Interim Order 1

Pdf Text: IN THE COURT OF METROPOLITAN MAGISTRATE,
66TH COURT, ANDHERI, MUMBAI.
C. C. No. : 32 /DV/2018.
Jeevanjyot Kaur Bansal. … Applicant.
V/s.
Kulvinder Bansal and Ors. … Respondents.
ORDER PASSED BELOW (EXH.37 )
Read the application, say of otherside. Heard Ld.
Counsels for both parties, at length.
2. Ld. Counsel for applicant has relied upon decision
of 1) State Bank of India V/s. M. C. D. and Ors. 104 (2003)
DLT 363 and 2) Smt. Kanchan V/s. Vikramjeet Setiya S.B.
Criminal Misc. Petition No. 123/2010, whereas Ld. Counsel
for respondent has relied upon decision of Abdul Ajij Puddan
Ansari V/s. Jubedabai W/o. Abdul Ajij, LEX (BOM) 1982 3 38.
I have gone through decision cited by the Ld. Counsels for
both parties.
3. It reveals that, the applicant has made this
application for attachment of accounts of respondent. It is her
submission that, this court vide order dtd. 30/07/2018,
allowed application of interim maintenance and directed to
respondent No. 1 to pay `.1,50,000/ to her and `.75,000/ to
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her daughter from the date of application, therefore,
`.24,75,000/ is pending against respondent No. 1, therefore,
Distress Warrant be issued. The report in that regard
disclosed nothing could be found for attachment, therefore,
present application for attachment of property of respondent
No. 1.
4. Otherside strongly objected for the same, submitted
that, application is nothing but an abuse to process of law, so
as to extract money from respondent No. 1. Efforts made by
respondent No. 1 to show his liability towards his business
and in lieu of that, payment towards it and liability of paying
tax, prayed to reject the application.
5. If considered submissions made by Ld. Counsels for
both parties, gone through decisions cited supra. Decisions
upon which applicant relied are not applicable, as it relates to
attachment of salary of respondent, in present matter
respondent No. 1 is not salaried person, he is business man.
6. So far as, decision upon which respondent No. 1 is
relied is also not useful to him, because fact and circumstances
of present case, and decision cited supra are different, not
tally with each other, as it relates to procedural aspect in view
of section 125 (3) of Criminal Procedure Code.
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7. If considered this fact, report of distress warrant,
no property exist, so as to attach and execute distress warrant
against respondent No. 1. I am of view that, prayer made by
applicant for attachment of accounts, cannot be considered,
therefore, same is required to be rejected, hence, it is rejected.
Mumbai.
Dated : 09/04/2019.
SRD.
Sd/
(R. M. Nerlikar)
Metropolitan Magistrate,
66th Court, Andheri, Mumbai.
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C. C. No. : 32 /DV/2018 ~4~
IN THE COURT OF METROPOLITAN MAGISTRATE,
66TH COURT, ANDHERI, MUMBAI.
C. C. No. : 32 /DV/2018.
Jeevanjyot Kaur Bansal. … Applicant.
V/s.
Kulvinder Bansal and Ors. … Respondents.
ORDER PASSED BELOW (EXH.43 )
Read the application, say of otherside. Heard Ld.
counsels for both parties, at length.
2. Ld. Counsel for applicant has relied upon decision
of Anil Sampatrao Kothawale V/s. Pushpabai Anil Kothawale
and Ors., decided on 16/10/2018, whereas, Ld. Counsel for
respondent has relied upon decision of Sachin S/o. Suresh
Bodhale V/s. Sushma W/o. Sachin Bodhale, criminal writ
petition No. 305 of 2014, Salem Advocate Bar V/s. Union of
India writ petition (Civil) 496 of 2002. I have gone through
decisions cited by the parties.
3. In case of Anil Sampatrao Kothawale V/s.
Pushpabai Anil Kothawale and Ors. the Honourable Bombay
High Court please to discuss the aspect of sentencing the
respondent in lieu of default of payment of arrears of
maintenance and to what extent he can be sentence to
imprisonment.
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4. In case of Sachin S/o. Suresh Bodhale the
Honourable Bombay High Court bench of Nagpur pleased to
discuss the provision of 125 (3) and 421 of Criminal
Procedure Code required to be considered for recovery of
arrears of maintenance and ordered to follow the procedure,
as contemplated in section 421 and 125 (3) of Criminal
Procedure Code, for recovery of arrears of maintenance.
