Madras High Court
Mr.G.Mahesh vs M/S.Reliance Leather Exports on 8 December, 2021
Cont P.No.247 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.12.2021
CORAM
THE HON'BLE MR. JUSTICE N.ANAND VENKATESH
Cont P.No.247 of 2021
Mr.G.Mahesh,
S/o.Ganapathy Mudaliar ... Petitioners/Petitioner/Plaintiff
.Vs.
1. M/s.Reliance Leather Exports,
Represented by its Partners,
Mr.Fazal Mohammed Razack &
Mr.Diwakar Rajamanickam
Having their office at:
No.23, New Avadi Road,
1st Floor, Kilpauk Garden, Chennai-600010.
2. Mr.Fazal Mohammed Razack,
Partner of Reliance Leather Exports,
Residing at: No.24, Sivalingam Street,
Old No.41, Thiruvika Nagar, Vetri Nagar,
Chennai 600082.
3. Mr.Diwaker Rajamanickam,
Partner of Reliance Leather Exports,
Residing at: E-6, Coromandel Towers,
816/817, Poonamallee High Road,
Kilpauk, Chennai 600 010.
816/817, Poonamallee High Road,
Kilpauk, Chennai 600 010.
Page No.
https://www.mhc.tn.gov.in/judis 1/11
Cont P.No.247 of 2021
4. Mrs.S.Aasiya Farhath,
W/o. Mohd. Nayeemudhin Malick.
5. Mrs.S.Asma Nikhath,
W/o.Akmal Basha Timir.
... Respondents/Respondents/Defandants
[4th and 5th respondents are impleaded
as per the order of the Court dated
22.10.2021 made in
Sub.Appln.No.244 of 2021 in Cont
P.No.247 of 2021]
Contempt Petition filed under Section 11 of the Contempt of
Courts Act 1971, praying to punish the 2nd respondent for filing false
affidavit and the 3rd respondent for his willful disobedience of the order
dated 15.12.2017 passed by this Hon'ble High Court in Application
No.6375 of 2017 in C.S.No.790 of 2017 under Contempt of Courts of
Act 1971.
For Petitioner : Mr.G.K.R.Pandian
For Respondents : Mr.T.A.Srinivasan
ORDER
The present contempt petition was filed on the ground that the
undertaking given before this Court by the second respondent, based on
which an order was passed in A.No.6375 of 2017, dated 15.12.2017, has
been violated.
Page No.
https://www.mhc.tn.gov.in/judis 2/11
Cont P.No.247 of 2021
2. The petitioner filed a summary suit for recovery of money
against the respondent 1 to 3. During the pendency of the suit, an
application was filed in A.No.6375 of 2017 for attachment before
judgement. A counter affidavit came to be filed by the second respondent
wherein the second respondent undertook before this Court that he will
not alienate the subject property. This undertaking was recorded by this
Court and an order was passed on 15.12.2017 to the effect that there shall
be no alienation of the property until further orders of the Court.
3. The suit was ultimately decreed in favour of the petitioner after
all the defendants were set ex-parte, by judgment and decree dated
21.03.2018. It is the case of the petitioner that the suit claim as per the
decree and the interest that was granted, worked out to nearly Rs.2.39
Crores as of October 2019.
4. The petitioner took steps to file execution petition to recover the
amount. At that point of time, the petitioner applied for Encumbrance
Page No.
https://www.mhc.tn.gov.in/judis 3/11
Cont P.No.247 of 2021
certificate and found that second respondent had executed a settlement
deed dated 21.12.2017 in favour of his daughter. This fact came to be
known to the petitioner only during the first week of January 2020.
5. In view of the above, the petitioner filed the above contempt
petition on the ground that the second respondent violated the
undertaking given before this Court and had alienated the property in
favour of his daughter.
6. During the pendency of this contempt petition, the daughters of
the second respondent came to be impleaded as the 4th and 5th
respondents through an order dated 22.10.2021 made in
Sub.Appln.No.244 of 2021.
7. The 2nd and 3rd respondents have filed a counter affidavit. The
specific stand taken in the counter affidavit is that the settlement deed
dated 29.09.2017 was executed only to ensure that the property does not
go into the hands of any 3rd party. That apart, a further stand has been
Page No.
https://www.mhc.tn.gov.in/judis 4/11
Cont P.No.247 of 2021
taken to the effect that the conveyance is only within the family members
of the second respondent and there was no intention to defeat the rights
of the petitioner and there was no intention to violate the orders passed
by this Court.
8. The 5th respondent has also filed a counter affidavit and a
specific stand has been taken to the effect that the 4th and 5th respondents
were not aware about the transaction and they became aware of it only
after they received the notice in the contempt petition.
9. Heard Mr.G.K.R.Pandian, learned counsel for the petitioner and
Mr.T.A.Srinivasan, learned counsel for the respondents.
