ORDER
P. Sathasivam, J.
1. The petitioner has filed the above Contempt Petition under Section 10 read with 12 of the Contempt of Courts Act to punish the respondent for deliberately violating the terms and conditions of the undertaking in the joint memo executed by the respondent, filed in Writ Petition No. 14517 of 2003 and recorded on 20.5.3003 by this Court and disobeying the said order, thereby committing contempt of Court.
2. In the affidavit filed in support of the above petition, it is stated that the respondent herein submitted 3 applications with 3 industrial programmes to the Government of Tamil Nadu, Industries Department, to quarry granite in S.Nos. 406/5 (present Survey No. 297/5) of Keelavalavu Village, 94/2 and 167/1 of Thiruchunai Village for grant of lease of 10 Hec., in each of the survey numbers. Since the petitioner was a retired Tahsildar and guiding the respondent, the respondent appointed him as a Power Agent on 12.2.1997 and the same was registered on 27.2.1997. It was treated as an irrevocable power. The Government of Tamil Nadu passed orders in G.O. 3(D) No. 11, Industries (MMB1) Department dated 12.4.2003 granting lease in the name of the respondent. When he was taking steps to execute the lease in his capacity as Power Agent of the respondent with the District Collector, Madurai, the respondent revoked the power of attorney and questioning the revocation, the petitioner has filed O.S.No. 462 of 2003 before the I Additional Sub Court, Madurai and also filed a writ petition before this Court in W.P.No. 14517 of 2003 and he obtained an order of injunction in W.M.P.No. 18136 of 2003 from executing any document or encumbering the property in question. Thereafter, the respondent executed an irrevocable power of attorney coupled with interest on 14.5.2003 and it was registered as document No.852 of 2003. After that, the petitioner and the respondent settled the matter out of Court and filed a joint memo on 20.5.2003 before this Court and this Court after recording the joint memo, closed the said writ petition. Based on the said order, the District Collector, Madurai executed a lease deed with the petitioner on 29.12.2003, representing the respondent as his irrevocable general power of attorney, coupled with interest, executed on 14.5.2003. However, he received a telegram on 13.1.2004 from the respondent stating that he has revoked the power dated 14.5.2003 by document No. 4/04 in the office of the Sub Registrar, Singampunari, Sivagangai District. He also issued a lawyer’s notice dated 13.1.2004, confirming the cancellation of power of attorney. Inasmuch as in the order dated 20.5.2003 made in W.P.No. 14517 of 2003, it was specifically stated that the memo filed in the writ petition was forming part of the order, the power of attorney dated 14.5.2003 forms part of the memo, by canceling/revoking the said registered irrevocable general power of attorney, the respondent has flouted the orders of this Court and therefore, he is guilty of contempt of Court.
3. Based on the above averments, this Court ordered notice to the respondent on 4.2.2004. Pursuant to the notice, the respondent/contemner appeared in person and also filed a counter and additional counter affidavit, disputing various averments made by the petitioner. It is stated therein that after execution of the lease deed, the power of agent C. Venkatasubbu, petitioner herein, refused to give account for monies given by him in spite of repeated requests and refused to consult him in the matter of extracting granites and was acting prejudicial to his interest and acted on his own illegally in violation of mining rules and Court orders. Questioning the cancellation, the power of agent has filed a suit in O.S.No. 1 of 2004 in which an ex parte injunction was granted and the same is pending on the file of the I Additional District Court, Madurai, wherein the respondent entered appearance and filed a counter. The cancellation of power has become the subject matter of judicial proceedings and the Civil Court is seized of the matter. It is also stated that apart from the illegal operation of the accounts in violation of the mining rules and making false statement in the plaint in O.S.No. 1/2004, it is stated that the petitioner has forged and concocted two blank stamped signed papers which the respondent had given to him in 1997. He already made petitions to the Secretary to Government, Industries Department and to the Collector, Madurai bringing to their notice about the illegal acts of the power agent and requested them to stop illegal quarrying.
