1 IN THE HIGH COURT OF BOMBAY, AT GOA. WRIT PETITION NOS. 600/2009, 601/2009, 602/2009 & 603/2009 Bandekar Brothers Private Limited, a Private Limited Company incorporated under the Companies Act, 1956 and having its registered office at Suvarn Bandekar Building, Swatantra Path, Vasco-da-Gama, Goa. ... Petitioners V e r s u s M/s V. G. Quenim a proprietary concern of Mr. Vassudev alias Manohar Guiri Quenim, with its office at 1st Floor, Keni Building, Dr. Dada Vaidya Road, Panaji Goa, Pin Code 403 001 (expired) Legal representatives of Respondent No.1 1(a) Smt. Hemal Mohan Bose, daughter of V. G. Quenim and her husband 1(b) Shri Mohan Bose Both residing at Laxmi Prasad, D. B. Bandodkar Marg, Miramar, Panaji Goa. 1(c) Smt. Seema Rajiv Hede, daughter of V. G. Quenim, and her husband. 2 1(d) Shri Rajiv Sinai Hede, Both residing at Laxmi Prasad, D. B. Bandodkar Marg. Miramar, Panaji Goa. 1(e) Shri Prasad Vassudev Keni, son of V. G. Quenim and his wife, 1(f) Smt. Vini Prasad Keni, Both residing at Laxmi Prasad, D.B. Bandodkar Marg, Miramar, Panaji Goa. 1(g) Smt. Preeta Narayan Sardessai, daughter of V. G. Quenim, and her husband, 1(h) Shri Narayan Manohar Sardessai, Both residing at Yashodhan, Tonca, Caranzalem, Goa. 2. Smt. Vilasini Vassudev alias Manohar Guiri Quenim, major, housewife, residing at 'Laxmi Prasad' Miramar, Panaji Goa. ... Respondents Mr. Gaurav Joshi with Mr. E. Dias, Advocates for the Petitioners. Mr. V. B. Nadkarni, Senior Advocate with Mr. Y. V. Nadkarni, Advocate for the Respondents. AND WRIT PETITION NOS. 558/2009, 559/2009, 560/2009 & 561/2009 3 M/s V. G. Quenim a proprietary concern of Mr. Vassudev alias Manohar Guiri Quenim, with its office at 1st Floor, Keni Building, Dr. Dada Vaidya Road, Panaji Goa, Pin Code 403 001 (expired) Legal representatives of Petitioner No.1 1(a) Smt. Hemal Mohan Bose, daughter of V. G. Quenim and her husband 1(b) Shri Mohan Bose Both residing at Laxmi Prasad, D. B. Bandodkar Marg, Miramar, Panaji Goa. 1(c) Smt. Seema Rajiv Hede, daughter of V. G. Quenim, and her husband. 1(d) Shri Rajiv Sinai Hede, Both residing at Laxmi Prasad, D. B. Bandodkar Marg. Miramar, Panaji Goa. 1(e) Shri Prasad Vassudev Keni, son of V. G. Quenim and his wife, 1(f) Smt. Vini Prasad Keni, Both residing at 'Laxmi Prasad', D.B. Bandodkar Marg, Miramar, Panaji Goa. 1(g) Smt. Preeta Narayan Sardessai, daughter of V. G. Quenim, and her husband, 4 1(h) Shri Narayan Manohar Sardessai, Both residing at Yashodhan, Tonca, Caranzalem, Goa. 2. Smt. Vilasini Vassudev alias Manohar Guiri Quenim, major, housewife, residing at 'Laxmi Prasad' Miramar, Panaji Goa. ..... Petitioners V e r s u s Bandekar Brothers Private Limited, a Private Limited Company incorporated under the Companies Act, 1956 and having its registered office at Suvarn Bandekar Building, Swatantra Path, Vasco-da-Gama, Goa. ... Respondents Mr. V. B. Nadkarni, Senior Advocate with Mr. Y. V. Nadkarni, Advocate for the Petitioners. Mr. Gaurav Joshi with Mr. E. Dias, Advocates for the Respondents. CORAM: R. M. SAVANT, J. Dated: 14th December, 2009. JUDGMENT : 1. Rule, with the consent of the parties made returnable forthwith and heard. 5 2. The above Writ Petitions filed by two sets of Petitioners take exception to the Order dated 6.6.2009 passed by the learned Civil Judge Senior Division, Panaji, by which order the applications under Order XXXIX Rule 2-A and Order XXXIX Rule 2 and 7 filed by the Petitioners in Writ Petition No. 600/2009 and other three companion matters came to be dismissed while the applications under Order XXXIX Rule 11 came to be granted and the defences of the Petitioners in Writ Petition No. 558/2009 and three companion matters came to be struck off. 3. The facts which are relevant for the adjudication of the above two sets of Writ Petitions can briefly be stated thus : 4. The Petitioners in Writ Petition Nos. 600/2009, 602/2009 and 603/2009 have filed Special Civil Suit Nos. 7/2000/A, 14/2000/A and 21/2000/A against the Respondents herein whereas the Petitioners in Writ Petition No.601/2009 which is the sister concern of the Petitioners in Writ Petition No.600/2009 has filed Special Civil Suit No.8/2000/A against the said Respondents. All the aforesaid four suits have been 6 filed to recover various sums of monies from the Respondents as set out in each of the plaints. Initially the Petitioners filed an application being CMA No.19/2000/A in suit No.7/2000/A seeking relief by way of attachment before judgment and furnishing security. In the said application ad-interim order dated 9.2.2000 came to be passed by the Civil Judge restraining the Respondents from creating further interest in the iron ore lying at its Kudnem stockyard at Kudnem. In the said suit another application