1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SHOW CAUSE NOTICE NO.981 OF 2008 IN SHOW CAUSE NOTICE NO.185 OF 2007 IN SHOW CAUSE NOTICE NO.956 OF 2006 IN CONTEMPT PETITION NO.41 OF 2004 IN ARBITRATION PETITION NO.57 OF 2004 ARJANDAS TECKCHAND KASHYAP ..PETITIONER VS. POOJA JAYPRAKASH PAMNANI & ORS ..RESPONDENTS Mr. Sanjay Jain with Ms. Simmen Shaikh, Ms. Manorama Mohanty i/b S.K.Srivastav and co., for the Petitioner CORAM: ROSHAN DALVI, J. DATED: 11th February, 2009 P.C.: 1.Show Cause Notice dated 11.07.2008 has been served upon 2 the Respondents to show cause why action under the Contempt of Courts Act should not be taken against them. The original Petitioner, Respondent No.4 & 5 and the deceased brother of Respondent No.4 & 5, the original Respondent No.1 were the partners. The Petitioner claims 50% share in the partnership assets and profits. The assets of partnership are interalia 4 flats being flat No.6A, 6B, 7A & 7B of Jeewan Niwas Co-op Hsg Sty Ltd. at Worli, Mumbai. 2.The parties entered into consent terms on 29.10.2004. An order in terms of the Consent Terms came to be passed by the Division Bench of this Court on 01.11.2004. Any Appeal filed from order passed in Arbitration Petition No.57 of 2004. Under the said Consent Terms the original Respondent No.1 & Respondent NO.4 & 5 were to make payment of certain amounts which were in arrears to the above society. They were also to make payment of quarterly outgoings and maintenance of the society. The Court Receiver also came to be appointed in respect of the suit flats which were assets of the partnership firm. The Court Receiver was to take possession of the flats and consequently the original Respondent No.1 and Respondent No.4 & 5 were to hand over possession to the Court Receiver. 3 3.The Court Receiver gave notice for fixing the appointment to take possession to the Advocate of the Respondents as well as each of the Respondents and the Petitioner on 09.03.2006. The Court Receiver attended at the suit premises to take possession of the aforesaid flats on 15.04.1996. Respondent No.4 refused to hand over possession of flat NO.6A. The Court Receiver' s report dated 15.04.2006 shows that the flat No.6A was not locked. Flat No.6B, 7A & 7B was locked. Hence the Court Receiver sealed those three flats. He did not seale flat No.6A. He pasted the court order dated 01.11.2004 and his possession board on the suit flats. 4.Upon the contention that Respondent No.1 to 4 and 5 broke open the seal put by the Court Receiver of flat No.6A, 6B, 7A & 7B and reentered those flats and upon the contention that they failed to pay the quarterly outgoings this contempt Petition was filed on 05.05.2006. 5.The Petitioner intimated the Court Receiver about the fact that the Receiver' s seal on flat Nos.6A,6B, 7A & 7B was broken open. The Receiver fixed a fresh appointment for taking physical possession of the suit flats and attended the suit premises on 10.05.2006. The Court Receiver's report 4 dated 10.05.2006 shows Respondent No.5 in possession of flat No.7A & 7B. He found that the two flats have no wall in between. He found that his seal put on one of the doors was intact. He demanded physical possession from Respondent No.5. Respondent No.5 refused to vacate. He did not get the police protection as sought and hence could not take possession of flat NO.7A & 7B. He found flat Nos.6A & 6B locked. He did not take possession of those flats also. 6.The Petitioner took out Judge' s Order on which an order came to be passed for taking forcible possession with police help, if required, on 02.08.2004. Despite the said Judge's order the Receiver did not go to take possession. In the meantime a Notice of Motion came to be taken out by Respondent No.1 to 3 for setting aside the order on the Judges Order and for staying the execution proceedings upon challenging the Consent Terms. 7.By a detailed order dated 12.12.2006 Justice S.J.Vazifdar noticed how that Application was frivolous. He noticed that since 29.10.2004 when consent terms were signed by the Respondents until that Notice of Motion was taken out the Respondent had sought to abide by the consent terms and had not challenged them. Only in that Notice of Motion 5 certain allegations against their Advocate of having obtained the consent terms under duress were made by the first time. It was observed how as per the terms of the consent terms the Respondent had applied for condonation of delay in making payment to the society of the dues which were agreed to be paid by them. Ad-interim relief in the Notice of Motion was refused. The Receiver gave notice for taking forcible possession of the suit premises on 13.12.2006. 