Delhi High Court
Bdr Builders & Developers Pvt. ... vs Shri Lalit Modi on 17 December, 2020
Via Video Conferencing
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:- 17.12.2020
+ EX.P.69/2017
BDR BUILDERS & DEVELOPERS PVT. LTD.
...... Decree Holder
Through Mr. Harish Malhotra, Sr. Adv. with
Mr. Sanjay Goswami, Adv.
Versus
SHRI LALIT MODI
..... Judgement Debtor
Through Mr. Sachin Chopra, Mr. Karan
Babuta, Mr. Daksh Arora and Ms.
Astha Gupta, Advs. for JD.
Ms. Nandni Sahni and Mr. Sachin
Bandooni, Advs. for objector.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
E.A. 796/2020
1. This is an application under Order XXXIX Rule 2A and Section 151
of the Code of Civil Procedure, 1908 read with Sections 11 and 12 of the
Contempt of Courts Act filed by the Decree Holder (DH) seeking initiation
of contempt proceedings against the judgment debtor (JD)/Mr.Lalit Modi
for deliberately and intentionally violating the orders of this Court passed on
15.04.2019 and 28.01.2020 in these execution proceedings.
Ex.P.69
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DigitallySigned
By:MANJU BHATT
Signing Date:19.12.2020
15:38:58
2. The DH preferred the captioned execution petition seeking
enforcement of the award dated 21.11.2016/12.01.2017 whereunder he was
held entitled to specific performance of a sale agreement dated 24.06.2014.
In accordance with the agreement, the award directed the JD to execute a
sale deed with respect to the property bearing No.32, Paschimi Marg,
Vasant Vihar, New Delhi admeasuring 858 sq. yards (hereinafter referred to
as the "subject property") in favour of the DH and hand him physical
possession thereof by 31.03.2017. Although the JD has challenged the
award by way of a petition under Section 34 of the Arbitration and
Conciliation Act, 1996 („the Act‟) being OMP(Comm.) No.7/2017, which is
still pending adjudication, the award has not been stayed.
Details of injunctions/assurances pertaining to the subject property
3. Shortly after the award was passed and prior to the institution of this
execution petition, the DH had preferred a Section 9 petition OMP (I)
No.3/2017 which was disposed of on 04.09.2017 by restraining the JD from
creating any third party rights in the subject property till his Section 34
petition or the present execution petition were disposed of (hereinafter
referred to as the „first injunction‟).
4. However, this was not the only order of injunction operating on the
subject property. Sometime before these execution proceedings were
instituted, one Mr. Romi Garg had instituted a suit against the JD, being
CS(OS) No.109/2017, seeking specific performance of a sale agreement
executed between them on 14.07.2016 pertaining to the subject property as
well. When Mr. Romi Garg learnt of the Award which forms the subject
matter of these enforcement proceedings, he instituted another suit, being
CS (OS) No.14/2018, seeking a declaration to the effect that the Agreement
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DigitallySigned
By:MANJU BHATT
Signing Date:19.12.2020
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to Sell dated 24.06.2014 and the Award dated 21.11.2016 were void and
unenforceable. However, this subsequently preferred suit was dismissed as
not being maintainable. Aggrieved thereby, Mr. Romi Garg appealed
against this dismissal by preferring FAO (OS) No.116/2018 wherein, on
18.07.2018, the JD was restrained from creating any third-party interest in
the subject property. This interim direction was made absolute on
16.01.2020 (hereinafter referred to as the „second injunction‟).
5. An injunction of a similar nature was granted on 15.04.2019 in these
execution proceedings when this Court took up E.A. 85/2019 for the second
time, after issuing notice therein on 15.02.2019. By way of this application,
the DH had sought appointment of a Receiver to take over possession of the
subject property but in the absence of a reply from the JD, the Court
adjourned the matter to 13.08.2019 and restrained the JD from creating any
third-party rights in the subject property („third injunction‟).
