1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO.7 OF 2004 IN SUIT NO.78 OF 2000 Parimal C. Parekh & Ors. ..Petitioners Versus Vidya Premchand Rathod .. Contemnor Mr.Murtuza Federal i/b M/s Federal & Rashmikant for petitioners. CORAM: S.J.KATHAWALLA J. 10th July, 2009 P.C. 1 The present petition has been filed seeking appropriate orders against the alleged Contemnor Mrs. Vidya Premchand Rathod (the Respondent) under the Contempt of Courts Act, 1971. It is the Petitioners case that the said Respondent acted in deliberate, willful and contumacious breach of the orders of this Court dated 14th January, 2000 and 3rd May, 2001 in Notice of Motion No.88 of 2000 in Suit No.78 of 2000. 2 2 Petitioners state that the said Respondent entered into three separate agreements all dated 12th October, 2000 agreeing to transfer (i) to Petitioner No.4 tenancy rights in the ground floor premises situate in a building on leased Plot No.75 of Sion - Matunga (East) Estate known as Kanchan Mrig bearing Cadastral Survey No. 375/6 of Sion Division as also (ii) tenancy rights in the first floor premises of the said property to Petitioner Nos.2 and 3 and further granted development rights in the said property, including FSI to Petitioner No.1 as promoter of a proposed company. It is the Petitioners case that under each of the said agreements, the Respondent accepted amounts as earnest money, the aggregate of the amounts paid being Rs13.50 lacs. 3 The Petitioners contend that while entering into the said agreements, the Contemnor represented that she was the owner 3 of and was otherwise well and sufficiently entitled by will in her favour to the right, title and interest in the said leased plot together with the structure standing thereon as also to the said tenancy rights in respect of the said two flats on the ground and first floor of the structure respectively. 4 The Petitioners are not parties to Suit No.78 of 2000 or to the said Notice of Motion No.88 of 2000 wherein the orders alleged to be breached were passed. That suit was filed inter alia against the Respondent (who was Defendant No.1 in that suit) by two other persons who contested Respondents rights to the said property. In that suit, a declaration was sought by the Plaintiffs therein that they were the owners of the shares in the said property. In that suit, the Plaintiffs therein sought a declaration that the Respondent (Defendant No.1 in that suit) was a rank trespasser in 4 respect of the said 1st floor premises and had no right in respect of the ground floor premises and that she was wrongly holding herself out as owner of the said building. 5 The Petitioners allege that this Court had passed an ad-interim order dated 14th January, 2000 in proceeding adopted in that suit, the effect of which was that the Respondent was restrained inter alia from disposing of alienating, transferring, encumberancing, parting with possession of or inducting any third party into, entering into any agreement in respect of or creating any third party right, title or interest in respect of the said property or the FSI in respect thereof or any part thereof. When the said three agreements were entered into, the Petitioners were not aware of the orders passed. 6 Petitioners case is that they subsequently learnt that by a further order 5 dated 3rd May, 2001 the said Notice of Motion No.88 of 2000 was finally disposed of whereby the Court Receiver was appointed as Receiver of the 1st floor premises and injunction was granted restraining the Respondent from disposing of, alienating, transferring etc the ground floor premises. 7 The Petitioners state that not only was the fact of the said orders having been passed and of the suit having been filed not disclosed to the Petitioners by the Respondent but on the contrary the said agreements contained representations on the part of the Respondent that there was no litigation pending in any court of law and that there was no injunction or order issued by any court, tribunal or any other authority. 8 The Petitioners contend that when they learnt of the aforesaid facts relating to the said suit and the injunctions granted 6 and confronted the Respondent with these facts, she agreed to repay the entire amount paid to her and for that purpose infact handed over to the Petitioners two demand drafts aggregating to Rs.1,50,000/- in part payment. However, after the said demand drafts were deposited by the Petitioner No.4 in her savings Bank Account No.34194 with Union Bank of India Sion (East) Branch, (held by Petitioner No.4 jointly with Petitioner No.1) to her shock and surprise, the Petitioner No.4 received a letter dated 11th July, 2003 from her bankers Union Bank of India inter alia informing her that the said two demand drafts had been purchased out of fraudulent proceeds and that the matter was under investigation of the police. The Petitioner No.4 s account was thus frozen. It appears that subsequently Union Bank of India debited the Petitioners account in the sum of Rs.50,000/- and remitted the same to 7 the Treasury Officer. Eventually the said agreements were terminated, but the amounts paid to the Respondent were not repaid by her. 9 Petitioners state that by their Advocates letter dated 25th September, 2003 addressed to the Respondent, they placed the relevant facts on record and sought a refund of the amounts paid to the Respondent. The Petitioners also gave notice that they would initiate proceedings criminal and/or civil, or both including for contempt of this Court s orders. The Petitioners received a reply dated 3rd October, 2003 from the Respondents Advocate denying that any fraud had been perpetrated and alleging that the transactions in question were done in good faith and with the Petitioners knowledge of the interim order passed in the suit. Although the said letter concluded by stating that a detailed reply would be sent, no such 8 reply was received by the Petitioners. By their Advocates letter dated 31st October, 2003 the Petitioners referred to the aforesaid letter and inter alia denied that they were aware of the legal proceedings. 