5. Further, Ld. Counsel for respondent has relied
upon decision of Salem Advocate Bar V/s. Union of India,
submitted that, Honourable Supreme Court in above said
decision held that,
“Now a code of procedure must be regarded as such. It is
procedure, something designed to facilitate justice and further its
ends : not a penal enactment for punishment and penalties not a
thing designed to trip people up. Too technical construction of
sections that leaves no room for reasonable elasticity of
interpretation should therefore, be guarded against (provided
always that justice is done to both sides) lest the very means
designed for the furtherance of justice to used to frustrate it.
6. It reveals that, applicant had made this application
for issuance of arrest warrant and sentence to respondent
U/Sec. 32 of The Protection of Women From Domestic
Violence Act, 2005.
7. Ld. Counsel for applicant argued that, the
respondent has not paid single amount of maintenance since
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passing of order, therefore, distress warrant was issued, the
same returned with endorsement that, no moveable property
for attachment with respondent, therefore, prayed for arrest
warrant against respondent.
8. Ld. Counsel for respondent argued that respondent
from time to time paid school fees of the daughter, so also,
amount to applicant, to which Ld. Counsel for applicant
strongly opposed and submitted that, whatever submission
made by the respondent is not admitted to the applicant, as to
whether amount was paid outside the court either to the
daughter or to the applicant is matter of fact in issue.
Therefore, same cannot be considered at this stage.
9. It is not disputed that, this court from time to time
issue distress warrant against respondent No. 1 and report in
that regard is on record, which disclosed respondent No. 1 do
not possess any moveable property, which could be attached,
as discussed earlier, in view of decision cited supra filed by
applicant with regard to following the procedure as
contemplated in section 125 (3) and 421 of Criminal
Procedure Code, same is not applicable to the present case,
because previously as discussed above distress warrant against
respondent No. 1 was issued and report in that regard is
already on record, which disclosed respondent No. 1 do not
possess any moveable property.
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10. The provision of issuing warrant for attachment of
property is already exhausted. Further, it appears that,
respondent No. 1 has not paid single amount to the applicant,
since the date of passing order. Thereafter, distress warrant
issued against him, for recovery of arrears of maintenance, it
returned with endorsement respondent No. 1 do not possess
any property which is to be attached. Therefore, in these
circumstances, it appears that, respondent No. 1 is
deliberately avoiding to pay the arrears of maintenance. It is
nothing but willful default on part of respondent No. 1, for
payment of arrears of maintenance to the applicant. In these
circumstances for sentencing him to prison, I have no
alternative except to issue arrest warrant against respondent
No. 1 for will default of arrears of maintenance, which are due
against him. If the respondent No. 1 paid the arrears of
maintenance with the concern authority he be released
forthwith, if not be produced before the court. Hence, issue
arrest warrant against respondent No. 1.
Mumbai.
Dated : 09/04/2019.
SRD.
Sd/
(R. M. Nerlikar)
Metropolitan Magistrate,
66th Court, Andheri, Mumbai.
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IN THE COURT OF METROPOLITAN MAGISTRATE,
66TH COURT, ANDHERI, MUMBAI.
C. C. No. : 32 /DV/2018.
Jeevanjyot Kaur Bansal. … Applicant.
V/s.
Kulvinder Bansal and Ors. … Respondents.
ORDER PASSED BELOW (EXH.45 )
Read the application. Say of other side. Heard Ld.
Counsels for both parties, at length.
2. It reveals that, respondent has made this
application for production of documents on record. It is his
submission that, during course of proceeding he made certain
payments towards school fees and paid some amount to the
applicant, therefore, intend to bring same on record.
3. Otherside, strongly opposed for the same,
submitted that, application is not maintainable, as there is no
provision for the prayer made by respondent, prayed to reject
the application.
4. If considered submissions made by both Ld.
Councels, if considered prayer made by applicant, no
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prejudice would be caused to otherside, if documents
permitted to be produced on record, therefore, prayer made
by respondent is required to be allowed, hence, it is allowed.
Mumbai.
Dated : 09/04/2019.
SRD.
Sd/
(R. M. Nerlikar)
Metropolitan Magistrate,
66th Court, Andheri, Mumbai.
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Dictated on : 09/04/2019.
Transcribed on : 09/04/2019.
Checked on : 12/04/2019.
Signed on : 12/04/2019
SRD.
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