained present and, therefore, the learned Counsel for the respondents was directed to furnish the names and addresses of all the partners and the matter was adjourned to 28/12/1990. On that day, the Court passed an order granting leave to add other partners and rule was made returnable on 15/01/1991 and the respondents were directed to remain personally present in the Court on that day. The respondents did not comply with the directions and did not give names and addresses of the partners, but the petitioner added respondent No. 3-Madhuben H. Mashru as respondent No. 3.