Jamna Datwani vs Janak Datwani & Ors
2020 Latest Caselaw 2556 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI
                          Judgment delivered on: September 02, 2020

+      CONT.CAS(C) 87/2020, CRL.M.A. 5099/2020, CM APPLs.
       6027/2020, 9151/2020, 11841/2020, 11925/2020, 13266/2020 &
       13269/2020


       JAMNA DATWANI                                      ..... Petitioner

                              Through:   Mr. Deepak Khosla, Adv.

                     versus



       JANAK DATWANI & ORS                                ..... Respondents
                              Through:   Mr. Abhimanyu Mahajan, Ms. Anubha
                                         Goel, Ms. Tanisha Bawa,
                                         Mr. Sarthak Mehrotra and
                                         Mr. Mayank Joshi, Advs. for R-1
                                         Mr. Vivek Sharma and Ms. Mamta
                                         Gautam, Adv. for R-3



       CORAM:
       HON'BLE MR. JUSTICE V. KAMESWAR RAO
       HON'BLE MS. JUSTICE ANU MALHOTRA

                                JUDGMENT

V. KAMESWAR RAO, J

CM. Nos. 9151/2020, 13266/2020 and 13269/2020 Exemptions allowed subject to all just exceptions. Applications stand disposed of.

CM. No. 11925/2020 Subject to the applicant / petitioner filing the necessary Court fee within 15 days, exemption from filing the requisite court fees is granted.

Application is disposed of.

CONT.CAS(C) 87/2020

1. This contempt petition has been filed by the petitioner Smt. Jamna Datwani for initiating contempt proceedings against the respondents herein for deliberate and willful disobedience of order dated May 02, 2014 and order/judgment dated May 16, 2014 passed by the Division Bench of this Court in FAO (OS) No. 592 of 2013 titled as Janak Datwani v. Jamna Datwani and in FAO (OS) No. 593 of 2013 titled as M/s. IN Exports (P) Ltd v. Jamna Datwani.

2. The respondents herein are Janak Datwani (respondent No.1), Rakesh Gupta (respondent No.2) and Kishin Datwani (respondent No.3). Janak Datwani and Kishin Datwani are the sons of the petitioner whereas Rakesh Gupta (respondent No.2) is said to be the Managing Director of M/s. Scorpios Apparel (P) Ltd. a company owned by Janak Datwani.

3. Vide order dated May 02, 2014 the Division Bench has on an understanding arrived at between the petitioner and the Janak Datwani stated as under:

"3. As regards the said aspect of the matter, a consent has emerged in the Court between Janak Datwani and his mother Jamna Datwani, the two parties which are concerned with directions issued vide serial Nos. 1 to 6. It has been agreed that Ms.Jamna Datwani would have a right of exclusive

residence in a room highlighted in red slanting lines in the site plan which forms part of the present order. Mr.Janak Datwani would have a right of exclusive residence in a room highlighted in blue slanting lines in the site plan which forms part of the present order.

4. The area bounded in yellow lines has two portions: (i) a kitchen area, and (ii) a pantry area.

5. It is agreed that as one enters from the passage to the area bounded in the yellow lines, the first room would be exclusively used by Ms.Jamna Datwani as her kitchen and the room behind would be used exclusively as a kitchen by Janak Datwani. We have described the two rooms as above because whereas Janak Datwani states that the first room as one enters through the passage is a pantry and the other is a kitchen, Ms. Jamna Datwani asserts to the contrary.

6. The area highlighted in green slanting lines is a passage but of such dimensions that it can be used as a dining area. Janak Datwani is using the same as a dining area. It is agreed that through said passage Ms.Jamna Datwani would have a right of way to enter the kitchen-cum-pantry area bounded in yellow lines.

7. Be that as it may, the position is that the first room entered into from the passage would be used as a kitchen exclusively by Jamna Datwani and the next room would be used exclusively by Janak Datwani as a kitchen. It is further agreed by the parties that since access to the room to be used exclusively as a kitchen by Janak Datwani would require him to pass through the room which would be used as a kitchen by Janak Datwani, he and his family members as well as his servants would have access to the kitchen through the kitchen of Jamna Datwani. It is further agreed that a CCTV camera would be installed at the gate affixed at the boundary abutting the main road, meaning thereby that the CCTV camera would focus at the gate through which access is made from the main road to

an open area of the plot before the built up portion.

