1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITON No. 95 OF 2007 IN NOTICE OF MOTION NO. 3077 OF 1995 IN SUIT NO. 3262 OF 1995 WITH SHOW CAUSE NOTICE NO. 1498 OF 2008 IN CONTEMPT PETITON No. 95 OF 2007 IN NOTICE OF MOTION NO. 3077 OF 1995 IN SUIT NO. 3262 OF 1995 1. Smita Wd/o Rajendra Shah ] Adult, now aged about 46 years ] of Bombay, Indian Inhabitant ] 2. Kumari Shivani D/o Rajendra ] Shah, a minor, now aged about ] 27 years, of Bombay, Indian ] Inhabitant ] 3. Sushant S/o Rajendra Shah ] now aged about 25 years, ] all the Plaintiffs residing at ] Room No.32, Rajendra Bhuvan ] 2 2nd floor, Sainath Nagar, ] Agra Road, Ghatkopar (W), ] Bombay- 400 086 ]..Petitioners [Ori.Plaintiffs) Vs. 1. Bhupat Vasanji Shah ] An Adult of Bombay, Indian ] Inhabitant ] 2. Prakash Vasanji Shah ] An Adult, of Bombay, Indian ] Inhabitant. ] 3. Smt.Jiviben Bhanji Shah ] An Adult, of Bombay, Indian ] Inhabitant, ] 4. Smt.Gunwantiben Vasanji Shah ] Adult, of Bombay, Indian ] Inhabitant, the Defendant ] Nos.1 to 4, residing at ] 26-A, Vrindavan Society, flat ] No.32, 3rd floor, Rabodi, ] Thane (W) Maharashtra ] 5. Kiran Vasanji Shah ] an Adult of Bombay, Indian ] Inhabitant, trading in the name ] and under the style of ] M/s.Satyan General Stores, ] Station Road, Umargaon, ] Gujarat ] 3 6. Smt. Jyoti Gunwant Timbedia ] An Adult, Indian Inhabitant, ] residing at village Bilka, ] Dist. Junagarh, Gujarat ]..Respondents [Ori.Defendants] AND 7. Mrs.M.S.Sonakar ] Adult, Indian Inhabitant, ] of Bombay, residing at ] Flat No.34, Building No.96/A ] Vrindavan Society, Thane (W) ] 8. Mrs. Tiwari ] Adult, Indian Inhabitant ] of Bombay, residing at ] Flat No.32, Building No.26/A ] Vrindavan Society, Thane (W) ]..Respondents/ Contemners AND 9. The State of Maharashtra ]..Respondents .... Jaideep Raut i/b Vinod Mistry & Co. for Petitioners. Anant C.Singh along with Rakesh Agrawal for Respondent No.7. Smt.S.M.Dandekar AGP for Respondent No.9. .... CORAM: S.C.DHARMADHIKARI J. DATED : 8th December, 2009 4 ORAL JUDGMENT: 1. This Court has admitted the Contempt Petition and thereafter, it has been placed for hearing and final disposal. 2. The Court issued Notice to the Respondents calling upon them to show cause as to why action should not be taken against them for breach of the order passed by this Court on 17th October, 1995 by transferring Flat No.32 in Vrindavan Society, Thane. At the same time, this Court directed the Court Receiver, High Court, Bombay to take symbolic possession of the property. 3. The Court Receiver has taken symbolic possession. 4. The Contempt Petitioners are the original Plaintiffs. Respondent Nos.1 to 6 are the original Defendants, out of whom, the Respondent No.3 has been reported dead. The office report shows that the Respondent Nos.1, 2, 4, 5 and 7 have been duly served. Respondent No.6 also is served, whereas Respondent no.8 is unserved. 5. At the outset, it may be stated that both Respondent Nos.7 and 8 are not parties to the original suit. This is a Contempt Petition. These Respondents have been impleaded as parties to the Contempt Petition. It is stated in all fairness that the present civil Contempt Petition cannot be filed against those, who are not parties to the suit on the ground that they have aided and abetted breach of the order of this Court. In these 5 circumstances, no action under contempt jurisdiction can be taken as against these Respondents. 6. As far as the original Defendants are concerned, it is alleged in the Contempt Petition that Suit No. 3262 of 1995 was filed in this Court for declaration that there was a severance of the joint family consisting of Plaintiffs and Defendants on and from 30th April, 1995 and/or on date of filing of the suit and therefore, the Plaintiffs are entitled to their 1/6th share in the joint family properties, more particularly described in para 3 of the plaint, so also, other properties that may be disclosed by the original Defendants. Thus, the suit is for partition of joint family property and for other reliefs. 7. In this suit, a Notice of Motion for interim relief being Notice of Motion No. 3077 of 1995 had been moved, wherein this Court passed an order on 17th October, 1995 restraining the Defendants (Respondent Nos. 1 to 6 herein) from accepting surrender/creating new tenancies and/or transferring or creating any third party rights, interest in respect of the various properties including Flat No.32, 3rd floor, 26-A, Vrindavan Society, Thane (W). 8. This Notice of Motion thereafter was listed for hearing and final disposal and the Court confirmed the above ad-interim order. The final order is dated 17th February, 1998. The injunction in the aforesaid terms came to be confirmed. 6 9. The injunction order is in force and the allegation is that when it was in force and to the knowledge of the original Defendants they in collusion with the Respondents, entered into an agreement for sale of the flat. This was in blatant violation of the orders and injunction of this Court. The necessary averments in this behalf are made in para 7 of the Contempt Petition. 