Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010006542020 Presented on 16.01.2020
Registered on 16.01.2020
Decided on 06.03.2026
Duration 06Y 01M 21D
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
NOTICE OF MOTION NO.269 OF 2020
IN
SUIT NO.17 OF 2020
Diamond Hill Co-operative Hsg. Soc. Ltd. …. Plaintiffs
Versus
M/s. K. M. Realty …. Defendants
CORAM : HIS HONOUR JUDGE N.V. JIWANE
C.R.NO..
: 15
DATE : 06.03.2026
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Adv. Sanjit Shukla a/w Adv. Gauraj Shah a/w Adv. Ashish Mishra a/w
Adv. Vishnudatta Mishra a/w Adv. Tushar Ambekar for plaintiff.
Adv. Parshurampuria a/w Adv. M. P. Vora for defendants.
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ORAL ORDER
(DICTATED IN OPEN COURT)
1. The plaintiff has taken out this Notice of Motion for
initiating contempt proceeding against the defendants for disobeying
the order dtd.08.01.2020 and carrying out the construction beyond
permission and liberty granted by the Court. It is the contention of
plaintiff that it has filed the suit for permanent injunction restraining
the defendants from constructing any 3rd building in the property
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bearing CTS No.13/13 admeasuring 3957.30 sq.mts. and for other
reliefs. It is the contention of plaintiff that during the pendency of the
suit, defendants were given liberty by this Court to carry out the work
of construction as per the sanctioned plan of 26.07.2004, but the
defendants in violation of the said order, trying to construct the new
building beyond the sanction plan dtd.26.07.2004 and put up a
centering work on the plinth which is more in length of 19 meters as
per the plan and blocking the ventilation of already constructed
building B-Wing on western side. It is further contended by the plaintiff
that defendants have consumed 3.7 mtrs abutting the internal road on
the eastern side. It is the contention of plaintiffs that defendants that
the act of carrying on the construction by the defendants is in total
violation of the order passed by this Court in Notice of Motion
4973/2019 dtd.08.01.2020. Therefore, contempt proceeding needs to
be initiated against the defendants.
2. The said Notice of Motion is strongly opposed by the
defendants vide their reply at Exh.9. The defendants have come up with
the case that by the present notice of motion, plaintiff wants to initiate
contempt proceeding against defendants for alleged breach of interim
order dtd.08.01.2020. But the defendants denied the allegations and
submitted that defendants are entitled to carry out the work of
construction in consonance with the order of the Court. Defendants
denied that alleged construction is beyond the permission. It is the case
of the defendants that the centering work was put up on the plinth
which was already constructed long back prior to institution of the suit.
Defendants denied any alleged breach of plan and alleged blocking of
any ventilation and any excess construction. It the contention of the
defendants that without any prima-facie evidence placed on record by
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the plaintiff, the contempt proceeding which is quasi criminal in nature
cannot be entertained. For proving the alleged contempt proof beyond
reasonable doubt needs to be brought on record and the plaintiff has
miserably failed to put any prima-facie evidence on record. The alleged
construction is in the nature of cleaning and mobilization of material at
the 1st floor level fo the suit building and not for any construction
activity. Hence, prayed to dismiss the motion.
3. The plaintiffs filed a re-joinder at Exh.9A and reiterated its
stand. It is the contention of the plaintiff that the defendants’
construction is in clear disobedience of the order dtd. 08.01.2020 and
thereby abused the liberty granted by the Court. It further contended
that the defendants tried to construct new building as per the plan of
2019 and not as per the plan of 2004 and thereby committed the
contempt of Court’s order.
4. Heard Ld. Advocate for plaintiffs and defendants. During
the argument, Ld. Advocate for plaintiffs argued that the plaintiffs have
filed the present suit u/Sec.7 and 7A of MOFA Act. During the pendency
of the suit by order dtd.08.01.2020, ad-interim relief was granted in
favour of the plaintiff. Said ad-interim order dtd.08.01.2020 was
confirmed by the order dtd.22.02.2003 in Notice of Motion
No.4973/2019. The said order was challenged by the defendants before
the Hon’ble High Court in Appeal from Order No.4181/2023. He
submitted that the Hon’ble High Court was pleased to dismiss the
appeal filed by the defendants by order dtd.08.01.2024. He further
submitted that the Hon’ble High Court has specifically considered the
stand taken by the defendants and was pleased to overrule the said
stand. The order of the Hon’ble High Court in clear words directs the
defendants to follow the approved plan of 2004 only while making any
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proposed new building. He further submitted that though the
defendants had challenged the order passed by the Hon’ble High Court
before the Hon’ble Supreme Court but the Hon’ble Supreme Court had
also pleased to direct the defendants to proceed with the construction
as per the approved plan but the FSI potential under DCR, 1991 only
and the fungible area under the said DCR shall not be utilized. Hence,
the defendants cannot proceed with the construction except according
to the approved plan of 2004.
