Bombay High Court
Smita Wd/O Rajenda Shah And 2 Ors vs Bhupat Vasanji Shah And 8 Ors on 8 December, 2009
Bench: S.C. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CONTEMPT PETITON No. 95 OF 2007
IN
NOTICE OF MOTION NO. 3077 OF 1995
IN
SUIT NO. 3262 OF 1995
WITH
SHOW CAUSE NOTICE NO. 1498 OF 2008
ig IN
CONTEMPT PETITON No. 95 OF 2007
IN
NOTICE OF MOTION NO. 3077 OF 1995
IN
SUIT NO. 3262 OF 1995
1. Smita Wd/o Rajendra Shah ]
Adult, now aged about 46 years ]
of Bombay, Indian Inhabitant ]
2. Kumari Shivani D/o Rajendra ]
Shah, a minor, now aged about ]
27 years, of Bombay, Indian ]
Inhabitant ]
3. Sushant S/o Rajendra Shah ]
now aged about 25 years, ]
all the Plaintiffs residing at ]
Room No.32, Rajendra Bhuvan ]
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2
2nd floor, Sainath Nagar, ]
Agra Road, Ghatkopar (W), ]
Bombay- 400 086 ]..Petitioners
[Ori.Plaintiffs)
Vs.
1. Bhupat Vasanji Shah ]
An Adult of Bombay, Indian ]
Inhabitant ]
2. Prakash Vasanji Shah ]
Inhabitant.
An Adult, of Bombay, Indian ]
]
3. Smt.Jiviben Bhanji Shah ]
An Adult, of Bombay, Indian ]
Inhabitant, ]
4. Smt.Gunwantiben Vasanji Shah ]
Adult, of Bombay, Indian ]
Inhabitant, the Defendant ]
Nos.1 to 4, residing at ]
26-A, Vrindavan Society, flat ]
No.32, 3rd floor, Rabodi, ]
Thane (W) Maharashtra ]
5. Kiran Vasanji Shah ]
an Adult of Bombay, Indian ]
Inhabitant, trading in the name ]
and under the style of ]
M/s.Satyan General Stores, ]
Station Road, Umargaon, ]
Gujarat ]
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6. Smt. Jyoti Gunwant Timbedia ]
An Adult, Indian Inhabitant, ]
residing at village Bilka, ]
Dist. Junagarh, Gujarat ]..Respondents
[Ori.Defendants]
AND
7. Mrs.M.S.Sonakar ]
Adult, Indian Inhabitant, ]
of Bombay, residing at ]
Flat No.34, Building No.96/A ]
8. Mrs. Tiwari
Vrindavan Society, Thane (W) ]
]
Adult, Indian Inhabitant ]
of Bombay, residing at ]
Flat No.32, Building No.26/A ]
Vrindavan Society, Thane (W) ]..Respondents/
Contemners
AND
9. The State of Maharashtra ]..Respondents
....
Jaideep Raut i/b Vinod Mistry & Co. for Petitioners.
Anant C.Singh along with Rakesh Agrawal for Respondent No.7.
Smt.S.M.Dandekar AGP for Respondent No.9.
....
CORAM: S.C.DHARMADHIKARI J.
DATED : 8th December, 2009
ORAL JUDGMENT:
1. This Court has admitted the Contempt Petition and thereafter,
it has been placed for hearing and final disposal.
2. The Court issued Notice to the Respondents calling upon them
to show cause as to why action should not be taken against them for
breach of the order passed by this Court on 17th October, 1995 by
transferring Flat No.32 in Vrindavan Society, Thane. At the same time,
this Court directed the Court Receiver, High Court, Bombay to take
symbolic possession of the property.
3. The Court Receiver has taken symbolic possession.
4. The Contempt Petitioners are the original Plaintiffs.
Respondent Nos.1 to 6 are the original Defendants, out of whom, the
Respondent No.3 has been reported dead. The office report shows that
the Respondent Nos.1, 2, 4, 5 and 7 have been duly served. Respondent
No.6 also is served, whereas Respondent no.8 is unserved.
5. At the outset, it may be stated that both Respondent Nos.7 and
8 are not parties to the original suit. This is a Contempt Petition. These
Respondents have been impleaded as parties to the Contempt Petition. It
is stated in all fairness that the present civil Contempt Petition cannot be
filed against those, who are not parties to the suit on the ground that they
have aided and abetted breach of the order of this Court. In these
circumstances, no action under contempt jurisdiction can be taken as
against these Respondents.
6. As far as the original Defendants are concerned, it is alleged in
the Contempt Petition that Suit No. 3262 of 1995 was filed in this Court for
declaration that there was a severance of the joint family consisting of
Plaintiffs and Defendants on and from 30th April, 1995 and/or on date of
filing of the suit and therefore, the Plaintiffs are entitled to their 1/6th share
in the joint family properties, more particularly described in para 3 of the
plaint, so also, other properties that may be disclosed by the original
Defendants. Thus, the suit is for partition of joint family property and for
other reliefs.