10. It is stated that after it was noticed by the Petitioners that order of this Court has been flouted and violated wilfully, they addressed a letter dated 6th September, 2007 to the Respondent nos.1 to 6/original Defendants but they have not responded to the same although it was duly received by them. Respondent Nos. 7 and 8 were also informed of the act committed and therefore, a response was awaited from them. However, they did not respond either. 11. In these circumstances the Petitioners pray that action under Article 215 of the Constitution of India and under Contempt of Courts Act, 1971 for “civil contempt ” be taken and this Court should proceed against all the Respondents and award them appropriate punishment in accordance with law. These orders be passed in exercise of this Court ’s powers under Article 215 of the Constitution of India read with the Contempt of Courts Act, 1971. 12. This Contempt Petition was filed on 9th October, 2007. 13. It is common ground that the Respondent No.3 was already 7 dead and therefore, there is no question of any action being initiated against the said Respondent. 14. As far as the original Defendants are concerned, Respondent No.1 who is Defendant No.1, Respondent No.2 who is Defendant No.2 and Respondent No.4 who is Defendant No.4 have been duly served. Similarly, Respondent Nos.5 and 6 have been served. Initially, no affidavit was filed by the Respondents. An affidavit in reply has been filed after the Contempt Petition was admitted by this Court and Notices were issued. Respondent No.2 Prakash Shah in his affidavit states that he is not on talking terms with the Petitioners/Plaintiffs and he was not residing with them due to strained relations. He states that Respondent No.1 approached him and informed him that a suit had been filed against the Respondents 1 to 6 and that he had engaged some advocate. Believing his statement, the 2nd Respondent signed some documents and returned them to the brother (Respondent No.1) Bhupat Shah. He states that he never visited Advocate ’s office nor was he aware of the pendency of Suit No. 3262 of 1995. He was not aware of the orders passed therein. 15. In para 7 of this affidavit, he states that he is co-owner of the subject flat. He always desired to sell and dispose off the same so that the money from the sale proceeds can be utilized to purchase a residential house/premises for his family. He has addressed several 8 letters to the Society. This Respondent always wanted to sell the flat. The other co-owner namely Gunwantiben was not agreeable to sell the flat since the other brothers of Respondent No.2 were residing therein. Since the said brothers were not earning, there was no source of livelihood and mother was suffering from various ailments, one day, they agreed to sell and dispose off the flat. Accordingly, the flat was sold jointly with the mother. The other statements in the affidavit are on the merits and I am not concerned with that controversy at this stage. 16. In para 13 of this affidavit, it is stated that the family properties stood in the name of the grand mother Jiviben and jointly in the name of father Vasanji. The Petitioners are claiming through the deceased father who pre-deceased Jiviben. Jiviben left the Will whereby she bequeathed the main property to the mother of the Respondent No.2 Gunwantiben. The Petitioners accordingly agreed to accept sum of Rs.25 lakhs towards their share in the family properties. All family members started looking for buyers for the properties. There were negotiations and in fact the 1st Respondent contacted the Petitioners and informed them that the buyer has shown interest in the family properties and that they will get the share as agreed. However, the Petitioners claimed more amount and refused to accept the same in installments. All the family members have tried to work out the matter. However, the Petitioners were not ready to cooperate. The Petitioners are well aware about the sale of the flat. Ever 9 since there were negotiations, the Petitioners never objected or pointed out the Court order to the 2nd Respondent. The Petitioners were aware of the Court order and the proceedings. Thus, the allegation is that the Petitioners have acquiesced in the sale of this flat and now they are taking advantage of the pendency of the proceedings and the Court order as black-mailing tactics to extract more money. 17. As far as the purchaser-Respondent No.7 is concerned, although it is observed by me earlier that no action in contempt can be initiated, yet, it is necessary to advert to his affidavit so that the Court has details of the transaction on record. In the affidavit which is affirmed by Respondent No.7 on 14th October, 2008, it is stated that the Petitioners and Respondent Nos. 1 to 6 did not communicate the order to Rajdeep Vrindavan Co-Operative Housing Society Ltd. The 7th Respondent states that by an agreement for sale dated 21st November, 2006 duly executed by Respondent Nos. 2 and 4 and registered with the Sub-Registrar of Assurances Thane on 23rd November, 2006, Respondent No.7 has purchased the flat for the agreed consideration of Rs.12.50 lakhs only. He