8. It is further agreed that a garage in the servant quarters block would be used by the servants of Jamna Datwani, but would access the same through a common passage to be used along with other inhabitants of the servant quarters-cum-garage block. The junk/unused goods lying in the garage would be removed by Janak Datwani within four days. The garage would be cleaned and whitewashed. The possession would be handed over to Jamna Datwani within four days from today.

9. The guard present in the premises will continue and shall be paid for by Janak Datwani. A new lock will be purchased for the gate and the keys thereof will be with Ms.Jamna Datwani and Mr.Janak Datwani.

10. While a maid shall be permitted to reside with Ms.Jamna Datwani in the room exclusive to her, the cook to be employed by her will reside in the garage portion of the servant quarters. The cook will share the bathroom and toilet with other residents of the servant quarter block which is nearest to the garage.

11. Ms.Jamna Datwani will be permitted to install inverters/power back-up and have a telephone connection in the premises at her own expense. She can also install, at her own expense, any kitchen and other essential equipment for her own use.

12. Neither party would effect any permanent structural alterations.

13. An interim arrangement worked out by the learned Single Judge concerns financial help to the mother is reflected in the remainder directions issued in the impugned order.

14. Whereas counsel for Janak Datwani, Anand Datwani and Ms.Nitya Bharaney agree that Janak and Anand would with effect from the month of May, 2014 pay Rs.35,000/- (Rupees Thirty Five Thousand only) each to Jamna Datwani and Nitya Bharaney would pay Rs.15,000/- (Rupees Fifteen Thousand only) per month, learned counsel for Kishan Datwani does not give any consent for Kishan to pay

any penny to his mother.

15. The impugned order has directed the four siblings i.e. Janak, Kishan, Anand and Nitya to pay Rs.5,00,000/- (Rupees Five Lakhs only) each to the mother out of which the mother Jamna Datwani has been permitted to immediately utilize Rs.2,50,000/- (Rupees Two Lakhs and Fifty Thousand only) and thereafter Rs.1,25,000/- (Rupees One Lakh and Twenty Five Thousand only) every month beginning March, 2014. The ethos of the order is that the mother should have for her monthly expenses, keeping in view the status of the family, at least, Rs.1,25,000/- (Rupees One Lakh Twenty Five Thousand only) per month. Kishan Datwani has not challenged the impugned order and thus as per the impugned order his liability would be to pay Rs. 31,250/- (Rupees Thirty One Thousand Two Hundred and Fifty Only) per month to his mother.

16. Thus, noting the agreement between Janak, Kishan and Nitya and the fact that Kishan has not challenged the impugned order we direct that the three sons, viz., Janak Datwani, Kishan Datwani and Anand Datwani shall, with effect from the month of May, 2014, pay a sum of Rs.35,000/- (Rupees Thirty Five Thousand only) per month to Jamna Datwani. The amount would be paid by way of RTGS/ECS transfer to the account of Ms. Jamna Datwani:

SB A/c No.0349101071631, Canara Bank, Maharani Bagh, New Delhi. The daughter Nitya Bharaney shall pay an amount of Rs.15,000/- (Rupees Fifteen Thousand only) to the account of the mother per month commencing from the month of May, 2014.

17. It may be true that after utilizing the money made available to her by the learned Single Judge i.e. Rs.20,00,000/- (Rupees Two Lakhs only), after consuming Rs.50,000/- (Rupees Two Lakhs and Fifty Thousand only) as per the impugned order and further sum of Rs.1,25,000/- (Rupees One Lakh and Twenty Five Thousand only) in the months of March and April, 2014, Ms.Jamna Datwani would be

having Rs.15,00,000/- (Rupees Fifteen Lakhs only) with her, but we let her retain the said amount should she need emergency medical treatment to be given to her. We are doing so for the reason the past history of litigation would reveal that the inter-se fight between Janak and Anand has tormented the mother enough and God forbid she suffers any calamity, we are of the opinion that she should not be at the mercy of any son.