7. In this suit, a Notice of Motion for interim relief being Notice of
Motion No. 3077 of 1995 had been moved, wherein this Court passed an
order on 17th October, 1995 restraining the Defendants (Respondent Nos.
1 to 6 herein) from accepting surrender/creating new tenancies and/or
transferring or creating any third party rights, interest in respect of the
various properties including Flat No.32, 3rd floor, 26-A, Vrindavan Society,
Thane (W).
8. This Notice of Motion thereafter was listed for hearing and final
disposal and the Court confirmed the above ad-interim order. The final
order is dated 17th February, 1998. The injunction in the aforesaid terms
came to be confirmed.
9. The injunction order is in force and the allegation is that when it
was in force and to the knowledge of the original Defendants they in
collusion with the Respondents, entered into an agreement for sale of the
flat. This was in blatant violation of the orders and injunction of this Court.
The necessary averments in this behalf are made in para 7 of the
Contempt Petition.
10. It is stated that after it was noticed by the Petitioners that order
of this Court has been flouted and violated wilfully, they addressed a letter
dated 6th September, 2007 to the Respondent nos.1 to 6/original
Defendants but they have not responded to the same although it was duly
received by them. Respondent Nos. 7 and 8 were also informed of the
act committed and therefore, a response was awaited from them.
However, they did not respond either.
11. In these circumstances the Petitioners pray that action under
Article 215 of the Constitution of India and under Contempt of Courts Act,
1971 for " c ivil contempt " be taken and this Court should proceed
against all the Respondents and award them appropriate punishment in
accordance with law. These orders be passed in exercise of this
Court ' s powers under Article 215 of the Constitution of India read with
the Contempt of Courts Act, 1971.
12. This Contempt Petition was filed on 9th October, 2007.
13. It is common ground that the Respondent No.3 was already
dead and therefore, there is no question of any action being initiated
against the said Respondent.
14. As far as the original Defendants are concerned, Respondent
No.1 who is Defendant No.1, Respondent No.2 who is Defendant No.2
and Respondent No.4 who is Defendant No.4 have been duly served.
Similarly, Respondent Nos.5 and 6 have been served. Initially, no
affidavit was filed by the Respondents. An affidavit in reply has been
filed after the Contempt Petition was admitted by this Court and Notices
were issued. Respondent No.2 Prakash Shah in his affidavit states that
he is not on talking terms with the Petitioners/Plaintiffs and he was not
residing with them due to strained relations. He states that Respondent
No.1 approached him and informed him that a suit had been filed against
the Respondents 1 to 6 and that he had engaged some advocate.
Believing his statement, the 2nd Respondent signed some documents and
returned them to the brother (Respondent No.1) Bhupat Shah. He states
that he never visited Advocate ' s office nor was he aware of the
pendency of Suit No. 3262 of 1995. He was not aware of the orders
passed therein.
15. In para 7 of this affidavit, he states that he is co-owner of the
subject flat. He always desired to sell and dispose off the same so that
the money from the sale proceeds can be utilized to purchase a
residential house/premises for his family. He has addressed several
letters to the Society. This Respondent always wanted to sell the flat.
The other co-owner namely Gunwantiben was not agreeable to sell the
flat since the other brothers of Respondent No.2 were residing therein.
Since the said brothers were not earning, there was no source of
livelihood and mother was suffering from various ailments, one day, they
agreed to sell and dispose off the flat. Accordingly, the flat was sold
jointly with the mother. The other statements in the affidavit are on the
merits and I am not concerned with that controversy at this stage.
16. In para 13 of this affidavit, it is stated that the family properties
stood in the name of the grand mother Jiviben and jointly in the name of
father Vasanji. The Petitioners are claiming through the deceased father
who pre-deceased Jiviben. Jiviben left the Will whereby she bequeathed
the main property to the mother of the Respondent No.2 Gunwantiben.
The Petitioners accordingly agreed to accept sum of Rs.25 lakhs towards
their share in the family properties. All family members started looking for
buyers for the properties. There were negotiations and in fact the 1st
Respondent contacted the Petitioners and informed them that the buyer
has shown interest in the family properties and that they will get the share
as agreed. However, the Petitioners claimed more amount and refused
to accept the same in installments. All the family members have tried to
work out the matter. However, the Petitioners were not ready to
cooperate. The Petitioners are well aware about the sale of the flat. Ever
since there were negotiations, the Petitioners never objected or pointed
out the Court order to the 2nd Respondent. The Petitioners were aware of
the Court order and the proceedings. Thus, the allegation is that the
Petitioners have acquiesced in the sale of this flat and now they are taking
advantage of the pendency of the proceedings and the Court order as
black-mailing tactics to extract more money.