6. On the next date of hearing, i.e, 28.01.2020, in response to the DH‟s
apprehension that the JD may hand over possession of the subject property
in favour of Mr. Romi Garg if his civil suit were decreed in the meanwhile,
a specific assurance was given to this Court by the JD that he was conscious
of the various injunctions operating on the subject property and that he had
no intent of violating the same. The Court recorded this undertaking and
adjourned the matter to 21.04.2020. However, the matter could not be listed
thereafter since normal functioning of the Court was suspended owing to the
COVID-19 pandemic.
Facts
constituting contempt
7. On 14.05.2020, the first suit preferred by Mr. Romi Garg, being
CS(OS) No.109/2017, came to be decreed in his favour by a Co-ordinate
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DigitallySigned
By:MANJU BHATT
Signing Date:19.12.2020
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Bench. Armed with the success of his suit against the JD and being desirous
of seeking voluntary satisfaction of the decree from the JD, Mr. Romi Garg
preferred an application on 04.06.2020 in his pending appeal being FAO
(OS) 116/2018 seeking modification of the order dated 16.01.2020 (second
injunction) so as to enable the JD to honour the decree dated 14.05.2020.
The said modification was vehemently opposed by the DH and therefore,
the Division Bench, on 04.06.2020, directed Mr. Romi Garg to first deposit
the balance sale consideration in favour of the DH with the Registrar
General of this Court, before considering his prayer for modification.
8. It is at this stage that Mr. Romi Garg and the JD entered into a
settlement whereunder the JD undertook to execute the sale deed of the
property in favour of Mr. Romi Garg, as per the decree dated 14.05.2020
within 10 days of receiving the balance sale consideration of INR
5,69,00,000/- with interest @ 8% per annum minus TDS, amounting to INR
7,01,00,000/-. Based on this settlement, Mr.Romi Garg preferred an
application in CS (OS) No.109/2017 on 16.06.2020 seeking modification of
the decree dated 14.05.2020 by informing the Court that the JD was willing
to execute the sale deed in his favour provided the balance consideration
was paid to his daughter Ms. Sonia Modi.
9. On 17.06.2020, when the application was listed before the Court, the
JD confirmed having received four cheques from Mr. Romi Garg in the
name of his daughter Ms. Sonia Modi, as per the settlement, two of which
were for sums of INR 2,00,00,000/- each while the remaining cheques were
for INR 1,50,50,000/- each. The JD further undertook to execute the sale
deed in the name of the nominee of Mr. Romi Garg within 10 days and to
handover physical and vacant possession of the suit property to either Mr.
Romi Garg or his nominee, as applicable. In view of these statements made
Ex.P.69
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By:MANJU BHATT
Signing Date:19.12.2020
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by the JD, the Court allowed Mr. Romi Garg‟s application by modifying the
operative portion of the judgment dated 14.05.2020 and permitting him to
pay the JD a sum of INR 5,69,00,000/- with interest @ 8% per annum
minus TDS by effecting the payment in favour of the JD‟s daughter Ms.
Sonia Modi.
10. On learning of this modification, the DH filed a suit being CS(OS)
150/2020 for declaration and permanent injunction against the JD and Mr.
Romi Garg praying, inter alia, that the decree dated 14.05.2020 passed in
CS(OS) 109/2017, as modified on 17.06.2020, are null and void and
unenforceable against him. The Court, on 26.06.2020, after hearing all
parties including the JD and Mr. Romi Garg, directed the JD to vacate the
subject property within two weeks and deposit the keys thereof with the
Registrar General of this Court. This direction was assailed by the JD in
FAO(OS)34/2020 and the Division Bench modified the same by recording
the statements of both the JD and Mr. Romi Garg undertaking not to
proceed with execution of the sale deed with respect to the subject property
or creating any third party rights thereon, till the next date of hearing in
CS(OS) 150/2020. This undertaking was subsequently extended by the
Court in CS(OS) 150/2020 and is still in operation. It is in these
circumstances that the present application has been filed seeking initiation
of contempt proceedings against the JD.
