BATA SHOE COMPANY LTD . vs. GANESHARAJAH AND OTHERS

030-SLLR-SLLR-2006-V-3-BATA-SHOE-COMPANY-LTD-.-vs.-GANESHARAJAH-AND-OTHERS.pdf


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BATA SHOE COMPANY LTD.,VS.GANESHARAJAH AND OTHERSCOURT OF APPEAL.
BALAPATABENDI., J (P/CA).
BASNAYAKE.J.,
CA 748/2005.
HC (WRIT) 242/2001(1).
FEBRUARY 16,2006.
JUNE 2, 2006.
Civil Procedure Code – Section 408 Settlement – Consent decree ? – Failure tohonour and or disregard an undertaking given – Is it contempt of Court? -Constitution Article 155(3).
The parties entered into a settlement and of consent judgment was entered infavour of the plaintiff with writ not to issue till 31.08.2003. If writ was to issueafter 31.08.2003 it would be without notice even though one year has passed,Contrary to the express undertaking given by the respondents, the respondentsfailed and neglected to pay any sum of money whatsoever to the petitioner.The petitioner while applying for the execution of the writ, contended that, therespondents have committed contempt of Court – under Article 155(3).
The respondents raised a preliminary objection that the consent decreedoes not provide for contempt proceedings.
HELD:
Law of contempt is based on the broadest of principles namelythat the Court cannot and will not permit interference with the dueadministration of justice.
Contempt of Court is a genuine term descriptive of conduct inrelation to particular proceedings in a court of law which tends toundermine that system or to inhibit citizens from availingthemselves of it for the settlement of their disputes. Contempt ofCourt may take many forms.
It behoves the Court to look into the terms to which the partieshave consented and the terms of the consent decree.
CA
Bata Shoe Company Ltd., Vs. Ganasharajah and others (Balapatabandi, J. (P/CA))
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According to the terms in the consent decree, if the respondentfails or neglects to pefbrm or carry out the terms of the “consentdecree” both parties have consented for writ to be issued after
without notice even though one year has passed.
So that the “Consent decree” itself provides for an alternativeaction for the petitioner if the terms of the decree are not obeyedand carried out by the respondents.
The above terms of the consent decree dp not provide for analternative movement towards pleading “a contempt of Court* asthe decree contains specific action of “Writ of execution* to beprovided with – parties have agreed to the issue of writ rather thanresort to contempt proceedings.
Complaint of contempt of Court • Preliminary objection.
Nigel Hatch PC with K. Geekiyanage for plaintiff – petitionerMohan Peiris PC with Kumaran Aziz for respondents.
November 13,2006.
BALAPATABENDI, J. (P/CA)The Plaintiff – Petitioner (hereinafter referred to as the Petitioner) institutedan action bearing No. HC (Civil) 242/2001 in the Commercial High Court ofColombo against the Defendant – Respondents (hereinafter referred to asthe Respondents) claiming inter – alia the sum of Rs.20,010,902.23 cts.together with the interest and costs of the suit. (Plaint marked as “X").
The Respondents filed Answer denying the Petitioner’s claim and soughta dismissal of the Petitioner’s action. (Answer marked as “X1").
On the trial date namely, 15.10.2002, the case was settled between theparties in the following terms.:
“Of consent judgment for the Plaintiff as prayed for against the threeDefendants. Of consent writ not to issue till the 31st August, 2003. IfWritto issue after 31st August 2003, Writ to issue without notice even thoughone year has lapsed”.
(Terms of settlement as appearing in document marked as “X2”,)
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Later the decree was entered according to the aforesaid terms ofsettlement.
The Petitioner states that contrary to the express undertaking given bythe Respondents as set out in the consent decree, the Respondents failedand neglected to pay any sum of money whatsover to the Petitioner. Thus,the Petitioner has now made an application for the execution of the Writand notwithstanding the above application for the excution of the Writ, the .Petitioner states hence the Respondents failed to honour and/or disregardan undertaking given by them as appear in the consent decree, they(the Respondents) have committed contempt of Court. Therefore, a causeof action has accrued to the Petitioner to charge the 1st, 2nd and 3rdRespondents for contempt of Court under Article 155(3) of the Constitutionof the Democratic Socialist Republic of Sri Lanka.
Wherefore the Petitioner had prayed to make an order that the 1 st or2nd and or 3rd Respondents have committed contempt of Court.
At the outset I must discuss the nature of a “consent decree". Section408 of the Civil Procedure Code indicates an adjustment of actions betweenthe parties as follows:
“if an action be adjusted wholly or in part by lawful agreement orcompromise, or if the defendant satisfy the plaintiff in respect to the wholeor any part of the matter of the action, such agreement, compromise, orsatisfaction shall be notified to the court by motion made in presence of,or on notice to all the parties concerned, and the court shall pass a decreein accordance there with, so far as it relates to the action, and suchdecree shall be final, so far as relates to so much of the subject-matter ofthe action as is dealt with by the agreement, compromise, or satisfaction."
It is an accepted fact that, “The law of Contempt is based on the broadestof principles, namely that the Courts cannot and will not permit interferencewith the due administration of justice.”
Also “The provision of a system for the administration of justice byCourts of Law and the maintenance of public confidence in it are essentialif citizens are to live together in peaceful association with one another,“contempt of Court" is a generic term descriptive of conduct in relation toparticular proceedings in a Court of Law which tends to undermine that
CA
Bata Shoe Company Ltd., Vs. Ganesharajah and others(Balapatabendi, J. {PICA))
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system or to inhibit citizens from availing themselves of it for the settlementof their disputes. Contempt of Court may thus take many forms.”
So that there are twin aspects of the ‘Law of Contempt" its ancientorigin and its contemporary importance of its relevance to the dueadministration of justice, must be clearly emphasized.
It behoves the Court to look into the terms to which the parties (thePetitioner and the Respondents) have consented and the terms of consentdecree. Thus, ‘of consent judgment for the Plaintiff as prayed for againstthe three Defendants. Of Consent Writ not to issue till 31 st August, 2003.If Writ to issue after 31 st August, 2003. Writ to issue without notice eventhough one year has lapsed”. The decree was entered accordingly.
According to the terms in the ‘Consent decree”, if the Respondents failor neglects to perform or carry out the terms of the “consent decree”, bothparties have consented a Writ to issue after 31st August 2003 withoutnotice even though one year has expired. So that the above “consentdecree” itself provides for an alternative action for the Petitioner if the termsof the decree are not obeyed and carried out by the Respondents. Theabove terms of the ‘consent decree” does not provide for an alternativemovement towards pleading “a Contempt of Court” as the decree containsspecific action of “Writ of Execution* to be provided with.
I am of the view that both parties had not considered Contempt of Courtas a principle method of obtaining satisfaction of the decree. In fact thedecree as it stands every way namely, that the parties have agreed to theissue of Writ rather than resort to contempt proceedings.
For the reasons aforesaid the preliminary objection raised by theRespondents is upheld. Accordingly the Petition is dismissed.
BASNAYAKE, J.—/ agree.
Application dismissed.