10 When this Contempt Petition came up before this Court, this Court by an order dated 29th January, 2004 directed issuance of Show-cause Notice to the Respondent. It is observed in the order that there was a prima facie case for proceeding against the Respondent for contempt of court for violation of the above orders. However this Court also issued notice to the Petitioners themselves, observing that there was a prima facie case against them for the delay with which they had approached the Court, after learning of the correct facts. By a subsequent order dated 29th March, 2007, this court after considering the said notice against the Petitioner and the cause shown by 9 them, observed that there was no question of the Petitioners having committed willful breach of any order passed by this Court and that the circumstances explained in the affidavit filed by the Petitioners show that in any case the delay was not deliberate. In that view of the matter, the said Showcause Notice issued to the Petitioners was discharged. In these circumstances, this Court is now concerned only with the case of contempt against the Respondent Mrs. Vidya Premchand Rathod. 11 In response to the said Showcause Notice, the Respondent appeared before this Court in person on 18th March, 2004 when she stated that she was not in a position to engage an advocate on her own. This Court appointed a counsel as amicus to represent her. By a subsequent order dated 8th April, 2004, the Counsel so appointed as amicus sought, and was granted, a discharge on the 10 ground of personal embarrassment and the Respondent was informed that she could approach the High Court Legal Service Committee for an appointment of an advocate. It appears that thereafter the Respondent has not appeared when the matter has reached hearing. By an order dated 24th January, 2007 this Court directed issuance of a bailable warrant in the sum of Rs.10,000/- against the Respondent. As recorded in the order dated 29th March, 2007 of this Court, according to the bailiffs report, the Respondent was not residing at the address given in the Petition and the bailable warrant was returned unserved because the address was not known. Accordingly the Petitioners herein were directed to furnish the correct and fresh address of the Respondent and on such address being furnished, the office was directed to issue a fresh bailable warrant against the Respondent to secure her presence before the 11 Court. This Court is now informed by the Petitioner that despite their efforts to find out the fresh address of the Respondent, they have not been able to do so. 12 In the above circumstances this Court decided to examine the allegations of contempt irrespective of whether the Respondent appears in the proceedings or not, since otherwise non-appearance by a Contemnor would become a ground for discharge of a Showcause Notice. 13 The Respondent has filed an affidavit in answer to the Showcause Notice. The affidavit bears the name of an Advocate Bhagyashree P. Jhakhade. However, even the advocate does not appear in this Court. From the record it is not clear as to whether the advocate has taken a discharge in the matter. 14 This Court has considered the position on its merits. It appears that in Suit No.78 of 2000 filed by Mrs. Sushma 12 Kishore Mehta and Mr. Kishore Chandulal Mehta against the Respondent herein, this court by an ad-interim order dated 14th January, 2000 in Notice of Motion No.88 of 2000 recorded the statement made on behalf of the Respondent that : &.presently, on the ground floor of the premises a friend of the son of the Defendant No.1 [i.e. Contemnor herein] by name Mr. John is residing as he has been granted temporary accommodation by the Defendant No.1 [i.e. Contemnor herein] and that he will be vacating the premises by end of March, 2000. He further states that the Defendant No.1 [i.e. Contemnor herein] is occupying the premises as tenant and that during the pendency of this Notice of Motion, the Defendant No.1 shall not dispose of, alienate, transfer, encumber or part 13 with possession of the suit property. &.. This court also granted ad-interim reliefs in terms of prayer clause b of the said Notice of Motion which reads as under :- (b)that pending the hearing and final disposal of the suit, the Defendant by themselves, their servants, agents or otherwise howsoever be restrained by an Order and injunction of this Hon ble Court from in any manner (i) disposing of, alienating, transferring, encumbering, parting with possession of or inducting any third party into, entering into any agreement in respect of or creating any third party right, title or interest in respect of the said property described in Exhibit A hereto 14 or the FSI in respect therefore or any part thereof; (ii) developing, constructing on or altering or modifying the said property described in Exhibit A hereto or any part thereof; (iii) collecting, demanding, claiming, recovering, waiving or compounding any rent, compensation or any other money for use or occupation of the ground floor tenement or any other part of the suit property . 15 The said notice of motion was disposed off by an order dated 3rd May, 2001. By that order, the Court Receiver came to be appointed of the premises on the 1st floor and an injunction was granted against the Respondent in regard to the said property. Infact, by a subsequent order passed in 15 Chamber Summons No.533 of 2003 in the above Suit No. 78 of 2000 the Court Receiver was directed to take physical possession of the said premises in the light of the circumstances and the conduct of the Respondent as setout in that order. 