1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 1229 OF 2010 Vinod Gulshan Chopra ...Petitioner Vs. Vimi Vinod Chopra & Ors. ...Respondents Mr.Y.C.Naidu a/w. Mr. P.S.Chavan and Ms. T.B.Nikam i/b. M/s. C.R.Naidu & Co., Advocates for the Petitioner Mr. Vivek Kantawala a/w. Ms. Usha Tanna & Ms. Sneha Nanandkar i/b. Vivek Kantawala & Co., Advocates for the Respondent NO.1 Mr. P. D.Deshpande, Advocate for the Respondent No.3. CORAM : SMT.ROSHAN DALVI, J. DATED : 18TH FEBRUARY, 2010 P.C. : 1. The parties are husband and wife. There has been protracted litigation between them in the Family Court, Bombay for divorce, maintenance as well as for the right to claim residence in the matrimonial home of the parties as also another flat which the parties claim and disclaim to have owned and possessed. In this Petition they are essentially concerned with an order passed with regard to a property which is admittedly not the matrimonial home of the parties. An Interim Application No.85/2008 was 2 taken out by the husband to direct the wife to remove herself from the matrimonial home being Flat No.11-H-702 in Neelam Nagar, Phase-II, Mulund (E), Mumbai-4000081 and to shift to another flat No.11-G-103 in the same Neelam Nagar. It was also for an injunction restraining the wife from disturbing the husband’s possession in the matrimonial home and for an injunction restraining the wife from selling, assigning, transferring, conveying, dealing with, disposing off or inducting any 3 rd party in the other flat No.11-G-103 which was not the matrimonial home of the parties. 2. The wife gave 2 undertakings to the Court on the date of the application itself. The undertakings run as under : “I will not disturb the Petitioner’s possession in Flat No.11-H-702 and dispossess him from that flat. “I will not assign flat No.11-G-103 or will create any 3rd party interest in the flat.” 3. This undertaking is stated to be an unqualified, unconditional undertaking voluntarily given on the document of the Court by the wife upon the application made by the husband in respect of both the properties of the parties pending the Interim Application No. 85/2008. Thereafter the parties filed their respective affidavits. The interim application came to be dismissed on 24th June 2009. The learned Judge observed that the husband failed to make out a prima facie case for grant of injunction as the wife offered that the husband can live in the other flat No.11-G-103. The Court observed that the wife could not be evicted from the matrimonial home. Since there was nothing shown that the wife would create 3rd party 3 interest in that flat and because that flat was mortgaged to the Bank. It was held that the husband had no prima facie case to grant an injunction in respect of that flat. 4. The undertaking which came to be given by the wife on 3 rd April 2008 when the interim application came to be moved technically came to an end when the interim application was disposed of. The learned Judge has not referred to the undertaking in the order dated 24 th June 2009. The undertaking has not been continued. 5. The husband filed a Review Petition which came to be dismissed on 5 th November 2009. The Review Petition did not mention that the undertaking was deemed to have continued or had continued or was continued by the Court. The status-quo order came to be passed in the Review Petition. 6. The status-quo between the parties was that they were living in separate houses. I have been told that the husband has been living in his parents’ house and the wife continues to live in the matrimonial home with her 3 children. 7. On 30 th November 2009 the wife sold the other Flat No.11-G-103 to one Vinit Hemant Joshi. 8. The husband is stated to have learnt of this fact on 3 rd December 2009 in the Navghar Police Station when there were disputes between the parties. The husband took out an application for urgent injunction without notice 4 to the wife on 10 th December 2009 and applied for injunction against the wife restraining her from selling, assigning, transferring, conveying, dealing with and disposing of her right, title and interest in Flat No.11- G-103. The affidavit in support of the application filed by the husband shows the intention of the wife to sell the said flat in paragraph 7 and the fact that he learnt that the flat was already sold in paragraph 13. An Ex- parte interim order came to be granted to the husband upon his application dated 10 th December 2009 on the premise that the wife was in a hurry to sell the flat and “probably the transaction would take place today only”. Hence without notice to the wife temporary injunction came to be granted. 9. The wife filed her reply to that application on 15th January 2010. She sought to justify the transfer effected by her on the ground that the husband failed to pay maintenance to her and her children, he was in illegal possession of the business which is run in the wife’s name, is in possession of the wife’s car, she had to repay the bank loan as well as her brother-in-law’s loan, pay legal charges and incidental expenses for the litigation in the Family Court, Criminal Court and the High Court and hence had no alternative but to dispose off the flat. She denied that she stated to the Court that she had no intention to part with the right, title and interest in the said flat to the Court. There is no rejoinder filed to this affidavit. 10.An order came to be passed dismissing that application and vacating the Ex-parte Ad-interim order of injunction on 21st January 2010. That order has been impugned in this Petition. The order shows the initial undertaking 5 given by the parties. The order shows that the first application was dismissed considering those undertakings and the Review Petition filed against that order was also dismissed. It shows how the application came to be again made by the husband on 10 th December 2009. However it was observed that despite the undertaking earlier given, the Respondent had alienated the flat. Nevertheless, since the Petitioner did not claim ownership of the flat and the Respondent was taken as the owner of the flat which was sold by her, the Petitioner was held not to have the prima facie case to obtain an order of injunction. The Court noted that the Respondent had offered the Petitioner to live in that flat which was recorded in the order dated 24 th June 2009 under which the first Interim Application No.85/2008 taken out by the husband was dismissed. 11.Though the Court considered the contention of the husband that the wife had breached the undertaking and had committed contempt, the Court observed that that could be considered separately, but since the wife has already alienated the flat the order of injunction cannot be granted. 12.Under the aforesaid circumstances the impugned order can hardly be faulted. 13.In fact the application itself had become infructuous and in fact that was mentioned in paragraph 13 of the affidavit in support of that application itself filed by the Petitioner. There was hardly any other reason to even consider the contest between the parties. Ofcourse the breach of undertaking, if any, can be considered in a separate application. 6 14.In this Writ Petition the Petitioner has applied for strange reliefs of declaration that the agreement entered into by the wife with the aforesaid Vinit Hemant Joshi is unlawful, illegal and void in law and be revoked as such by the Writ Court and the Receiver be appointed. The Transferee of the flat, the aforesaid Joshi, is stated to have been served as Respondent No.2 in this Writ Petition. 15.It is seen that the contest under the application is itself futile. The question relating to the ownership of Flat No.11-G-103 of the wife, which was earlier denied by her, and the fact that she received consideration therefrom, would certainly be considered whilst determining the amount of permanent maintenance and alimony, if any, to be given at the final hearing of the Divorce Petition. The consideration received by the wife or which is receivable upon the market value of the flat may also be considered at that time in evidence when the order of permanent maintenance and alimony may be made. However the impugned order which is an interim order based upon the admitted fact of alienation prior to the application for injunction is made, cannot be interfered with. 16.Hence the Writ Petition is dismissed. 17.The Petitioner’s Advocate applies for protection until he moves the relevant Court. There is no question of granting any protection under the aforesaid circumstances. (SMT.ROSHAN DALVI, J.)