What is the Meaning of 'Undertaking'? - Views of Supreme Court

 

In the last post, I discussed the principles governing the Contempt Jurisdiction as were laid down in the case of Balwantbhai Somabhai Bhandari v. Hiralal Somabhai Contractor (Deceased) rep. by Lrs. and Others, 2023 SCC OnLine SC 1139. Today, I will explain a similar concept that is often involved in Contempt Proceedings, ‘Undertaking’ that was discussed in the same case.

 

The Court quoted the Black's Law Dictionary to explain the meaning of ‘Undertaking’. It is as follows: -

 

“A promise, engagement, or stipulation. An engagement by one of the parties to a contract to the other, as distinguished from the mutual engagement of the parties to each other. It does not necessarily imply a consideration. In a somewhat special sense, a promise given in the course of legal proceedings by a party or his counsel, generally as a condition to obtaining some concession from the court or the opposite party. A promise or security in any form.”

 

Suppose there is a property dispute between A and B. The Court orders A to vacate his possession of the property. A undertakes and promises the Court that it will vacate the property within one month. Now, one month has passed and A has still not vacated the property. Here, B can approach the Court under Contempt Jurisdiction and argue that A has committed breach of undertaking given before the Court by failing to vacate the property within the time promised by him. Now, A comes to the Court and replies that he has not committed any breach of Undertaking because such Undertaking was given by his Advocate/Counsel without consulting or informing him. Is such a plea acceptable?

 

No. Such a plea is not acceptable because in M. v. Home Office, [1992] Q.B. 270, it was observed that: -

 

“If a party, or solicitors or counsel on his behalf, so act as to convey to the court the firm conviction that an undertaking is being given, that party will be bound and it will be no answer that he did not think that he was giving it or that he was misunderstood.”

 

Basically, you cannot wriggle out of any statement given either by you or your counsel before the Court. You cannot say that such a statement was given casually because both the Court and the Opposite Party are relying upon your statement/undertaking.

 

According to the Court, “the expression “when a party undertakes” is used to give an undertaking to the Court as distinct from when a counsel states that he undertakes on behalf of his client. When a person gives an undertaking to the Court, it is not given to the other side but to the Court itself, and that being said must carry sanctity. Therefore, when a Court passes a decree after an undertaking was embodied in the consent terms, it would show that the Court had sanctioned the particular course and put its imprimatur on the consent terms.”

 

Further, the Court distinguished an ‘Undertaking’ from a Consent Order recording Compromise. Coming back to the example of A and B. Suppose instead of a Court, both A and B decide to resolve their dispute amicably and tell the same to the Court. The Court may record that the parties out of their own volition wish to settle the matter without any order of merits by way of a Compromise Agreement. So, if later on, one of the parties’ breaches that Compromise Agreement, the other party cannot invoke Contempt Jurisdiction. It would be a contractual matter rather than a matter of contempt of court.

 

It is also trite that there should not be any doubt in the mind of the Court regarding breach of ‘Undertaking’. If at all any doubt persists in this regard, the Contempt Proceedings would not be maintainable. Ultimately, there should be a false representation made before the Court in a clear and deliberate manner. [Rita Markandey v. Surjit Singh Arora, (1996) 6 SCC 14]

 

Sometimes there may even be a case of Implied Undertaking. Coming back to the example again, suppose A tells the Court that it will not sell off the property during the pendency of the case if B deposits Rs. 5 Lakhs in his Bank Account. Now, if B deposits that money, then it is implied that A has bound himself with those words. Later on, he cannot contend that there was no specific order of the Court stopping him from selling that property.

 

That is all about the meaning of ‘Undertaking’ in the context of Contempt Proceedings.