18. There is a direction in the impugned order for the four siblings to pay, as a onetime measure, Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only) each to the mother, to enable her to buy a car. Whereas Anand Datwani and Nitya Bharaney have paid the said amount to the mother, the other two sons have not paid any money.

19. Learned counsel for Janak Datwani says that his client has not paid the money because he apprehends that the mother would not purchase any car and would use the money to litigate against Janak. Learned counsel for Janak Datwani states that Anand Datwani is manipulating the mother and thus Janak Datwani apprehends that it would be Anand who would use the said money to litigate with Janak.

20. We therefore direct that on the name of vendor of the car being intimated, Janak Datwani and Kishan Datwani shall pay by a demand draft drawn in the name of vendor Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand only) each within four days of the receipt of the communication by Jamna Datwani of the name of the vendor through whom Jamna Datwani would be purchasing a car.

21. We direct Janak Datwani and Kishan Datwani to within two weeks transfer through RTGS/ECS Rs. 5,00,000/- (Rupees Five Lakhs only) each to the account of the mother as directed by the learned Single Judge, noting that Anand and Nitya have paid their share as directed.

22. In spite the fact that as regards the subject matter of the two appeals, a consent has emerged we

are reserving the matter for judgment on account of the fact that during arguments, it transpired that there is multifarious litigation between the parties. As many as 32 proceedings, original as well as in appeal and contempt have been litigated or are still pending between the parties. Some of them need to be stayed and some need to be clubbed. We shall be passing an appropriate order in said regards."

4. Similarly, in the order / judgment dated May 16, 2014 the Division Bench has in paras 31 and 32 stated as under:

"31. In view of the fact that with consent of Jamna Datwani and Janak Datwani we have resolved the issue pertaining to possessory rights by way of interim measures in the property at 6, Friends Colony West. We stay the proceedings under the Domestic Violence Act, 2005 initiated by Jamna Datwani against Janak Datwani.

32. We bring the curtains down by reiterating that the subject matter of the two appeals stood resolved when we had passed the order on May 02, 2014. The order passed today has been passed in exercise of the inherent power which a Court of Justice must possess to prevent misuse of its procedures in relation to action(s) initiation whereof may apparently be not inconsistent with the literal application of the law but otherwise would be manifestly unjust and unfair to any party. Indeed, it would be a scandal to the administration of justice where on an issue concerning shareholding in a company cross claims would be adjudicated in separate suits and the litigious parties flood the Courts with applications nearing a century."

5. The contempt petition has been primarily filed by the petitioner against the Janak Datwani alleging the following:

"C) Around July 2014, the applicant felt compelled to leave the residence almost immediately as having failed to create the desired environment for peaceful residence. Whilst her health still permitted, she took up

residence in a senior citizens home in Jalandhar, Punjab. It was around April 2017 that the applicant, on a visit to Delhi, when she had gone to access some of her belongings kept in the bedroom area assigned to her by this Hon'ble Court, she was informed by the maid that some changes relating to the access for the maid had been made by the Respondent No.1. The applicant brought this to the attention of the Respondent No.1 by means of notice dated 28-07-2017, but never received any reply. It was only in the course of the visit made to the residence in March 2019 that the applicant, in follow-up of the protest raised by her earlier, was shocked to find that major structural changes had been effected to the residence, which was in complete defiance of the crystal-clear orders of this Hon'ble Court, whereby the space earmarked for the functioning kitchen of the applicant had been unilaterally usurped by Respondent No.1, and converted into an extension of his own living space, the consequence of which was that the area earmarked by this Hon'ble Court to serve as the home of the applicant was no longer in existence; in other words, even though structural changes had been specifically barred/prohibited by this Hon'ble Court, this was contemptuously done by Respondent No.1, who prevailed upon Respondent No.2 to execute his commands, and which were executed by Respondent No.2 despite knowing of the orders of this Hon'ble Court, which he fully knew of by virtue of being the power-of-attorney holder and employee/right hand man of Respondent No.1."