11. Learned senior counsel for the DH submits that injunction granted on
15.04.2019 (third injunction) specifically restrained the JD from creating
any third-party rights in the subject property. Thereafter the matter was
adjourned on 13.08.2019 only on account of non-availability of counsel for
JD. This was followed by the JD‟s undertaking given on 28.01.2020
assuring that, in tune with the various injunction orders including order
Ex.P.69
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By:MANJU BHATT
Signing Date:19.12.2020
15:38:58
dated 15.04.2019 (third injunction), no third-party rights would be created
upon the subject property. He submits that notwithstanding this position, the
JD, in an attempt to sidestep judicial orders and hoodwink this Court, not
only executed a settlement with Mr. Romi Garg, but also received a huge
sum of INR 7,01,00,000/- from him, through his daughter. This settlement is
barefaced proof of the fact that the JD deliberately joined hands with Mr.
Romi Garg, his former business associate, in order to get the decree
modified and seek vacation of the injunction order dated 16.01.2020
(second injunction) operating on the subject property, in order to cause
irreparable harm to the DH and render the present enforcement petition
infructuous. He submits that furthermore, the settlement executed by Mr.
Romi Garg and the JD was hurried in that it carries a specific stipulation to
execute the sale deed within 10 days of receiving the balance sale
consideration, which he has received in the name of his daughter. He
submits that the urgency with which the settlement was arrived upon does
not only show the JD‟s malafide attempt to slyly evade judicial orders and
his own undertakings, it also reflects his complete lack of respect or regard
therefor. He, therefore, prays for appropriate action to be taken against the
JD to preserve the majesty of this Court.
12. On the other hand, Mr. Sachin Chopra, learned counsel appearing on
behalf of the JD vehemently opposes the contempt proceedings on the
ground of being wholly misconceived and an abuse to the process of law.
He submits that it is a matter of fact that the JD has, as on date, not created
any third-party rights in the subject property and in fact the settlement
agreement executed between him and Mr. Romi Garg specifically envisaged
execution of the sale deed only pursuant to obtaining vacation of all the stay
orders operating on the subject property, including those passed by this
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Signing Date:19.12.2020
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Court. He submits that an agreement which contemplates prospective
execution of a sale deed cannot be regarded as „creation of third-party
rights‟ which was precluded by this Court. It was, ultimately, purely an
expression of their intent for the future, without any immediate
consequences on the status of the subject property.
13. Mr. Chopra further submits that the present application is entirely
founded on the apprehensions of the DH stemming from a statement made
by the JD on 17.06.2020, despite the admitted position that neither was any
sale deed executed with respect to the subject property nor had Mr. Romi
Garg/his nominee received possession thereof pursuant to the settlement
agreement. Thus, when the factual position is that no third-party rights have
been created in respect of the subject property as on date, the JD cannot be
deemed as having violated his undertaking given to this Court or having
effected a contemptuous act. He submits that for these reasons, the actions
of JD were completely bona fide and cannot be deemed as an attempt to
hoodwink this Court or circumvent judicial orders. He also submits that
nevertheless, the settlement agreement was only in furtherance of the
judgment and order of this Court passed on 14.05.2020 read with
17.06.2020 which upheld the rights of Mr. Romi Garg and do not have any
effect on the DH or the proceedings instituted by him since his rights on the
subject property continue to be protected under these execution proceeding.
In support of his aforesaid submission, he seeks to place reliance on the
decisions in Food Corporation of India Vs. Sukh Deo Prasad 2009 (5)
SCC 665 and JCB India Limited Vs. Action Construction Equipment Ltd.
2006 (6) AD (Delhi) 826.
