Sagar Apartment Flat Owners Scty vs Sequoia Const P.Ltd.
2015 Latest Caselaw 3883 Del

$~6
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                         Reserved on : 29.4.2015
                                       Pronounced on: 15.05.2015

+     CS(OS) 3967/1992


      SAGAR APARTMENT FLAT OWNERS SCTY. ..... Plaintiff
                      Through: Mr. Sheetesh Khanna, Advocate
               versus
      SEQUOIA CONST P.LTD.                     ..... Defendant
                      Through: Mr. Tuhin with Mr. A.K. Vali,
                               Advocate for Defendant No. 5
                               and 6

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

CCP (O) 134/2014

1. In this contempt petition, notice has been issued only to respondent nos. 5 and 6. By the present petition, it is urged that respondents have disobeyed the order of the court dated 15.04.2014 by which application of plaintiff no. 1, IA No. 14238/2013 was disposed of. It is urged that by the said order the Receiver appointed by this Court was discharged and in view of the changed circumstances the Receiver was directed to hand over the records to plaintiff no. 1.

2. It is stated that the respondents are indulging in various acts disregarding the directions and refusing to comply with the order relieving the Receiver of the responsibilities and directing the Receiver

to hand over charge and responsibility to plaintiff no. 1. Some of the acts of disobedience listed out are:-

a) stating that raising of maintenance bill by the petitioner Association is illegal and unauthorized.

b) Receiver‟s action of transferring funds from the account of maintenance operated by him to the account of the petitioner Association was sought to be described as fraud.

c) Making a claim of taking over of management of common areas and facilities.

d) Coercing older residents/occupants to pay arrears of maintenance to the respondent association.

e) Various other such actions are listed in this application.

3. Reliance is also placed on communication dated 09.05.2014 and 03.06.2014 purportedly issued by and on behalf of respondent.

4. I may look at the order in question, namely, order dated 15.04.2015 whose disobedience is subject matter of the present petition. The relevant portion of order dated 15.04.2014 reads as follows:

"Now situation has changed. M/s Sagar Apartments Flat Owners Association has been formed under the Apartments Act. Vide order dated 4th October, 2013 society has been substituted as plaintiff No. 1. In view of the changed circumstances, Receiver is discharged. He shall hand over the records to plaintiff No. 1. Application is disposed of."

5. The above order is passed in IA No. 14238/2013. To complete the facts, it is appropriate that the relief sought in the said application be also noted. The relevant prayer of the application reads as follows:

"(a) Relieve Receiver appointed under the Hon‟ble Court‟s order dated 04.01.2002 by directing appointed Receiver to transfer records and hand over services managed by him to the applicant Association."

6. Learned counsel appearing for the petitioner has now submitted that as per above directions of this Court, the petitioner Society has now taken over all the functions from the Receiver and are solely responsible to look after the maintenance of the common areas etc. in the building in question, namely Sagar Apartments, Tilak Marg, New Delhi. He submits that the respondent especially Respondent No. 6 is guilty of said two communications. The above noted two communications tantamount to willful disobedience and disregard of order dated 15.04.2014. The first communication dated 09.05.2014 is addressed to Canara Bank whereby one Ramesh Keswani on behalf of Respondent No. 5 communicated to Canara Bank that the Receiver appointed by this Court has unauthorizedly operated the bank account after 15.04.2014 and if the amounts have been credited in any account maintained with the bank the bank may freeze the said accounts. In the communication dated 03.06.2014, Respondent No. 6 on behalf of Respondent No. 5 has written to residents/owners/occupants of the flat Complex pointing out certain alleged misdeeds done by Mr. Charanjit Singh under the garb of President, Sagar Apartments Residents‟ Association , i.e., petitioner. The last para of the letter appeals to the residents to pay maintenance to Respondent No. 5 so that common

services of water, electricity and lifts are not disturbed. It is strongly urged that the order of this Court dated 15.04.2014 implied that the petitioner has now taken over the function of common services from the Apartment Complex from the Receiver and is now entitled to collect the dues from the residents. It is also entitled to the funds which were available with the Receiver and that the Receiver has rightly transferred the same from the account of Respondent No. 5 to the petitioner and the action of writing to the bank to freeze this amount by Respondent No. 5 is willful disobedience of the orders of this Court.