6. The petitioner in her petition stated that immediately after the pronouncement of order/judgment dated May 16, 2014, the respondent Nos. 1 & 2 created an environment which was no longer conducive for the petitioner to continue her stay at the residence. Some of the reasons cited in the petition are listed hereunder:

(a) that the locks to the front door/main gate were changed without giving a new set of keys to the petitioner;

(b) the petitioner's entry into the premises was hindered by the security guard resulting in prolonged waits of up to 30 to 60 minutes;

(c) Around July 2014, the petitioner left the residence almost immediately and took up residence in the senior citizens home in Jalandhar, Punjab and it was only around April 2017 that the petitioner on her visit to Delhi, when she had gone to access some of her belongings that she was informed by the maid that changes regarding the access of the maid had been made by Janak Datwani. It is stated that in order to lodge a protest, the petitioner served a legal notice on Janak Datwani on July 28, 2017 but the service of the notice which was dispatched through post was repeatedly refused by Janak Datwani, his guard / employees and eventually could only be served upon the respondent No.1 in April 2018;

(d) That apart, the space earmarked for the functioning kitchen of the petitioner had been allegedly usurped by Janak Dartwani and converted into an extension of his own living space and structural changes were carried out despite such changes explicitly being barred by the order of May 02, 2014. It is stated that this issue was also raised in the legal notice dated July 28, 2017.

7. As regard, Kishin Datwani (respondent No.3), it is the case of the petitioner that he was directed by the order dated May

02, 2014 to pay her onetime payment of Rs.5 Lacs + onetime payment of Rs.1.50 Lacs (towards purchase of a car) + monthly payment of Rs.35,000/-. As per the petitioner, the respondent No.3 has only paid an amount of Rs.3,50,000/- as on date leaving an amount of Rs.26,45,000/- as arrears.

8. It is also stated by the petitioner that she has initiated contempt proceedings against Kishin Datwani for the non- payment of the money in terms of the directions given by the Division Bench in the order dated May 02, 2014. The said proceedings have been rejected by a Single Judge of this Court on the ground that the petitioner shall move execution proceedings. It is conceded that the execution proceedings could not be initiated as Kishin Datwani does not reside within the territorial jurisdiction of this Court as he stays in USA and further he has no property within the territorial jurisdiction of this Court.

9. A reply to application being CRL.M.A. 5099/2020 has been filed by Janak Datwani. The said reply also meets the case of the petitioner in the petition. In the said reply, Janak Datwani has stated that subsequent to the orders passed by this Court on May 02, 2014, the petitioner has visited the property on various occasions and has been taken care of by his employees. During the visits / stays of the petitioner, she has always used the kitchen of Janak Datwani and the pantry allotted to her by this Court has not been used as a kitchen but as a dining / sitting area. It is also stated that the petitioner ceased to avail services of her maid when she was residing in the said area as all her needs were taken care of by the employees of Janak Datwani.

10. Janak Datwani in his reply also stated that the order dated May 02, 2014 had directed the petitioner shall not affect any "permanent structural alterations" and no such structural alternations have been effected. According to the Janak Datwani, the petition has been filed by the petitioner at the behest of Anand Datwani making various allegations against him. These allegations find basis in the information given to the petitioner by her maid that changes have been made in the said area.

11. With regard to legal notice dated July 28, 2017, it is the stand of Janak Datwani that the averments are false as the said legal notice does not even refer to any structural changes in the said area. The petitioner did not visit the said property in the month of March, 2019 as alleged in the petition. Janak Datwani justifies the stand taken by his counsel on February 07, 2020 that no such structural alterations have been made.

12. Alternatively, it is stated in the reply that assuming without admitting, if the changes as alleged in the petition have been carried out by Janak Datwani i.e. removing of cabinetry, plumbing, kitchen counters, sink, electrical outlets, refrigerators etc., the same do not amount to structural alterations let alone permanent structural alterations. Janak Datwani justifies his stand by stating that the structural alterations mean changes in the walls, columns, beams, roof or in the exterior walls. The justification given for such removal was on the ground of repair work which was long overdue.

13. Mr. Deepak Khosla apart from reiterating the stand taken in the petition had submitted, Janak Datwani never allowed a

comfortable atmosphere for the petitioner to continue residing in peace in the property in question which is why, she could not actually engage a cook and a maid to reside there even after the passing of order dated May 16, 2014. He denied the fact that the petitioner has been using the kitchen of Janak Datwani. Rather, she has always been using the pantry converted into a kitchen allotted to her by this Court.

