bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. O.O.C.J. O.O.C.J. CONTEMPT CONTEMPT CONTEMPT PETITION NO. 93 OF 2007 PETITION NO. 93 OF 2007 PETITION NO. 93 OF 2007 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO. 3816 OF 2003 OF MOTION NO. 3816 OF 2003 OF MOTION NO. 3816 OF 2003 IN IN IN SUIT SUIT SUIT NO. 2985 OF 2003 NO. 2985 OF 2003 NO. 2985 OF 2003 Ghatlia Textile Engraving Works ... Petitioner (Plaintiff) v/s Cyrus Keki Bulsara ... Respondent (Defendant) Mr.Nitin Thakkar, Sr.counsel with Mr.Cyrus Ardhesir, Mr.L.A.Robens, Ms.Manisha Virkar and Mr.Sujit S. Suryavanshi i/by Vigil Juris for the petitioner. Mr.J.P.Sen a/w Ms.A.S.Khushrushahi for the respondent. CORAM: CORAM: CORAM: S.C.DHARMADHIKARI, J. S.C.DHARMADHIKARI, J. S.C.DHARMADHIKARI, J. DATED: DATED: DATED: 18TH FEBRUARY, 2009 18TH FEBRUARY, 2009 18TH FEBRUARY, 2009 P.C.: P.C.: P.C.: 1. Heard Shri Thakkar, learned senior counsel appearing for the petitioner and Shri Sen, appearing for the respondent contemnor. 2. In a suit filed by the petitioner in this Court, an interim application was filed wherein, after hearing both sides, this Court proceeded to accept an 2 undertaking of the defendant. The undertaking was that the defendant shall not create any third party rights in respect of the suit property or induct any party therein or part with possession thereof or any portion or any part thereof. 3. Mr.Thakkar learned senior counsel appearing for the plaintiff contends that there is a deliberate and wilful violation of this undertaking given to this Court. He submits that the violation came to the notice of the petitioner/plaintiff after an affidavit in evidence was filed by the respondent/defendant in the Court of Small Causes. The respondent/defendant has filed the suit for declaration against the petitioner/plaintiff and the declaration is sought of tenancy. In the affidavit in evidence, the defendant in the present suit and contemnor/respondent to this contempt petition, has stated thus - "45. I say that the manufacturing activities of Pearl Soap Company stopped in 1997 but I continued other activities such as distribution and marketing of soaps, toothpaste etc. since 1997 in the name of P.K.Marketing Services from the suit premises. I produce at item 20(i) of the List of Original Documents herewith Storage and Food Licence No.106536 2000-2001 in the name of my son Kaivan, Proprietor of P.K.Marketing Services. I also produced at item 20(ii) of the List of Original Documents herewith BMC Licence No.27438 in the name of my son Kaivan, proprietor of P.K.Marketing Services." 3 Mr.Thakkar also relies upon a copy of the licence at page 91 of the petition paper-book and states that the licence is obtained in the name of the son of the respondent. 4. According to Mr.Thakkar, it is apparent from the above that the respondent has stopped manufacturing activities in 1997 but has inducted his son and his son is carrying on business from the premises i.e. the gala as a family business. The respondent has parted with possession and created rights in his favour. In such circumstances, this is nothing but a violation of the undertaking given to this Court. Such a blatant act should be dealt with as a civil contempt under the Contempt of Courts Act. 5. My attention is also invited to the affidavit in reply filed to this contempt petition by the respondent, so also an affidavit of his son. 6. Mr.Sen, on the other hand, submits that the position is amply clarified by the respondent. He submits that all throughout the petitioner was aware that the respondent carried on manufacturing activities and subsequently they were stopped. Thereafter, he is 4 carrying on business of distribution and marketing of soap products. That his son is assisting him in this business does not mean that any rights are created in favour of the son. These are family members assisting in family business. By no stretch of imagination can it be said that any third party rights are created or third parties are inducted in the premises. In such circumstances and when the parties are locked in litigation, this is nothing but an attempt to prejudice the Court and harass the respondent. 7. Mr.Sen submits that the contempt petition is, therefore, misconceived and must be dismissed. 8. With the assistance of the learned counsel appearing for both sides, I have perused the petition and its annexures, the reply affidavit and the rejoinder. I have also perused the affidavit of one Kaivan Balsara, son of the respondent. 