Bombay High Court
Mr. Kamlesh Kishin Godhwani vs Mrs. Lata Kamlesh Godhwani on 8 December, 2017
Bench: M.S. Sonak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1120 OF 2017
Kamlesh K. Godhwani .. Petitioner
vs.
Mrs. Lata K. Godhwani .. Respondent
Mr. Hitesh P. Vyas i/b. Mr. Chandrashekhar Yadav for the Petitioner.
Mr. U.P. Warunjikar for the Respondent.
CORAM : M. S. SONAK, J.
DATE : 08 DECEMBER 2017
ORAL JUDGMENT :-
1] Heard Mr. H.P. Vyas, learned counsel for the petitioner and Mr.
Warunjikar, who has been appointed under the Legal Aid Scheme for
the respondent.
2] The challenge in this petition is to the order dated 15 th
December 2016 made by the Family Court in the course of execution
of the judgment and decree dated 23rd January 2015 determining
and directing the petitioner to pay an amount of Rs.1,62,700/-
towards educational expenses of his minor son Chaitanya.
3] Mr. Vyas, learned counsel for the petitioner submits that the
petitioner is already paying maintenance at the rate of Rs.5,000/-
per month to his son Chaitanya. He submits that paragraph 57 of
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the judgment and decree dated 23 rd January 2015 makes it clear
that the expenses towards maintenance and education of
Chaitanya by the petitioner husband and the respondent wife are to
be borne proportionately. He therefore submits that the claim made
by the respondent wife is disproportionate, inflated and contrary to
the judgment and decree dated 23rd January 2015. He submits that
the executing court, in the present case, has traveled beyond the
judgment and decree dated 23rd January 2015 and therefore, the
impugned order, warrants interference.
4] Mr. Vyas further submits that the respondent wife has not only
raised inflated claims but has refused to furnish any invoices or
receipts in respect of the claims. The Family Court, without insisting
upon receipts and invoices, has grossly erred in allowing the inflated
claim towards educational expenses of Chaitanya.
5] Mr. Vyas submits that determination of almost Rs.43,700/- per
annum (Rs.27,500/- + Rs.16,200/-) towards transport expenses to
and fro the home and the college or to and fro the home and the
coaching class centre is exorbitant. He submits that the college is at
the distance of hardly 2 kms. from the home and since the petitioner
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has already provided Chaitanya with a bicycle, there is no
justification for award of such transport expenses. Mr. Vyas also
submits that the award of Rs.10,000/- per annum towards canteen
expenses, has no nexus with the educational expenses of Chaitanya
and in any case, he submits that the respondent wife can always
cook at home and there is no necessity for Chaitanya to spend any
amounts in the canteen. He submits that in any case, this expense
has to be included in the amount of maintenance Rs.5,000/- per
month which the petitioner regularly pays to Chaitanya.
6] Mr. Vyas further submits that the expenses claimed towards
data connection, notebook, stationery, bag are also exorbitant and
the executing court erred in awarding the same in the absence of
receipts and invoices. Mr. Vyas submits that expenses towards
college trip or college functions are again, unnecessary expenses
which cannot be foisted upon the petitioner. Finally, Mr. Vyas
submits that expenses of Rs.3,000/- per annum as miscellaneous
expenses can never be regarded as expenses towards education of
Chaitanya and the Family Court, has clearly exceeded the
jurisdiction in awarding the same.
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7] Mr. Vyas further submits that there are issues of access for
which, the petitioner has to file an application before the executing
Court. He submits that even the respondent earns and therefore, she
should also proportionately bear expenses towards Chaitanya. He
clarifies that this is in terms of the judgment and decree of which the
execution has been applied for. For all these reasons, Mr. Vyas
submits that the impugned order is liable to be set aside.
8] Mr. Warunjikar, learned counsel for the respondent, at the
outset submits that he has been appointed to appear in this matter
under the Legal Aid Scheme. He points out that a false statement
was made on behalf of the petitioner to the effect that the petitioner
has already paid the amounts under all the heads which are
reflected in the operative part of the impugned order dated 15 th
December 2016 for the academic year 2016-2017 and on the said
basis, an ad-interim order was obtained in terms of prayer clause
(c). He submits that most of the payments except perhaps some of
the fees towards coaching classes were not paid by the petitioner.
Mr. Warunjikar clarifies that only fees towards item No.8 of the
operative portion of the impugned order appears to have been paid
as per the instructions received by him sometime earlier.