14. According to him, Janak Datwani is attempting to usurp the area earmarked by this Court to be used as kitchen by her. He also denied the fact that the house and / or room of the petitioner was infested with termites. He also denied that there were leakages in the plumbing and / or rusting of pipes in the property. He vehemently denied that the respondent No.1 had spoken to the petitioner before carrying out the repairs / renovations.

15. In fact, he has also denied the telephonic conversation Janak Datwani is purported to have had with the petitioner as recorded by Janak Datwani and played by Mr. Mahajan during the course of hearing with regard to the repairs being carried out by him to which the petitioner is said to have consented. He stated that under these circumstances, appropriate shall be that the petitioner be permitted to use the bedroom cum living space and kitchen used by the respondent No.1 leaving it to him to make his own arrangements in the remaining area.

16. Mr. Khosla countered the argument that the present petition is barred by res judicata. He also stated the petitioner is not guilty of suppressing the fact that the earlier contempt petition no. 652/2014 was dismissed vide order dated September

24, 2014 and the review petition thereof dismissed vide order dated July 07, 2015.

17. According to him in light of the decision of the Hon'ble Supreme Court in the case of Securities and Exchange Board of India vs. Subrata Roy Sahara (2019) 13 SCC 333 the dismissal of the earlier petition in 2014 cannot be said to be relevant. Further he stated that an execution petition cannot lie against Kishin Datwani given that he is a resident of the United States of America and whose assets are also in the United States of America. According to him Kishin Datwani has used the jurisdiction of the courts to pursue litigation here when it suited him but when it comes to honouring his obligations he eludes the jurisdiction of this Court.

18. On the issue that the petitioner is resorting to forum shopping and seeking the same relief in multiple fora; Mr. Khosla argued that the pendency of application filed by petitioner in CS 57827/2016 previously numbered CS (OS) 556/2008 is for completely different reliefs. He stated that he has placed a copy of the said application appended to the counter affidavit for the perusal of this Court. He has also argued that the the application in the suit would remain confined to that specific proceeding whereas the jurisdiction of this Court would have a much larger effect.

19. In opposition to the argument that the judgment dated May 16, 2014 cannot bind Kishin Datwani since no consent was given by him, Mr. Khosla has argued that if he had not given his consent on the said date then why did he make a payment of over

Rs. 3.5 lacs after the passing of the said order. Further it was argued by Mr. Khosla that on one hand it had been argued that Kishin Datwani is facing financial difficulties and on the other hand he has made an offer to pay Rs.10,000 and if Kishin Datwani really wants to take care of his mother he should have remitted some amount from March 2020 onwards.

20. On the stand that even if Kishin Datwani is found liable to pay the said amounts, in equity he should be relieved of such a burden since he has no money, Mr. Khosla has argued that the Review Petition 58/2014 was filed on this ground alone, wherein Kishin Datwani was given an opportunity to substantiate his claim that he had no money, however no documents were filed in this regard and the Review Petition was dismissed vide order dated February 02, 2014. He further stated that the wife of Kishin Datwani is a realtor and the defence taken that he is facing difficulties to support his family may not be true.

21. Mr. Khosla has argued that Kishin Datwani has never allowed familial obligations to get in his way when it comes to furthering his own personal ambitions and that he has no respect towards the bonds of family and that the argument that Kishin Datwani did not get anything from his father and made his living on his own is far from truth. Mr. Khosla also stated that it would be false to argue that Kishin Datwani has always been a service professional and has access to very little money.

22. Mr. Khosla argued that the image of the respondent no. 3 as being portrayed by Mr. Sharma is a false one and that Kishin Datwani is not as innocent as being made out to be and that

Kishin Datwani has a significant role in compounding the other litigations between the parties.

23. On the ground of limitation Mr. Khosla has relied on the Judgment of Subramanium Swamy vs. Arun Shourie (Contempt Petition (Cri.) No. 11 of 1990, decided on December 23, 2014) and Ram Phall vs. B. S. Bhalla & Ors. (2004 Cri LJ 4274).

