1 APP317/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.317 OF 2011 IN NOTICE OF MOTION NO.771 OF 2009 IN SUIT NO.961 OF 1989 M/s Zaveri Jiten Ramniklal ...Appellants v/s Yogesh Gunwantlal Shah and anr. ...Respondents Mr Chetan Kapadia with Mr Vishal Kanade i/b M/s Shiralkar and Co. for Appellants. Mr A.Y. Bookwala, Sr. Counsel i/b M/s N.N. Vaishnawa and Co. for Respondents. CORAM : D.K.DESHMUKH AND R.G. KETKAR JJ. DATE : 3RD AUGUST 2011. 2 APP317/11 P.C. :- 1] The appellants took out notice of motion No.771 of 2009 for setting aside the decree dated 20th October 2008. By order dated 20th October 2008 passed in suit No.961 of 1989, the learned Single Judge of this Court had passed a decree against the defendants and the defendants were directed to pay an amount of Rs.21,05,467/- to the plaintiffs with interest at the rate of 6 % p.a. from the date of institution of the suit till the date of realisation. The notice of motion came up before the learned Single Judge of this Court on 30th November 2010 and order was made on that motion. Before the learned Single Judge, one Jitendra R. Zaveri was present. On behalf of the defendant No. 1, he made a statement that he is prepared to deposit the decretal amount within a period of six weeks from 30th November 2010. In view of that promise made, the learned Single Judge directed to deposit the amount on or before 17th January 2011 and execution of the decree was stayed. It appears 3 APP317/11 that a praecipe was taken out on 14th December 2010 before the learned Single Judge stating therein that in the order dated 30th November 1010 instead of mentioning the principal amount, decretal amount has been mentioned. We have been informed by the learned counsel appearing for appellants that the praecipe was moved before the learned Single Judge who passed the order dated 30th November 2010 and the learned Single Judge refused to modify the order, thus the order remained intact. Admittedly, no deposit was made on or before 17th January 2011. It appears that again a learned Single Judge of this Court was moved and a representation was made to him that the defendant has a demand draft in the amount of Rs.21,05,467/- and therefore the learned Single Judge allowed the defendant to deposit the demand draft in the amount of Rs.21,05,467/- with the Prothonotary and Sr. Master of this Court and extended the time for depositing the amount till 10th March 2011. Thereafter, the motion came up for final hearing before the learned Single Judge of this Court who noted all these developments taking 4 APP317/11 place, disposed off the motion by order dated 15th March 2011. The leaned Single Judge again indulged the defendant and granted further time to deposit the amount and observed that if the amount is not deposited within the extended time, the motion will stand dismissed. This appeal is directed against this order. 2) The narration of events above makes it clear that the defendant has no case. The appeal is therefore rejected. In our opinion, however, mere disposal of the appeal will not serve the interest of justice. The record reveals shocking conduct on the part of Jitendra R. Zaveri, who is the appellant in the present case. Perusal of the order dated 30th November 2010 shows that a statement was made by Jitendra R. Zaveri that he is prepared to deposit the decretal amount within a period of six weeks. The relevant paragraph is paragraph 2 which reads as under :- 2.Learned counsel appearing on behalf of 5 APP317/11 the Defendants, upon instructions from Jitendra R. Zaveri, who has styled himself as Defendant No.1, states that the Defendants are prepared to deposit decretal amount within a period of six weeks from today. By making that statement, he persuaded the Court to stay execution of the decree. Then praecipe was taken out on 14th December 2010 for modification of that order. Admittedly, the Court declined to modify the order but still the order was not complied with, neither any affidavit was filed nor any proceedings were taken out for modification of order dated 30th November 2010 and the solemn statement made before the Court was not abided by. Then comes the order dated 21st February 2011. Paragraph 1 of that order is relevant which reads as under :- 1.The defendant is allowed to deposit the demand draft of Rs.21,05,467/- with the 6 APP317/11 Prothonotary and Sr.Master of this Court. Time to deposit the balance amount is extended upto 10th March 2011. In the meantime, no steps shall be taken by the plaintiff to execute the decree till the next date of hearing. Stand over to 4th March 2011. A statement was made before the learned Single Judge that the defendant has in his possession a demand draft in the amount of Rs. 21,05,467/-. The learned Single Judge permitted the defendant to deposit that demand draft with the Prothonotary and Senior Master of this Court. The demand draft was not deposited, balance amount was also not deposited, no affidavit was filed explaining why the order has not been complied with, no proceedings were taken out for being relieved of the statement made before the Court. From the conduct of the said Jitendra R. Zaveri, we find a consistent attempt prima facie made by him to obstruct the course of justice and to secure 7 APP317/11 favourable order in his favour by making false representation to the Court. We find that prima facie this conduct amounts to criminal contempt of Court. In our opinion, therefore, this is an appropriate case where show cause notice should be issued to Jitendra R. Zaveri, the appellant, asking him to show cause why he should not be tried and punished for having committed criminal contempt of Court. The Office shall alongwith the show cause notice enclose copy of this order. The noticee should be given two week s time to submit his reply thereafter, the matter be placed before the appropriate Bench for further hearing. Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE R.G. KETKAR )