1 ca111-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.111 OF 2010 IN APPEAL NO.101 OF 2006 IN PETITION NO.A-1783 OF 2003 Rachna Oswald Malhotra/D’silva ..Applicant Vs Oswald Fredrick D’silva alias Amar ..Respondent -- Mr.S.M.Gorwadkar i/b.Ms.Tauban Irani, for applicant. Mr.Saeed Akhtar, for respondent. -- CORAM : V.C.DAGA & R.G.KETKAR, JJ. DATE : 4 th FEBRUARY, 2011 P.C: Rule. Mr.Saeed Akhtar, learned counsel waives service on behalf of the respondent/opponent. 2] By consent of the parties. Rule is made returnable forthwith and is heard finally. THE FACTS : 2 ca111-10.sxw 3] This application is filed by the appellant in Family Court Appeal No. 101 of 2006. The said appeal is directed against the judgment and decree dated 28 th June, 2006 passed by the learned Principal Judge, Family Court, Mumbai in M.J.Petition No.A-1783 of 2003. That petition was filed by the opponent husband for restitution of conjugal rights. During the pendency of the said petition, consent terms exhibit 42 were filed by the parties and in view of the consent terms, the marriage between the applicant and opponent was dissolved by a decree of divorce by mutual consent. It was further declared that the opponent is the real owner of Flat No.31, Manju Towers, 3 rd Cross Road, Lokhandwala Complex, Andheri (W), Mumbai together with furniture, fixtures etc. (for short “suit property”). The applicant has preferred the First Appeal against this declaration given by the Family Court as according to her, she is the real owner of the suit property. On 27 th September, 2006, this Court issued notice to the opponent, returnable on 11 th October, 2006 and till 11 th October, 2006, ad- interim relief in terms of prayer clause (b) was granted thereby the opponent was restrained from parting with the possession and/or creating any third party rights and/or interests and/or from entering into any Agreement and/or executing any documents and/or creating any charge or encumbrance over the suit property. 4] On 15 th December, 2006 after hearing both sides, Appeal was admitted. In so far as the Civil Application No.204 of 2006 is concerned, this Court directed the opponent to pay monthly maintenance at the rate of Rs.10,000/- per month during the pendency of the Appeal. In addition, ad- interim relief in terms of prayer clause (b) granted earlier was confirmed. 3 ca111-10.sxw While passing this order, the Court noted that this Court had earlier granted ad-interim relief in terms of prayer clause (b) on 27 th September, 2006 and that while deciding Writ Petition No.3570 of 2005, the learned Single Judge had granted interim maintenance at the rate of Rs.10,000/- per month on 2 nd December, 2005 to the applicant. In view of this, the Division Bench directed the opponent to pay a monthly maintenance at the rate of Rs. 10,000/- per month during the pendency of the Appeal. The opponent has filed cross objections. 5] It is the case of the applicant that the opponent failed and neglected to comply the said order which compelled her to take out Darkhast Proceedings before the Family Court. The applicant had filed Regular Darkhast No.713 of 2008 on 3 rd October, 2008 as the opponent did not pay the maintenance at the rate of Rs.10,000/- per month for the period from November, 2007 to September, 2008 that is to say Rs.1,10,000/- for eleven months. She, subsequently, took out R.D.No.197 of 2009 on 6 th April, 2009 for recovering maintenance for the period from October, 2008 to March, 2009 at the rate of Rs.10,000/- per month for six months i.e. is Rs.60,000/-. 6] The applicant, thereafter, took out Civil Application No.297 of 2009 on 16 th November, 2009 seeking direction to the opponent to clear the arrears of maintenance of Rs.2,40,000/- as also direction to the opponent to reimburse Rs.One lac spent by the applicant towards the litigation expenses. The said application was disposed of by this Court on 20 th January, 2010 directing the opponent to pay monthly maintenance at the rate of Rs.7,000/- per month during the pendency of Appeal. It is not in 4 ca111-10.sxw dispute that subsequently this order was corrected and figure of Rs.7,000/- was substituted by figure of Rs.10,000/-. 7] The applicant has taken out present application seeking direction to the opponent to clear the arrears of maintenance amount of Rs.2,90,000/- failing which, his defence was to be struck of under the provisions of the Order 39 Rule 11 of the Code of Civil Procedure, 1908 (for short “CPC”) as also for direction to the opponent to reimburse the amount of Rs.One lac to the applicant as litigation expenses. In the application, it is averred that on one hand the opponent has remarried and enjoying luxurious lifestyle and on the other hand, he is harassing the applicant by not paying the maintenance on time. 8] The opponent has filed Affidavit opposing the said application. It is averred that during the course of hearing of the earlier application he had handed over a demand draft of Rs.1,20,900/- to the applicant in the month of December, 2009. Similarly, the investments made by him in ICICI bonds and LIC were matured and the cheques were received by him at his residence in the name of the applicant. He requested the applicant to make an application to the respective institutions so that fresh cheques can be obtained and subsequently, he will hand over the cheques to the applicant to get fresh cheques drawn in her name. He submits that these investments were made by him in her name, as such this amount belongs to him and if this be so, then this receipt by applicant wife be treated as payment towards arrears of maintenance. It was asserted that the applicant has received claim from the Insurance Company, however, the 5 ca111-10.sxw said fact is suppressed by her. It was further asserted that he made investment in the joint name of the applicant and himself in National Saving Certificates in the sum of Rs.60,000/- when the relations between them were not strained. After maturity, the demand draft was received in the name of the applicant whereupon, he expressed his readiness and willingness to pay maintenance provided her claim is adjusted against the amount which she had withdrawn from time to time as well as the amount received from the said institutions. In substance, the opponent asserted that the applicant has received Rs.2,15,000/- and also has received following amounts :- 1. Demand Draft handed over in this Hon’ble Court - Rs.1,20,900/- (This amount was invested in National Saving Certificate by the Respondent for the future of the applicant). 