24. It is the submission of Mr. Abhimanyu Mahajan learned counsel for Janak Datwani that Janak Datwani has taken a stand that on or about November, 2016, he had been informed, that repair work was long overdue and should be undertaken. There was leakage in the plumbing / rusting of pipes and termites in the woodwork in the house including the pantry as a result of which respondent Janak Datwani was forced to get repairs done in the said area including in the pantry allotted to the petitioner at his own costs. Furthermore, during the petitioner's visit to the premises on 6 occasions between 2017 and May, 2019, she had never objected to the said repairs.

25. According to Mr. Mahajan, prior to getting the repairs done, Janak Datwani had called the petitioner to inform her that repairs were being carried out and had requested her to send the keys to the room allotted to her so that repairs could also be carried out in the room. The petitioner informed him that if she were to give the keys of the said room to him, Anand Datwani would get upset with the petitioner and therefore, refused to give him room keys. Subsequently, repairs had been done in the said area, however, no structural alteration has been done.

26. According to Mr. Mahajan, as apprehended by Janak

Datwani, during the visit of the petitioner to the said area on February 21, 2020, the petitioner opened the room allotted to her which was found in dilapidated condition and full of termites. He reiterated his submission that at no point of time did the petitioner object to the said repairs. He also highlighted the fact that the petitioner had visited the property in question on 127 occasions between 2012 and 2020 and only on 6 occasions between 2017 and 2019. In this regard, he has drawn our attention to the chart filed by him. We may state here that pursuant to an order passed by this Court directing Janak Datwani to file an affidavit with regard to the changes effected in the pantry area, Janak Datwani reiterated the stand as has been taken in the reply which has been reflected above.

27. The respondent No.3 Mr. Kishin Datwani has also filed his reply to the contempt petition. It is the stand of Kishin Datwani and so submitted by Mr. Vivek Sharma, that the allegations of the petitioner in this petition with respect to Kishin Datwani pertain to non-payment of arrears of money in terms of the order dated May 02, 2014 / May 16, 2014 passed in FAO (OS) No.592 /2013 and FAO (OS) No. 593/2013.

28. According to Mr. Sharma the petitioner never resided in the portion earmarked for her from July 2014 to July 2019 and thereafter till date. On her own volition for the last six years she has taken up residence at a Senior Citizens Home in Jalandhar, Punjab. The present contempt petition has been filed under the influence of the other son, namely Anand Datwani who is engaged in a bitter litigation with Janak Datwani over control of

the immovable assets of M/s. CNA Exports Private Limited which is a closely held family owned company. He further stated that the attempt by Anand Datwani is to threaten, bully and browbeat the persons who oppose him in the property litigation.

29. According to him the only averments made in the petition against Kishin Datwani are in paras 9 to 11 of the petition which reflect the fact that the petitioner had earlier filed the contempt proceedings against Kishin Datwani on the same set of facts and the said petition was dismissed by the learned Single Judge. It was contended on behalf of Kishin Datwani that the averments in para 11 are without giving the particulars of the said contempt petition, annexing the petition itself / orders, and that it is a clear case of non-disclosure of the material facts which needs to be dealt with by the Court firmly.

30. That apart, it was also stated that a similar application has been filed by the petitioner under Section 151 CPC in CS No.57827/2016 titled as Jamna Datwani v. Anand Datwani, wherein the petitioner has alleged non-payment of arrears of money and seeks compliance of order dated May 16, 2014 passed by the Division Bench in FAO (OS) Nos.592-593/2013. Mr. Sharma stated that on a transfer petition being Tr. P.(C) 110/2019, the said suit has been transferred to this Court. That apart, he stated that the pendency of the application also bars the filing of the contempt petition.

31. He contended that the entire proceeding is just an effort by Anand Datwani to harass Kishin Datwani. He stated that Mr. Deepak Khosla not only represents Anand Datwani but also

Jamna Datwani and M/s. CNA Exports Pvt. Ltd. and it is he who has filed the present proceedings. He has also referred to an email dated February 07, 2020 written by Mr. Deepak Khosla wherein he makes a reference to the case of Subrata Roy Sahara, hinting at potential incarceration of Kishin Datwani. He also contended that Mr. Khosla had filed another contempt petition on behalf of the Company M/s. CNA Exports Private Limited against Ms. Mansi Sharma, (Advocate) and others, the petition, was dismissed by the Court imposing cost of Rs.1 Lac. It is stated that an application for modification has been filed which is still pending.

