Litigants Liable For Civil Contempt On Violating Undertaking Given On Their Behalf By Advocate To Court : Supreme Court

In a recent judgement, the Supreme Court held that litigants will be liable for 'civil contempt' on wilful breach of undertaking given on their behalf by their advocate to the Court.

"We hold that an assurance in the form of an undertaking given by a counsel / advocate on behalf of his client to the court; the wilful breach or disobedience of the same would amount to “civil contempt” as defined under Section 2(b) of the Act 1971. 

The undertaking given to a court attracts the provisions of the Act 1971 whereas an undertaking given to a party to the lis by way of an agreement of settlement or otherwise would not attract the provisions of the Act 1971", the Court held(Balwantbhai Somabhai Bhandari v. Hiralal Somabhai Contractor).

The bench comprising Justice JB Pardiwala and Justice Manoj Misra also held that in cases of civil contempt, the court was not bound to accept the apology tendered by the comtemnors and that apologies thus tendered should be unconditional, unqualified, and bona fide.

The matter arose when a counsel, appearing before the Gujarat High Court, on the instructions of his client, undertook that a certain property involved in a petition shall not be sold out till the main petition was heard and decided upon. However, despite having undertaken the same, the appellants(the litigants) in the matter proceeded to execute 13 sale deeds in favour of different parties. In the process, the appellants wilfully disobeyed the order of the High Court and were held liable for civil contempt. While the appellants tendered an unconditional apology, the same was not accepted as the High Court found it to be not bona-fide in nature.

This order of High Court was appealed against. 

Breach Of Undertaking Constitutes Civil Contempt

In its judgement, the Supreme Court held that a breach of an undertaking given to a court constituted civil contempt under Section 2(b) of the Contempt Of Courts Act, 1971. As per the court, the object of enforcing contempt was to prevent undue interference with the administration of justice and that public interest demanded that there should be no such interference with the judicial process. In this context, if a party, who is fully aware of a judgment or an order of the Court, along with the consequences of such order and still acts in violation of the same, is liable of contempt of court. 

The judgement also defined what wilful disobedience of the court's order would mean, stating that any act or omission which is done voluntarily or intentionally and with the specific intent to do something which the law forbids, amounted to wilful disobedience. 

The court also underlined the difference between an undertaking given to the court and an undertaking given to a party and stated that while every undertaking given by a party to a litigation may not be an undertaking to the court; there was a difference between an undertaking given to the other party and an undertaking given to the court.

"The breach of an undertaking given to the other party may not constitute the contempt of court. However, whether a particular undertaking is an undertaking to the court or to the opposite party must depend upon the facts and circumstances of each case and the language used," added the bench.

It asserted that an undertaking or an assurance given by a lawyer based upon which the court decides upon a particular course of action would definitely fall within the confines of “undertaking” as stipulated under Section 2(b) of the Act 1971 and the breach of the same would constitute “civil contempt”. 

Court Not Bound To Accept The Apology Tendered 

Noting that the present matter constituted contempt, the court then discussed the punishment for acts of contempt of the court. In this context, referring to Section 12 of the 1971 Act, which provides for the punishment of contempt, the court noted that an accused may be discharged on "the apology being made to the satisfaction of the court." Here, the court explained that tit was the discretion of the court whether to accept an apology or not and that discretion was required to be exercised judiciously.

However, the court also noted that over a period of time, the courts have shown "undue leniency and magnanimity towards the contemnors" and this leniency has actually "emboldened unscrupulous litigants to disobey or commit breach of the order passed by any court or any undertaking given to the court with impunity."

It added that–

"The litigants, proceeded for contempt of court have realised that they have a very potent weapon in their hands in the form of apology."

Thus, the Apex Court held that a court should not accept the apology when it appears that saying sorry is nothing but a "legal trick to wriggle out of responsibility." Stating that a true apology must be "a deep ethical act of introspection, self-introspection, atonement and self-reform", the court added that in the absence of the same, an apology can be termed as farce.

Further, even if the apology is unconditional, unqualified and bona fide, yet, if the conduct is serious and has caused damage to the dignity of the Court, the same need not to be accepted by the court.

Finally, it was also held that beneficiaries of any transaction which is in contempt of the court, have no right or locus to be heard in the contempt proceedings on the ground that they are bona fide purchasers of the property and therefore, are necessary parties.

"Contempt is between the court and the contemnor and no third party can involve itself into the same," added the court.

Case Title : Balwantbhai Somabhai Bhandari v. Hiralal Somabhai Contractor

Citation : 2023 LiveLaw (SC) 750; 2023INSC805

Click here to read the judgment