5. On the other hand, the Ld. Advocate for defendants argued
that the ad-interim order dtd.08.01.2020 and order dtd.08.01.2024
passed by the Hon’ble High Court have lost their existence in view of
the order passed by the Hon’ble Supreme Court in Civil Appeal
No.11414/2025 arising out of SLP (CC) No.3420/2025 dtd.01.08.2025.
He submits that both the earlier orders were merged in the order passed
by the Hon’ble Supreme Court and now only the order passed by the
Hon’ble Supreme Court would hold the ground in view of the principal
of merger. He further submitted that the order of the Hon’ble Supreme
Court is crystal clear regarding the proposed construction and
consequences in future. He submitted that the notice of motion was
taken out by the plaintiff only to pressurize the defendants and harass
them. Defendants relied on the following rulings in support of their
contention : -
(i) Mrityunjoy Das and Anr. Vs. Sayed Hasibur Rahaman and Ors.,
AIR 2001 Supreme Court 1293,
13. Before however, proceeding with the matter any further, be it
noted that exercise of powers under the Contempt of Courts Act
shall have to be rather cautious and use of it rather sparingly
after addressing itself to the true effect of the contemptuous
conduct. The Court must otherwise come to a conclusion that the
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conduct complained of tentamounts to obstruction of justice
which if allowed, would even permeat in our society vide Murray
& Co. v. Ashok Kr. Newatia & Anr.: 2000 (2) SCC 367 : (2000 AIR
2000 SC 833 : 2000 Cri LJ 1394) this is a special jurisdiction
conferred on to the law courts to punish an offender for his conte
contemptuous conduct or obstruction to the majesty of law. It is
in this context that the observations of the this Court in Murrays
case (supra) in which one of us (Banerjee, J.) was party needs to
be noticed.
“The purpose of contempt jurisdiction is to uphold the majesty
and dignity of the Courts of law since the image of such a majesty
in the minds of the people cannot be led to be distorted. The
respect and authority commanded by Courts of Law are the
greatest guarantee to an ordinary citizen and the entire
democratic fabric of the society will crumble down if the respect
for the judiciary is undermined. It is true that the judiciary will be
judged by the people for what the judiciary does, but in the event
of any indulgence which even can remotely be termed to affect
the majesty of law, the society is bound to lose confidence and
faith in the judiciary and the law courts thus, would forfeit the
trust and confidence of the people in general.”
14. The other aspect of the matter ought also to be noticed at this
juncture viz., the burden and standard of proof. The common
English phrase he who asserts must prove has its due application
in the matter of proof of the allegations said to be constituting the
act of contempt. As regards the standard of proof, be it noted that
a proceeding under the extra-ordinary jurisdiction of the Court in
terms of the provisions of the Contempt of Court Act is quasi
criminal, and as such, the standard of proof required is that of a
criminal proceeding and the breach shall have to be established
beyond reasonable doubt. The observations of Lord Denning in Re
Bramblevale (1969 3 All ER 1062) lend support to the aforesaid.
Lord Denning in Re Bramblevale stated:
“A contempt of court is an offence of a criminal character. A man
may be sent to prison for it,. It must be satisfactorily proved. To
use the time- honoured phrase, it must be proved beyond all
reasonable doubt. It is not proved by showing that, when the man
was asked about it, he told lies. There must be some further
evidence to incriminate him. Once some evidence is given, then
his lies can be thrown into the scale against him. But there must
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be some other evidence. Where there are two equally consistent
possibilities open to the Court, it is not right to hold that the
offence is proved beyond reasonable doubt.”
(ii) Dr. U.N. Bora, Ex.Chief Executive Officer and Ors. Vs. Assam
Roller Flour Mills Association and Anr., (2022) 1 Supreme Court
Cases 101,
8. We are dealing with a civil contempt. The Contempt of Courts
Act, 1971 explains a civil contempt to mean a willful
disobedience of a decision of the Court. Therefore, what is
relevant is the “willful” disobedience. Knowledge acquires
substantial importance qua a contempt order. Merely because a
subordinate official acted in disregard of an order passed by the
Court, a liability cannot be fastened on a higher official in the
absence of knowledge. When two views are possible, the element
of willfulness vanishes as it involves a mental element. It is a
deliberate, conscious and intentional act. What is required is a
proof beyond reasonable doubt since the proceedings are quasi-
criminal in nature. Similarly, when a distinct mechanism is
provided and that too, in the same judgment alleged to have been
violated, a party has to exhaust the same before approaching the
court in exercise of its jurisdiction under the Contempt of Courts
Act, 1971. It is well open to the said party to contend that the
benefit of the order passed has not been actually given, through
separate proceedings while seeking appropriate relief but
certainly not by way of a contempt proceeding.
