1 conp27-08.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Contempt Petition No. 27 of 2008 in Notice of Motion No.2164 of 2007 in Suit No.1576 of 2007 Devang Champaklal Goradia .. Petitioner v/s. Dipak Patel ..Respondent Ms. Amrin Wandrewalla i/b. Hiren Mehta for the Petitioner. Mr.Mayur Khandeparker i/b. Kanga & Co. for the Respondent CORAM : R.Y.GANOO, J. DATED : 3rd September , 2010 P.C. : 1. This Contempt Petition is filed by the petitioner alleging that the contemnor violated the order dated 28.8.2007 passed by this Court in Chamber Summons No.1305 of 2007 in Suit No.1576 of 2007. The contempt petition, today is for admission. I have extensively heard learned Counsel for the petitioners in support of the contempt petition (hereinafter referred to as plaintiff). 2 conp27-08.sxw 2. Few facts necessary to decide whether the petition should be admitted or not is as follows: Plaintiff had filed suit against Krishna K. Punjabi and plaintiff wanted to bring on record the contemnor as party defendant. Hence plaintiff took out Chamber Summons No.1305 of 2007 in the suit and in the said Chamber Summons moved the court for ad-interim orders. The Court on 22.8.2007 granted ad-interim order in terms of prayer clauses (a) and (d) of the Chamber Summons. By Order dated 28.8.2007, the earlier order dated 22.8.2007 was changed so as to substitute prayer clause (c) in place of prayer clause (a) which will mean that order dated 28.8.2007 was the order at the interim stage by which the present contemnor was restrained in terms of prayer clauses (c) and (d) of the chamber summons. By prayer (d) the respondent was restrained from taking possession of the suit flat i.e. flat no.17 more particularly, prescribed in the plaint. 3. The plaintiff claims that the order dated 22.8.2007 coupled with 3 conp27-08.sxw order dated 28.8.2007 was served upon the contemnor alongwith letter dt.4.9.2007. Copy of the said letter is annexed to the contempt petition. Said letter was addressed to the contemnor at the following address, i.e. 505, Siddhi Apartment, 5th Floor, Khetwadi Back Road, Mumbai 400 004 . According to the plaintiff this order was served on 6.9.2007 at 12.30 p.m. on the representative of the contemnor by name Hetal Jogani. 4. According to the plaintiff, despite service of certified copy of the order of injunction the respondent took possession of the suit flat No.17 and violated the order. 5. It is also the contention of the plaintiff that pursuant to the order passed by this Court in the notice of motion, the Receiver was directed to take formal possession of the suit flat and the contemnor who was then in possession of the suit flat did not allow the Receiver’s representative to take symbolic possession. This will mean that the plaintiff alleges two acts of contempt said to have been committed by the contemnor. In so far as the alleged 4 conp27-08.sxw act as regards taking possession of the suit flat in violation of Order dated 22.8.2007 and 28.8.2007 it was necessary for the plaintiff to prove before the Court that certified copy of the order was served upon the contemnor. 6. In support of the stand that copy of the order was served upon contemnor, the plaintiff has mentioned in the contempt petition at paragraph no.2(f) as follows: “ The Petitioner, by his Advocates letter dated 4th September, 2007, had served the aforesaid order upon the contemnor. The said letter was duly received and acknowledged by the representative of the contemnor. Hereto annexed and marked Exhibit “D” is copy of the said acknowledgment letter dated 4.9.2007.” I have perused the xerox copy of the letter dated 4.9.2007 which is at Exhibit D to the Contempt Petition. On the first page of the said letter an endorsement is found “Delivered on 6.9.2007 at 12.30 noon” and certain initials are found. At the bottom of the said page, following words are found “Hetal S. Jogani” and the 5 conp27-08.sxw signature is found. 7. Learned Counsel for the plaintiff contended that the document at Exhibit D clearly goes to show that the intimation about the order dated 22.8.2007 and 28.8.2007 was duly served upon the contemnor, and as the contemnor did take possession of the suit flat after the order was served upon him, and has committed contempt. 8. In order to hold that the order dated 22.8.2007 and 28.8.2007 were duly served upon the contemnor, it was necessary for the plaintiff to produce before the court satisfactory material in that behalf. In the first place, in the Contempt Petition in paragraph 2(c) there is no averment to show as to who was deputed to serve the order upon the Contemnor. I have quoted the relevant paragraph earlier. It generally says that the said order was served through letter dated 4th September, 2007. It also does not mention the name of the person who represented himself as representative of the Contemnor and received the same. 6 conp27-08.sxw 9. Apart from this, the affidavit of service for having served letter dated 4th September, 2007 is also not on record. All these omissions in my view, clearly go to show that the plaintiff has not been able to make out prima facie case that the orders were served upon the Contemnor. It was argued by learned Counsel for the plaintiff that the endorsement appearing on top of first page of letter dated 4th September, 2009, namely “delivered on 6.9.2007 at 12.30 noon” is the endorsement passed by the representative of the contemnor. I am unable to accept this submission. If representative of the contemnor was to receive this letter, he would have passed the endorsement showing that the letter is duly received. The language of the said endorsement, particularly use of word “delivered” would mean that said endorsement is passed by the person who may have gone to deliver the said letter. At the bottom undoubtedly there is signature of a person purported to be that of Hetal Jogani. The said signature is without any endorsement and there is no reference in contempt petition that Hetal Jogani represented herself to be representative of