17. As far as the purchaser-Respondent No.7 is concerned,
although it is observed by me earlier that no action in contempt can be
initiated, yet, it is necessary to advert to his affidavit so that the Court has
details of the transaction on record. In the affidavit which is affirmed by
Respondent No.7 on 14th October, 2008, it is stated that the Petitioners
and Respondent Nos. 1 to 6 did not communicate the order to Rajdeep
Vrindavan Co-Operative Housing Society Ltd. The 7th Respondent states
that by an agreement for sale dated 21st November, 2006 duly executed
by Respondent Nos. 2 and 4 and registered with the Sub-Registrar of
Assurances Thane on 23rd November, 2006, Respondent No.7 has
purchased the flat for the agreed consideration of Rs.12.50 lakhs only.
He claims to be a bonafide purchaser without any knowledge of the
proceedings having paid the entire consideration under this agreement.
The 7th Respondent was informed that the flat stands in the joint names of
the Respondent No.2, Respondent No.3 and Respondent No.4. He was
informed about death of Jiviben (Respondent No.3 herein). He has
stated that he has obtained loan for purchasing the flat and prior thereto,
he had issued a public notice. He states that there were no complaints or
objections received by the Society and thereafter, by execution of
Indemnity Bond, the transaction was finalized. It is stated that there was
a declaration issued by Respondent Nos. 5 and 6. Further there was
consent of 1st Respondent as well. There are declarations, copies of
which are annexed. Further, it is stated that the flat presently is given on
Leave and Licence basis to a licensee.
18. A copy of the Agreement which is annexed to this affidavit
would show that the Vendor therein is one Prakash Vasanji Shah and
Gunwanti Shah. They are joined to this Contempt Petition as Respondent
Nos.2 and 4. As pointed out above, Respondent No.2 who has filed the
affidavit is silent about pendency of any proceedings. The agreement
does not speak about any claim made by the Petitioners as well.
19. The Respondent No.2 has filed affidavit and the explanation he
has given, has been adverted to by me hereinabove. These are the only
affidavits on record.
20. On the basis of the same, I have heard the learned counsel
appearing for the Petitioners and the Respondent No.7. A Vakalatnama
has been filed on behalf of Respondent Nos.2 and 4 but their advocate is
absent. There is no rejoinder affidavit filed by the Petitioners. Thus, one
of the Vendors who has filed an affidavit, has specifically taken a stand
that all family members including the Petitioners had jointly decided to sell
off family properties. The family properties consisted of two fully tenanted
buildings and lease hold plots. The buildings are in ruinous condition.
The leasehold property has been in possession of the lessees. They
have constructed building thereon and created further tenancies. The flat
was one of the family property according to the Petitioners but that is not
denied. The reasons leading to the sale of the flat are set out in paras 7,
12 and 13 of the affidavit.
ig There is serious allegation made of
acquiescence and the Petitioners being ready and willing for the sale but
now blackmailing the Respondents for more money. The Petitioners have
not filed any rejoinder affidavit denying any of these statements or dealing
with the other contentions in the affidavit.
21. It is well settled that the contempt jurisdiction is conferred on
the Court not for the benefit of the Petitioners or litigants but to uphold the
majesty and dignity of the Court. The Institution must not loose its
credibility amongst the litigating public. " C ivil contempt " is defined in
the Act to meet a wilful disobedience to any judgment, decree, direction,
order, writ or other process of a Court or wilful breach of an undertaking
given to a Court.
22. The present case is not of an undertaking given to the Court. It
is based on wilful disobedience of the order passed way back in the year
1995 and confirmed in 1998. The Supreme Court has repeatedly held
that this is a special jurisdiction to be exercised sparingly and with
caution. It is a jurisdiction to be exercised when the Court notices that the
act adversely affects administration of justice or tends to impede its
course or tends to shake public confidence in the judicial institutions. This
jurisdiction may also be exercised when the act complained of, adversely
affects the majesty of law or the dignity of the Courts. The contempt
proceedings should not be initiated lightly. Mere disobedience or breach
of order of a Court is not sufficient to hold that a civil contempt has been
committed. The element of willingness is indispensable requirement to
bring home the charge. See A.I.R. 2002 S.C. 1405 (Anilratan Sarkar &
Ors. Vs. HiraIe Ghosh & Ors. It is well settled that contempt is a matter
between the Court and the alleged Contemnor and in this Jurisdiction the
Court is not concerned with the controversy on merits as far as parties to
the litigation. Section 12 of the Act provides for punishment for contempt
of Court. Once again, the Supreme Court in this regard cautions and
observes that the Court must apply its mind in all these cases to the
above principle and ought not to be hyper sensitive. Further, a sentence
under this act for contempt should not be imposed unless the Court is
satisfied that the contempt is of such a nature that it substantially
interferes or tends substantially to interfere with the due course of justice.