6. I have given thoughtful consideration to the submissions
advanced by both the parties. It is the matter of record that interim
order was passed in Notice of Motion No.4973/2019 dtd.08.01.2020
and the said interim order was confirmed vide order dtd.22.2.2023. The
defendants were restrained from carrying on any construction as prayed
in prayer clause 6 of the said notice of motion which is in respect of
proposed new building and the defendants were restrained from
making any construction of wing ‘C’ building. The said order was
challenged by the defendants before the Hon’ble High Court and
Hon’ble High Court was also pleased to dismiss the appeal filed by the
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defendant vide Order dtd.08.01.2024 in Appeal from Order
No.418/2023. The defendants took said order passed by Hon’ble High
Court before the Hon’ble Supreme Court in Civil Appeal
No.11414/2025. The Hon’ble Supreme Court while disposing the said
appeal has specifically observed in para No.3 to 7 as under : -
3. Pending the suit and order of injunction granted in favour of the
respondent-plaintiff by the Trial Court, the High Court has
permitted the appellant-developer to either await final decision
of the suit by stopping the construction where it stands today or
to demolish the same to bring it at par with the plinth/footprint
of the area indicated in 2004 layout plan and then to construct
the third building upto ground + 7 floor. Though arguments
have been made by both the parties on factual aspects and on
law, we do not wish to go into the same at this stage as we are
dealing with an Interlocutory Application.
“
4. Suffice it to take note of the submissions made by the learned
Senior Counsel before the High Court and also before us that
the balance FSI potential under the Development Control
Regulation, 1991 (for short, ‘DCR, 1991’) alone would be
utilized and the fungible area admissible as per 1991 DCR,
would not be utilized.
5. In such view of the matter, granting a temporary injunction
would not be to the benefit of both the sides as for considering
the same, what is to be primarily looked at is an irreparable loss
to the plaintiff (s), a prima facie case established by the plaintiff
or balance of convenience lies in the plaintiff’s favour.
6. Accordingly, we permit the appellant to put up construction as
per the approved plan, with respect to FSI Potential under DCR,
1991, while making it clear that the fungible area admissible
under the said DCR, shall not be utilized. The said construction
is subject to the decree to be passed in the suit and therefore, no
equities can be claimed.
7. In order to avoid third party rights, we hold that the appellant
shall not alienate the construction to be made, in favour of the
third parties, pending the outcome of the suit.”
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7. Thus, from the order passed by the Hon’ble Supreme Court,
defendants were given the liberty to proceed with the construction as
per the approved plan. Therefore, it cannot be said that the defendants
proceeded with the alleged construction in violation of order passed in
Notice of Motion No.4973/2019 dtd.08.01.2020. It is noteworthy to
mention here that the interim relief granted in Notice of Motion
No.4973/2019 dtd.08.01.2020 and order passed by the Hon’ble High
Court in Appeal from Order No.418/2023 dtd.08.01.2024 merged in
the order passed by Hon’ble Supreme Court in Civil Appeal
No.11414/2025 dtd.01.08.2025. Therefore, the contention of the
plaintiff that defendants breached the order passed in Notice of Motion
No.4973/2019. The Hon’ble Supreme Court in clear and unequivocal
words had granted the liberty to defendant to continue the construction
as per the approved plan with respect that FSI potential under BCR
1991. It was further made clear in the said order that the fungible area
admissible in the said BCR shall not be utilized by the defendants. It is
further made clear in the said order that any construction of the
defendants will be subject to decree to be passed in the suit. The
Hon’ble Supreme Court further directs the defendants shall not alienate
the construction to be made in favour of 3rd party till decision of the
suit. Thus, by the order of Hon’ble Supreme Court the defendants can
proceed with the construction of the new building as per approved plan
and there is no order against the defendants for not to carry on any
construction or to demolish any construction made on the suit property.
It is noteworthy to mention here that in the order passed by the Hon’ble
Supreme Court defendant were directed to proceed with the
construction as per approved plan only and there is no direction to
follow the approved plan of 2004 only while making any new
construction. Therefore, in view of the specific order passed by the
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Hon’ble Supreme Court, the present Notice of Motion does not survive
and therefore, the same needs to be rejected. Hence, I proceed to pass
following order:-
ORDER
1. Notice of Motion No.269 of 2020 in Suit No.17 of 2020 is
dismissed.
2. Notice of Motion No.269 of 2020 is disposed of.
Date : 06.03.2026
Place : Mumbai.
(N.V. JIWANE),
Judge,
City Civil & Sessions Court,
Greater Mumbai.
Dictated on : 04.03.2026 and 06.03.2026
Transcribed on : 04.03.2026 and 06.03.2026
Draft given on : 06.03.2026
Checked & Signed on : 07.03.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
Mrs. K. S. Bhosale07.03.2026 5.35 p.m.
Name of the Judge (With C.R. No.) HHJ Shri N.V. JIWANE (C.R.No. 62)
Date of Pronouncement of
JUDGMENT /ORDER
06.03.2026
JUDGMENT /ORDER signed by
P.O. on
07.03.2026
JUDGMENT /ORDER uploaded on 07.03.2026
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