32. In substance, the plea of Mr. Sharma is that the present contempt petition is hit by principles of res judicata and in terms of order dated September 24, 2014 and an appropriate remedy for the petitioner is to file an execution petition.

33. On merits, it was stated that Kishin Datwani lacks funds to make payments. It is an admitted position that a sum of Rs. 3,50,000 has already been paid by Kishin Datwani to Jamna Datwani, which he states goes to show that he doesn't want to disobey the orders but rather that he is only limited by his financial position. He stated that much prior to the order of May 16, 2014 Kishin Datwani was paying a sum of Rs. 5000 per month since March 2005 to his mother, voluntarily; which he stopped only in September, 2007 at the behest of Jamna Datwani herself. It has been stated that after passing of the order dated May 16, 2014 Kishin Datwani talked to Jamna Datwani and explained his financial position to her and that it was only after

she stated that she does not require Rs. 10,000 as monthly expenses as offered by him, did he stop making payments to Jamna Datwani but not before making a lump sum transfer of Rs. 3,50,000 in the year 2014.

34. It was submitted that Kishin Datwani was also involved in litigation with his brother Janak Datwani in New York which further depleted his financial resources. Mr. Sharma stated that at best Kishin Datwani is in a position to contribute Rs. 10,000 towards the maintenance of his mother.

35. Having heard the learned counsel for the parties and perused the record, the present contempt petition primarily arises from the order dated May 02, 2014 in FAO(OS) 592/2013. The order has already been reproduced above.

36. The contempt is primarily alleged against Janak Datwani and Kishin Datwani. The allegations against Janak Datwani is that he has violated the direction of the Court to allow the petitioner Jamna Datwani, who shall have a right of exclusive residence in a room and to use a pantry area as a kitchen, in addition to engaging a maid and a cook. The allegation primarily is that structural changes have been made in the pantry area because of which she is unable to use the same as a kitchen.

37. The stand of Janak Datwani is that the petitioner has been residing in the room allotted to her and has not been using the pantry area, rather has been using his kitchen. It is further stated that as the house required certain repairs and after her consent, the pantry area has been redone into a dining / sitting room. In this regard, reliance has been placed on recordings of telephonic

conversations between Jamna Datwani and Janak Datwani. The respondent no.1 Janak Datwani has also highlighted the number of days, Jamna Datwani had stayed in the property in question since the order dated May 02, 2014.

38. It is a conceded case of Janak Datwani that the fittings in the pantry area have been removed. This primarily, as contended by Mr. Mahajan is because, the petitioner has been using the kitchen of respondent No.1, therefore there is no requirement for using the pantry as kitchen.

39. Mr. Khosla, in his submissions, has denied the recording of the telephonic conversation; the consent given by the petitioner to Janak Datwani to carry out the repairs and convert the pantry into a dining / sitting room.

40. But what we notice is that the petitioner has not denied the fact that she had stayed in the property on 127 occasions between 2012 and 2020. Despite staying on 127 occasions, not even once the petitioner had taken up the issue of not converting the pantry as kitchen with Janak Datwani. Even the notice dated July 28, 2017 on which reliance has been placed does not refer to any structural changes in the area concerned. What is important is, merely because the petitioner has been using his kitchen without any protest and demur, Janak Datwani cannot absolve himself of his obligation to approach this Court for placing on record the factual situation and seek leave of the Court to allow the pantry area to be used as a sitting / dining area and not as kitchen by the petitioner. This we say so as the spirit underlying the order was on an understanding arrived at between the parties for the comfort of

the petitioner so that she is not dependent on him. Such an order needs to be adhered to and respected. At the same time the above conduct of Janak Datwani may not be wilful and contumacious disobedience of the order, as he has some explanation in support of his inaction. In this regard we may refer to the judgement of the Hon'ble Supreme Court in the case of Jhareswar Prasad Paul and Ors. vs. Tarak Nath Ganguly and Ors. (2002) 5 SCC 352 to elucidate, under what circumstances the Court must exercise its contempt jurisdiction. The relevant conclusion is as under:-