claims to be a bonafide purchaser without any knowledge of the proceedings having paid the entire consideration under this agreement. The 7th Respondent was informed that the flat stands in the joint names of the Respondent No.2, Respondent No.3 and Respondent No.4. He was informed about death of Jiviben (Respondent No.3 herein). He has 10 stated that he has obtained loan for purchasing the flat and prior thereto, he had issued a public notice. He states that there were no complaints or objections received by the Society and thereafter, by execution of Indemnity Bond, the transaction was finalized. It is stated that there was a declaration issued by Respondent Nos. 5 and 6. Further there was consent of 1st Respondent as well. There are declarations, copies of which are annexed. Further, it is stated that the flat presently is given on Leave and Licence basis to a licensee. 18. A copy of the Agreement which is annexed to this affidavit would show that the Vendor therein is one Prakash Vasanji Shah and Gunwanti Shah. They are joined to this Contempt Petition as Respondent Nos.2 and 4. As pointed out above, Respondent No.2 who has filed the affidavit is silent about pendency of any proceedings. The agreement does not speak about any claim made by the Petitioners as well. 19. The Respondent No.2 has filed affidavit and the explanation he has given, has been adverted to by me hereinabove. These are the only affidavits on record. 20. On the basis of the same, I have heard the learned counsel appearing for the Petitioners and the Respondent No.7. A Vakalatnama has been filed on behalf of Respondent Nos.2 and 4 but their advocate is absent. There is no rejoinder affidavit filed by the Petitioners. Thus, one of the Vendors who has filed an affidavit, has specifically taken a stand 11 that all family members including the Petitioners had jointly decided to sell off family properties. The family properties consisted of two fully tenanted buildings and lease hold plots. The buildings are in ruinous condition. The leasehold property has been in possession of the lessees. They have constructed building thereon and created further tenancies. The flat was one of the family property according to the Petitioners but that is not denied. The reasons leading to the sale of the flat are set out in paras 7, 12 and 13 of the affidavit. There is serious allegation made of acquiescence and the Petitioners being ready and willing for the sale but now blackmailing the Respondents for more money. The Petitioners have not filed any rejoinder affidavit denying any of these statements or dealing with the other contentions in the affidavit. 21. It is well settled that the contempt jurisdiction is conferred on the Court not for the benefit of the Petitioners or litigants but to uphold the majesty and dignity of the Court. The Institution must not loose its credibility amongst the litigating public. “Civil contempt ” is defined in the Act to meet a wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court. 22. The present case is not of an undertaking given to the Court. It is based on wilful disobedience of the order passed way back in the year 1995 and confirmed in 1998. The Supreme Court has repeatedly held 12 that this is a special jurisdiction to be exercised sparingly and with caution. It is a jurisdiction to be exercised when the Court notices that the act adversely affects administration of justice or tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of, adversely affects the majesty of law or the dignity of the Courts. The contempt proceedings should not be initiated lightly. Mere disobedience or breach of order of a Court is not sufficient to hold that a civil contempt has been committed. The element of willingness is indispensable requirement to bring home the charge. See A.I.R. 2002 S.C. 1405 (Anilratan Sarkar & Ors. Vs. HiraIe Ghosh & Ors. It is well settled that contempt is a matter between the Court and the alleged Contemnor and in this Jurisdiction the Court is not concerned with the controversy on merits as far as parties to the litigation. Section 12 of the Act provides for punishment for contempt of Court. Once again, the Supreme Court in this regard cautions and observes that the Court must apply its mind in all these cases to the above principle and ought not to be hyper sensitive. Further, a sentence under this act for contempt should not be imposed unless the Court is satisfied that the contempt is of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice. 23. Applying all these tests to the facts of this case, it is apparent to me that the Injunction order of this Court was in force. It is nobody ’s 13 case that the order was not to their knowledge. That aspect of the matter is not in dispute as the other Respondents who are original Defendants to the suit, had filed any affidavit denying the statements in the Contempt Petition. It is only the stand of the 2nd Respondent that he was unaware of the Court proceedings and the orders and he has handed over some documents/papers duly signed to the 1st Respondent, who is his brother in the hope and faith that