: 1 : conp-80-10=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO. 80 OF 2010 IN NOTICE OF MOTION NO. 4318 OF 2009 IN ARBITRATION PETITION NO. 612 OF 2009 ALONGWITH CONTEMPT PETITION NO. 83 OF 2010 IN NOTICE OF MOTION NO. 4319 OF 2009 IN ARBITRATION PETITION NO. 611 OF 2009 L & T Finance Ltd. .. Petitioners v/s. Suryavanshi Organization & Anr. .. Respondents ......... Ms. Shakuntala Joshi for the petitioners ......... CORAM : R.Y.GANOO, J. DATE : 15th OCTOBER, 2010 P.C. : 1. These two petitions can be disposed of by common order as point involved therein is common. According to the petitioners they had granted loan to respondent no.1 and respondent no.2 was the guarantor in respect of the said loan transaction. According to the petitioners, items mentioned in Exh.F to the arbitration petition was the property of respondent no.1 concerned in these arbitration petitions. : 2 : conp-80-10=.sxw 2. By order dated 8th October 2009, respondent no.1 was prohibited from disposing of the said items. Efforts were made to serve that order upon respondent no.1 at Pankaj Enterprises Compound, Off. Sakivihar Road, Chandivali, Andheri (E), Mumbai and take possession of property at Exh.”F” to the petition. However, person present at site disclosed that the immovable property had been disposed of eight months prior to visit of the concerned persons at site. This would mean that items which were at Exh. F were not lying at the said immovable property. 3. Looking to the factual situation, the petitioners took out Notice of Motion No. 4318 of 2009 in Arbitration Petition No.612 of 2009 and Notice of Motion No.4319 of 2009 in Arbitration No. 611 of 2009 and prayed for reliefs in terms of prayer clause (c) and the petitioners wanted that respondents should be directed to disclose whereabouts of the properties set out in Exh. F to the petition. By prayer clause (d) petitioners wanted that respondents to disclose the particulars of un- encumbered properties on affidavit so that further steps can be taken. The Court was moved and in the presence of the advocate for respondent nos. 1 and 2, ad-interim injunction was granted in terms of prayer clause (b) on 18th January, 2010. By prayer clause (b), the respondents were restrained from creating third party rights and / or parting with possession in regard to the properties mentioned in Exh.E. : 3 : conp-80-10=.sxw (It should have been Exh.F). Thereafter, the motions came up for hearing on 5th March, 2010. The respondents were absent at that time. The Court disposed of the motion and granted reliefs in terms of prayer clauses (a), (c) and (d). The petitioners expected respondents to comply with the order in terms of prayer clauses (a), (c) and (d). In such a situation, it was necessary for the petitioners to serve upon respondent nos. 1 and 2 certified copy of the order dated 5th March, 2010. The petitioners accordingly prepared a letter addressed to respondent no.1 Mr. J.S. Magoo and respondent no.2 Dr. Mrs. Bharti J. Magoo, the guarantor. Said letter dated 26th March, 2010 along with certified copy of the order was taken to the address of respondent nos.1 and 2 to serve on respondent nos. 1 and 2 said order. Affidavit of service dated 9th April, 2010 has been filed by the petitioners. 4. A perusal of the said affidavit would clearly go to show that respondent no.1 was not present at site. The letter addressed to respondent no.1 as well as respondent on.2 along with certified copy of the order was attempted to be served upon respondent no.2. In the affidavit, it is specifically mentioned that respondent no.2 received the papers for self and on behalf of respondent no.1 but she has refused to acknowledge the receipt of the same by putting her signature and the mobile number. According to the deponent Mr. Swamidas Sirisetty, : 4 : conp-80-10=.sxw representative of the petitioners the said service was effected upon respondent no.2 for herself and on behalf of respondent no.1. 5. The affidavit dated 9th April, 2010 if read, would clearly go to show that respondent no.1 was not served with the said letter and certified copy of order dated 5th March, 2010. The said service was sought to be done on respondent no.2 in her personal capacity as well as husband of respondent no.1. 