16 It is clear from the record that not withstanding the order dated 14th June, 2000 passed by this Court as above, the Respondent entered into the said three agreements all dated 12th October, 2000. A bare perusal of the said agreements shows that they could not have been entered into in breach of the order dated 14th June, 2000. The Respondent was represented in Court, when the order dated 14th January, 2001 was passed. In any event it is undisputed that she was aware of the said order. It is therefore clear that the Respondent has willfully and contumaciously acted in breach of the said order of this Court. 16 17 This Court is informed that Petitioner No.1 is dead and accordingly his name is struck out. Although the Respondent has not appeared before in these proceedings, this Court proposes to consider some of the defences raised in the affidavit in reply filed by the Respondent. In the affidavit in reply the locus of the Petitioners is challenged. It is stated that the Petitioners are not parties in Suit No. 78 of 2000 and hence could not have filed the present petition. This contention is untenable. Contempt is a matter between the Court and the alleged Contemnor. The Petitioners have only brought to the notice of this Court the facts which show that the alleged Contemnor has breached the orders of this Court. Once these facts are brought to the notice of this Court, it is for the Court to examine these facts to determine whether the case for contempt has been made out or 17 not. Considering this position the defence based on the alleged lack of locus on the part of the Petitioners is rejected. 18 It is also alleged in the said affidavit in reply that the three agreements were not registered nor was any suit filed for any specific performance of those contracts. It is alleged that in view of the documents being unregistered, there was no question of alienation, transfer or any encumbrance. This defence is also untenable. The terms of the order dated 14th January, 2000 are very clear, they inter alia restrained the Respondent from disposing of or entering into any agreement in respect of or creating any third party right, title or interest in respect of the said property. Entering into the agreements dated 12th October, 2000 was certainly prohibited by and was within the restraint order dated 14th January, 2000. 18 19 It is alleged in the affidavit in reply that there was no willful default by the alleged Contemnor to disregard the orders passed by this Court as the alleged Contemnor always wanted to settle with the Petitioners as also with the Plaintiffs in Suit No.78 of 2000. This is no defence to the alleged contempt at all. The fact is that the agreement was entered into with full knowledge of the orders passed by this Court. An intention to settle the matter in which the orders were passed cannot wipe away the contempt. This defence is also rejected. 20 It is also alleged that the fact that the Respondent returned a sum of Rs. 1,50,000/- to the Petitioners shows that she acted in good faith and that there was no alleged contempt. This defence is also untenable. Infact, the Petitioners allege that even the sum of Rs.1,50,000/- was sourced from fraudulent means and was the 19 subject matter of a criminal complaint and police investigation. The Petitioners have annexed documents which prima facie support the above. However, even assuming that the sum of Rs.1.50 lacs was repaid the mere repayment of a part of the amount admittedly accepted by the Respondent under the prohibited agreements would not absolve the Respondent from the legal consequences of her action in entering into an agreement in breach of the orders of this court. 21 It is also alleged in the affidavit in reply that the Petitioners knew about the injunction order and that the present proceedings are adopted to malign the image of the alleged Contemnor before the Court and in society. These allegations also cannot avail the Contemnor. This Court is not presently concerned with the state of knowledge of the Petitioners. The Showcause Notice against them was duly discharged by an 20 order dated 29th March, 2007 for the reasons set out in that order. The alleged knowledge of the Petitioners is no defence to the Contemnor s act of contempt by breaching orders of this Court. 22 After seeking to justify her actions in 29 paragraphs of the affidavit, in the last paragraph of the affidavit the alleged Contemnor states that inspite of all above said, if the Hon ble Court comes to the conclusion that there is a prima facie case of contempt against the alleged Contemnor then the alleged contemnor tenders unconditional apology of this Hon ble court and the same may please be considered . This court rejects the said apology . Ex-facie it appears to be insincere and not a genuine expression of contriteness. It has obviously been put into the said affidavit to escape the consequences of her contumacious conduct. Even otherwise having regard to the 21 Respondents conduct after the service of the Showcause Notice, her having changed her residence without informing the Petitioners or the office of this court and avoiding service of the bailable warrant, it would not be appropriate for this court to accept the apology. 23 Having regard to all the circumstances in this matter, this Court holds the Contemnor Mrs.Vidya Premchaghnd Rathod guilty of contempt for having breached the orders dated 14th January, 2000 and 3rd May, 2001. This court accordingly makes the Showcause Notice dated 29th January, 2004 absolute as against the said Contemnor Mrs. Vidya Premchand Rathod. This court records the finding that the said Contemnor Mrs. Vidya Premchand Rathod willfully and contumaciously breached the above orders of this Court by entering into the agreements dated 12th October, 2000 with the 22 Petitioners. This Court accordingly sentences the Contemnor Mrs. Vidya Premchand Rathod to undergo simple imprisonment for a term of six months and in addition to pay a fine of Rs. 2000/- Ordered accordingly. (S.J.KATHAWALLA J.)