1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Contempt Petition No.40 of 2009 in Notice of Motion No.700 of 2008 in Suit No. 467 of 2008 1a. Bajranglal Eriwal & ors ..Petitioners vs. 1 Sagarmal Chunilal and ors. ..Respondents and Sagarmal Chunilal & anr. ..Contemnors Mr.Ajay Panickar for petitioners Mr.D.D.Madon Sr.Advocate i/b Mr.S.G.Surana for respondent nos.1 and 2 CORAM: S.J.KATHAWALLA J. 10th July, 2009 P.C. 1 This Contempt Petition, which has come up for admission, is filed by the petitioners/original plaintiffs against respondent nos.1 and 2 on the ground that respondent nos.1 and 2 have not complied with the order dated 27th March, 2008 passed by 2 this Court in Notice of Motion No.700 of 2008 in Suit No.467 of 2008. 2 It is the case of the petitioners that respondent nos.1 and 2 had made a statement before this Court as recorded in its order dated 27th March, 2008 that they will make a composite application to the Municipal Corporation within a period of one week for grant of occupation certificate in respect of flats upto 17th floor of the building which is the subject matter in the suit. It is submitted on behalf of the petitioners that the respondents have till date not filed any composite application to the Municipal Corporation within a period of one week for grant of occupation certificate in respect of flats upto 17th floor of the building. 3 The aforesaid allegation of the petitioners is belied by Exh. E to the Contempt Petition itself which is an 3 application made by the petitioners dated 2nd April, 2008 (i.e. within one week from the date of the order dated 27th March, 2008)to the Municipal Corporation of Greater Mumbai. The petitioners have relied on paragraph one of the said Application wherein it is stated that the respondents intend to secure the occupation certificate and have submitted that the respondents only expressed their intention to secure the occupation certificate but have till date not applied for the occupation certificate as stated before this Court on 27th March, 2008. This Court pointed out to the learned advocate for the petitioners that the petitioners should read the entire application more particualrly the last paragraph we have now to request you to be good enough to consider the proposal and issue your O.C.C. For the above mentioned building A at your earliest please. which belies the petitioners 4 contention that the respondents have not applied for a composite occupation certificate of floors 1st to 17th of the building. 4 It appears tht the last paragraph of the said application had escaped the attention of the learned Advocate for the petitioner. However, he immediately changed his stand and contended (which contention is not found in the contempt petition) that though the respondents have applied for an occupation certificate for 1st to 17th floors of the building within a period of one week from the date of the order, the application is not a proper application. 5 The learned Advocate for the respondents whilst refuting the allegations made by the petitioners that the respondents have till date not applied for occupation certificate pointed out that not only the application for occupation certificate dated 5 2nd April, 2008 is annexed as Exhibit F to the petition itself but the Corporation for the first time by its letter dated 19th March, 2009 informed the respondents Architect that certain documents are not submitted to the Corporation along with the said application. It is also correctly pointed out that the Municipal Corporation itself in its response treated the application dated 2nd April, 2008 as an application for Occupation Certificate for building A (1 st to 17th floors). It is submitted on behalf of the petitioners that the application made by them to the Municipal Corporation is a proper application and only because certain documents are required/called for by the Corporation it does not mean that the application made by the respondents is not proper or that they have breached the statement made before this Court on 27th March, 2008. In any event, the respondents 6 made the application for occupation certificate through their Architects who are qualified professionals having immense experience in the subject field. 6 The learned Advocate for the petitioners has now also contended that the application dated 2nd April, 2008 made by respondent nos.1 and 2 for 1st floor to 17th floor is a camoflauge application since respondent nos.1 and 2 by a subsequent letter dated 9th April, 2008 to the Executive Engineer, Municipal Corporation requested for grant of occupation certificate of the first floor of Building A . The said letter refers to the earlier letter of the Corporation dated 19th March, 2008 and also a letter written by the petitioners Advocate which is dated 24th March, 2008. It appears that this earlier correspondence pertains to the occupation certificate in respect of the first floor of Building A and also in 7 respect of part balance occupation certificate of Block Nos. 43, 44 and 45 at 7th floor of building B . The letters dated 19th March, 2008 and 24th March, 2008 could have been produced by the petitioners at the time of filing of the petition to understand the context in which the letter dated 9th April, 2008 was written. In the absence of those letters the contents of the letter dated 9th April, 2008 cannot be appreciated. It, therefore, also cannot be assumed that the request of respondent nos.1 and 2 in the letter dated 2nd April, 2008 for occupation certificate for the 1st to 17th floors of the building is a camouflage. 7 From what is recorded aforesaid it is clear beyond any doubt that the respondent nos.1 and 2 have not committed any breach of the statement made before this Court on 27th March, 2008 that they will within a period of one week make a composite application to the 8 Municipal Corporation for grant of occupation certificate in respect of flats upto 17th floors of the building which is the subject matter of the suit. The respondent nos.1 and 2 in fact made the requisite application through their Architects dated 2nd April, 2008 which was responded to by the Municipal Corporation almost after a year i.e. on 18th March, 2009. The said response shows that the application of respondent nos.1 and 2 dated 2nd April, 2008 is treated as an application for occupation certificate even by the Corporation. The petitioners, who have wrongly contended in their Contempt Petition dated 25th March, 2009 that respondent nos.1 and 2 have not applied for a composite occupation certificate till date, when confronted with the subject set out in the application dated 2nd April, 2008 and the last paragraph of the said application, immediately changed their stand and contended 9 that the application dated 2nd April, 2008 by respondent nos.1 and 2 for the composite occupation certificate is not proper. The fact remains that the respondent nos.1 and 2 have made a composite application for occupation certificate in accordance with the statement made by them before this Court and the Municipal Corporation have also treated the same as an application seeking a composite occupation certificate for the 1st to 17th floors of the building. The Municipal Corporation is a party to the suit. The contempt petition is not directed against the Corporation. If the application made to the Corporation was improper the petitioners could have taken out appropriate interim application seeking reliefs against the respondent nos.1 and 2 and the Municipal Corporation wherein the issue as to whether the application can be treated as improper could be determined, more so because in the 10 order dated 27th March, 2008 itself the learned single Judge has observed it would be open to the plaintiffs to seek recourse to an application for further reliefs at the appropriate stage, should it become necessary to do so. Since the petitioners have taken a stand in the contempt petition to the effect that respondent nos.1 and 2 have not applied for a composite occupation certificate till the date of filing of the contempt petition on 25th March, 2009 which they were required to apply within a period of one week from 27th March, 2009, they in their contempt petition in support of their contention relied on the letter of respondent nos.1 and 2 dated 9th April, 2008 wherein a request for occupation certificate upto 1st floor is reiterated. The petitioners in order to enable this Court to understand/appreciate the context in which the said letter was written, did not bother to produce or rely on 11 the letters referred to in the said letter dated 9th April, 2008, though one of the letters referred to therein is of the petitioners themselves. Instead when the learned advocate for the petitioners realised in the course of his arguments that the letter dated 2nd April, 2008 which is annexed to the contempt petition by the petitioners themselves is indeed a composite application for an occupation certificate he changed the stand taken in the petition and contended that the application for occupation certificate is improper and a camoflauge. In my view this changed stand of the petitioners is nothing but an afterthought. 7 For the aforesaid reasons, I am of the view that the petitioners have failed to even make out a prima facie case of contempt of Court against respondent nos. 1 and the contempt petition is accordingly dismissed. (S.J.KATHAWALLA J.) 12