Kerala High Court
Marriott Hotels India Private Limited vs Gods Own Country Health Resorts ... on 21 December, 2023
Author: C.S.Dias
Bench: C.S.Dias
Con.Case(C) No.1945/2023 1 / 17
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
Thursday, the 21st day of December 2023 / 30th Agrahayana, 1945
CONTEMPT CASE(C) NO. 1945 OF 2023(S) IN OP(C) 1471/2023
PETITIONER/RESPONDENT:
MARRIOTT HOTELS INDIA PRIVATE LIMITED, 303/304, 3RD FLOOR,
HIRANANDANI FULCRUM, SAHAR ROAD, ANDHERI EAST VILE PARLE (E),
MUMBAI, MAHARASHTRA - 400 099, INDIA,
REPRESENTED BY ITS SENIOR DIRECTOR (ASSET MANAGEMENT),
KRISHNAN AGGARWAL, SON OF DAYA CHAND AGGARWAL.
BY ADVOCATES M/S. SANTHOSH MATHEW, ARUN THOMAS, VEENA RAVEENDRAN,
ANIL SEBASTIAN PULICKEL, MATHEW NEVIN THOMAS, ABI BENNY AREECKAL,
SHINTO MATHEW ABRAHAM & KURIAN ANTONY MATHEW.
RESPONDENTS/PETITIONER:
1. GOD'S OWN COUNTRY HEALTH RESORTS INTERNATIONAL PRIVATE LIMITED,
T.C. 25/1572(5), 2ND FLOOR, AIROLINK TOWER, NATHANCODE,
THIRUVANANTHAPURAM, KERALA - 695 033, INDIA, REPRESENTED BY ITS
DIRECTOR.
2. SMT.TESSY, AGED 49 YEARS, W/O. ROJI M.A, DIRECTOR, GOD'S OWN
COUNTRY HEALTH RESORTS INTERNATIONAL PRIVATE LIMITED, T.C.
25/1572(5), 2ND FLOOR, AIROLINK TOWER, NATHANCODE,
THIRUVANANTHAPURAM, KERALA - 695 033, INDIA.
ADVOCATES M/S. UNNIKRISHNAN C, NIDHI BALAKRISHNAN, ANANDA PADMANABHAN,
VIJAYKRISHNAN S. MENON, VIVEK NAIR P., GOUTHAM KRISHNA U.B., UTHARA
A.S. FOR R1
ADVOCATES M/S.M.P. ASHOK KUMAR, BINDU SREEDHAR & ASIF N FOR R2
This Contempt of court case (civil) having come up for orders on
21.12.2023, the court on the same day passed the following:
P.T.O.
Con.Case(C) No.1945/2023 2 / 17
1
Con.Case (C) No.1945 of 2023
C.S DIAS,J.
---------------------------
Con.Case (C) No.1945 of 2023
-----------------------------
Dated this the 21 day of December, 2023
st
ORDER
The contempt case is filed alleging the respondents to
have willfully and deliberately disobeyed Annexure-1 judgment
passed in OP (C)No.1471/2023. The petitioner was the
respondent, and the first respondent company was the
petitioner in the original petition, which was filed through its
Director - the second respondent.
2. The petitioner has averred in the contempt case that, by
Annexure-1 judgment, this Court had directed the Commercial
Court-II, Thiruvananthapuram ('court below', for short), to
dispose of IA No.6/2023 on or before 25.8.2023 and ordered
the parties to maintain 'status-quo' in respect of the property in
dispute, as on the date of the judgment till the disposal of the
application. The property referred to in the judgment is a five-
star hotel, 'Courtyard by Marriott'. The first respondent, acting
through the second respondent, has proceeded to re-brand the
hotel as 'Gokulam Grand' and has undertaken other civil works
in wilful disobedience of Annexure-1 judgment. Annexure-2
Master Data and Annexure-3 photographs establish the
contemptuous conduct of the respondents. Hence, this Court
may take appropriate action against the respondents.
3. The second respondent has filed an affidavit denying
the violation of Annexure - I judgment. She has stated that
she was not a party in the original petition. She was inducted in
the first respondent Company as a director only on
17.11.2022, and she was removed from the post on
13.9.2023. Hence, the contempt case filed against her, in her
personal capacity, is unsustainable in law. Nonetheless, she
has stated that no signboard of 'Gokulam Grand' was put up on
the property.
4. The first respondent Company has filed an affidavit
through its present Director, Baiju Gopalan, inter-alia, stating
that the first respondent company has not violated the status-
quo order. Sree Gokulam Hotels (India) Private Ltd (Company
of the present Director) purchased the shares of the
first respondent Company on 10.8.2023. Before that, the
second respondent was the Director of the first respondent.