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9] Mr. Warunjikar submits that in fact, the respondent had made
a claim in an amount of Rs.2,01,700/- entirely consistent with the
decree. However, the executing Court, by the impugned order has
scaled down the claim to Rs.1,62,700/-. He submits that this
represents the educational expenses for the entire year and there is
absolutely nothing unreasonable in the determination made by the
executing Court. He points out that the petitioner is a General
Manager (Sales) in a Multinational Company. He points out that
there is no dispute that the petitioner earns almost double the salary
of what the respondent-wife earns. For these reasons, Mr. Warunjikar
submits that this petition may be dismissed with exemplary costs.
10] The rival contentions now fall for determination.
11] Since, the petitioner's main contention is that the executing
court has traveled beyond what has been specified in paragraph 57
of the judgment and decree dated 23 rd January 2015, it is only
appropriate that the contents of the said paragraph are quoted
verbatim :
"57. As regards the maintenance for son Chaitanya is
concerned, he is staying with the respondent. He is being
educated in Revachand Bhojwani School. The petitioner has
agreed to incur all the educational expenses for the child. As per
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the order below Exh.11, the petitioner was directed to incur the
educational expenses. The child is growing. He will go in college.
The expenses of tuition fees, uniform, books, lab expenses (if he
opts Science) will increase. It is well settled law that when both
the parties are working, the child's expenses should be incurred
proportionately. The petitioner's salary is double to that of
respondent proved income of Rs.30,000/-. If the respondent
takes care of the child's daily expenses, clothes, the
petitioner shall incur the expenses of school, college
educational fees, tution fees, uniform, books, lab expenses,
extra curricular activities, etc. He shall also pay Rs.5,000/-
p.m. to child Chaitanya for his expenses other than the
educational requirements."
[Emphasis supplied]
12] The analysis of the aforesaid paragraph reveals that there is
indeed observation that when both parties are working the child's
expenses must be borne proportionately. However, this is
immediately followed by the observation that in the present case,
since, the respondent wife, takes care of the child's daily expenses
and clothes, the petitioner must bear expenses towards school,
college, educational fees, tuition fees, uniform, books, lab expenses,
extra curricular activities etc. This is in addition to the maintenance
of Rs.5,000/- per month to the child Chaitanya.
13] This means that the judgment and decree dated 23 rd January,
2015, apart from holding that the expenses towards Chaitanya must
be borne proportionately by the parents has proceeded to precisely
state the manner in which and the proportion in which such
expenses should be borne. The judgment and decree dated 23 rd
June 2015 has attained finality and the executing court, is therefore,
bound by the same. The expenses, which the petitioner has been
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directed to bear, relate inter alia to school and college fees, tuition
fees and other items specifically stated in paragraph 57 of the
judgment and decree dated 23rd January 2015. Besides, from the
context as well as the use of 'etc.' it is quite clear that the list of the
items referred to in paragraph 57 of the judgment and decree dated
23rd January 2015 was not meant to be exhaustive but only
illustrative. Therefore, as long as the expenses claimed are not
totally extraneous to the items illustrated in paragraph 57 of the
judgment and decree dated 23rd January 2015, the award of the
same by the executing court cannot be said to be an exercise in
excess of jurisdiction. In such circumstances, it cannot be said that
the executing court, has travelled beyond the decree. There is
accordingly, no merit in the main contention raised on behalf of the
petitioner.
14] As against the claim of Rs.2,01,700/- made by the respondent
wife towards an educational and other expenses in terms of
paragraph 57 of the judgment and decree dated 23 rd January 2015,
the executing court, has determined and awarded an amount of
Rs.1,62,700/-. This amount represents the expenses for the entire
year i.e. academic year 2016-17. Taking into consideration the
financial status of the petitioner there is absolutely nothing
exorbitant or unreasonable or disproportionate in such
determination. The petitioner is reported to be a General Manager
(Sales) in a Multinational Company. The petitioner is reported to be
drawing an income which is twice the income of the respondent
wife. This position has not even been challenged though, the same
has been specifically recorded in the judgment and decree dated 23 rd
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January 2015.
15] The expenses towards transportation between residence and
college or the coaching centre, are certainly expenses covered in
paragraph 57 of the judgment and decree dated 23 rd January 2015.