14. Finally, without prejudice to the aforesaid submissions, Mr. Chopra
submits that injunction order dated 15.04.2019 (third injunction) was
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By:MANJU BHATT
Signing Date:19.12.2020
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applicable only till the next date of hearing i.e. 13.08.2019 as is evident
from the order passed on the said date, which injunction was admittedly not
extended by any subsequent order. He submits that, therefore, the reliance
of the DH upon this order passed on 15.04.2019 or its case that the JD‟s
statement recorded in the order dated 17.06.2020 undertaking to execute a
sale deed in favour of Mr. Romi Garg, amounts to contempt of the order
dated 15.04.2019 falls flat. Thus, he prays that this Court dismiss the present
contempt application for being meritless and unfounded.
15. I have carefully considered the submissions of the parties and perused
the record.
16. From the facts noted hereinabove and the submissions made by the
parties, the first thing that is evident is that the JD has not denied that the
third injunction order, i.e., the order passed on 15.04.2019 in the present
execution proceedings, specifically restrained him from creating any third
party rights with respect to the subject property. It is also undisputed that the
second injunction order, which is the one passed on 04.09.2017 in the
Section 9 petition instituted by the DH, also restrained the JD from creating
any third party rights in the suit property till disposal of the present
execution petition.The JD also does not dispute that the orders dated
15.04.2019 and 04.09.2017 have not been modified till date. The primary
opposition of the JD to the DH‟s reliance on the order dated 15.04.2019 is
that the order was interim in nature and needed to be extended on the next
date, i.e., 13.08.2019, failing which it was to expire. Since this Court did not
extend this order of injunction on 13.08.2019, the JD cannot be deemed as
having contravened the same.
17. Broadly speaking, barring the opposition to the continuing operation
of the third injunction order dated 15.04.2019, the JD appears to be
Ex.P.69
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DigitallySigned
By:MANJU BHATT
Signing Date:19.12.2020
15:38:58
accepting of the fact that no third party rights could be created with respect
to the subject property, owing to the orders passed by this Court. In fact,
from the submissions made before this Court in these contempt proceedings
as also those recorded in previous orders of this Court, there is absolutely no
dispute to this position emerging from the record. Reference may be made
to the order passed by this Court on 28.01.2020 which reads as under:
"Order dated 28.01.2020 passed in Ex.P.69/2017
1. Learned senior counsel for the decree holder prays that
hearing of the present petition be deferred as the requisite
documents are presently not available on record. He, however,
submits that the decree holder apprehends that in case the suit
filed by the Objector/applicant in Execution Application (OS)
169/2018, wherein judgment has already been reserved, is
decreed, the judgment debtor may, in order to scuttle the rights
of the decree holder in the present petition, hand over
possession of the suit premises to the said applicant without
any execution proceedings being initiated by the said applicant.
He, therefore, prays that the judgment debtor be restrained
from handing over possession of the premises in question, even
if the applicant's suit were to be decreed in the meanwhile
2. In response, learned counsel for the judgment debtor
submits that the apprehension of the decree holder is
misconceived as the judgment debtor is conscious of the fact
that there are various orders passed by various courts directing
the judgment debtor to maintain status quo, which it does not
intend to violate.
3. In view of the stand taken by the learned counsel for the
judgment debtor, no orders as prayed for are required to be
passed at this stage.
4. List on 21.04.2020."
18. As can be seen from a perusal of paragraph 2 of the order
hereinabove, the JD on 28.01.2020, expressed its continued cognisance of
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Signing Date:19.12.2020
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the fact that it was bound by the orders of this Court that it could not create
any third party rights in the subject property. In fact, by virtue of this order,
another undertaking had been recorded on behalf of the JD to abide by the
spirit of the orders of injunction given by this Court, as also by other Courts.
