Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in Contempt NM no 1066 of 2018, in Suit no.7427 of 2006
MHCC010034512018
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
CONTEMPT NOTICE OF MOTION NO.1066 OF 2018
IN
NOTICE OF MOTION NO.4374 OF 2006
IN
SUIT NO.7427 OF 2006
(HIGH COURT SUIT NO.3431 OF 2006)
Aisha Khatoon ) Plaintiff.
V/s
Khatijabai Mohd. Siddiq & Ors.. ) Defendants.
And
Arch Realtors Pvt. Ltd. & Ors. ) Respondents.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 12th DAY OF DECEMBER, 2022
: Appearances:
The learned Adv. Mr. R.M. Vanoo for the plaintiff.
The learned Adv. Mr. Rohit Sawant a/w Yash Dhakkad a/w Meetal
Savla I/b Tushar Goradia for defendant Nos.16 and 17.
ORAL ORDER
The plaintiff has taken out present Contempt Notice of
Motion for claiming reliefs inter alia:
(a) To hold the respondents of being guilty of contempt for
wilful disobedience and breach of interim order dated 3rd/4th & 5th
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October, 2007 passed by the Hon'ble High Court of Judicature at
Bombay in Notice of Motion No.4374 of 2006 in S.C. Suit No.7427 of
2006 (High Court Suit No.3431 of 2006) which was passed as per the
arrangement recorded in order dated 12.03.2007 which is continued
by further order dated 10.04.2007 whereby the respondent nos.1 & 2
have made statement that they will not create any third party interest
in respect of residential flat admeasuring approximately 600 sq.fts., in
the building which is proposed to be constructed on the said property
in dispute and inspite of said interim order being in operative
respondents no.1 and 2/defendants Nos.16 and 17 have created third
party right and handed over residential flat to respondent No.3.
Hence they be prosecuted for wilful disobedience and breach of the
interim order.
(b) In view of the wilful breach, violation and disobedience
of the adinterim order 3 rd/4th & 5th October, 2007 the defence of the
respondents be struck off and be ordered to be discarded and for
other reliefs.
2. In short, it is contention of the plaintiff that, the plaintiff
has taken out Notice of Motion No.4374 of 2006 before the Hon'ble
High Court in Suit No.3431 of 2006 for claiming interim reliefs. The
Hon'ble High Court was pleased to pass adinterim order dated
3rd/4th & 5th October, 2007 as per the arrangement recorded in order
dated 12.03.2007 which is continued by further order dated
10.04.2007 whereby respondent Nos.1 & 2 have made statement that
they will not create third party interest in respect of residential flat as
stated supra. However during the pendency of the suit and said ad
interim order being in operation respondent Nos.1 & 2 have let out
suit property to respondent No.3. Therefore respondents are liable to
be punished and prosecuted as per provisions of Order 39 Rule 2A of
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the Civil Procedure Code (In short, 'CPC'). Hence the present
Contempt Notice of Motion.
3. Respondent Nos.1 & 2 (original defendant Nos.16 and
17) strongly opposed contempt Notice of Motion by filing reply. It is
contended that at no point of time they have committed breach
and/or disobedience of the order passed by the Hon'ble High Court. It
is contended that in the unlikely event, if this court comes to a
conclusion that they have committed breach and/or disobedience of
the order then they tendered their unconditional apology.
4. It is further contended that, contempt Notice of Motion
taken out by the plaintiff is barred by law of limitation. The plaintiff
has suppressed true and correct facts from this court and hence not
entitled for the relief claimed. It is further contended that,
respondents have not in any manner whatsoever breached orders.
The security by way of the flat which was created to secure the
monetary claim of the plaintiff continues to be available and has not
been alienated. It is contended that leave and license agreement
entered into by respondent Nos.1 & 2 do not in any manner
whatsoever jeopardize the monetary claim of the plaintiff. It is further
contended that entering into a leave and license agreement does not
amount to alienation of the property. Alienation essentially involves
transfer of ownership rights in the property. The property remains to
be owned by the defendants. Leave and license agreements apart
from the fact that it in any manner does not prejudice the interest or
claim of the plaintiff. It in fact enables the rent income received from
the said flat to be appropriated towards maintenance, society
formation and other expenses accrued or to be accrued with respect
to the said flat. Hence contempt Notice of Motion taken out by the
plaintiff is liable to be dismissed.