6. Learned Counsel Mrs. Joshi appearing on behalf of the petitioners submitted that text of affidavit dated 9th April, 2010 would clearly go to show that certified copy of the order dated 5th March, 2010 was duly served upon respondent nos. 1 and 2 and that both of them have not complied with the prayers which came to be granted in terms of prayer clauses (c) and (d). She submitted that both respondent nos. 1 and 2 have committed contempt. Therefore, appropriate action be taken against them. At one stage, she tried to suggest that respondent no.1 was hiding in the house and, therefore, service was sought to be effected on respondent no.2. So far as this hiding aspect of respondent no.1 is concerned, there is nothing stated in the affidavit dated 9th April, 2010. Hence, it has now become necessary for the Court to ascertain as to whether respondent no.1 as well as respondent no.2 were duly : 5 : conp-80-10=.sxw served with order dated 5th March, 2010 and the consequences thereof. 7. Learned Counsel Mrs. Joshi had submitted that respondent no.2 as a guarantor for loan transaction and since respondent no.1 is not coming forward, respondent no.2 has stepped into the shoes of respondent no.1. I have considered the submissions and I am unable to accept it. 8. First, I propose to deal with the case of respondent no.2 as a guarantor. Respondent no.1 is said to be the owner of various articles described in Exh.F. In such a situation, service of impugned order dated 5th March, 2010 on respondent no.2 will have to be treated as a good service and it appears that she was required to disclose un-encumbered property on affidavit as contended in prayer clause (d). So far as prayer clause (c) is concerned, since she is not the owner of the said property, there was no question of she disclosing the whereabouts of the property. At this stage, it will be necessary to reproduce prayer clause (d). “(d) Pending the hearing and final disposal of notice of the Notice of Motion Respondents be directed to disclose unencumbered property on affidavit before this Hon’ble Court on such disclosure the Hon’ble Court be pleased to restrain the respondents and their respective servants and : 6 : conp-80-10=.sxw agents by an order of injunction in any manner dealing with partying with possession, and / or encumbering with said disclosed properties”. 9. Looking to prayer clause (d), I am inclined to observe that the relief sought in this prayer is absolutely vague certainly, with reference to respondent no.2. Reference in the said prayer to respondents is absolutely general. If the word unencumbered property will have to be looked with reference to the properties of respondent no.1 then there is no question of using the term unencumbered properties with reference respondent no.2. If this was the prayer which was granted in favour of the petitioner qua respondent no.1 and respondent no.2, I am inclined to observe that as of today no prima-facie case is made out so far as allegations of contempt as against respondent no.2. To that extent the petition will have to be dismissed. 10. In so far as respondent no.1 is concerned, the arguments advanced by learned Counsel for the petitioner that service of letter dated 26th March, 2010 along with the certified copy of the order dated 5th March, 2010 upon respondent no.2 be treated as service upon respondent no.1 cannot be accepted. In my view, if an order or injunction is passed against a particular person, it is necessary to serve the certified copy of the said order upon the concerned person i.e. in : 7 : conp-80-10=.sxw the present case upon respondent no.1 by an appropriate method of service. It will not be proper to hold that service of the order upon respondent no.2 (which has happened in the present case) could be treated as a service for the purposes of taking action against respondent no.1 and in particular action under the contempt law. For these reasons, I am inclined to observe that order dated 5th March, 2010 has not been uptill now duly served by the petitioners upon the respondent no.1 and, therefore, as of today, no prima-facie case for contempt is made out against respondent no.1. For the reasons mentioned aforesaid, I hold that petitioners have not been able to make out prima-facie case for holding that contempt is committed by respondent nos. 1 and 2 so far as order dated 5th March, 2010. Petition is required to be dismissed. Hence, following order is passed. ORDER (i) Petition is dismissed at the stage of admission. There shall be no order as to costs. (R.Y.GANOO, J.)