was filed being CMA No. 50/2000/A, which came to be filed seeking a temporary injunction on the ground that despite the orders passed on the application for attachment before judgment the Respondents had sold the iron ore to M/s Kudnem Mineral Processing Company Private Limited, a sister concern of the Respondents and the same had been done to defeat the ex-parte order dated 9.2.2000 passed in the said suit. It was the case of the Petitioners that the said transaction was nothing but a sham transaction and that the act of removing the said iron ore was intended to defraud the Petitioners. The said application being CMA No.50/2000/A was considered by the learned Civil Judge Senior Division who declined to grant ad-interim relief to the Petitioners resulting in the Petitioners' filing Civil Revision Application No. 83/2000 7 in this Court. The said Civil Revision Application was disposed of by a learned Single Judge of this court on 31.3.2000 by recording the statement made on behalf of the Respondents that they would not dispose of and/or alienate in any manner whatsoever the assets described in the Schedule to the said order till the disposal of the CMA No.50/2000/A. Accordingly, an injunction was granted by this Court in the above terms. From the point of view of the present Petition, one of the assets mentioned in the said Schedule at item No.6, was the residential bungalow 'Laxmi Prasad' with the plot of land being H. No.436, Miramar, Panaji Goa, is relevant. Another asset included in the said Schedule was item No.2 therein which was a 966 C Caterpillar Wheel Loader. Despite the said order dated 31.3.2000 since the Respondents had removed one of the Schedule items i.e. Wheel Loader out of the jurisdiction of this Hon'ble Court in September, 2000, the Petitioners filed MCA No.480/2000 in the said disposed CRA for contempt of the said order dated 31.3.2000 which MCA was disposed of by this Court by order dated 18.1.2001 wherein this Hon'ble Court had directed the Respondents not to remove any of the Schedule items out of the jurisdiction of this Court till the disposal of the applications filed by 8 the Petitioners before the Trial Court. 5. The said applications were thereafter considered by the Trial Court and by a common order dated 13.3.2001, the Trial Court was pleased to reject the CMA No.19/2000/A for attachment before judgment and in so far as CMA No.50/2000/A, was concerned granted injunction restricted to only the machinery. The Petitioners aggrieved by the said order dated 13.3.2001 filed Appeals From Order Nos.27 and 28 of 2001 in this Court which were both disposed of by this Court by order dated 11.5.2001 and the order dated 13.3.2001 passed by the Trial Court was set aside and the matters were remanded back to the Trial Court to be decided afresh in terms of the observations made therein. However, pending such disposal by the Trial Court, the earlier order dated 31.3.2000 as varied by order dated 18.1.2001 passed in CRA No.83/2000 was to operate. 6. On remand the Trial Court by its common order dated 5.9.2001 granted interim relief in all the Civil Misc. Applications filed by the Petitioners and VMCPL in all the four suits. Accordingly, the 9 Respondents in all four suits were ordered to furnish security for the various sums which were the subject matter of the said four suits. In addition thereto the Trial Court also ordered the conditional order of attachment of the mining machinery of the Respondents and also the shares held by the Respondents in M/s. Vilman Packagings Pvt. Ltd. A conditional attachment of the residential bungalow of the Respondents being House No.436, at Miramar, Panaji Goa, was also levied. By the said order dated 5.9.2001 an injunction also came to be passed restraining the Respondents from parting with possession and/or transferring the mining machinery and the said residential bungalow. The Respondents aggrieved by the said order dated 5.9.2001 filed Appeals From Order being Nos.57/2001 to 61/2001 in this Court a learned Single Judge of this Court dismissed the said Appeals by a common judgment dated 13.12.2001. The learned Single Judge while dismissing the Appeals observed that though the relief by way of attachment was a harsh remedy, however, circumstances were such that the imposition of this remedy was substantiated. He further observed that in the said circumstances the order of attachment before judgment passed under Order XXXIX Rule 5 of CPC was justified. The learned 10 Judge by further observing that he did not find any reason to interfere with the impugned order dismissed the said Appeals. Aggrieved by the said order dated 13.12.2001 by which Appeals From Order filed by the Respondents came to be dismissed. The