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5. The plaintiff has filed rejoinder to the reply and denied
all the adverse averments. It is contended that respondents have
failed to produce alleged leave and license agreement wherein it is
stated that suit property is given on leave and license basis. It is
contended that inspite of knowledge of adinterim order passed by
the Hon'ble High Court respondents no.1 and 2 intentionally
transferred property in favour of respondent No.3. Hence respondent
No.1 & 2 are liable for contempt proceedings.
6. Heard both the learned advocates for respective parties
at length. Perused the record.
7. Following points arises for my determination to which, I
record my finding with reasons as follows:
Sr.No Points Findings
1. Whether the plaintiff is entitled for
reliefs claimed in contempt Notice of
Motion?
No
2. What order ? As per final order.
REASONS
As to point no.1:
8. The learned advocate Mr. R.M. Vanoo for the plaintiff
argued that, the plaintiff has filed Suit No.3431 of 2006 (Suit
No.7427/2006) wherein claiming that she has 1/8th share, right, title
and interest in the suit property. The plaintiff has taken out Notice of
Motion No.4374/2006 for claiming adinterim relief thereby also
prayed for restraining defendants from creating third party interest in
the suit property. It is further argued that after receiving notice
defendant Nos.16 and 17 appeared in the matter before the Hon'ble
High Court whereby they made statement that till the prayer for ad
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interim relief is considered and decided by the Court they will not
create any third party interest in respect of residential flat
admeasuring approximately 600 sq.fts. The Hon'ble High Court has
accepted the said statement and passed order dated 12th March 2007.
It is further argued that after hearing both parties at length the
Hon'ble High Court vide its order dated 3rd/4th & 5th October, 2007
have granted interim relief in favour of the plaintiff as per the
arrangement recorded in order dated 12.03.2007, which is continued
by further order dated 10.04.2007. It is further argued that inspite of
having knowledge of order dated 3rd/4th & 5th October, 2007 passed
by the Hon'ble High Court respondent Nos. 1 & 2 have transferred
residential flat admeasuring approximately 600 sq.fts., in favour of
respondent No.3. Respondent Nos.1 & 2 knowingly, willfully and
deliberately committed the breach, violation and disobedience of the
interim order. Hence they are liable to be punished in view of
provisions of Order 39 Rule 2A of CPC.
9. The learned advocate for the plaintiff, in support of his
argument relied on authorities reported in the case of:
(1) Krishna Ram Mahale (dead) by his LRs V/s. Mrs. Shobha
Venkat Rao, AIR 1989 Supreme Court 2097.
(2) Ram Rattan and others V/s. State of U.P., AIR 1977
Supreme Court 619.
(3) Ram Sarup Gupta (dead) by L.Rs V/s. Bishun Narain Inter
College and others., AIR 1987 Supreme Court 1242.
10. Per contra, the learned advocate for respondents no.1 and 2
vehemently argued that respondents have not transferred suit
premises to anybody thus question of committing wilful breach of the
order of the Hon'ble High Court does not arise. Thus Contempt Notice
of Motion is liable to be dismissed.
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11. The learned advocate for defendants relied on authorities
reported in the case of:
(1) Ramavatar Surajmal Modi V/s. Mulchand Surajmal
Modi. The Maharashtra Law Journal 2004(2) Page 1.
(2) ICICI V/s. State of Maharashtra and Others, (1999) 5
Supreme Court Cases 708.
(3) Future Coupons Private Limited and Others. V/s.
Amazon. com NV Investment Holdings LLC and Others., 2022 SCC
OnLine SC 126.