23. Applying all these tests to the facts of this case, it is apparent
to me that the Injunction order of this Court was in force. It is nobody ' s
case that the order was not to their knowledge. That aspect of the matter
is not in dispute as the other Respondents who are original Defendants to
the suit, had filed any affidavit denying the statements in the Contempt
Petition. It is only the stand of the 2nd Respondent that he was unaware
of the Court proceedings and the orders and he has handed over some
documents/papers duly signed to the 1st Respondent, who is his brother in
the hope and faith that he would look after all Court matters. That stand
of the 2nd Respondent does not impress me. Once, he was aware of the
disputes between family members, initiation of Court proceedings and
what he signs is also a document, which is termed by him as
Vakalatnama, then it cannot be accepted that he was unaware of any
Court matters and Court orders. The 2nd Respondent as a vendor, ought
to have been aware of the fact that he was duty bound in law to disclose
the pendency of the proceedings to the Co-Operative Housing Society
and to the Purchasers as well. It was his duty in law to seek a
modification or variation of the order of the Court if at all he was desirous
of disposing of the flat in question or his share therein. The difficulties
apart, having not taken prior permission of the Court before proceeding to
sell the flat in the teeth of the order of injunction, is nothing but an act of
disobedience of the order passed by this Court. The question is whether
the same is wilful or not so as to term it as civil contempt.
24. On affidavit, 2nd Respondent has set out the circumstances in
which the transaction was finalized. He has stated on oath that he is not
on talking terms with the Petitioners and residing elsewhere. The suit was
filed in the year 1995. It is the 1st Respondent who came to the 2nd
Respondent informing him that a suit has been filed. 2nd Respondent has
stated that he never visited the Court or advocate ' s office. He was not
having a permanent residence of his own and residing in eastern
suburbans by taking premises on Leave and Licence basis. He states
that he was a co-owner and desirous of disposing off and at least, his
share in the subject flat so that from the money he can purchase
residential premises for his family. He states that he repeatedly
corresponded with the Society. He states that he was unable to sell the
flat earlier, since the other co-owner, viz. his mother Gunwanti, was not
agreeable to sell the flat. This was because of other members and
brothers with wives, and children who were residing therein. He states
that his brothers were not earning, there was no source of livelihood,
mother was suffering from various ailments and being old and aged,
agreed to sell and dispose off the flat and accordingly, mother and he
jointly disposed off this flat. After denying the right of the
Plaintiffs/Petitioners thereto, he has referred to the discussion between
family members including the Petitioners for sale of the properties. In
fact, he has specifically referred to the discussion wherein the Developer
was contacted, the Petitioners agreed to accept sum of Rs.25 lakhs and
that is how the family settlement was sought to be worked out. After the
negotiations broke down and the Petitioners were not willing to cooperate
that the transaction was undertaken. He has specifically stated that
Petitioners never objected during the course of negotiations for sale nor
had they informed that there is a Court order to the interested parties.
Thus, this is a case where on account of family problems and disputes so
also old property not fetching any income, that the parties at one stage,
decided to dispose off the same. It may be stated that the Petitioners
have now urged that they are unaware of the stand of the 2 nd Respondent
on affidavit as copy of the affidavit was never served on the Petitioners '
advocate, yet, it is apparent that the 2nd Respondent filed the above
affidavit, in this Court, on 27th January, 2009. The matter has been
repeatedly appearing on board but at no stage, the Petitioners ' advocate
made any grievance. It is not possible to agree with him that the
Petitioners were unaware of the stand of the 2nd Respondent.
25. As has been adverted to by me, the contempt jurisdiction is not
meant for parties to settle their scores. It is to uphold the dignity and
majesty of the Court that this jurisdiction is vested. This is not a
proceeding to be used a tool or handle by parties to harass their
opponents or try and knock out something from them. The threats of
contempt given by parties loosely nowadays, compel me to advert to the
settled principles. Once I find that the 2nd Respondent states that there is
a disobedience on his part of the order of this Court but in the
circumstances, the disobedience cannot be said to be wilful and that
stand having gone uncontroverted, then, I do not think that the Petitioners
can succeed in this petition. It is not possible to hold that a civil contempt
has been committed and therefore, the Respondent Nos.1 to 6 should be
punished in accordance with law. On the other hand, finding that the
disobedience was not wilful and accepting the explanation on affidavit, I
proceed to dismiss this Contempt Petition. It is accordingly dismissed.
Once the Contempt Petition is dismissed, the show cause notice does not
survive and stands disposed of accordingly.
26. It is clarified that the Court Receiver appointed during the
course of this Contempt Petition, has taken formal possession of the
subject flat. The Receiver to continue in these terms until further orders in
the suit.
S.C.DHARMADHIKARI, J.