Since this assurance was given in the light of the DH‟s apprehension that the
JD might create third party rights in favour of Mr. Romi Garg, the
undertaking served to assuage the same. Thus, I find that the JD‟s
contention of limited operation of the third injunction order dated
15.04.2019 does not hold ground in the light of the overall admitted position
that there were existing injunction orders operating with respect to the
subject property, by way of orders passed in OMP (I) 3/2017 as also in FAO
(OS) 116/2018.
19. Now, in defence of the settlement agreement executed between Mr.
Romi Garg and him, the JD has contended that the same specified, in no
uncertain terms, that the sale deed would be executed in favour of Mr. Garg
or his nominee, only once the orders of injunction passed by this Court were
vacated. Since this line of defence relies heavily on the language of the
settlement executed between the parties, the least that was expected from
the JD was that it would place the document on record before this Court.
Notwithstanding this position, the JD has chosen to refrain from doing so
and this Court has no reason to believe the bald assertions of the JD in this
regard which stand woefully unsubstantiated. In fact, this settlement
agreement was not even a part of the modification application filed by Mr.
Romi Garg on 16.06.2020 in CS(OS)109/2017 which primarily averred that
since the JD was agreeable to execute the sale deed in his favour, this Court
may permit them to do so immediately. Moreover even in the order dated
17.06.2020, which is admittedly a consent order and the basis on which the
Ex.P.69
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By:MANJU BHATT
Signing Date:19.12.2020
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decree dated 14.05.2020 was modified to accommodate the settlement
agreement, there is no mention of any mutual intention to withhold
execution of the sale deed until all injunction orders operating on the subject
property are vacated by this Court. For this purpose, it may be apposite to
note the order passed on 17.06.2020 in CS(OS) No.109/2017 which reads as
under:
1. "The hearing has been conducted through Video
Conferencing. I.A.4558/2020 (modification/directions in terms
of decree dated 14th May, 2020)
2. This suit was decreed by this Court on 14th May, 2020 in
favour of the plaintiff/ applicant and against the defendant in
the following terms:
"23.1. In view of the discussion aforesaid the suit is
decreed in favour of the plaintiff and against the
defendant directing a decree of specific
performance of the agreement to sell dated 14th
July, 2016 executed between the plaintiff and the
defendant. The plaintiff would deposit a sum of
Rs.5,69,00,000/- along with Interest @ 8% per
annum from 27th February, 2017 till the date of
deposit which will be made in this Court within
eight weeks, whereafter the defendant would
execute a sale deed in respect of the suit property In
favour of the plaintiff within four weeks thereafter
and in case the defendant falls to execute the sale
deed in favour of the plaintiff within four weeks of
the deposit of the amount, an officer of this court
would execute the sale deed In favour of the
plaintiff. The defendant is also directed to hand
over vacant and peaceful possession of the suit
property to the plaintiff within four weeks of the
execution of the sale deed in favour of the plaintiff.
Ex.P.69
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By:MANJU BHATT
Signing Date:19.12.2020
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24. A cost of Rs.50,000/- is allowed in favour of the
plaintiff and against the defendant."
3. Parties i.e. the plaintiff and defendant have now entered
into a settlement to the extent that the defendant now prays
that the balance amount required to be paid by the plaintiff
to the defendant i.e. Rs.5,69,00,000/- along with the interest
@ 8% p.a. from 27th February, 2017 till the deposit, be
made in the name of the daughter of the defendant Ms. Sonia
Modi in the form of the cheques, whereafter Lalit Modi the
defendant herein would execute sale deed in favour of the
nominee of the plaintiff i.e. Ganesh Info Services Pvt. Ltd.
4. The plaintiff and defendant No.1 have both joined the
present proceedings through video conferencing and affirm
the facts stated in the application.
5. The plaintiff has handed-over four cheques bearing Nos.
721530, 721531, 721532 and 721533 dated 16th June, 2020;
first two cheques for a sum of Rs.2 crores each and third and
fourth cheque for a sum of Rs.1,50,50,000/- each, all drawn
on Corporation Bank, Hauz Khas Branch, New Delhi.