Respondents filed Special Leave Petition Nos. 2832/2002, 2833/2002, 2834/2002 and 2837/2002 respectively in the Hon'ble Supreme Court of India. The said Special Leave Petitions were allowed by the Hon'ble Supreme Court by order dated 19.4.2002 by setting aside the attachment of the properties of the Respondents, however in so far as the injunction is concerned, the same was upheld by the Hon'ble Supreme Court so as to secure the interest of the Petitioners. The Hon'ble Supreme Court directed the Petitioners to give an undertaking before the Trial Court that they would not part with the shares of M/s Vilman Packagings Pvt. Ltd., residential bungalow of the Respondents being House No. 436, at Miramar, Panaji Goa, and the mining machinery. In terms of the order of the Hon'ble Supreme Court, the Defendant Nos. 1 and 2 filed undertakings in the Trial Court in the four suits in the following terms :- “We (1) Shri Vassudeva Guiri Quenim, proprietor of M/s V. G. Quenim and (2) Smt. Vilasini V. Quenim, the Defendants herein undertake before this Hon'ble Court that we 11 will not part with the shares of M/s Vilman Packaging Pvt. Ltd., House No.436, at Miramar, Panaji and the mining machinery”. Therefore, after the disposal of the Special Leave Petitions in the Supreme Court, there was an injunction operating against the Respondents restraining them from parting with possession or transferring the said residential bungalow as also the Respondents had given undertakings that they would not part with the shares of M/s Vilman Packaging Pvt. Ltd., House No. 436 at Miramar, Panaji Goa, and the mining machinery. 7. It appears that after the said undertakings were furnished, the Petitioners found that sometime on or about 20.11.2007 the said residential bungalow of the Respondents being House No.436 at Miramar, Panaji Goa, was demolished by the Respondents, and therefore, the very subject matter of the injunction order and undertaking to the Court was rendered non-existent. The said act clearly amounted to a wilful breach of the said undertaking given by the Respondent No.1 in all four suits as also the breach of the injunction order dated 5.9.2001 which was confirmed by the Trial Court and also by the Hon'ble 12 Supreme Court. 8. It was also found that the Respondents had made an application to the Inspector of Survey and Land Records, City Survey, Panaji Goa, seeking amalgamation of the property bearing Chalta No.11 of PT Sheet No.116 on which house No.436 stood prior to its demolition and property bearing Chalta No.15 of PT sheet No.116 which was adjacent property as one survey number. The said amalgamation was not granted by the Revenue Authority, however by an order dated 13.12.2006 passed by the North Goa Planning and Development Authority, permission was granted to the Respondent No.1(e) to construct a residential bungalow and for the amalgamation of the said 2 plots as if it was open and vacant plot and whilst seeking the said construction licence the said bungalow was not shown as existing on the said plot and on that basis the Respondent No.1(e) obtained construction licence on 2.4.2007. By the said acts of the Respondents, the very identity of the plot on which the said House No.436 was situated and which was the subject matter of the injunction and undertaking given by the Respondents was lost. 13 9. In view of the said acts of the Respondents which according to the Petitioners were contumacious as the Respondents had wilfully and deliberately flouted the orders passed in the said suits as also the undertakings given by them pursuant to the order of the Hon'ble Supreme Court, the Petitioners filed applications being CMA Nos.26/2007/A to 29/2007/A in the said four suits under Order XXXIX Rule 2 A and 11 for breach of injunction and undertakings and for striking off their defences. The Petitioners also filed applications for injunction being CMA Nos. 31/2007/A to 34/2007/A under Order XXXIX Rule 2 and Rule 7. In so far as the application under Order XXXIX Rule 2-A and 11 it was a common application and based on the same facts, the Petitioners were seeking action under the said two provisions. To the said applications, the Respondents filed replies which were identical. The Respondents in the said reply contended that the Petitioners had not made out any case for their defence being struck off or for breach of injunction. It was the case of the Respondents that by an injunction operating against them they were only restrained from parting with possession or alienating the property to a third party and that the demolition of the said bungalow was carried out by them on a 14 bonafide interpretation of the said order and that they never intended to disobey any order of