1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO. 16 OF 2010 IN WRIT PETITION NO. 1663 OF 1998 The Board of Trustees of the Port of Bombay .. Petitioner V/s Mrs. Shirinbi Didarali Kolsawalla & Ors. .. Respondents Mr. U.J. Makhija with Mr. Parag Khandar i/b Mulla, Craigie Blunt & Caroe for the petitioner. Mr. R.A. Shah i/b Mansukhlal Hiralal & Co. for respondent nos.1 to 4 and 6. CORAM: D.G. KARNIK, J. DATE : 30/3/2010 P.C. : 1. Heard learned counsel for the parties. 2. By this petition, the petitioner prays for taking action in contempt against the respondents. 3. The contempt arises out of an order of a Division Bench dated 29th September 2009 passed in Writ Petition No.1663 of 1998. The respondents are the legal heirs of Didarali Kolsawalla, who was an obstructionist in execution of a 2 decree for possession. In the proceedings before the Court, his heirs were brought on record who were the writ petitioners in Writ Petition No.1663 of 1998. At the time of the hearing, the Division Bench granted them time of six months to vacate the premises subject to filing an undertaking to vacate the premises and to pay the amount that may be payable by them. In pursuance of the said order, Mr. Anil Didarali Kolsawalla (respondent no.3 herein) gave an undertaking to vacate the premises. He also gave an undertaking that he would be the nominal rent to the the petitioner herein but did not specify what amount of the rent would be paid by him. In pursuance of the undertaking, the respondents did offer to hand over the possession of the premises to the petitioner within 6 months but the petitioner declined to accept the possession as the rent was not tendered. The undertaking given by the respondent no.3 only. Even if it is assumed that the undertaking given by him on behalf of all the respondents, the undertaking was unequivocal regarding handing over of the possession but was vague regarding payment of the rent. It only stated that he would pay only nominal rent. Thus, there is prima facie no breach of undertaking as he had not undertaken to pay any particular amount. 3 4. In the order dated 29th September 2009 passed in Writ Petition No.1663 of 1998, the Division Bench had ordered that if the undertaking was not furnished, the petitioner was free to execute the decree. If the petitioner was not satisfied with the undertaking of the respondent no.3 about payment of the nominal rent, it could have moved the appropriate Court for execution of the decree but that has not been done. 5. In the facts and circumstances of the case, in my view, this is not a fit case for taking action in contempt. 6. Learned counsel for the respondents stated before me that the respondents are still ready to hand over the possession and in fact they had offered to hand over the possession within 6 months but the petitioner declined to take the possession on the ground that the rent must be paid first. In their wisdom the petitioner did not to accept the possession. Learned counsel for the petitioner submits that since the offer is again made by the respondents to give possession to the petitioner, the petitioner may communicate to the respondents the date and time when they would take possession. The petitioner would also have liberty to take 4 appropriate action for determination and/or recovery of the amount of rent, if any, due in accordance with law. 6. With these observations, the contempt petition is disposed of. (D.G. KARNIK, J.)