Shikha Developers Ltd. vs Ajay Suba
1997 Latest Caselaw 41 Del

JUDGMENT

Jaspal Singh, J.

(1) Ms. Shikha Developers Ltd. had filed a suit for possession and recovery of mesne profits. In the said suit an order was passed directing M/s. M.S. Associates to deposit arrears of rent. Aggrieved by the said order a Civil Revision was filed. It was No.744 of 1995. On October 26, 1995 the said revision petition was disposed of with an order that out of the arrears of rent Rs.10 Lakhs would be paid by 9th of November, 1995 and the remaining amount would be paid in monthly instalments of Rs.1,50,000.00 commencing from 10th of each succeeding month. It appears that it was a consent order and the tenant was directed to file an undertaking in terms of the order referred to above.

(2) The grievance of M/s. Shikha Developers Ltd. is that the said order was not complied with wilfully and contumaciously and that consequently civil contempt was committed. Hence, this CCP.No.35/96.

(3) It is not disputed before me that the consent order as referred to above was passed and that though in terms of that order M/s. M.S. Associates was required to pay Rs.10 Lacs by 9th of November, 1995 and remaining amount in monthly instalments of Rs.1,50,000.00 each, the amount due was not paid in time and that it was only on April 17, 1996 that the entire amount due, i.e. Rs.24,75,000.00 was paid.

(4) Why was the order dated October 26, 1995 not complied with before April 17, 1996?

(5) In answer to the question posed above the respondents have submitted that though they had all the intention to comply with the order and in fact a banker's cheque had been prepared for Rs.10 lacs on November 8, 1995 itself, the payment was not made as the erstwhile owners namely, Lady Sobha Singh Educational and Charitable Trust had informed first orally and later by means of a written notice that the power of attorney of the Managing Director of M/s. Shikha Developers Ltd. had been revoked and that consequently rent was payable to the said trust and not to M/s. Shikha Developers Ltd. It is not disputed that Mr. Anand who was the Managing Director of M/s. Shikha Developers Ltd. had been appointed as a General Attorney with regard to the suit property by Lady Sobha Singh Educational and Charitable Trust. It appears that after the service of the notice referred to above, Lady Sobha Singh Educational and Charitable Trust filed a civil suit not only against M/s. M.S. Associates but also against M/s. Shikha Developers Ltd. on which the learned Civil Judge passed the following order on 27th January, 1996. The order runs as under :- "FRESH suit received on assignment. Be checked and registered. Pr. counsel for the plaintiff. Heard on injunction application. The counsel also invited the attention of the court that the plaintiff is the owner and landlord of the premises No.D-74 Regal Building Connaught Place, New Delhi. Defendant no.2 is the director of the defendant No.1. Defendant no.2 Sh. T.R. Anand who is the director of the defendant No.1 was authorised vide power of attorney to collect the rent from defendant no.2 on behalf of the plaintiff but the power of attorney was cancelled with effect from 28.6.95 and notice of the cancellation of the power of attorney was also given to the defendant no.1. with the directions to make the payment of the rent to the plaintiff. The counsel for the plaintiff further made it clear that no payment of rent was however made to the defendant No.2, according to the directions. The present suit has been filed just to restrain the defendant no.2. from receiving the rent from the defendant no.1 as a precautionary measure. The facts and circumstances of the case also perused as per record. The defendant no.2 has not received any payment of rent after cancellation of the general power of attorney in his favour. Hence this is not a fit case for ex parte injunction. Issue notice of the suit and the application U/o 39 rule 1 & 2 Civil Procedure Code on filing of PF/RC for 1.2.96. Dasti be also given. sd/-