Similarly, expenses at the college canteen or towards college
function / trip are extra curricular activities related to education of
Chaitanya and they are expressly covered in paragraph 57 of the
judgment and decree dated 23rd January 2015. The same is the
position of rest of the items against which determination is made.
Miscellaneous expenses determined by the executing court are only
Rs.3,000/- per annum and certainly, the school / college going child
cannot be grudged or denied on the ground that no receipts or
invoices are available to establish such expenses. The expenses
towards note book, stationery or data connection are also, well
within the reasonable bounds and therefore, the executing court,
was quite justified in determining and awarding the same. Such
expenses could not have been denied on the ground that no proper
receipts or invoices were produced.
16] The contention that the petitioner has purchased a bicycle for
Chaitanya and therefore, the award towards transport expenses is
exorbitant is quite a misconceived contention. In a city like Pune, it
is not always or easily possible for children to access their school or
coaching classes with bicycle. There are issues of security of the
bicycle, not to speak of the inherent hazards on congested roads.
The transport expenses are again, well within reasonable bounds
and the petitioner's contention are both unfortunate and insensitive.
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17] In this case, it needs to be reiterated that the contentions on
behalf of the petitioner are indeed unfortunate and insensitive. The
petitioner is virtually quibbling over proportionately small amounts
payable to his own son for educational purposes. The expenses
claimed on behalf of Chaitanya are absolutely reasonable and in fact,
on a conservative basis. In such matters, it is not always possible to
produce invoices or receipts. This is not a case of some dispute
between partners in a partnership firm or some commercial dispute
for taking of accounts. This is a case where the petitioner's own son,
seeks reimbursement for expenses incurred by him for his
educational expenses. To quibble over amounts like Rs.3,000/- per
annum towards miscellaneous expenses or to submit that canteen
expenses of Rs.10,000/- per year are exorbitant or have no nexus
with the educational needs of the child, are, the contentions, which
are extremely insensitive, apart from being entirely misconceived.
This is not a case where the petitioner cannot afford to meet such
expenses.
18] If the petitioner has some issues with regard to access which
has been already granted to him, it is undoubtedly open to the
petitioner to take out appropriate proceedings in that regard and to
enforce the access. However, to grudge payment of even a
conservative amount like Rs.1,62,700/- per annum towards his own
son's education in XIth Std. cannot be countenanced. The petitioner,
again, by resisting such payment seek to exert some sort of pressure
in the matter of access. Such quibbling over a relatively small
amount can neither be appreciated nor be encouraged by a writ
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court exercising equitable jurisdiction under Articles 226 and 227 of
the Constitution of India.
19] There is yet another serious issue involved in this matter. The
petitioner, in this case, secured ad interim relief in terms of prayer
clause (c) of the petition by making a statement before this Court,
which is reflected in the order dated 16 th February 2017, by which
such ad interim relief came to be granted to the petitioner. It turns
out that such statement, was far from accurate.
20] The order dated 16th February 2017 made by this Court reads
as follows :
"1 Heard the Learned Counsel Mr. Vyas appearing for the
Petitioner.
2 Issue notice to the Respondent, returnable on 9-3-2017. In
addition to service of notice through Court, the advocate for the
Petitioner shall serve a private notice by Registered Post A.D.
and/or by Courier service and/or by hand delivery on the
Respondents and shall file affidavit of service before the
returnable date.
3 There would be ad-interim relief in terms of prayer
clause (c). This is on the basis that the Petitioner has
already paid the amounts under all the heads which are
reflected in the operative part of the impugned order for
the academic year 2016-2017."
[Emphasis supplied]
21] Despite repeated queries and opportunities, Mr. Vyas, learned
counsel for the petitioner was unable to make good the statement
made on behalf of the petitioner that the petitioner has already paid
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the amounts under all the heads which are reflected in the operative
part of the impugned order for the academic year 2016-17. For this
purpose, reference is necessary to the operative portion of the
impugned order dated 15th December 2016, which is what is referred
to in this Court's order dated 16th February 2017.
22] The operative portion of the impugned order dated 15 th
December 2016 reads as follows :
"ORDER
1. The application is allowed as under:-
2. The judgment-debtor is directed to pay an amount of
Rs.1,62,700/- (Rupees One lakh Sixty Two Thousand Seven
Hundred only) to darkhast - holder towards following expenses
of son.