10. There is no dispute with regard to the fact that the second
respondent filed an affidavit before this Court in A.No.6375 of 2017
undertaking not to alienate the subject property. The relevant portion in
the affidavit filed before this Court are extracted hereunder:-
Page No.
https://www.mhc.tn.gov.in/judis 5/11
Cont P.No.247 of 2021
'8. .................................Moreover the 2nd respondent
got the property mentioned in the schedule I as per partition
and he is not having any intention to sell their immovable
properties to defeat the alleged claim. Further the
applicant/plaintiff has sent a notice dated 07.08.2015
demanding a sum of Rs.64,00,000/- (Rupees Sixty Four
Lakhs Only) and the same was denied by way reply notice
dated 14.08.2015. Further, the reply dated 17.07.2017 was
sent to the applicant/plaintiff and a rejoinder also was issued
by him. None of the averments are stated in the petition. The
applicant/plaintiff has not made this case, without
reasonable excuse. Therefore in the above said circumstance
if this Hon'ble Court is directed the respondents to furnish
the security for value of sum of Rs.1,13,00,000/- (Rupees One
Crore and Thirteen Lakhs Only) before judgement failing
which an order of attachment of the immovable properties
belonging to the respondents which is more fully described in
the schedule of the Judge's summons, pending disposal of the
above suit, the defendants will be seriously prejudice and the
same cannot be compensated in terms money.
9. I submit that the prayer of the applicant/plaintiff to
attach our property on the base of false claim supported by
illegally fabricated promissory note and cheque is purely
against the cannons of justice. Moreover this 2nd respondent's
Page No.
https://www.mhc.tn.gov.in/judis 6/11
Cont P.No.247 of 2021
brother is in possession of the 1st Schedule mentioned
property and we have no idea of disposing our property even
otherwise the applicant/plaintiff having played fraud with the
promissory note and cheque as if issued by us have no
balance of convenience in his favour.'
11. Based on the above undertaking, this court passed an order on
15.12.2017 making it very clear that there will be no alienation of the
property until further orders. The suit itself came to be decreed
subsequently by judgment and decree dated 21.03.2018. However,
during the interregnum, second respondent had proceeded to execute the
settlement deed in favour of his daughter on 29.09.2017, but however, it
was presented for registration only on 21.12.2017. It is therefore clear
that the settlement deed came to be presented and registered subsequent
to the interim orders passed by this Court. The respondents have given
reasons and are projecting a case as if the alienation had taken place
within the family, and that no consideration passed on and there was no
intention to violate the orders of this Court. These explanations given by
the respondents are far from satisfactory.
Page No.
https://www.mhc.tn.gov.in/judis 7/11
Cont P.No.247 of 2021
12. It is more than well settled that breach of undertaking given
before the court amounts to willful disobedience and contempt of Court.
Useful reference can be made to the judgment of the Hon'ble Supreme
Court in Rama Narang(5) Vs. Ramesh Narang and Others case law
reported in 2009 (16) SCC 126. This judgment was also followed by our
Court in V.Thirulogachander Vs. E.Kannan, Secretary to Government
case law reported in 2013 (4) CTC 824. The facts of the present case is
squarely covered by these judgments.
13. The next issue that requires the consideration of this court is
with regard to the effect of the alienation of the property in violation of
the undertaking given before this court and the orders passed directing
not to alienate the property. The Hon'ble Supreme Court has categorically
held that where there is alienation of property in violation of the Court
order, the Court has to necessarily put back the property to the same
position as it was existing on the date when the order was passed by the
court. Useful reference can be made to the judgment of the Hon'ble
Supreme Court in Ghanshyam Sarda Vs. Sashikant Jha, Director
Page No.
https://www.mhc.tn.gov.in/judis 8/11
Cont P.No.247 of 2021
J.K.Jute Mills Co. Ltd., case law reported in 2017 (1) SCC 599.
14. Considering the nature of alienation that has taken place in this
case, this Court does not want to proceed against the respondent and
impose a punishment in the contempt. However, Since the alienation had
taken place in violation of the orders passed by this Court on
15.12.2017, this Court has to necessarily hold that the settlement deed
that was registered on 21.12.2017, has to be declared as null and void
and non-est. By virtue of the same, the property will go back to its
original position as it existed on the date of which the orders were passed
in A.No.6375 of 2017, dated 15.12.2017.
15. The learned counsel appearing on behalf of the respondents
raised certain contentions with regard to the ownership of the property
and as to how the petitioner is not entitled to claim any right from the
property. This Court while exercising its contempt jurisdiction, need not
go into these issues and it will be left open to be agitated before the
appropriate forum. The contempt petition is disposed of accordingly.
Page No.
https://www.mhc.tn.gov.in/judis 9/11
Cont P.No.247 of 2021
Consequently, connected applications are closed, if any.
08.12.2021
Speaking/Non-speaking order
Index: Yes/No
Internet : Yes/No
nsa
Page No.
https://www.mhc.tn.gov.in/judis 10/11
Cont P.No.247 of 2021
N.ANAND VENKATESH,J.
nsa
Cont P.No.247 of 2021
08.12.2021
Page No.
https://www.mhc.tn.gov.in/judis 11/11