(6) On 1st February, 1996 in the same suit M/s. M.S. Associates which had been arrayed as defendant No.1 was directed not to make payment to defendant No.2 till 14th February, 1996. On 14th February, 1996 the interim order was further extended. On 22nd February, 1996 when the suit again came up for hearing M/s. Shikha Developers moved an application under Order 7 Rule 11 of the Code of Civil Procedure. Consequent, thereupon the matter was adjourned to 6th March, 1996 for reply to the said application and arguments. On 6th March, 1996 since the Presiding Officer was on leave the suit was adjourned to 19th March, 1996. On 19th March, 1996 the learned Civil Judge passed the following order :- "PT:Counsel for the parties. Documents filed by the Ld. Counsel for the defdt. No.2. Both the parties have been made clear to the point that no stay order exists on file as per previous orders. The injunction application will be disposed of after the matter of General Power of Attorney is duly adjudicated upon by the Hon'ble High Court. To come up for reply of application U/s 340 Cr.P.C. by the pltf. and defdt. No.1 on 21.5.96. sd/- C.J 19/3"

(7) As would be borne out from above, the learned Civil Judge in the suit referred to above had passed an order of injunction directing M/s. M.S. Associates not to pay the rent to M/s. Shikha Developers Ltd. and it was only on 19th March, 1996 that it was made clear that the said order was not more in operation.

(8) It further appears from the record that in view of the notice issued by Lady Sobha Singh Educational and Charitable Trust and the suit instituted by it and as referred to above, M/s. M.S. Associates preferred a Special Leave Petition against the order dated October 26, 1995 by which, it may be recalled, M/s. M.S. Associates had agreed to make payment of rent. That petition was taken up by the Supreme Court on March 13, 1996. On that day the petition was withdrawn on the ground that M/s. M.S. Associates intended to move the High Court. Consequent, thereupon a petition for review of the order dated October 26, 1995 was moved. The reason for seeking review was the claim put in by Lady Sobha Singh Educational & Charitable Trust. It was, however, dismissed on April 12, 1996. Before that M/s. Glory Constructions (P) Ltd. which is a sister concern of M/s. Shikha Developers Ltd. had instituted suit No.380/96 against Lady Sobha Singh Educational and Charitable Trust claiming that the said Trust could not revoke the Power of Attorney, the same being irrevocable and that consequently the letter dated November 8, 1995 addressed to M/s. M.S. Associates calling upon them not to make the payment to M/s. Shikha Developers Ltd. was of no effect. On February 16, 1996 ad interim injunction order was passed staying the operation of the purported revocation of the General Power of Attorney dated 19th March, 1990 and staying also the operation of letter dated 8th November, 1995 addressed to M/s. M.S. Associates. It may be noticed that M/s. M.S. Associates was not a party to that suit.

(9) As would be borne out from above though undoubtedly a settlement had been arrived at between M/s. Shikha Developers Ltd. and M/s. M.S. Associates on 26th October, 1995 by which M/s. M.S. Associates had agreed to pay Rs.10 lacs towards arrears of rent by 9th November, 1995 and the remaining amount in monthly instalments of Rs.1,50,000.00 by the 10th of each succeeding month and although M/s. M.S. Associates, with a view to comply that order, had prepared a banker's cheque dated 8th November, 1995 for Rs.10 lacs, it found it difficult to comply with the order in view of the notice issued by the above mentioned Trust claiming that the power of attorney of the Managing Director of M/s. Shikha Developers have been revoked and directing M/s. M.S. Associates not to pay rent. The institution of the civil suit and the passing of the orders by the learned Civil Judge directing M/s. M.S. Associates not to pay rent to M/s. Shika Developers Ltd. further came in the way of compliance of the order. Faced with the said litigation, M/s. M.S. Associates even filed a Special Leave Petition against the order of 26th October, 1995 and thereafter, an application for review of that order.

(10) In view of what has been noticed above, it cannot be said that non-compliance of the order of 26th October, 1995 on the part of M/s. M.S. Associates was in any way wilful or contumacious. It needs to be noticed that on April 17, 1996 M/s. M.S. Associates made payment of Rs.24,75,000.00 to M/s. Shikha Developers Ltd. thus wiping out the entire claim. This also shows that the intention of M/s. M.S. Associates was never wilful or contumacious.

(11) For the reasons recorded above, I do not think it to be a fit case to proceed ahead or to hold the respondents as guilty of having committed civil contempt. Consequently, the notice stands discharged.