1. Travel to and fro college Rs.27,500/-
2. Coaching classes part and
final amount Rs.21,000/-
3. Travel to and fro coaching
classes Rs.16,200/-
4. Notebooks, stationery and bag Rs.10,000/-
5. Data connection Rs.12,000/-
6. Canteen expenses Rs.10,000/-
7. College function and trip Rs.10,000/-
8. Coaching classes (12 ) th
Rs.50,000/-
9. Miscelleneous expenses Rs. 3,000/-
10. Uniform and shoes Rs. 3,000/-
-----------------
Total Rs.1,62,700/-"
=======
23] Apart from several amounts remaining unpaid on the date
when the statement was made to this Court i.e. on 16 th February
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2017, it is necessary to note Mr. Vyas's contention that the amount of
Rs.50,000/- towards coaching classes for XIIth Std., referred to in
clause (8) of the operative portion of the impugned order was not
paid, because, such amount was not payable for the academic year
2016-17. The contention, is again, quite misconceived. The
statement, as recorded by is quite clear that the petitioner, has
already paid the amounts under all the heads which are reflected in
the operative part of the impugned order for the academic year
2016-17. This was an unqualified statement. There was no
disclosure that some amount remains to be paid. Even now there is
no good explanation about other amounts which remain unpaid.
24] The contention is even otherwise misconceived because, it is
well known, that students, take coaching classes for XIIth Std. whilst
they are in XIth Std. itself. The distinction now sought to be made
is really one without difference. The distinction hardly mitigates the
circumstance that ad interim relief were obtained by making a
wrong statement before this Court. On basis of the wrong statement
and the ad interim relief secured on the basis thereof, the petitioner,
has gained undue advantage, not to speak of the damage caused to
the system of administration of justice. The Court relies upon such
statements and grants interim orders. If such statements turn out to
be wrong, it becomes difficult to take such statements at face value
particularly at stage where opposite party is yet to be served.
25] Mr. Vyas submits that it is for the respondent wife to establish
that the petitioner has not made payments in terms of the impugned
order dated 15th December 2016. Again, this submission is quite
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misconceived. Since, the petitioner had made a statement that he
had paid the amounts under all the heads which are reflected in the
operative part of the impugned order for the academic year 2016-17,
it was for the petitioner, to make good such statement.
26] In fact, the petitioner, ought not to have instructed his
Advocate to make such a statement without having material with
him in support of such a statement. Ultimately, the Advocates
appearing for the parties make statements on behalf of the parties on
the basis of instructions obtained from the parties. If, such
instructions are ultimately found to be incorrect, the parties, will
have to bear the consequences of such statements.
27] This is not a case of any reflection upon Mr. Vyas, learned
counsel for petitioner. No doubt as stated by him, the statement
which was made on 16th February 2017 was on the basis of
instructions that he may have received from the petitioner.
However, if the statement on basis of instructions is found to be
wrong or inaccurate, the petitioner, cannot avoid the consequences,
particularly, in a matter of this nature, where, the petitioner, quite
insensitively has grudged payment of very reasonable amounts
towards his own son's educational expenses. Again, this is not at all
a case where the petitioner, cannot afford to make such payments.
The petitioner, is a General Manager (Sales) in a Multinational
Company. This is accordingly, a case where exemplary costs are
liable to be imposed upon the petitioner.
28] This petition is therefore dismissed. The ad interim order
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granted earlier is vacated. The petitioner is directed to pay costs of
Rs.25,000/- to his son Chaitanya within a period of four weeks from
today.
29] In case any applications made by the petitioner are pending
before the executing court, such applications shall not be considered
by the executing court unless the petitioner pays the costs to
Chaitanya by way of a demand draft or through any other banking
channels. In fact, the petitioner is directed to file an affidavit of
compliance within six weeks from today.
30] In addition to the costs, the petitioner is also directed to pay
the balance amounts in terms of the impugned order within a period
of four weeks from today and file compliance within a period of six
weeks from today.
31] Mr. Vyas, learned counsel for the petitioner seeks a stay in
the matter of payment of costs as also execution of the impugned
order. Since, already, four weeks time has been granted to the
petitioner to pay costs as well as the balance amount in terms of the
impugned order, there is no necessity of any stay. However, as a
matter of abundant caution, it is clarified that the respondent shall
not apply for execution for a period of four weeks from today.
32] All concerned to act on the basis of authenticated copy of this
order.
(M. S. SONAK, J.)