9. The undertaking given to this Court is that the respondent will not create third party rights or part with the possession nor induct anybody else. Admittedly, he is carrying on business in the premises. He has stated in his affidavit filed in the suit itself that he has discontinued manufacturing activities and 5 now carries on business of distribution, marketing and manufacturing soaps from the premises. That he is assisted by his son and the son has no independent right nor claims to be any possession in his own right is apparent from the statements made in para 9 of the affidavit in reply to the present contempt petition. The respondent in his affidavit in reply filed on 12.1.2009, in para 9, states thus - "9. As I have stated in the aforesaid affidavit, I have been running our family business since 1986 trading in the name of "Pearl Soaps Company" as a proprietary concern. Initially, the business concern was involved in the activity of manufacturing soaps. However, the same stopped in 1997 and since 1997, distribution and marketing of soaps and toothpaste consumer products are being carried on from the suit premises. Although the licence and the authorization have been in my name in respect of Pearl Soaps, members of my family have been associated with me and my business as a family concern in the most usual way a family business would be run with family members participating in the business not as independent business partners claiming, independent rights in the business and its assets. Accordingly, although the business of Pearl Soaps stood in my name, my family members including principally my son have been rendering assistance with varying measures of association/participation in my ;business as a family concern. However, none of my family members has or claims any independent right, title or interest in my business or in the assets of the business including in the said premises. Their presence and participation in my business is on my behalf as members of my family. To put it differently, in law, I am the only one who is entitled to the right, title and interest in respect of the business, its profits, its assets including the suit 6 premises and nobody in my family has or claims any right, title or interest in respect of the same including the suit premises. Consequently, my son Kaivan Balsara does not have or claim any right, title or interest in respect of the suit premises directly or through P.K.Marketing Services. Accordingly the mere presence of my family members in the said premises does not amount to creation of third party interest in their favour. Their presence including my son’s is on my behalf to carry out my instructions in furtherance of my business as a family business concern without claiming any independent right, title or interest in the said business or in its assets including the suit property." 10. In addition, he has filed the affidavit of his son Kaivan who has very clearly stated that his father is running the family business since 1987 and trading in the name of "Pearl Soaps Company" as a proprietary concern. Initially the said concern was involved in the manufacturing of soaps. However, the same was stopped in the year 1997 and since then the distribution and marketing of soaps and toothpaste are going on from the suit premises in the trading names of Pearl Soaps and another trading name of the family concern, namely, P.K.Marketing Services. The son has clarified that the licence and authorization is in his name in respect of P.K.Marketing Services but it is nothing but a family business run by his father. He is rendering assistance purely as a member of the family. The son is not claiming any right, title or interest nor claiming to be in possession in his own right. He has categorically 7 stated on oath that he has no right, or interest of whatsoever nature in the property nor in the business. He is in the premises as a member of the family and it is apparent from paragraphs 3 and 4 of his affidavit. 11. In my view, in the peculiar facts and circumstances of this case, it cannot be said that the respondent is guilty of civil contempt. It is clear that he has not parted with possession in favour of any third party nor has inducted any thirty party in the premises. He is carrying on business and is assisted by his son. In these circumstances, I fail to understand as to how it can be concluded that the respondent has violated the undertaking given to this Court. This is a clear case where the possession of the property continues with the respondent but he is being assisted by family members in the conduct of business. No third party rights are created nor any party other than the family members is inducted. Even the possession is not parted with, in the sense contended by Mr.Thakkar. 12. In these circumstances, I am unable to accept his argument that taking assistance of the family members by the respondent is nothing but deliberate and wilful violation of the undertaking given to this Court. 8 13. Contempt petition is misconceived and must be dismissed. 14. Needless to clarify that my observations shall be read as confined and restricted to the disposal of contempt petition alleging civil contempt and shall not in any manner be construed as expression of opinion as far as the merits of the case of both sides. They should not influence this Court or Small Causes Court while trying both suits. 15. Petition dismissed. No costs. (S.C.DHARMADHIKARI, (S.C.DHARMADHIKARI, (S.C.DHARMADHIKARI, J.) J.) J.)