6. Mr. Lalit Modi states that he has received the four
cheques and the sale deed will be executed within 10 days.
7. Application is accordingly disposed of modifying the
operative portion of the judgment dated 14th May, 2020
permitting the plaintiff to hand-over a sum of
Rs.5,69,00,000/- with interest @ 8% per annum minus TDS,
instead of Mr. Lalit Modi in the name of Ms. Sonia Modi for
which four cheques have been handed-over and sale deed in
terms of agreement to sell be executed in the name of
nominee of the plaintiff i.e. Ganesh Info Services Pvt. Ltd.,
when the physical and vacant possession of the suit property
will also be handed-over to the plaintiff or his nominee by
the defendant.
8. Order be uploaded on the website of this Court."
20. Thus, even the aforesaid order passed in CS(OS) No.109/2017 does
not refer to any mutual understanding between Mr. Romi Garg and the JD
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undertaking to abstain from their respective obligations under the settlement
unless and until the injunction orders were vacated by the Court. At the
same time, the order leaves no manner of doubt that the JD had specifically
and in unambiguous terms, undertaken to execute the sale deed and hand
over vacant possession of the subject premises in favour of Mr. Romi Garg
or his nominee within a period of 10 days in exchange for receiving a sum
of INR 7,01,00,000/- from him by way of cheques.
21. The order dated 17.06.2020 passed in CS(OS) No.109/2017 also
shows that the JD received those cheques in the name of his daughter - Ms.
Sonia Modi, which cheques have admittedly been encashed.
Correspondingly, the JD had begun taking other steps to ensure that he
keeps up his side of the bargain under the settlement agreement, in collusion
with Mr. Romi Garg. To that end, Mr. Romi Garg withdrew his stay
application filed in FAO (OS) No.116/2018 which resulted in vacation of
the stay order (second injunction) directing the parties to main status quo
with respect to the subject property since 18.07.2018. Considering the fact
that this Court had already been called on to exercise its jurisdiction as an
executing court and was concerned with the status of the subject property,
neither the JD nor Mr. Romi Garg felt it necessary to inform this Court of
their purported settlement agreement. Furthermore, despite the fact that he
was engaged in a litigation battle pertaining to this very property, even the
DH was not informed of this settlement by either the JD, rather it is only by
virtue of being a party to the aforesaid FAO that he learnt about the same.
The DH responded to this development by immediately filing a suit to assail
the settlement, being CS(OS) No.150/2020, and protect his rights under the
award passed in his favour on 21.11.2016/12.01.2017. Finally, the Court
dealing with CS(OS) No.150/2020, on 26.06.2020, after noticing the fact
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that the JD had entered into agreements to sell with the two parties and had
obtained huge amounts in lieu thereof from each of them, directed the JD to
deposit the keys of the subject property with the Registrar General of this
Court in order to prevent it from creating any further charges on the
property. Although this order was assailed by the JD in FAO(OS) No
34/2020, the learned Division Bench modified the same on 06.07.2020 only
after recording the statement of undertaking given by the JD and Mr. Romi
Garg that they will not execute the sale deed till further orders are passed by
the Court dealing with CS(OS)150/2020. Be that as it may, the fact remains
that even though the JD has not yet successfully executed the sale deed in
favour of Mr. Romi Garg/his nominee as per his explicit commitment in the
settlement, he has appropriated an enormous sum of INR 7,01,00,000/- from
Mr. Romi Garg by promising to immediately execute the sale deed in lieu
thereof. The intention of the JD, reflected from his voluntary acceptance of
the sale consideration notwithstanding the injunction orders operating on the
subject property, is plainly mala fide and an attempt to overreach the orders
of this Court.