he would look after all Court matters. That stand of the 2nd Respondent does not impress me. Once, he was aware of the disputes between family members, initiation of Court proceedings and what he signs is also a document, which is termed by him as Vakalatnama, then it cannot be accepted that he was unaware of any Court matters and Court orders. The 2nd Respondent as a vendor, ought to have been aware of the fact that he was duty bound in law to disclose the pendency of the proceedings to the Co-Operative Housing Society and to the Purchasers as well. It was his duty in law to seek a modification or variation of the order of the Court if at all he was desirous of disposing of the flat in question or his share therein. The difficulties apart, having not taken prior permission of the Court before proceeding to sell the flat in the teeth of the order of injunction, is nothing but an act of disobedience of the order passed by this Court. The question is whether the same is wilful or not so as to term it as civil contempt. 24. On affidavit, 2nd Respondent has set out the circumstances in 14 which the transaction was finalized. He has stated on oath that he is not on talking terms with the Petitioners and residing elsewhere. The suit was filed in the year 1995. It is the 1st Respondent who came to the 2nd Respondent informing him that a suit has been filed. 2nd Respondent has stated that he never visited the Court or advocate ’s office. He was not having a permanent residence of his own and residing in eastern suburbans by taking premises on Leave and Licence basis. He states that he was a co-owner and desirous of disposing off and at least, his share in the subject flat so that from the money he can purchase residential premises for his family. He states that he repeatedly corresponded with the Society. He states that he was unable to sell the flat earlier, since the other co-owner, viz. his mother Gunwanti, was not agreeable to sell the flat. This was because of other members and brothers with wives, and children who were residing therein. He states that his brothers were not earning, there was no source of livelihood, mother was suffering from various ailments and being old and aged, agreed to sell and dispose off the flat and accordingly, mother and he jointly disposed off this flat. After denying the right of the Plaintiffs/Petitioners thereto, he has referred to the discussion between family members including the Petitioners for sale of the properties. In fact, he has specifically referred to the discussion wherein the Developer was contacted, the Petitioners agreed to accept sum of Rs.25 lakhs and 15 that is how the family settlement was sought to be worked out. After the negotiations broke down and the Petitioners were not willing to cooperate that the transaction was undertaken. He has specifically stated that Petitioners never objected during the course of negotiations for sale nor had they informed that there is a Court order to the interested parties. Thus, this is a case where on account of family problems and disputes so also old property not fetching any income, that the parties at one stage, decided to dispose off the same. It may be stated that the Petitioners have now urged that they are unaware of the stand of the 2nd Respondent on affidavit as copy of the affidavit was never served on the Petitioners ’ advocate, yet, it is apparent that the 2nd Respondent filed the above affidavit, in this Court, on 27th January, 2009. The matter has been repeatedly appearing on board but at no stage, the Petitioners ’ advocate made any grievance. It is not possible to agree with him that the Petitioners were unaware of the stand of the 2nd Respondent. 25. As has been adverted to by me, the contempt jurisdiction is not meant for parties to settle their scores. It is to uphold the dignity and majesty of the Court that this jurisdiction is vested. This is not a proceeding to be used a tool or handle by parties to harass their opponents or try and knock out something from them. The threats of contempt given by parties loosely nowadays, compel me to advert to the settled principles. Once I find that the 2nd Respondent states that there is 16 a disobedience on his part of the order of this Court but in the circumstances, the disobedience cannot be said to be wilful and that stand having gone uncontroverted, then, I do not think that the Petitioners can succeed in this petition. It is not possible to hold that a civil contempt has been committed and therefore, the Respondent Nos.1 to 6 should be punished in accordance with law. On the other hand, finding that the disobedience was not wilful and accepting the explanation on affidavit, I proceed to dismiss this Contempt Petition. It is accordingly dismissed. Once the Contempt Petition is dismissed, the show cause notice does not survive and stands disposed of accordingly. 26. It is clarified that the Court Receiver appointed during the course of this Contempt Petition, has taken formal possession of the subject flat. The Receiver to continue in these terms until further orders in the suit. S.C.DHARMADHIKARI, J.