injunction of this Court passed against them or commit any breach of the undertaking given by them. 10. It was further averred in the said reply that the said residential bungalow has not been demolished precisely or otherwise to defeat any decree which may eventually be passed by the Trial Court. It was further averred that the demolition of the said residential bungalow would not in any way defeat or prejudice any decree if at all passed against the Respondents. The Respondents further stated that they have the financial wherewithal to satisfy any claim which would be made against them by the Decree. The Respondents without prejudice to their contention offered to give Bank Guarantee for the sum equivalent to the estimated value of their residential bungalow as may be reasonably determined by the Trial Court. 11. The Respondents also filed an additional affidavit in the said proceedings wherein the said offer of giving Bank Guarantee of the estimated value of the old residential bungalow was restated. The 15 Respondents in the said additional affidavit ventured to tender an unconditional apology and further undertook to the Trial Court that the possession of the new bungalow, along with two plots which are being constructed upon shall not be parted with nor encumbered in any manner in favour of any third party nor any interest will be created in favour of any third party, pending the said suit. 12. The said two sets of applications filed by the Petitioners being CMA Nos.26/2000/A to 29/2000/A for action under Order XXXIX Rule 2-A and Order XXXIX Rule 11 of the CPC and CMA Nos. 31/2000/A to 34/2000/A for injunction under Order XXXIX Rule 2 and Order XXXIX Rule 7 were considered by the Trial Court and by a common order dated 6.6.2009, the applications for taking action under Order XXXIX Rule 2-A came to be dismissed. The application under Order XXXIX Rule 11 came to be granted and resultantly, the defence of the Respondents i.e. Defendants in the said suit came to be struck off and the application under Order XXXIX Rule 2 and 7 came to be dismissed. 16 13. Aggrieved by the said common order dated 6.6.2009 the above two sets of Petitions have been filed by the above two sets of Petitioners being the Plaintiffs and Defendants in the said four suits. The Petitioners in Writ Petition No.600/2009 and the companion matters are aggrieved by that part of the order whereby the application under Order XXXIX Rule 2-A and the application under Order XXXIX Rule 2 and 7 came to be dismissed whereas the Petitioners in Writ Petition No. 558/2009 and companion matters are aggrieved by that part of the order allowing the applications under Order XXXIX Rule 11 striking off their defences. 14. The Trial Court in the impugned order seems to have accepted the submissions advanced on behalf of the Respondents that Order XXXIX Rule 2-A could not be invoked by the Respondents in the other suits namely Special Civil Suit Nos. 8/2000, 14/2000 and 21/2000, in view of the fact that the injunction was operating only in Special Civil Suit No. 7/2000/A, this can be gathered from the fact that the Trial Court has accepted the contention advanced on behalf of the Respondents i.e. Defendants in the said suits which is reflected in 17 paragraph 3 of the impugned order, wherein the Trial Court has observed as follows :- “Ld. Sr. Counsel Shri Freedum Devetre along with ld. Advocate Shri E. Dias argued on behalf of the Plaintiff and also filed written submissions and the various decisions cited by him have been reproduced in the said arguments. Ld. Sr. Counsel Shri V. Nadkarni along with ld. Advocate Shri Y. Nadkarni argued on behalf of the Defendants and also filed written submissions along with various citations. Ld. Sr. Counsel Shri Nadkarni contended that injunction has been granted only in Special Civil Suit No.7/2000/A and orders under Order 38 have been passed in all the suits and being so as rightly pointed out by him the applications under Order 39 Rule 2(a) filed in Special Civil Suit No.8/2000, 14/2000 and 21/2000 are not maintainable”. 