Jamna Datwani vs Kishin Datwani & Ors.
2014 Latest Caselaw 4791 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                               Cont. Cas (C) No.652/2014

                                       Decided on : 24th September, 2014

JAMNA DATWANI                                          ...... Petitioner
           Through:                  Ms. Tara Vitasta Ganju & Ms. Preeti G.
                                     Chandel, Advocates.

                            Versus

KISHIN DATWANI & ORS.                                  ...... Respondents

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a contempt petition filed by the petitioner against her son,

respondent No.1, Kishin Datwani. In addition to respondent No.1,there

are 11 more parties impleaded as respondents though they are termed as

proforma respondents.

2. I have heard Ms. Tara V. Ganju, the learned counsel for the

petitioner on the contempt petition. The present petitioner is the mother

of four siblings; three sons, Janak, Kishin and Anand and a daughter,

namely, Nitya. All these parties are litigating before the judge on the

original side with regard to certain properties. The learned single judge

had passed an order on 16.12.2013 making certain interim arrangements

which were to be complied with till the next date of hearing. Twelve

directions are purported to have been given by the learned single judge on

the original side out of which, direction Nos.1 to 6 are concerned with

sharing of the property situated in Friends Colony, West. The subsequent

directions pertained to providing financial succour to the present

petitioner. For this purpose, certain directions were given to all the

respondents to pay certain monies to the petitioner in order to provide

financial succour. These directions were challenged by way of two

appeals.

3. The learned Division Bench while considering the appeals had

taken note of the order passed by the learned single judge and modified

the directions for payment of monies to the petitioner. The directions

which were passed by the learned Division Bench vide its order dated

2.5.2014 were essentially three fold. (i) The first direction was that Janak,

Anand and Kishin, the present respondents and their sister, Nitya, were

all to pay upfront a sum of Rs.5 lac each to the mother for the purpose of

her medical treatment in case of any unforeseen emergency and a part of

it was permitted to be spent by her. (ii) The second direction was that

Janak, Anand and Kishin (respondent No.1 in the present petition) were

to pay, with effect from the month of May, 2014, a sum of Rs.35,000/-

each per month to the petitioner by way of RTGS/ECS directly in the

account of the petitioner. So far as the daughter is concerned, she was

directed to pay a sum of Rs.15,000/- per month. (iii) The third direction

was with regard to making of a onetime payment of Rs.1,50,000/- each to

the mother for the purpose of enabling her to buy a car. Directions were

also passed that the amount of Rs.1,50,000/- be paid by each of the

siblings, including respondent No.1, in the name of the vendor of the car

in order to avoid the funds being used by the present petitioner to litigate

against her sons.

4. It is the contention of the learned counsel for the petitioner that the

aforesaid three directions passed by the court have not been fully

complied with by respondent No.1 inasmuch as an amount of Rs.35,000/,

which was payable from the month of May, 2014, has not been paid.

Similarly, the amount of Rs.1,50,000/- which was to be paid towards the

purchase of a car, has also not been paid. So far as payment of Rs.5 lacs

was concerned, only a sum of Rs.3,60,000/- has been paid.

5. It was pointed out to the learned counsel for the petitioner that the

respondent is stated to have paid a sum of Rs.3,60,000/- out of a sum of

Rs.5 lacs and for realization of the balance amount, the petitioner is free

to go to the civil court by invoking the provisions of Order 39 Rule 2A

CPC or to seek execution of the order passed by the court for recovery of

money. However, the learned counsel, instead of accepting the said

course had contended that this is a case of gross contempt on the part of

the respondent inasmuch as the directions of the court have not been

complied. For this purpose, the learned counsel for the petitioner has

relied on Lopaben Patel vs. Hitendra Rambhai Patel; 2000 Cri. LJ 2709,

Shankerpuri Chanpuri Goswami vs. Abdulhakim Asmadmahamad; (1985)

ILLJ 281 Guj., Mira Bose vs. Santosh Kumar Bose; AIR 1973 Calcutta

483 (V 60 C 111), Jyotirmoyee Debi vs. Assistant Settlement Officer and

Others; AIR 1973 Calcutta 486 (V 60 C 112) and Sarladevi Bharatkumar

Rungta vs. Bharatkumar Shivprasad Rungta & Anr.; 1988 Cri. L.J. 558.