the 7 conp27-08.sxw contemnor and the papers were served upon her. A vague reference that papers were served upon the representative of the contemnor, is not sufficient. It was also necessary for the plaintiff to file affidavit of service of person concerned, who had gone and effected service of letter dated 4th September, 2010. That would have facilitated the court to test the word of the said person for the purpose of deciding whether the order was served upon the contemnor or his representative, as the case of the plaintiff that contempt was committed would rest on the fact of service of order upon the contemnor. In my view, in a matter where the court is required to test the case of the person who alleges that another person has committed contempt, service of order upon the said person who is called as contemnor is nucleus of the matter. If that case is made out then subsequent developments can be seen. In my view the plaintiff has failed to make out a prima facie case to show that the orders dated 22.8.2007 and 28.8.2007 were duly served upon the contemnor so as to make him aware of the said orders of injunction. Learned Counsel for the plaintiff had attempted to show certain record by which she wanted to submit 8 conp27-08.sxw that the conduct of the contemnor is such that he was aware of the orders passed by the court. I am not inclined to accept said submission. On the basis of the record which was pointed out by her it is not made out that the contemnor has admitted that he was aware of the orders passed by the Court at a given time. 10.It was also contended on behalf of the plaintiff that the contemnor refused to hand over formal possession of flat to the Court Receiver’s representative after the order came to be passed by this Court on 28.1.2008 in the notice of motion No.2164 of 2007. The relevant portion where the Receiver was supposed to take certain steps is at the end of the order and the said portion is as follows: “There shall be ad-interim order in terms of prayer clause (a). The Receiver, at the present stage shall however, not dispossess any person or party found in possession of the premises and shall only take symbolic possession” At one stage learned Counsel for the plaintiff contended that the contemnor did not allow the Receiver’s representative to take 9 conp27-08.sxw symbolic possession. Immediately, thereafter she wanted to contend that by prayer clause (a) Receiver’s representative was required to take physical possession. When the later part of the order which is quoted above stated that the party found in possession shall not be dispossessed and the Receiver shall only take symbolic possesion it is abundantly clear that though the ad- interim order was passed in terms of prayer clause (a) the later part indicated that the Receiver’s Representative was to take symbolic possession.” It is clear that by order dated 28.8.2007 the Receiver was directed to take symbolic possession. It was alleged that contemnor did not allow Receiver’s representative to take symbolic possession . Counsel for the plaintiff took me through the report filed by the Receiver’s representative Mr.V.V.Dhanavade, dated 28.2.2008. She read to the Court the entire report and drew my attention to the following portion, which according to her amounted to refusal to hand over symbolic possession. “After completing all the aforesaid work I had prepared my site report and recorded all the facts therein which read 10 conp27-08.sxw confirmed and duly signed by preesnt persons parties. After preparing the report, I insisted Mr. Deepak Patel to sign on my report but he refused to do the same. Thereafter I left the site at about 5.00 p.m.” It was argued by the learned Counsel for the plaintiff that refusing to tender the signature on the Receiver”s writing amounted to not allowing the representative to take symbolic possession. I am not inclined to accept the said submission advanced by the learned Counsel for the plaintiff that not signing on the report prepared by the Receiver amounts to not giving symbolic possession. In the entire report, there is no whisper mentioned so as to place the remark of the Receiver’s representative that the Contemnor who was then found in possession on the date of his visit, namely 27.2.2008 declined to hand over symbolic possession. 11.Alternatively, learned Counsel for the plaintiff had drawn my attention to the report of the Receiver’s representative. The relevant portion of which is as follows: “ I had then explained my purpose of visit by showing Court’s Order dated 28.1.2008 passed 11 conp27-08.sxw by this Honourable Court along with relevant documents and asked his name and how and when entered in suit flat No.17 and then demanded possession of the said flat. He then refused to hand over possession of the suit flat and his name is D.L.Patel”. If one peruses the order dated 28.1.2008 the Receiver was required to take symbolic possession. Aforesaid quoted portion of the report clearly goes to show that the Receiver’s Representative wanted to take physical possession of the suit flat and therefore the contemnor declined to give physical possession as he was not required to give physical possession. For the purpose of taking symbolic possession there was no question of giving symbolic possession. The Receiver’s Representative would have noted as to who was in possession and he could have told the said person that he is taking symbolic possesion and could have affixed the board that as per order he has taken symbolic possession. The Receiver’s report nowhere mentioned that he declined to give symbolic possession. In fact, the Receiver’s Representative did not do his job properly which has resulted in the aforesaid confusion. In view of the above the second act of contempt is 12 conp27-08.sxw also not proved. In view of the above, I hold that no case is made out to admit the contempt petition. Hence the order. ORDER Contempt petition is dismissed at the stage of admission. There shall be no order as to costs. [R.Y.GANOO, J.]