(4) Ram Kishan V/s. Tarun Bajaj and Others., (2014) 16
Supreme Court Cases 204.
(5) Food Corporation of India V/s. Sukh Deo Prasad,
(2009) 5 Supreme Court Cases 665.
(6) Pallav Sheth V/s. Custodian and Others., (2001) 7
Supreme Court Cases 549.
12. It is to be seen that provisions of Order 39 Rule 2A of
CPC are punitive in nature. Therefore the plaintiff has to prove the
breach/ contempt by leading cogent evidence and beyond reasonable
doubt. The plaintiff has to stand on its own leg, weak defence or no
defence taken by the defendant is of no use for the plaintiff.
13. It is to be seen that, as per the plaintiff’s own submission
adinterim order came to be passed on 3rd/4th & 5th October, 2007.
The present Contempt Notice of Motion is taken out by the plaintiff in
the year 2018 i.e., almost after 11 years. The plaintiff no where
pleaded or stated as to when respondents no.1 and 2 have transferred
suit premises admeasuring 600 sq.fts., approximately to respondent
No.3. The plaintiff no where specify the nature of transaction in
between respondents inter se. The plaintiff has not given details of
the transaction in between respondent Nos.1 & 2 and respondent
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No.3.
14. I have gone through the authorities relied by defendants.
In the case of Ramavatar Modi (Supra), the Hon'ble Bombay High
Court held that:
“Provisions of Order 39 Rule 11(1) of CPC are directory
in nature. Power of dismissal of suit or striking out
defence should be exercised where the default is wilful and
conduct of the defaulting party is contumacious resulting
in serious prejudice to the opposite party”.
15. In case of Future Coupons Private Limited (Supra),
the Hon'ble Supreme Court at para no. 45 held that:
“The contempt of a civil nature can be made out under
Order XXXIX Rule 2A CPC not when there has been mere
“disobedience”, but only when there has been “wilful
disobedience”. The allegation of wilful disobedience being in
the nature of criminal liability, the same has to be proved
to the satisfaction of the court that the disobedience was
not mere “disobedience” but “wilful” and “conscious”.
16. In the case of Ram Kishan (Supra), the Hon'ble
Supreme Court at para no. 11 observed that:
“The contempt jurisdiction conferred on to the law courts
power to punish an offender for his wilful
disobedience/contumacious conduct or obstruction to the
majesty of law, for the reason that respect and authority
commanded by the courts of law are the greatest
guarantee to an ordinary citizen that his rights shall be
protected and the entire democratic fabric of the society
will crumble down if the respect of the judiciary is
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undermined. Undoubtedly, the contempt jurisdiction is a
powerful weapon in the hands of the courts of law but that
by itself operates as a string of caution and unless, thus,
otherwise satisfied beyond reasonable doubt, it would
neither be fair nor reasonable for the law courts to exercise
jurisdiction under the Act. The proceedings are quasi
criminal in nature, and therefore, standard of proof
required in these proceedings in beyond all reasonable
doubt. It would rather be hazardous to impose sentence for
contempt on the authorities in exercise of the contempt
jurisdiction on mere probabilities”.
The Hon'ble Supreme Court further held that:
“Thus, in order to punish a contemnor, it has to be
established that disobedience of the order is “wilful”. The
word “wilful” introduces a mental element and hence,
requires looking into the mind of a person/ contemnor by
gauging his actions, which is an indication of one's state of
mind. “Wilful” means knowingly intentional, conscious,
calculated and deliberate with full knowledge of
consequences flowing therefrom. It excludes, casual,
accidental, bonafide or unintentional acts or genuine
inability. Wilful acts does not encompass involuntarily or
negligent actions. The act has to be done with a “bad
purpose or without justifiable excuse or stubbornly,
obstinately or perversely”. Wilful act is to be distinguished
from an act done carelessly, thoughtlessly, heedlessly or
inadvertently. It does not include any act done negligently
or involuntarily. The deliberate conduct of a person means
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that he knows what he is doing and intends to do the
same. Therefore, there has to be a calculated action with
evil motive on his part. Even if there is a disobedience of
an order, but such disobedience is the result of some
compelling circumstances under which it was not possible
for the contemnor to comply with the order, the contemnor
cannot be punished”.
