Zara Lall & Anr. vs Atul Dushyant Lall
2009 Latest Caselaw 4532 Del

             * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of Reserve: 9th October, 2009
                                              Date of Order: November 09, 2009

IA No. 8710/2007 & IA No. 12911/2009 in CS(OS) No. 729/2008
%                                                       09.11.2009

       Zara Lall & Anr.                                  ... Plaintiffs
                            Through:        Ms. Geeta Luthra, Sr. Advocate with
                                            Mr. Parinay B. Shah, Advocate

              Versus

       Atul Dushyant Lall                                 ... Defendant
                            Through:        Ms. Malavika Rajkotia, Advocate
                                            Ms. Arpita Kumar, Advocate &
                                            Ms. Mrinalini Sen, Advocate

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?



ORDER

By this order I shall dispose of an application for grant of interim maintenance made by the petitioners/plaintiffs. The petitioners/plaintiffs have filed this petition/suit under Section 18, 20 & 23 of Hindu Adoption & Maintenance Act, 1956 against the respondent/defendant. Petitioner No.1 is daughter of respondent and is aged 5 years now. Petitioner No.2 is wife of the respondent. For considering the interim maintenance application, I need not go into the allegations made by the petitioner no.2 (wife) against the respondent giving details as to how respondent treated her and left the petitioners. Suffice it to say that the petitioner alleged that the respondent was leading a lavish lifestyle. He was earlier working in hotel The Claridges as General Manager of the hotel and was living with petitioners in D-203, First Floor, Defence Colony, a rented accommodation provided to him by the hotel. The rent of the accommodation was Rs.1,35,000/- per month. She alleged

that the respondent was getting a salary, apart from the accommodation, of approximately Rs.4 lac per month from The Claridges Hotel. At the time of filing petition by the petitioners the respondent was in the process of leaving The Claridges and had intended to shift to Mumbai and take up service with Berggruen Hotel, Span Centre, South Avenue, Santacruz (W), Mumbai as Chief Executive Officer. The petitioners alleged that the salary of respondent when he joins Mumbai hotel may be around Rs.6 lac per month. At the time when this petition was filed, the respondent had not yet joined the Berggruen Hotel at Mumbai and had to join the new job after 15th August, 2007. The petitioner no.2 claimed a monthly maintenance of Rs.1,50,000/- for herself and same for the daughter. The petitioners also prayed for issuance of a permanent injunction restraining respondent from turning them out of house no. D-203, First Floor, Defence Colony and sought a decree directing respondent to continue paying Rs.1,35,000/- as rent for the house.

2. This Court while entertaining petition on 3rd August, 2007 passed an order restraining respondent from surrendering the tenancy or handing over possession of the premises bearing no. D-203, First Floor, Defence Colony, to any third party or forcibly dispossessing the petitioners. The respondent was also restrained from removing any movable articles housed in the said premises. At that time, the respondent was having a bank balance in his ICICI bank account Jorbagh Branch to the tune of more than Rs.6 lac. The respondent was restrained from withdrawing an amount of Rs.5 lac and he was allowed to operate the bank account only beyond the amount of Rs.5 lac. This was done at the instance of petitioners, who expressed an apprehension that with an intention of compelling the petitioners to accede to the unlawful demands of the respondent, he could stop paying the rental to the landlord and deprive the petitioners of their legitimate claim of maintenance.