The second respondent resigned from the post of Directorship
on 11.8.2023, and Form No.DIR-12 was filed before the
Registrar of Companies on 7.9.2023. The present management
is unaware of Annexure-1 judgment . In November, 2022, the
shares of the first respondent were purchased by Mangofera
LLP, and the second respondent was inducted as a director.
Thereafter, by an agreement dated 10.8.2023 executed
between Mangofera LLP, represented by the second
respondent, and Sree Gokulam Hotels (India) Private Ltd, the
latter company purchased the shares of the first respondent. It
is only recently that the present management has learnt about
the litigations. Hence, the contempt case against the first
respondent may be dropped.
5. The petitioner has filed a reply affidavit refuting the
assertions in the affidavits filed by respondents 1 and 2. The
petitioner has asserted that the second respondent deliberately
transferred the shares of the first respondent while the status
quo order was in force. The present Director of the first
respondent is attempting to mislead this Court. The present
management was fully aware of the litigation between the
parties. New items were published that the hotel was being
developed as 'Gokulam Grand'. In addition to the status-quo
order, the court below had passed orders of injunction on
4.5.2023 and 3.6.2023, restraining the respondents from
transferring the shares. It is in flagrant violation of the above
orders, the shares have been transferred. The second
respondent is actively managing the affairs of the first
respondent. Even in September 2023, after the second
respondent was allegedly removed from the post of Director,
she had filed OP (C) No. 1874/2023 before this Court, for and
on behalf of the first respondent, challenging the order passed
by the court below in I.A 6/2023 in CMA (Arb) 13/2023. There
is wilful disobedience of the status-quo order passed by this
Court. Hence, the respondents may be prosecuted and
punished under Sec.12 of the Contempt of Courts Act.
6. The second respondent has filed an additional
affidavit, inter alia, contending that the contempt case is filed
with the mala fide intention to strengthen the prosecution
petition filed by the petitioner in CMA (Arb) No.13/2023. There
has been no transfer of shares in favour of Gokulam Hotels
during the subsistence of the status-quo order. Only an
agreement was executed to transfer the shares and actual
transfer was not effected. The petitioner had filed Annexures
R2(a) and R2(b) affidavits before the court below, stating that
the respondents had violated the order of injunction passed by
the court below, which is the same subject matter in the
contempt case. Therefore, the contempt case, on the same
cause of action, is not maintainable. The contempt case is a
malicious tactic adopted by the petitioner. Hence, the
contempt case may be dismissed.
7. Heard; Sri. Santhosh Mathew, the learned counsel
appearing for the petitioner, Sri. C.Unnikrishnan, the learned
counsel appearing for the first respondent and Sri. M.P.Ashok
Kumar, the learned counsel appearing for the second
respondent.
8. Sri. Santhosh Mathew argued that the original
petition was filed by the second respondent, on behalf of the
first respondent, inter alia, to direct the court below to pass
orders in IA No.6/2023, an application filed to hear the
maintainability of CMA(Arb) No.13/2023 as a preliminary issue,
before the court below considers IA No.8/2023, an application
filed by the petitioner to appoint an Advocate
Commissioner. The court below has passed an ad-interim order
of injunction restraining the first respondent company from
transferring its shareholdings. The order was in force at the
time of passing Annexure-1 judgment. However, the
respondents had violated the ad-interim order of injunction
passed by the court below. Therefore, the petitioner had filed
IA No.8/2023, to depute an Advocate Commissioner, for
conducting a local inspection of the scheduled property. It was
at this juncture, the respondents filed IA No.6/2023 to hear the
maintainability of the original petition. Then, the first
respondent filed the original petition before this Court for the
expeditious consideration of IA No.6/2023. By Annexure-1
judgment, this Court directed the court below to dispose of IA
No.6/2023 on or before 25.8.2023 and until such time the
parties to maintain 'status-quo' in respect of the property. IA
No.6/2023 was disposed of by the court below on 25.8.2023.
Therefore, the status-quo order of this Court in Annexure-1
judgment was in force from 31.7.2023 till 25.8.2023. But, the
second respondent has in flagrant violation of the status-quo
order transferred the shares of the first respondent company to
Sree Gokulam Hotels (India) Private Ltd. The respondents have
also removed the signage and re-branded the hotel as
'Gokulam Grand'. The learned counsel drew this Court's
attention to the affidavits filed by respondents 1 and 2 to
demonstrate the contradictory stands taken by them. He
argued that the contradictions are sufficient to hold that the
respondents have willfully disobeyed the direction in the
judgment. The learned counsel relied on the decisions of the
Hon'ble Supreme Court in Satyabrata Biswas and others v.