17. In the case of Food Corporation of India (Supra) the
Hon'ble Supreme Court at para 38 held that:
“The power exercised by a court under Order 39 Rule 2A
of the Code is punitive in nature, akin to the power to
punish for civil contempt under the Contempt of Courts
Act, 1971. The person who complains of disobedience or
breach has to clearly make out beyond any doubt that
there was an injunction or order directing the person
against whom the application is made, to do or desist from
doing some specific thing or act and that there was
disobedience or breach of such order. While considering an
application under Order 39 Rule 2A, the court cannot
construe the order in regard to which disobedience/breach
is alleged, as creating an obligation to do something which
is not mentioned in the “order” on surmises, suspicions or
inferences. The power under Rule 2A should be exercised
with great caution and responsibility”.
18. In the case of ICICI (Supra) the Hon'ble Supreme Court
at para no. 8 observed that:
“If a document gives only a right to use the property in a
particular way or under certain terms, while it remains in
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possession and control of the owner thereof, it will be a
licence. In the present case, the licensee has been put in
possession only for the purpose of constructing a building
or buildings. Under this document, no interest in the land
is conveyed in favour of the appellants. The agreement
does not create a lease nor does it demise any interest in
land in favour of the appellants”.
19. The Hon'ble Supreme Court in the case of Pallav Sheth
(supra) held that:
“Limitation period one year for initiating contempt
proceedings prescribed under Section 20 of the Contempt of
Courts Act, being a period provided under a special law
which is different from the period prescribed under
Schedule to the Limitation Act, held, Section 17 of that Act
would be attracted by virtue of Section 29(2) r/w Section 3
thereof. As such the said period of one year would
commence from the date on which the commission of
contempt came to the knowledge where that had been
concealed by fraud or dishonest conduct of the contemnor.”
20. I have also gone through authorities relied by the
plaintiff in the case of Krishna Ram Mahale (Supra), Ramavatar
Surajmal Modi (supra) and Ram Sarup Gupta (dead) by L.Rs
(supra). However, with due respect I want to submit that ratio laid
down in above authorities is of no help to the plaintiff for deciding
present Contempt Notice of Motion.
21. As discussed supra, I want to submit that adinterim
order was passed by the Hon'ble High Court on 3rd/4th & 5th October,
2007. The present Contempt Notice of Motion is taken out in the year
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2018, without providing any proper reason or sufficient cause for
filling it after 11 years. The plaintiff failed to give the details of
alleged transaction of transfer by respondents no.1 and 2 in favour of
respondent No.3. The plaintiff failed to show that respondents no.1
and 2 intentionally committed wilful default of the order of the
Hon'ble High Court. The plaintiff failed to show that respondents no.
1 and 2 have transferred property in favour of respondent no.3. No
cogent evidence, oral as well as documentary, led by the plaintiff to
that effect. Thus keeping in mind the ratio laid down by the Hon'ble
Supreme Court in the authorities relied by respondents no.1 and 2, I
am of the view that no case made out by the plaintiff for seeking
reliefs as claimed in Contempt Notice of Motion. Thus my answer to
Point No.1 is in negative.
AS TO POINT NO.2:
22. In view of my above discussion, I pass following.
ORDER
Contempt Notice of Motion no.1066/2018 is rejected.
Notice of Motion stands disposed off.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date: 12.12.2022 (C.R. No.1)
Dictated on : 12.12..2022
Transcribed on : 13.12.2022
checked and Signed on : 15.12.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 16.12.2022 NAME OF STENOGRAPHER(GI)
Mr. V.S. Shinde
TIME: 12.10 p.m.
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 12.12.2022
JUDGMENT/ORDER signed by P.O. on 15.12.2022
JUDGEMENT/ORDER uploaded on 16.12.2022
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