Gulshan Kumar Arora vs Ashwani Shukla And Ors.
2013 Latest Caselaw 4000 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         I.A. No. 5909/2013 in CS(OS) 508/2005
+                                       Date of Decision: 9th September, 2013

#       GULSHAN KUMAR ARORA                      ..... Plaintiff
                       Through: Mr. Sushil Kumar, Advocate

                                         Versus

$       ASHWANI SHUKLA AND ORS.                ..... Defendants
                    Through: Mr. S.K. Mishra, Advocate for D-1

        CORAM:
*       HON'BLE MR. JUSTICE P.K.BHASIN

                                        ORDER

P.K.BHASIN, J:

In this suit for specific performance of two separate agreements of sale entered into between the plaintiff and defendant nos.1 and 2 sometime in the year 2004 in respect of their half undivided share and interest in the terrace floor of property no. B-4/195, Safdarjung Enclave, New Delhi (hereinafter to be referred to as 'the terrace in dispute') this Court had vide order dated 20th April, 2005 directed maintenance of status quo in respect of the ownership, possession etc. of the terrace in

dispute. The defendant no.1 had allegedly sold his undivided share to one Sikander Pal in violation of the said direction of the Court. Upon an application having been filed by the plaintiff under Order XXXIX Rule 2-A C.P.C. the defendant no.1 was held guilty by this Court vide order dated 2nd July,2012 of having sold his share in the terrace in dispute in violation of this Court's status quo order dated 20th April, 2005. He was directed to deposit in Court the sale consideration which he had received from the buyer Sikander Pal and also to pay fine of five lacs of rupees within a period of six weeks and in default he was ordered to suffer simple imprisonment for three months. It was also declared that the transaction between the contemnor and Sikander Pal shall be of no consequence.

2. Subsequently, this Court vide order dated 21st August,2012 had permitted the contemnor to make the deposit by 16 th October,2012 subject to his furnishing his an undertaking to that effect. He did not make the deposit and again vide order dated 16th October, 2012 the contemnor was granted further time of one week for making the deposit in Court but this time with interest @ 6% p.a. w.e.f 2 nd July, 2012, when he was held guilty, and it was also ordered that in case of default the plaintiff would be liberty to move an application for lodging the contemnor to civil prison. Since the contemnor even this time did not

deposit the money in Court within the extended time as per the order dated 2nd July, 2012 the plaintiff moved the present application for sending the contemnor to prison.

3. This application was taken up for consideration on 16th April, 2013 and on that date while reserving the order on this application the following proceedings were recorded:

"Today defendant no. 1, who has already been held guilty of committing contempt of Court vide order dated 2nd July, 2012, has brought with him in Court his affidavit wherein he has stated that he has settled the matter with the plaintiff and he undertakes to execute the Sale Deed in favour of the plaintiff in terms of the agreement to sell dated 4th May, 2004, specific performance of which was being claimed by the plaintiff in the present suit. It is also stated that after receiving the sale consideration of ` 27,50,000/- from the plaintiff as per the agreement arrived at between them, he would either deposit that amount in Court or refund the same to Sh. Sikander Pal with whom defendant no.1 had entered into sale transaction in violation of the injunction order passed in the present matter but it is also stated in the affidavit that a decree in favour of plaintiff and defendant no. 1 may be passed and he may be permitted to transfer his half undivided portion of the suit property to the plaintiff. It is further stated in the affidavit that under the influence of defendant no.2 (with whom also the plaintiff claims to have entered into an agreement for sale of his share in the suit property and against whom also plaintiff is claiming a decree for specific performance of a separate agreement with him) that he (defendant no.1) has committed wrong and disobeyed the order of this Court for which he seeks pardon. It is further stated that defendant no.2 has been pressurizing him to go against the plaintiff to break the deal with him.

The aforesaid affidavit along with vakalatnama executed by the defendant no. 1 in favour of Sh. S.K. Mishra, advocate, who is present in Court, is taken on record.

Counsel for the plaintiff, on instructions from the plaintiff, who himself is also present in Court, admits that there has been an understanding with the defendant no.1 to the effect that plaintiff shall pay to the defendant no. 1 a sum of ` 27,50,000/- towards the sale consideration because of the defendant no.1 having agreed to execute the Sale Deed in respect of his share in favour of the plaintiff.

Defendant no.1 has, however, at the same time submitted that irrespective of the fact that whether he receives aforesaid amount of ` 27,50,000/- from the plaintiff or not he shall deposit in this Court the entire sale consideration which he had received from Sikander Pal as this Court had already directed him to do within a week.

Defendant no.1, however, would be at liberty to deposit in Court the amount which was directed to him earlier, as has been volunteered today, but it is made clear to him that even if the deposit is made the question whether he stands absolved of his liability for having committed contempt of this Court or not will still be decided by the Court."

4. The contemnor, however, did not deposit the amount of ` 27,50,000/- in court and instead surrendered himself before the Registrar General of this Court on 10th July, 2013 and was taken into custody and sent to jail to serve out the sentence of three months simple imprisonment awarded vide order dated 2nd July, 2012.

5. So, I.A.5909/2013 has become infructuous with the surrender of the contemnor and no further orders are required to be passed now by the Court and it stands disposed off accordingly.

6. As noticed already, on 16th april,2013 the defendant no.1 had filed his affidavit to the effect that there had been a settlement between him and the plaintiff and as per that settlement he had agreed to execute the sale deed in favour of the plaintiff in terms of the agreement to sell in question, specific performance of which was being sought in this suit, subject to the plaintiff paying him the sale consideration of ` 27,50,000/- with interest thereon (as against the original sale consideration of ` 22,50,000/-) and the plaintiff had also admitted the settlement. However, I am of the view that despite the fact that defendant no.1 has agreed to execute the sale deed and has also stated that the suit can be decreed qua him no decree should be passed without full trial since many questions arising out of the pleadings of the parties would require to be answered before any final judgment is passed in the matter. It shall have to considered whether any decree of specific performance can be passed against defendant no.1 when according to the plaintiff's own case in the plaint the terrace in dispute is still under the ownership of defendant no.3. She had admittedly executed only agreements of sale in favour of defendant nos. 1 and 4 and no sale deed has been executed so far. It is also the plaintiff's case that defendant no.3 had given power of attorney to defendant nos. 1 and 4 while executing agreements to sell with them. So, it shall also have to be

examined if the plaintiff can maintain this suit for specific performance against the attorney, defendant no.1 without praying for a decree of specific performance against defendant no.3. Therefore, I am not inclined to decree the suit against defendant no.1 on the basis of his submission in his affidavit filed on 16th April, 2013 that suit may be decreed qua him. All the aforesaid points arising for consideration are now left to be considered by the regular Bench at an appropriate stage.

7. This matter shall now be placed before the regular Bench as per the Roster for further directions on 23rd September, 2013.

P.K. BHASIN, J

SEPTEMBER 9, 2013