Bombay High Court
Darshana Atul Gada vs Atul Shantilal Gada on 6 October, 2023
Bench: Amit Borkar
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Nikita
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.13667 OF 2023
IN
CONTEMPT PETITION NO.378 OF 2021
Darshana Atul Gada ... Applicant
In the matter between
Darshana Atul Gada Applicant
V/s.
Atul Shantilal Gada ... Respondent
Ms. Firdaus Moosa i/b Mr. Prakash Mahadik for the
Applicant.
Mr. Yogendra M. Kanchan i/b YMK Legal, for
Respondent.
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 6, 2023
P.C.:
1. This is an application filed by the wife in a contempt petition
alleging willful disobedience of the order of payment of
maintenance dated 22 October 2018, passed in Writ Petition
No.11469 of 2018.
2. The Family Court, by order dated 2 August 2018, directed
the respondent to pay maintenance at the rate of Rs.60,000/- per
month from 28 July 2015 till the decision in the petition. Petitioner
challenged said order before this Court in Writ Petition No.11469
of 2018. This Court dismissed the writ petition by order dated 22
October 2018. Special Leave to Appeal (C) No.5872 of 2019
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against the order of the High Court was dismissed by the Apex
Court on 11 March 2019.
3. The wife, therefore, filed a present contempt petition in the
year 2021. On 17 December 2021, this Court framed charges
against the contemnor as under:
"By an order dated 02.08.2018, passed by the Judge, Family
Court No.4, Mumbai, Shri Atul Shantilal Gada, was directed
to pay interim maintenance at the rate of Rs.60,000/- per
month to the wife and also to deposit an amount of
Rs.2,00,000/- and rent of Rs.30,000/- per month for
acquiring a one bedroom, hall and kitchen flat for her
residence. This order was affirmed by this Court on
22.10.2018 when the Petition filed by you was dismissed.
You have deliberately and wilfully disobeyed the orders and,
without any justifiable cause, failed to follow the directions,
to pay maintenance and deposit the amount as directed. You
are, therefore, guilty of committing contempt of this Court,
which is punishable under Section 12 of the Contempt of
Courts Act, 1971."
4. While framing the charge, this Court took into consideration
the defence of the husband that he made bona fide efforts to
implement orders of this Court. In paragraph 7, this Court
considered the stand of the contemnor that his financial position
does not permit him to comply with the order passed by this Court.
5. On 10 February 2023, this Court recorded a prima facie
finding that arrears of more than Rs.43 lakh need to be paid by the
petitioner and granted an opportunity to the husband to clear the
arrears by 3 March 2023. This Court made it clear that if the
respondent/husband fails to clear arrears of maintenance, this
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Court shall be constrained to consider punishment of aggravated
contempt.
6. On 3 March 2023, this Court permitted the petitioner to file
an application for appointment of Court Receiver in relation to Vile
Parle flat owned by the contemnor. Accordingly, the petitioner has
filed a present interim application on 28 March 2023 for the
appointment of a Court Receiver.
7. The respondent has filed a reply affidavit contending that
there is no willful disobedience of the order. The contemnor has
made a partial payment towards the discharge of his liability. He
used to pay the amount of maintenance regularly. However, due to
a lack of work in the interior designing industry, he is financially
incapacitated to pay maintenance to the petitioner. His parents are
residing along with him in the flat. He is the sole earning member
of the family who needs to look after his aged parents. The
petitioner has the capacity to earn but is deliberately not doing any
work.
8. On perusal of the record, it appears that by order dated 2
August 2021, the Family Court directed the contemnor to pay
Rs.60,000/- per month, which order is confirmed up to the Apex
Court. This Court, after giving due opportunity to the husband to
pay the balance amount of maintenance framed charges. Even
thereafter, the husband was given opportunities to pay the
maintenance amount. However, as noted by this Court in an earlier
order dated 17 December 2021, the contemnor is firm on his stand
that his financial position does not permit him to comply with the
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order of maintenance. Learned advocate for the respondent placed
reliance on the judgment of the Apex Court in the case of
Kapildeo Sah v. State of Bihar reported in (1997) 7 SCC 569
and Kanwar Singh Saini v. High Court of Delhi reported in
(2012) 4 SCC 307 to urge that unless there is willful disobedience
of the order, power of contempt should not be resorted.
9. During the pendency of the present application, the parties
filed an affidavit stating after opening of lockers, the respondent
husband received valuables worth Rs.38 lakh to Rs.40 lakh.
According to the petitioner, the value of the ornaments received by
the husband recorded in FIR in 2016 was Rs.18 Lakh to Rs.20
lakh. In the affidavit filed by the husband, it is not explained why,
even after receipt of such valuables, the arrears of maintenance are
unclear. Such conduct of the respondent shows that despite having
the means to pay, he is willfully not complying with the order of
maintenance.
10. Apart from non-payment of maintenance arrears, it appears
that the flat in dispute, i.e. Flat No.602, had been jointly
purchased by the applicant and respondent. By virtue of the sale
deed dated 17th July 2006, the applicant and respondent become
owners to the extent of 50%.
11. The applicant has prayed for the appointment of a receiver
in the exercise of power under Section 51 of the Code of Civil
Procedure,1908.
12. The power of the Court to appoint the Court Receiver under
Section 51 is no longer res integra in view of the authoritative
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pronouncement of the Apex Court in the case of Rajnesh Vs.
Neha reported in (2021) 2 SCC 324. The Apex Court, in
paragraph No.125 observed as under:
"125. The order or decree of maintenance may be
enforced like a decree of a civil court, through the provisions
which are available for enforcing a money decree, including
civil detention, attachment of property, etc. as provided by
various provisions of the CPC, more particularly Sections 51,
55, 58, 60 read with Order 21."
13. Reading of the order passed by the Family Court and this
Court referred above, it appears that respondent has not wilfully
complied with the order of maintenance. Therefore, it is necessary
that this Court must exercise power under Clause (d) of Section 51
of the Code of Civil Procedure, 1908. Hence, the following order.
a) I hereby appoint the Court Receiver High Court
Bombay to take possession of Flat No.602, Shivam B,
Railway Society Road, Irla Lane, Vile Parle, with all powers
under order 40 of the Code of Civil Procedure,1908.
b) The said flat shall be sold by the Court receiver by
auction sale.
c) The Court Receiver shall\ get Flat No.602 valued from
the valuers in panel. The Court Receiver shall obtain
separate directions for fixing the reserved price.
d) The Court receiver shall finalize the terms and
conditions of the sale.
e) Having referred to the location of the property and its
anticipated value, the Court receiver shall take steps to
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advertise the sale at least in one printed publication and
online portals and sites for the maximum possible response.
The Court Receiver will be at liberty to move this Court after
the valuers submit a valuation of the property.
f) Till the auction sale is complete, the applicant shall be
put in possession of Flat No.602.
14. The learned advocate for the respondent, at this stage, is
seeking a stay of the order, considering the respondent's conduct,
no case for a stay of order is made out.
15. Stand over to 3rd November 2023.
(AMIT BORKAR, J.)