Kalyan Kumar Kisku and others [(1994 (2) SCC 266] and
Balwantbhai Somabhai Bhandari v. Hiralal Somabhai
Contractor [2023 SCC Online SC 1139] to canvass the
position that any act done in violation of a status-quo order,
can be undone in the contempt case and the status-quo ante
can be restored. He prayed that the respondents may be
punished under the Contempt of Courts Act.
9. Sri. M.P Ashok Kumar stoutly opposed the contempt
case. He drew the attention of this Court to paragraph 6 of
the contempt case, wherein it is stated that the first
respondent, acting through the second respondent, had
disobeyed the status-quo order by putting up the signboard of
'Gokulam Grand' on the face side of the hotel. He took this
Court through the draft memorandum of charges, wherein also
the only accusation against the respondents is putting up sign
boards is raised. He then invited this Court to Annexures R2(a)
and R2(b) affidavits filed by the petitioner before the court
below on 8.6.2023 and 4.7.2023, wherein the same accusation
has been made against the respondent. He therefore
contended that the acts of contempt alleged against the
respondents had taken place prior to Annexure-1 judgment.
Hence, the respondents have not committed contempt. The
contempt case is an arm-twisting tactic adopted by the
petitioner to pressurise the respondents to yield to the
petitioner's unlawful demand for damages. He further drew the
attention of this Court to Sec.2 (c) of the Contempt of Courts
Act and the Rules framed thereunder. He placed reliance on the
decisions of the Hon'ble Supreme Court in Dr.U.N Bora v.
Assam Roller Flour Mills Association and another [(2022)
1 SCC 10], Sudhir Vasudeva v. M.George Ravishekaran
and others [ (2014) 3 SCC 373] and Hukum Chand Deswal
v.Satish Raj Deswal [ (2021) 13 SCC 166] to bolster his
submission. He referred to the Black's Law Dictionary to explain
the meaning of the expression 'status-quo'. He also argued that
the question of the transfer of shares was not a subject matter
in the original petition. Therefore, even assuming that the
shares were transferred, the same is not covered by this
Court's order of 'status-quo'. He submitted that, as contempt
proceedings are quasi-criminal in nature, the petitioner is
bound to prove the case beyond reasonable doubt, which is
totally absent in the instant case. Hence, the contempt case
may be dismissed.
10. Sri.Unnikrishnan, the learned counsel appearing for
the first respondent, submitted that the present
Director representing the first respondent company came into
the picture only on 7.9.2023. He was not a party in the
original petition. The second respondent had not informed the
present management regarding the 'status-quo' order passed
by this Court. The Form No.DIR-12 was submitted to the
Registrar of Companies for the transfer of the shares on
7.9.2023 and Annexure-1 judgment was passed on
31.7.2023. Therefore, the contempt case against the first
respondent may be dismissed.
11. The first respondent had filed the original petition
before this Court, through the second respondent, to direct the
court below to dispose of IA No.6/2023 expeditiously.
12. When the original petition came up for consideration
on 20.7.2023, this Court ordered notice before admission to
the petitioner and directed the court below to defer the
consideration of IA No.8/2023.
13. On a perusal of the judges' papers in the original
petition, it is evident that CMA (Arb) No.13/2023 was filed by
the petitioner under Sec.9 of the Arbitration and Conciliation
Act, 1996, to restrain the respondents from selling/ transferring
etc., with possession of the scheduled property or the hotel, in
favour of Sree Gokulam or any other third party.
14. Admittedly, the court below had passed an ad interim
order of injunction on 4.5.2023, inter-alia, restraining the
respondents from selling or transferring the shares of the first
respondent company.
15. Later, the petitioner filed IA No.7/2023 before the
court below, under Order 39 Rule 2A of the Code of Civil
Procedure, to prosecute the respondents for violating the ad-
interim order of injunction passed by the court below.
16. To substantiate the assertions in the application, the
petitioner also filed IA No.8/2023, to appoint an Advocate
Commissioner for elucidating the matters mentioned in the
application by conducting a local inspection.
17. Almost at the same time, the respondents filed IA
No.6/2023 to consider the question of maintainability of the
original petition as a preliminary issue. Immediately after that,
the respondents filed the original petition for the expeditious
consideration of IA No.6/2023 before the consideration of IA
No.8/2023.
18. As already observed, by Annexure-1 judgment dated
31.7.2023, this Court had directed the court below to dispose
of IA No.6/2023 on or before 25.8.2023 and parties to
maintain the status quo as on the date of judgment till a
decision is taken on IA No.6/2023. The court below dismissed
IA No.6/2023 on 25.8.2023. Therefore, the status-quo passed
by this Court was in force from 31.7.2023 till 25.8.2023.