2. Cheque invested in ICICI Bond - Rs. 25,837/- 3. Cheque invested in LIC policy - Rs. 47,481/- ---------------- Rs.1,94,218/- Amounts received before the order dated 15.12.2006 :- 1. Cheque from LIC policy Rs.66,587/- 2. Cheque from ICICI Bond Rs.21,723/- 3. Amounts withdrawn from bank account Rs.15,383/- ----------------- Rs.1,03,693/- ----------------- 6 ca111-10.sxw RIVAL SUBMISSIONS : 9] Mr.Gorwardkar, learned counsel for the applicant has submitted that from December, 2007 onwards the opponent has not paid maintenance to the applicant at the rate of Rs.10,000/- per month. He, therefore, submits that as of 28 th February, 2011 the opponent is in arrears of maintenance for the period of 39 months that it to say Rs.3,90,000/- plus Rs.5,000/- arrears of the past i.e.in all Rs.3,95,000/-. During the course of the arguments, he, however, accepted that the applicant had received Rs.40,000/- on 8 th December, 2008. Thus, according to him, the outstanding amount comes to Rs.3,55,000/-. 10] On the other hand, Mr.Sayeed Akhtar, learned counsel for the opponent reiterated that while arriving at the arrears of maintenance, the amount received by the applicant from National Saving Certificates as also ICICI bonds and LIC policies reflected hereinabove are required to be taken into account and if these amounts are taken in to account, it is evident that the opponent had paid Rs.5,12,611/- by way of maintenance from 13 th March, 2006 till 8 th December, 2008. CONSIDERATION : 11] We have considered the rival submissions made by learned counsel for the parties. The claim set up by the opponent that he had made investments of Rs.1,94,218/- in National Saving Certificates as also in 7 ca111-10.sxw ICICI bonds and LIC policies in the name of the applicant, assuming to be true were allegedly made prior to the orders dated 15 th December, 2006 and 20 th January, 2010 passed by this Court. Though, the opponent had opportunity to agitate this issue before passing of the earlier orders he did not agitate the said issue. It is, therefore, not open to the opponent now to reagitate the said issue which is clearly barred by the constructive res- judicata. 12] As far as the amounts received by way of cheque from LIC policies of Rs.66,587/- and cheque from ICICI bonds amounting to Rs.21,723/- as also amount withdrawn from the bank of Rs.15,383/- are concerned, even as per the opponent, these amounts were received by the applicant before passing the order dated 15 th December, 2006. In view of this, we do not find any substance in the submissions made on behalf of the opponent. 13] One more alternate contention sought to be canvassed by the learned counsel for the respondents contending that the investments in the name of the appellant – wife in National Saving Certificates (NSC), ICICI Bank and LIC Policies were made by him as such they are benami investments in the name of the appellant – wife, consequently, said investments are liable to be accounted for the payment of arrears of maintenance and to that extent the credit needs to be given to the respondent-husband. When this submission was canvassed, immediate reaction of this Court was to find out whether these investments were shown by the appellant in his Income-Tax returns because under section 2(7) of the Income Tax Act, 1962 (“I.T. Act” for short), “the assessee” is a 8 ca111-10.sxw person in respect of whom any proceeding under this I.T. Act has been taken for assessment of his income or of the income of any other person in respect of which he is assessable. The appellant – wife and respondent – husband both were independently assessed under the provisions of the I.T. Act as independent assessees. The respondent – husband has not disclosed these items of investment in his return whereas the appellant – wife has shown these items in her returns and accordingly, she is also assessed. If the contention canvassed by learned counsel for the respondent – husband is accepted, then he may be exposed to the prosecution under the provisions of Section 271 of the I.T. Act for having concealed his income and filing false returns. In other words, it would mean the respondent – husband has failed to disclose his true income in his income-tax return and that his return did not disclose true and faithful account. When this legal position is realized by the learned counsel appearing for the respondent – husband, he did not pursue this line of submission and submitted that contention advanced in this behalf may be ignored. The submissions canvassed is being placed on record to make the record straight. 14] For the reasons recorded, the opponent is directed to pay the maintenance amount of Rs.3,55,000/- to the applicant within a period of eight weeks from today. In the event of failure of the opponent to pay the said amount of Rs.3,55,000/- within eight weeks from today, his defence shall stand stuck of under the provisions of Order 39 Rule 11 of the Code 9 ca111-10.sxw of Civil Procedure, 1908. Rule is made absolute in the aforesaid terms. Costs in the cause. [R.G.KETKAR, J.] [V.C.DAGA, J.]