8.After flat Nos.7A & 7B came to be sealed by the Court Receiver a bizarre news report appear in Mumbai Mirror on 24.04.2006 showing that a child of Respondent No.5 was “stuck” in the said flat upon the Court Receiver sealing the said flat. On that premises Respondent No.5 sought to broke open the seal of the Court Receiver to extricate his child. Accordingly the Petitioner filed the above Petition on 05.05.2006. 9.Once again the Court Receiver attended at the suit premises and took possession of the suit flats. The Court Receiver has recited in his report what transpired at the time of taking possession. The wife and daughter of Respondent No.5 locked themselves in the bedroom. The Court Receiver had to break open that door with police assistance and with the 6 help of a carpenter. His wife and daughter were removed from the suit flat. The court Receiver reported that he had checked all the rooms and closed down the windows and water taps and electricity connection before locking and sealing the said flat being flat No.7A & 7B. On the next day he went to take possession of flat No.6A & 6B. On that date a telecast of a boy left in the suit premises came to be made. The division Bench of this Court issued suo motu Contempt Notice upon Respondent No.5 and his wife to show cause why they should not be punished for criminal contempt u/s 2(c) read with section 12 of the Contempt of Court Act, 1971, interalia for obstructing the administration of justice. 10.On 14.12.2006 the Court Receiver took possession of flat No.6A & 6B. On 04.01.2007 an Application came to be made by nine ladies who are third parties who claimed to have been accommodated in flat Nos.7 A & 7B by Respondent No.5 as paying guests to take their belongings, key, certificates etc. 11.It can be seen from the aforesaid peculiar chronology that Respondent No.5 had perverted the course of justice. Despite having filed Consent Terms interalia for appointment of Court Receiver in respect of flat NO.7A & 7B he did not offer 7 peaceful possession to the Court Receiver. The seal once put came to be broken by him. He entered into possession of the suit premises. After possession was taken by the Court Receiver upon the premise that his son was wrongfully confined therein, he involved the press in that effort. Upon the contempt Petition being taken out and the Court Receiver having attended once again to take forcible possession with police assistance, he caused his wife and daughter to obstruct by locking themselves up the bedroom. The Court Receiver had undertaken the effort of closing down all the windows, water taps, electricity connection despite which the telecast came to be made, once again of his son being confined in the suit premises which constrained the Division Bench to issue suo motu contempt notice. The Application of the paying guests shows that as many nine persons were inducted in the suit flats No.7A & 7B in the possession of Respondent No.5 who obtained pecuniary advantage therefrom. 12.Under these circumstances this Contempt Petition is pressed. 13.All the four flats are now sealed by the Court Receiver. The society outgoings and the arrears are stated not to have been 8 fully paid. It has to be seen whether the Respondents have committed contempt of the order dated 01.11.2004 passed in terms of Consent Terms dated 29.10.2004. 14.Under the consent terms taking into consideration what the Respondent had paid to the society a liquidated sum of Rs.2750319.18 as on 31.10.2004 was agreed to be paid interalia by the original Respondent No.1 and Respondent No.4 & 5 as per the installments shown in clause (4) of the Consent terms. That has not been paid. 15.In paragraph 3 of the Affidavit in reply of Respondent No.5 he has contended that only Rs.1368752 were payable as per the balance sheet made available to him on 31.03.2003 and hence the amount specified in clause (3) of Rs.2750319.18 was not payable. It cannot be comprehended how if he had already been supplied the balance sheet copy prior to the execution of the Consent Terms on 01.11.2004, an odd figure of Rs.2750319.18 came to be agreed to be paid by him. He has relied upon certain letters written to the Court Receiver in that behalf. He has agitated this claim in other applications taken out by the Respondent. He has sought clarification of the term “ outgoings” since the amount of all outgoings payable was quantified in the Consent Terms. It 9 was observed that it can be clarified only by the consent of the parties. No clarification was made on his application. 16.He has sought to challenge the Consent Terms on the ground that they were obtained under duress and made allegations against his Advocate. That contention has been repelled in his Notice of Motion by Justice Vajifdar under order dated 12.12.2006 refusing ad-interim reliefs. That order shows that he had earlier made application for condonation of delay in paying the amount to the society which showed acceptance of the amount payable as mentioned in the Consent Terms. The Consent Terms have been executed in 2004. His cause against the notice is that no amount was payable as per the balance sheet made available to him on 31.03.2003. If that was so it is not understood now he came to sign the Consent Terms mentioning the aforesaid liquidated amount payable by him to the society and applied for condonation of delay in depositing certain amounts pursuant to the Consent Terms and how he failed to challenge the consent terms until much later and after several other applications were taken out by him accepting the Consent Terms. 