15. The Trial Court has also observed that there can be no dispute about the demolition of the bungalow, however the Trial Court did not accept the explanation given by the Respondents that they demolished the bungalow on a bonafide interpretation of the said order of injunction. The Trial Court also did not accept the apology tendered by the Respondents as according to the Trial Court the said apology was not an act of contrition or repentance but was a conditional apology. The Trial Court also held that the Defendants have wilfully violated the 18 undertaking given by them to the Trial Court and that the case of the Respondents that they bonafidely complied with the undertaking given by them restraining them only from parting with possession to a third party or alienating to a third party could not be accepted. The Trial Court further held that the case of the Respondents that they have not parted with possession cannot be accepted since after the demolition one cannot be in possession of the said demolished house. The Trial Court also observed in view of the amalgamation of the plot the very identity of the plot No.3 in which the suit house No. 436 was situated was lost. In so far as the striking off defences was concerned under Order XXXIX Rule 11, the Trial Court observed that if the conduct of the Defendants is totally dishonest or amounts to wilful attempt to disregard the order of the Court or breach an undertaking the defence can be struck off. 16. Though all the aforesaid findings and observations have been recorded by the Trial Court in so far as application under Order XXXIX Rule 2-A is concerned though the same has been dismissed, the Trial Court has not recorded any reasons as to why the case of the Petitioners cannot be accepted and why no action under Order XXXIX 19 Rule 2-A is required to be taken. The Order further discloses that in so far as the application under Order XXXIX Rule 2-A is concerned, the Trial Court has not taken it to its logical conclusion either by recording reason why action is required to be taken under Order XXXIX Rule 2-A or why action is not required to be taken under Order XXXIX Rule 2-A. Moreso in the instant case when the Trial Court has dismissed the said application. In the absence of the said reasons, one is at a loss to understand as to what has weighed with the Trial Court in rejecting the said application under Order XXXIX Rule 2-A. 17. In so far as the application under Order XXXIX Rule 2 and 7 is concerned, the Trial Court has not even adverted to the application in the order. The order also does not give any reasons as to why the said application under Order XXXIX Rule 2 and 7 has been rejected. Only in the operative part of the impurgned order one can find that the said application has been rejected by the Trial Court as otherwise in the body of the said order there is not a whisper as regards the said application. 20 18. The learned Counsel for the parties were heard in respect of the challenge in so far as rejection of the application under Order XXXIX Rule 2-A is concerned and application under Order XXXIX Rule 2 and 7. The learned Counsel for the Petitioners Shri G. Joshi in Writ Petition No. 600/2009 and companion Petitions contended that in view of the finding recorded by the Trial Court that there was a breach of the injunction and the undertaking given by the Respondents, this Court should intervene and take action against the Respondents under Order XXXIX Rule 2-A. The learned Counsel submitted that in view of the findings recorded by the Trial Court, it was satisfied that there was wilful breach of undertaking and though the injunction was operating only in Special Civil Suit No. 7/2000/A, the undertakings were given in all the four suits and therefore the Respondents were liable for being proceeded with under Order XXIX Rule 2-A. The learned Counsel further submitted that the conduct of the Respondents has been persistently contumacious as the facts of the case disclose and therefore there was all the more reason for the Trial Court to proceed against the Respondents under Order XXXIX Rule 2-A. The learned Counsel further submitted that the offer given by the Respondents of securing the Petitioners was 21 only after the Respondents were found out violating the said injunction order and the undertaking and therefore the said offer could not be accepted. The learned Counsel however fairly conceded that the Trial Court has not recorded any reasons as to why application under Order XXXIX Rule 2-A has been dismissed nor the Trial Court has taken the issue to its logical conclusion moreso, when it has recorded the findings which it has recorded in the said impugned order. 19. On the other hand, learned Senior Counsel Mr. V. B. Nadkarni supported the order and tried to justify the dismissal of the application under Order XXXIX Rule 2-A by contending that the Trial Court has accepted his contention that the application under Order XXXIX Rule 2-A would not lie in the said suits as the injunction was operating only in Special Civil Suit No. 7/2000/A. The learned Counsel further submitted that Order XXXIX Rule 2-A cannot be invoked as the same does not cover an undertaking furnished to the Court. The learned Counsel sought to rely upon the judgment of a learned Single Judge of this Court reported in 2006(1) Bom. C.R. page 830 in the matter of Mohanbhai Ishwarbhai Patel &