22. Were it not for the intervention of the DH, who preferred a suit, and
the Court, which passed the orders on 26.06.2020 and 06.07.2020, the JD
would have been successful in its endeavour to get the sale deed executed in
favour of Mr. Romi Garg which would have not only been in blatant
violation of the various injunction orders operating against him, but would
have also seriously prejudiced the rights of the DH. Thus, I do not find any
merit in the JD‟s plea that since no third-party rights have been created, the
JD cannot be said to have violated the orders passed by this Court. The facts
noted hereinabove show that the JD took active steps to ensure immediate
execution of the sale deed and handing over of possession of the subject
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property to Mr. Romi Garg/his nominee, which failed only because the DH
filed CS(OS) No.150/2020 on time.
23. The JD‟s actions are further compounded by the previously
mentioned failure on his part to adduce any documentary evidence in
support of his contention that notwithstanding the settlement he executed
with Mr. Romi Garg, he had no intention to discharge his obligations under
the settlement without seeking vacation of the injunction orders or the
permission of this Court. The overall conduct of the JD clearly shows that
Mr. Romi Garg and he had entered into the settlement in June 2020 with the
intent of hastily and sneakily transferring the title and possession of the
subject property to Mr. Garg by securing an enormous sale consideration of
INR 7,01,00,000/- in favour of the JD, which consideration stands
admittedly accepted in the name of the JD‟s daughter. Insofar as the JD‟s
decision to accept the sale consideration from Mr Romi Garg in the name of
his daughter stands, that is another red flag for which no explanation
whatsoever has been forthcoming from the JD.
24. The JD has adopted an additional line of argument in support of its
contention that the settlement agreement is bonafide since it is in
furtherance of the judgment and order of this Court passed on 14.05.2020
read with the order dated 17.06.2020. In the first place, although the
judgment dated 14.05.2020 did decree the suit in the favour of Mr. Romi
Garg, the same was passed without making any reference to the rights of the
DH on the same property. To remedy this aspect, when Mr. Romi Garg
moved an application in FAO (OS) 116/2018 before the Division Bench
praying for a direction to modify the second injunction order so that he
could obtain the subject property, the DH vehemently resisted the same and
successfully got the judgment dated 14.05.2020 modified on 04.06.2020 to
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protect his own rights to the property. Thus, the judgment dated 14.05.2020
cannot be read in isolation and must necessarily be read with the order of
the Division Bench passed on 04.06.2020, which together protect the DH‟s
right upon the subject property by directing Mr. Romi Garg to deposit the
balance sale consideration in favour of the DH before the Registrar General
of this Court. Equally important, the order dated 17.06.2020 was passed
without making any reference to the DH‟s possible rights to the subject
property and seemed to record only details of the settlement between Mr.
Romi Garg and the JD. Again, when the DH came to know of the order
dated 17.06.2020 as also the settlement agreement, he preferred CS(OS) 150
of 2020 whereunder this Court again protected the interests of the DH on
26.06.2020 by directing the JD to deposit the keys of the subject property
with the Registrar General of this Court in order to prevent it from creating
any further charges on the property. It is a matter of record that the order for
deposit of keys was subsequently modified by a Division Bench on
06.07.2020, but that modification was pursuant to receipt of another
undertaking by the JD that he will not execute the sale deed with respect to
the subject property. Hence, even the order dated 17.06.2020 cannot be read
in isolation and ought to be read along with the orders dated 26.06.2020
passed in CS(OS) 150 of 2020 and 06.07.2020 passed in FAO(OS) No
34/2020. Therefore, the JD‟s attempt to adopt a restricted reading of the
orders, without accounting for the subsequent modifications thereto, in order
to paint his actions in a favorable and legally sound light is unsustainable.