19. The original petition was filed before this Court by
the second respondent representing the first respondent.
Therefore, the second respondent is presumed to be the person
in charge and responsible for the day-to-day affairs and
administration of the first respondent company.
20. The second respondent has filed two affidavits before
this Court. In the first affidavit dated 9.9.2023, she stated that
she was inducted as the Director of the first respondent
company on 17.11.2022 and she was removed from the post
on 13.9.2023, i.e., during the period when the status-quo order
was in force. In the second affidavit dated 8.6.2023, she stated
that no signboard of 'Gokulam Grand' was put in the hotel
property after Annexure-1 judgment.
21. Conspicuous is the admission made by the first
respondent company in the affidavit filed through its present
director, that the new management, namely, Sree Gokulam
Hotels (India) Private Ltd had purchased the shares of the first
respondent company as per agreement dated 10.08.2023
executed between Mangofera LLP Ltd, represented by the
second respondent, and Sree Gokulam Hotels (India) Private
Ltd.
22. Even more curious is the stand of the second
respondent that she was removed from the office of
Directorship on 13.09.2023. It is on record that the second
respondent had again represented the first respondent while
challenging the order passed in IA No.6/2023 by the court
below, consequent to Annexure-1 judgment. In Annexure-9
affidavit dated 9.9.2023, the second respondent has
categorically claimed to be the Director of the first respondent.
23. The contradictory stands taken by the respondents in
their affidavits filed before this Court prima facie establish that
the respondents have intentionally and wilfully disobeyed
Annexure - I judgment. I say this because, the second
respondent who had filed the original petition for and on behalf
of the first respondent cannot feign ignorance of the status-quo
order passed in Annexure-1 judgment. Notwithstanding the
restraint order, the second respondent went ahead and
executed the agreement on 10.8.2023 for and on behalf of the
first respondent, with the present management. The execution
of the agreement is a conscious act on the part of the second
respondent in utter defiance to the directions in Annexure-1
judgment. The respondents cannot be permitted to take law
into their hands and throw to the winds the majesty of this
Court in such a whimsical manner.
24. Sec.2 (b) of the Contempt of Courts Act, 1971,
defines 'civil contempt' to mean the wilful disobedience of any
judgment, decree, direction, order, writ or other process of a
court or wilful breach of an undertaking given to a court.
25. In paragraph 56 of Balwantbhai Somabhai
Bhandari (supra), the Hon'ble Supreme Court has held that
the expression 'wilful' means the act or omission, which is done
voluntarily or intentionally and with the specific intent to do
something which the law forbids, that is to say with the wrong
purpose either to disobey or disregard the law which signifies a
deliberate action done with evil intent or with the bad motive or
purpose.
26. On a consideration of the materials on record and the
findings rendered above, this Court is prima facie convinced
that the respondents have intentionally and deliberately flouted
the order of status quo passed by this Court, by executing the
agreement dated 10.8.2023 and transferring the shares of the
first respondent to the present management. Therefore, I am
satisfied that the petitioner has made out a prima facie case to
proceed against the respondents.
Resultantly, the nominated representative of the first
respondent company and the second respondent, Smt. Tessy,
W/o. Roji, are directed to appear before this Court at 10.15
a.m on 05.01.2024, for framing the charge in the contempt
case.
Post on 5.1.2024.
sd/-
sks/21.12.2023 C.S.DIAS, JUDGE
21-12-2023 /True Copy/ Deputy Registrar
APPENDIX OF CON.CASE(C) 1945/2023
Annexure 1 A CERTIFIED COPY OF THE JUDGMENT DATED 31.07.2023 IN
ORIGINAL PETITION (CIVIL) NO. 1471/2023.
Annexure 2 A COPY OF THE MASTER DATA OF RESPONDENT NO. 1.
Annexure 3 A COPY OF THE PICTURES OF THE PROPERTY TAKEN ON
07.08.2023.
Annexure-9 A TRUE COPY OF THE AFFIDAVIT DATED 09.09.2023 SWORN BY
RESPONDENT NO.2 IN O.P (C) 1874 OF 2023.
Annexure R2(a) TRUE COPY OF IA 7 OF 2023 DT 08/06/2023 FILED BY THE
PETITIONER IN CMA(ARB) 13 OF 2023 BEFORE HON'BLE
COMMERCIAL COURT, THIRUVANANTHAPURAM.
Annexure R2(b) TRUE COPY OF IA 9 OF 2023 IN CMA(ARB) 13/2023 FILED
BEFORE THE COMMERCIAL COURT- I , THIRUVANANTHAPURAM DT
04/07/2023.
21-12-2023 /True Copy/ Deputy Registrar