6. I have carefully considered the submissions made by the learned

counsel for the petitioner and have also gone through the judgments cited.

The questions which arise for consideration, in the instant case, are

firstly, whether a case for initiation of contempt proceedings against

respondent No.1 is made out and secondly, even if it is prima facie made

out, whether the petitioner has an alternate efficacious remedy available

to her in getting the order implemented, then she must, in the first

instance, resort to the same. Moreover, the grievance of the petitioner is

essentially for recovery of monies which can be resorted to by filing an

execution under Order 21 CPC in the court where the suit is pending

adjudication. Reliance in this regard can be placed on the judgment of the

Apex Court in Kanwar Singh Saini vs. High Court of Delhi; (2012) 4

SCC 307.

7. Further, I feel that the very fact that respondent No.1, out of an

amount of Rs.5 lacs, has already paid a sum of Rs.3,60,000/- clearly

shows his intention to comply with the order. The petitioner has

admittedly shown the residence of respondent No.1 to be in New York,

U.S.A. Therefore, it is well possible that respondent No.1, though

wanted to comply with the order but on account of the fact that he is not

available in India, has not been able to comply with the order passed by

the Division Bench in its entirety. This could be a possible explanation

inferred, keeping in mind the fact that part payment has been made by the

respondent, therefore, it cannot be said that there is any willful

disobedience on the part of respondent No.1 though, it may constitute

disobedience.

8. The provisions of Order 39 Rule 2A CPC not only deal with a

situation where an injunction order has been passed by the civil court but

it also deals and contemplates to deal with a situation where an order

passed by the court, of which there is alleged to be willful disobedience,

can be dealt with.

9. The only difference between the provisions under Order 39 Rule

2A CPC and the power of the court to punish for contempt under Sections

10, 11 and 12 of the Contempt of Courts Act, 1971, is the quantum of

incarceration which a person can be sentenced to. Under the Contempt of

Courts Act, 1971, a person can be sentenced for a period of six months,

while under the provisions of Order 39 Rule 2A CPC, he can be

sentenced to only three months apart from the fine component under both

the provisions. Therefore, one of the remedies which is already available

to the petitioner is under Order 39 Rule 2A CPC. She can also seek

execution of the order for recovery of monies from respondent No.1 by

getting his share in the property in Friends Colony attached or getting his

other properties attached and getting recovery effected. Therefore, there

is ample mechanism prescribed under the CPC for the purpose of

implementation of an order.

10. The contempt power under the Contempt of Courts Act is not only

discretionary but is also to be used sparingly. A trend which has been

noticed by this court is that parties invariably try to invoke the provisions

of the Contempt of Courts Act in order to get orders implemented while

there is machinery provided under the CPC for the purpose of getting

orders, decrees or directions executed.

11. So far as the judgments which have been relied upon by the learned

counsel for the petitioner are concerned, no doubt in these judgments,

various High Courts have taken action under Contempt of Courts Act;

however, in all these cases, there is one distinguishable feature, i.e., either

maintenance is to be paid by the husband to the wife or wages have to be

paid to the workmen and that is the only source of livelihood for the

party. The court perhaps was justified in these cases in not relegating the

party concerned to the civil court or the trial forum for getting the order

executed.

12. In the instant case, admittedly respondent No.1 is not the only

person, who is to provide financial succour to the petitioner. There are

three other siblings who seem to have already contributed the money in

terms of the directions passed by the Division Bench and thereby there is,

in my opinion, no pressing urgency where the petitioner would suffer for

want of monies in case the contempt notice is not issued to the

respondents.

13. For the reasons mentioned above, I feel that as the petitioner has an

alternate efficacious remedy available to her in getting the order of the

Division Bench dated 2.5.2014 executed under the provisions of the CPC

and moreover, respondent No.1 has already paid an amount of

Rs.3,60,000/-, which fact prima facie shows, even if it is assumed that

there is disobedience, it cannot be said to be willful especially in the light

of the fact that he is a resident of USA. Accordingly, the petition is

dismissed.

V.K. SHALI, J.

SEPTEMBER 24, 2014 'AA'