25. To put it simply, at every instance when the Court was brought up to
speed with the pending legal status of the subject property, it would issue
directions to protect the rights of the DH and that was the spirit of the orders
issued by the Court. Ultimately, instead of obeying the direction of this
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Court to maintain status quo with respect to the property as he was obligated
to do, the JD chose to employ a subterfuge by entering into a farcical
settlement agreement with Mr. Romi Garg all with the intent to skirt judicial
orders. Not to mention, by failing to honour the assurance he gave to this
Court, the JD has played a serious fraud on the Court and has obstructed the
course of justice. These actions amount to breach of an undertaking given to
the Court by the JD/Contemnor, all with the selfish aim of fraudulently
reaping a benefit for himself by misleading this Court.
26. I have also considered the decisions relied upon by the JD in Food
Corporation of India (supra) and JCB India Limited (supra) but find that
they are distinguishable on facts and merely reiterate legal principles which
only further the DH‟s case. Neither of these decisions had a clear and
unequivocal order of injunction which was valid in law or an express
undertaking recorded on behalf of the person accused of contempt. Yet, in
these very decisions, the Court went on to state the parameters of a charge
of contempt, in regard whereof reference may be made to the following
paragraph in JCB India Limited (supra):
"12. The gravamen of the charge of contempt is wilful
disobedience of an order of the court or intentional violation of
an undertaking given to the court. Civil Contempt is defined in
S.2 (b) of the Contempt of Courts Act as meaning wilful
disobedience to a judgment, decree, direction, order, writ or
other process of a Court, or wilful breach of undertaking given
to a Court. In case there is any such breach in a particular
case, Section 12 of the Act may be attracted, wherein
punishment is provided for contempt of Court. Section 13 of the
Contempt of Courts Act after the non-obstante clause mandates
that no Court shall impose a sentence under the Act unless it is
satisfied that the contempt is of such a nature that it
substantially interferes or tends substantially to interfere with
the due course of the justice. Whether the Court should take
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action for contempt or not must depend on the circumstances of
each case and discretion is to be exercised by the Court
bearing in mind all the circumstances of a particular case. It is,
however, the settled position that wilful conduct is the primary
and basic ingredient of the offence of contempt and is the sine
qua non for bringing home the imputation of guilt. Contempt
proceedings cannot be permitted to be used as a legal thumb-
screw to serve an ulterior purpose. The jurisdiction should not
be used for vindictiveness, malafides or a desire to harass the
opponent. The order or undertaking flouted must be one with
clear-cut contours for the petitioner to be able to allege that the
interdict of the Court has been violated or an undertaking given
to the Court has been flouted."
27. In the present case, neither the injunction orders nor the undertaking
of the JD given to the Court on 28.01.2020 are clothed in any ambiguity at
all with regard to their effect. Faced with the operation of such an explicit,
repetitive and continuing injunction on the subject property, there is no
merit to the JD‟s denial of being in wilful and intentional defiance of court-
ordered injunctions and recorded undertakings. Apart from the JD‟s bald
and unsubstantiated averments of bonafide in his defense, which are
completely devoid of merit, this Court has taken note of his conduct which
involved clandestinely colluding with Mr. Romi Garg to agree on a
purported settlement agreement, accepting cheques from Mr. Romi Garg in
the name of his daughter and failing to fully disclose the factum of existing
judicial orders of injunctions and undertakings operating on the subject
property, while appearing before different Benches of this Court in different
proceedings. In these circumstances, it stands to reason that the JD has
intentionally indulged in contemptuous actions by wilfully disobeying
restraint orders, which were undisputedly within his knowledge, and
violating his own undertakings made before this Court. Any further
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indulgence shown to a litigant, such as him, who has engaged in this sort of
conduct without fearing any punitive consequences would be a mockery of
the judicial process and cannot be permitted. I, therefore, have no hesitation
in holding that the JD is guilty of civil contempt.
28. Accordingly, I hold the JD guilty of civil contempt and grant him an
opportunity to show cause within 3 weeks on the aspect of quantum of
sentence, which shall be considered on 29.01.2021 when the matter is
directed to be listed next.
REKHA PALLI, J.
DECEMBER 17, 2020
acm
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