"11. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. Since the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is undermined. The Contempt of Courts Act, 1971 has been introduced under the statute for the purpose of securing the feeling of confidence of the people in general for true and proper administration of justice in the country. The power to punish for contempt of courts is a special power vested under the Constitution in the courts of record and also under the statute. The power is special and needs to be exercised with care and caution. It should be used sparingly by the courts on being satisfied regarding the true effect of contemptuous conduct. It is to be kept in mind that the court exercising the jurisdiction to punish for contempt does not function as an original or appellate court for determination of the disputes between the parties. The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious."

(emphasis supplied) Having said that, it is important that, the clear mandate of this Court is adhered to and complied with. Accordingly, we

direct Janak Datwani to comply with the order dated May 02, 2014 in letter and in spirit and convert the pantry as a kitchen to enable the petitioner to use the same. This must be done within a period of eight weeks from today. Upon compliance, Janak Datwani shall file an affidavit in that regard within a week thereafter. If no affidavit is filed by Janak Datwani within a week after expiry of eight weeks showing compliance thereof, the Registry shall list the matter before this Court immediately thereafter for further proceedings.

41. In so far as the allegation of contempt against Kishin Datwani is concerned, the petitioner having exercised her remedy of contempt before the learned Single Judge, who vide order dated September 24, 2014 has not entertained the contempt petition, numbered as Cont. Cas (C) No. 652/2014 and directed the petitioner to seek execution and against which, even a Review Petition has been dismissed and admittedly, the remedy of appeal against the order has not been exercised by the petitioner, this petition against Kishin Datwani is not maintainable. The relevant portion of the said order is reproduced below:

"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."

42. That apart, we have been informed that an application has been filed by the petitioner in CS (OS) 57827/2016 seeking a direction against Kishin Datwani for payment of arrears of money, not paid by him in terms of order dated May 02, 2014. The prayer in the application reads as under:

"(a) Direct Defendant Nos. 2 And 4 to comply with the order dated May 16, 2014 and till Such time not entertain any pleadings made on behalf of Defendant Nos. 2 And. 4 in the above matter; and

(b) Award Interest towards overdue Non-payment @ rate of interest which this Hon'ble Court deems fit along with costs.

(c) Pass such other Order or Orders as the Hon'ble Court deems fit and proper in the circumstances of the case."

43. The aforesaid also demonstrates that, the petitioner is forum shopping, by raising similar issue before different forums, knowing well that she was unsuccessful while initiating contempt proceedings against Kishin Datwani. The plea of Mr. Khosla, that Kishin Datwani being a resident of United States of America, does not have any properties in this country and as such cannot seek execution looks appealing on a first blush, but on a deeper consideration it is seen that, till such time, the order of the learned Single Judge dated September 24, 2014 stands, this Court, on a same cause of action for the same relief as claimed in Cont. Cas (C) No. 652/2014, cannot entertain a fresh petition as it is hit by the principles of Res Judicata as propounded by the Hon'ble Supreme Court in the case of Hope Plantations Ltd vs Taluk Land Board Peermade & Anr. (1991) 5 SCC 590 wherein it was held as under:

"26. It is settled law that principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even he demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are 'cause of action estoppel' and 'issue estoppel'. These two terms are of common law origin. Again once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that issue was wrongly determined. their only remedy is to approach the higher forum if available. the determination of the issue between the parties gives rise to as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operated in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice."

44. But surely, the aforesaid may not preclude the petitioner to seek such remedy against the order of Ld. Single Judge in Contempt Petition No. 652/2014 and Review Petition as permissible in law.

In view of the above discussion, for present the contempt petition is closed, but shall be subject to what we have said in Para 40 (Page 20-22).

Crl. M.A. 5099/2020 and CM. Nos. 6027/2020, 11841/2020 In view of our conclusion in the contempt petition, these applications are closed.

V. KAMESWAR RAO, J

ANU MALHOTRA, J

SEPTEMBER 02, 2020/aky/jg