4. Heard Mr. C. Raghunatha Reddy, learned counsel for the petitioner and Mr. T.V. Ramanujam, learned Senior Counsel for the respondent.
5. The only point for consideration in this petition is, whether the respondent has wilfully disobeyed the order passed by this Court on 20.5.2003.
6. There is no dispute that when Writ Petition No. 14517 of 2003 filed by the petitioner is pending before this Court, a memo has been filed duly signed by both parties stating that subsequent to the grant of interim injunction, the parties have settled their dispute out of Court and the respondent-K.N. Solairajan has also executed a registered power of attorney on 14.5.2003, authorizing the petitioner to carry out all acts as per the proceedings in G.O.Ms. No. 3(D) Industries Department dated 12.4.2003, and after recording the same, the Writ Petition was closed. Mr. C. Raghunatha Reddy, learned counsel for the petitioner, has contended that since the said memo imported with the order of this Court and in view of the fact that without honouring the same, the respondent has cancelled the irrevocable general power of attorney, therefore, he has disobeyed the order and he may be punished accordingly. In support of his above contention, namely, that if there is a violation/breach of the undertaking given to the Court, has the same force as an order made by the Court and a breach of the undertaking is misconduct amounting to contempt, for which he relied on decisions in the case of (1) Chhaganbhai v. Soni Chandhu Bhai, ; (2) Noorali Babul Thanewala v. Sh.K.M.M. Shetty, ; (3) Bank of Baroda v. Sadruddin Hasan Daya, . On the other hand, Mr. T.V. Ramanujam, learned Senior Counsel for the respondent, by drawing my attention to the fact that after the execution of the lease deed, the power agent refused to give account for monies given by him in spite of repeated requests and refused to consult him in the matter of extracting granites and was acting prejudicial to his interest and acted on his own illegally in violation of mining rules and making false statement, contended that the respondent is fully justified in canceling the power of attorney and the same would not amount to violation or disobedience to the order of this Court dated 20,5.2003. In support of the above claim, he also relied on decisions in (1) Babu Ram Gupta v. Sudhir Bhasin, ; (2) Jhareswar Prasad Paul v. Tarak Nath Ganguly, 2002 (3) CTC 122; and (3) R.N. Dey v. Bhagyabati Pramanik, 2004 (4) SCC 400. It is to be noted that as rightly argued by the learned counsel for the petitioner, the order dated 20.5.2003 having not been made after proper adjudication, but on filing a memo by the parties referring to certain events, the same was recorded and given approval; accordingly the petition was ordered to be closed. I have already referred to the claim of the respondent that after execution of the power of attorney, the petitioner has not only violated the Government Orders, Rules, etc., but also made false statements, committed forgery and concocted two blank stamped signed papers which, according to the respondent, were given to him in 1997. Though the contention of Mr. Raghunatha Reddy, learned counsel for the petitioner, is that an undertaking given before a Court by a person in pending proceedings, on the faith of which the Court sanctions a particular course of action or inaction, has the same force as an order made by the Court; in the light of the peculiar factual details, as narrated in the counter and additional counter affidavit filed by the respondent that the petitioner violated the rules, Government Orders, made false statements, forged blank stamp papers, etc., which made the respondent to cancel the power of attorney. I am of the view that the same cannot be characterized as either disobedience or violation of the order dated 20.5.2003. In this regard, it is useful to refer the following conclusion of Their Lordships in (cited supra) : (Paras 7 and 10)
“7 ….. It is manifest that any person appearing before the Court can give an undertaking in two ways : (1) that he files an application or an affidavit clearly setting out the undertaking given by him to Court, or (2) by a clear and express oral undertaking given by the contemner and incorporated by the Court in its order. If any of these conditions are satisfied then a wilful breach of the undertaking would doubtless amount to an offence under the Act. Although the High Court observed that the consent order extracted above had been passed on the basis of various undertakings given by the contemner, we are unable to find any material on record which contains such undertakings. It seems to us that the High Court has construed the consent order itself and the directions contained therein as an implied undertaking given by the appellant. Here the High Court has undoubtedly committed an error of law. There is a clear-cut distinction between a compromise arrived at between the parties or a consent order passed by the Court at the instance of the parties and a clear and categorical undertaking given by any of the parties. In the former, if there is violation of the compromise or the order no question of contempt of Court arises, but the party has a right to enforce the order or the compromise by either executing the order or getting an injunction from the Court.