17.The Court is informed that there are several Recovery 10 Certificates obtained by the society in certain recovery proceedings filed by the Society. One recovery certificate is said to have been challenged. No papers in that regard are produced by the Respondents. 18.There is a further breach of payment of quarterly outgoings and maintenance amount of the society. The factum of non payment is not contended in the affidavit in reply to the show cause notice. Breach of the order passed in terms of the consent terms with regard to payment of arrears as well as quarterly dues is therefore made out. 19.With regard to the appointment of Court Receiver it is seen that initially the action of the Court Receiver in taking possession has been frustrated by Respondent No.1, 4 & 5 with regard to all the suit flats. Upon the second attempt by the Court Receiver also, his action was sought to be frustrated in respect of flat No.7A & 7B. A queer case of the child of Respondent No.5 having being confined in the suit flat upon sealing it was made. It has been seen that the case has been made only to defeat and delay the execution of the Consent Terms. Even the application by as many as nine paying guest shows the third party rights sought to be created in the suit flat albeit only for receiving consideration 11 and not for creating any interest in the suit property. 20.Considering each of the facts that have transpired upon the execution of the Consent Terms between the parties, it can be seen that there is unmistakably a breach of the order pased in terms of Consent Terms dated 01.11.2004. That is not a breach simplicitor by neglect to pay the amount agreed to be paid. The acts, specially of Respondent No.5, show willful disobedience such as to outreach the law. His acts have been to frustrate justice. His continued applications with regard to the outstanding payable and for not paying them have been rejected by several courts. Even thereafter neither are the arrears nor the current dues of the society are paid. No cause is shown how atleast the current dues are not payable. 21.The liability for payment was upon the original Respondent No.1, Respondent No.4 & 5. They were required to pay the amounts severally as specified in clause (3) & (4) of the Consent Terms. Mr. Jain states that none of this Respondents has paid any of the amounts. Each of these Respondents is therefore liable for breach by non payment as agreed by them. Respondent No.5 is additionally liable for perverting the course of justice, and obstructing the 12 administration of justice in the ways enumerated above. 22.Respondent No.1to 3 would be liable to discharge the obligations of the original Respondent only to the extent of the estate of the original Respondent No.1 which comes into their hands. A part of the estate is the suit flat Nos.6A & 6B which are now secured by the Court Receiver. They personally cannot be held liable and responsible for the breach under the Show Cause Notice. Respondent No.4 has failed to make payment to the society as agreed interalia by him. Respondent No.1 to 4 were in possession of flat No.6A and 6B which are now sealed. Respondent No.5 is seen not only to have defaulted in making payment as agreed interalia by him, but also to have frivolously resisted giving possession of flat No.7A and 7B to the court Receiver. Hence the following order: 1. The notice stands discharged against Respondent No.1 to 3. 2. Respondent No.4 is fined Rs.2000/- for willful and deliberate breach of the order dated 01.11.2004 which is passed in the terms of the Consent Terms dated 29.10.2004 signed by him. 13 3. Respondent No.5 is sentenced to suffer simple imprisonment for a term extending one month and also to pay fine of Rs.2000/-. 4. The Senior Inspector of Worli Police Station shall execute the order against Respondent No.5. 5. The Affidavit in reply of Respondent No.5 shows that he is residing on 6th/7th floor of Jeewan Niwas Society at Worli Mumbai. The Affidavit is filed on 12.02.2007 after the Receiver ultimately sealed the premises on 04.12.2006. The statement made on oath is therefore incorrect. Respondent No.5 who is present in court states that he lives on ground floor in the same building in the office which also belongs to him. His Advocate states that the premises is a garage. 6. This order is stayed for four weeks. (Roshan Dalvi, J)