7. Respondent No. 6 who is a practicing Advocate of this Court has appeared in person. He submits that there is no willful disobedience whatsoever of the orders of this Court. He also states that the order of this Court dated 15.04.2014 does not and cannot mean or imply that this Court had directed that the maintenance of the common area of the Apartment Complex are now handed over to the petitioner or that the petitioner now stepped into the shoes of the Receiver. It is stated that the perusal of the prayer made in IA No. 14238/2013 would show that the prayer had two clauses i.e. a) the Receiver transfers the records; and b) hand over services managed by him to the petitioner‟s association. He submits that the order of this Court dated 15.04.2014 only directs transfer of records but does not grant prayer for handing over the services managed by the Receiver to the petitioner‟s association.

8. In my opinion, there is merit in the contention of the respondent. The application of the petitioner has specifically sought two reliefs. The order of this court dated 15.04.2014 is completely silent on

receiver‟s handing over services managed by him to the petitioner or to anyone else. This court had on 15.04.2014 merely directed the Receiver to be discharged. This Court had merely directed the Receiver to hand over the records to the petitioner. This Court did not direct the respondent to hand over the services managed by him to the petitioner. No such direction is given and for that matter cannot be even implied. In the absence of any such specific directions, it is not possible to hold that the respondent is guilty of willful disobedience of the orders of this Court.

9. I may also refer to some judgments in this context. In Lakhbir Singh v. Harpinder Singh AIR, 2004 P & H 127, the Punjab and Haryana High Court, held as under:

"11. At the out set, it may be relevant to notice that provisions of Order 39, Rule 2-A of the Code are quasi criminal in nature and since a person violating the injunction order passed by the civil Court or otherwise disregarding the same is liable to be detained in civil prison, therefore, the aforesaid violation or disregarding of injunction order has to be proved beyond all reasonable doubts by the person complaining of such violation. The standard of proof required in such a case would, no doubt, be as is required in a criminal case, since the said act of the violator itself entails his detention in civil imprisonment."

10. It must be remembered that standard of proof required to establish a charge of contempt is that it has to be proved beyond reasonable doubt. Reference may be had to the judgment of Supreme

Court in the case of Anil Ratan Sarkar and Ors. v. Hirak Ghosh and Ors. (2002) 4 SCC 21. In para 13 and 14 (relevant portion) the Supreme Court has held as follows:

"13. ...The observation as above finds support from a decision of this Court in Chhotu Ram v. Urvashi Gulati & Anr. (2001 (7) SCC 530), wherein one of us (Banerjee, J.) stated as below :-

"As regards the burden and standard of proof, the common legal phraseology "he who asserts must prove" has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the „standard of proof‟, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt."

14. Similar is the situation in Mrityunjoy Das & Anr. v. Sayed Hasibur Rahaman & Ors. (2001 (3) SCC 739) and as such we need not dilate thereon further as to the burden and standard of proof vis- a-vis the Contempt of Courts Act - Suffice it to record that powers under the Act should be exercised with utmost care and caution and that too rather sparingly and in the larger interest of the society and for proper administration of the justice delivery system in the country. Exercise of power within the meaning of the Act of 1971 shall thus be a rarity and that too in a matter on which there exists no doubt as regards the initiation of the action being bona fide."

11. Hence, the settled legal position is that the provisions of Order XXXIX Rule 2A CPC or Section 10 and 12 of the Contempt of Courts Act are quasi criminal in nature. Hence, before a contemnor can be punished for violation of an injunction order of the Court, the violation must be proved beyond all reasonable doubts and the standard of proof required in such a case would be as is required in a criminal case.

12. In my view, the petitioner has not been able to prove beyond all reasonable doubts that the respondent No. 5 and 6 are guilty of the disobedience of the orders of this Court.

13. There appears to be an unfortunate situation whereby two different associations are claiming a right to carry on the maintenance services of the common areas and common facilities, namely, the petitioner and respondent no. 5. This is likely to lead to duplication and problems for the residents. What I have said herein would not be treated as an observation as to which is the appropriate association to control the common services or the common areas of the said Apartment or Complex.

14. With the above, the present petition is dismissed.

(JAYANT NATH) JUDGE MAY 15, 2015 rs