10….. What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by which a receiver was appointed, to include an undertaking given by the contemner to carry out the directions contained in the order. With due respects, we are unable to agree with this view taken by the High Court. A few examples would show how unsustainable in law the view taken by the High Court is. Take the instance of a suit where the defendant agrees that a decree for Rs. 10,000 may be passed against him and the Court accordingly passes the decree. The defendant does not pay the decree. Can it be said in these circumstances that merely because the defendant has failed to pay the decretal amount he is guilty of contempt of Court ? The answer must necessarily be in the negative. Take another instance where a compromise is arrived at between the parties and a particular property having been allotted to A, he has to be put in possession thereof by B. B does not give possession of this property to A. Can it be said that because the compromise decree has not been implemented by B, he commits the offence of contempt of Court ? Here , also the answer must be in the negative and the remedy of B would be not to pray for drawing up proceedings for contempt of Court against B but to approach the executing Court for directing a warrant of delivery of possession under the provisions of the Code of Civil Procedure. Indeed, if we were to hold that non-compliance of a compromise decree of consent order amounts to contempt of Court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all. In fact, the reason why a breach of clear undertaking given to the Court amounts to contempt of Court is that the contemner 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. The same cannot, however, be said of a consent order or a compromise decree where the fraud, if any, is practiced by the person concerned not on the Court but on one of the parties. Thus, the offence committed by the person concerned is qua the party not qua the Court, and, therefore, the very foundation for proceeding for contempt of Court is completely absent in such cases……
7. In Jhareswar Prasad Paul v. Tarak Nath Ganguly, 2002 (3) CTC 122, Their Lordships have held that while exercising contempt jurisdiction, Court does not function as original or appellate Court for determination of dispute between parties, and the contempt jurisdiction should be confined to question as to whether there has been deliberate disobedience of order of Court. In R.N. Dey v. Bhagyabati Pramanik, it was held that contempt is a matter between the Court and the contemner and the aggrieved party has no right to insist that Court should exercise its jurisdiction. It was also held that contempt jurisdiction cannot be used for purpose of executing a decree or implementing an order for which law provides appropriate procedure.
8. In the case on hand, I have already referred to the grievance expressed by the respondent, namely, the conduct of the petitioner in not adhering to the Rules and Government Orders, making false statements, forging blank stamp papers, etc., and the consequential order or cancellation of power of attorney. It is also not in dispute that the petitioner has filed Civil Suit in O.S.No.1/2004 on the file of I Additional District Judge, Madurai questioning the cancellation of the power of attorney wherein the respondent/defendant filed a counter statement. In other words, as rightly pointed out by the learned Senior Counsel for the respondent, the cancellation of power of attorney has become the subject matter of judicial proceedings and the Civil Court is seized of the matter. It is also relevant to refer once again the observation made in Babu Ram Gupta’s case, , wherein Their Lordships have held that “…… Indeed, if we were to hold that non-compliance of a compromise decree or consent order amounts to contempt of Court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all …..” In the light of the conduct of the parties and also of the fact that the petitioner has availed the civil jurisdiction by filing a Civil Suit questioning the cancellation order, and in the light of the conduct of the petitioner which cannot be gone into in this contempt petition, I hold that the action taken by the respondent cannot be termed as a wilful disobedience or violation of the order dated 20.5.2003. The above conclusion of mine is only a prima facie conclusion for the disposal of this contempt petition and parties are free to raise and substantiate their respective claim before the appropriate Court. With the above observation, the Contempt Petition is dismissed.