3. After service of notice respondent refuted the allegations made in the petition in respect of treatment meted out to the petitioners or the allegations of neglect, which need not to be gone into. The respondent however, denied his pay package as stated by the petitioner and stated that salary of a General Manager was about Rs.1 lac p.m. plus house rent

allowance, travel facility etc. which were given in accordance with nature of work. He also denied that his salary at The Claridges hotel was around Rs.4 lac p.m. or his present salary was Rs.6 lac p.m.. The respondent was asked to file his salary slip with the new company and affidavit about his salary. In response to this the respondent filed details of salary along with salary slip and income tax returns, which gave a fairly acceptable picture of the income of the respondent. As per this affidavit, the respondent's gross annual salary was Rs.42,96,789/- out of this he had to pay tax at source to the tune of Rs.13,15,676/-. In proof of his gross salary and tax return he has filed tax returns and documents which cannot be disbelieved and no contrary documents have been filed by the petitioners. Apart from salary he was getting LTA @ Rs.2500/- per month, other allowance payable on production of bills to the tune of Rs.30,250/- per month. Thus, his monthly salary after deduction of income tax and statutory provident fund comes to Rs.1,97,676/-. Although the petitioners have alleged that respondent was entitled to get bonus and stock under Employees Stock Option Plan but no material has been placed by the petitioners on record in this regard. The respondent in his affidavit has stated an ESOP Committee was formed by his employer in November, 2008. After its formation, employees were offered stock options but for the record the ESOP Plan had not been implemented. Under this stock option, the respondent was offered by ESOP Committee an option to acquire 10916 share of face value of Rs.10/- each. The total value of shares offered was Rs.1,09,160/- and not few crores as alleged by the petitioners. He also stated that the hotel in which he was working was not a listed company and stock value could not be known and in the best case scenario the value of the shares would not be more than double the face value. It is also stated by the respondent that he has a grandmother aged 97 years who is bedridden and lives in Mumbai. She was completely dependent on the respondent financially. Grandmother's son i.e. respondent's father passed away in 1981 and respondent's mother remarried and lives in Bhopal thus, the grandmother was in sole care of the respondent. Respondent's sister, who also sometime used to take care of grandmother had moved to Hongkong. Thus, he was the only one, left in Mumbai to take care of his grandmother.

4. There is no counter affidavit filed by the petitioner refuting the assertions made by the respondent about his salary and income. Nor any material has been placed by petitioner on record to show what was stated by respondent was not correct. At this stage, I, therefore consider that Court has to decide interim maintenance on the basis of disclosure made by the respondent in his affidavit, supported by documents.

5. It is submitted by Counsel for the petitioner that the respondent was entitled to the same lifestyle and status as what was being lived by the petitioner. She submitted that respondent used to travel abroad on the company's work and for his visits abroad, he got 400$ per day for his expenses. She also relied on some of the spendings done by respondent on shoes and cloths, showing that the respondent was purchasing costly shoes and costly clothes. She submitted that the expenditure being done by the respondent shows that the respondent was spending very lavishly on his shoes and cloths and respondent used to dine only in five star hotels and that was possible only with additional income.

6. I consider that a person who earns Rs.2 lac p.m. as net salary after tax can live a lavish life and can purchase branded shoes and cloths. It may be that the respondent gets some daily allowance when he visits abroad but anybody who visits abroad on the company's assignments has to spend on his stay abroad out of company's money only and that cannot be counted as his income. If company considers that his Executives or CEO should have a standard or style and should be entitled to a daily allowance according to this standard, which does not become earning of CEO. It is expected that the CEO spends that amount during his visits abroad. I, therefore, consider that the income which the Court can consider for fixing maintenance is Rs.1,97,676/- p.m. and not anything more.

7. No doubt the petitioners are entitled to live according to the status of respondent. The respondent's status is to be considered on the basis of his income and not on the basis of his job. A person, if he is working in a hotel may have to maintain a lifestyle in accordance to his job and may be dining in five star hotels and may purchase branded goods but that does not mean that the Court while granting maintenance has to take into account

the lifestyle entitling wife to dine daily in five star hotel and purchase only branded goods.

8. Looking into the income of the respondent and the liability of the respondent that the respondent has to maintain not only himself in a manner so that he lives in a standard and status according to status of his job and that he has to maintain a grandmother, I consider it would be appropriate that a sum of Rs.92,000/- per month is allowed as interim maintenance for wife and five year old daughter out of total monthly income of the respondent of Rs.1,97,676/- and rest Rs.1,05,676/- is left for respondent and his grandmother. This interim maintenance will be payable from the date of filing of application.

9. Since petitioners are living in Defence Colony rented accommodation under a court injunction issued at her instance, the petitioners cannot take a stand that they would live in a lavish house under Court injunction and the entire rent should be payable by the respondent but the same should not be counted towards expenses of the respondent. I consider that the landlord whose house was seized by the Court in the matrimonial dispute between the petitioner and respondent also cannot be made to suffer because of the Court order and cannot be asked to run behind the petitioner and respondent for his rent and for vacating the premises. It is obligatory on the part of the petitioners and respondent to vacate the house which was under tenancy and to pay to the landlord the rent out of their joint income which in this case is Rs.1,97,676/-.The rent payable to the landlord is a genuine expense incurred by the respondent under the dictum of the Court.

10. In Mohammed Gazi v. State of M.P. & Ors. JT 2000(4) SC 55, the Supreme Court observed as under:

7. In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit

- an act of the Court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit and impossibilia - the law does not compel a man to do which he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its

general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey & Ors. v. Tarapada Dey & Ors. 1987 (4) SSC 398 and Gursharan Singh & Ors. v. NDMC & Ors. 1996(2) SCC 459.

It is well settled that an act of Court should prejudice no man. In this case without taking into account the interest of landlord of the tenanted premises, Court issued an injunction of non eviction of the petitioners from tenanted premises. The Court cannot leave landlord in lurch and say that rent payable to him is not to be provided for by the Court.

11. In view of my foregoing discussions, I consider that a monthly maintenance of Rs.92,000/- is to be paid by the respondent to the petitioners, subject to following conditions:

1) The interim maintenance shall be payable from the date of filing of application.

2) Since the accommodation of Defence Colony is a rented accommodation and the rent is payable by the previous employer of the respondent upto 15th August, 2007, it is for the parties to pay the rent to the landlord after 15th August 2007, upto the date the premises is vacated.

3) After 15th August, 2007, the petitioners and respondent both are liable to pay the rent of the accommodation in equal shares. Thus, from 15th August, 2007 till 30th November, 2009, half of the rent i.e. Rs.67,500/- shall be deducted from the maintenance payable to the petitioners and petitioners would be entitled for monthly maintenance of Rs.92,000/- minus Rs.67,500/- = Rs.24,500/-.

4) The respondent shall clear the rent arrears of the landlord of D-203, First Floor, Defence Colony, Delhi by 30th November, 2009. In case he fails to clear the dues payable to the landlord either out of his balance dues lying with The Claridges hotel and from his savings, his salary shall be attached. He shall pay arrears of

maintenance to petitioners from 15th August, 2007 till 30th November, 2009 @ Rs.24,500/- p.m.

5) The ad-hoc amounts already paid by the respondent or the amount paid toward maintenance during pendency of the application to the petitioners shall be adjustable.

6) The petitioners shall vacate the house no. D-203, First Floor, Defence Colony, Delhi on or before 30th November, 2009 and handover keys to the landlord/The Claridges hotel. From the day of vacation of premises, petitioners shall be entitled to maintenance of Rs.92,000/-. However, in case the petitioners do not vacate the premises by 30th November, 2009, the petitioners shall not be entitled to any maintenance.

7) After the respondent settles the dues of the petitioners and the landlord in accordance with this order, he shall inform the Court about this, and the amount of Rs.5 lac lying in his ICICI Bank Account Jorbagh shall be released.

With these directions, the application for interim maintenance stands disposed of.

CS(OS) No. 729/2008

Parties to appear before the Joint Registrar on 25 th January, 2010 for completing of pleadings and admission/denial of documents.

November 09, 2009                            SHIV NARAYAN DHINGRA, J.
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