1 cri-cp-2-11 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL CONTEMPT PETITION NO. 2 OF 2011 IN CIVIL APPLICATION NO. 1486 OF 2009 IN APPEAL FROM ORDER NO. 1187 OF 2009 IN NOTICE OF MOTION NO. 1829 OF 2009 IN S.C. SUIT NO. 987 OF 2009 Darshan Co-operative Housing Society Limited .. Petitioner Vs. 1. M/s. Vinod K. Goenka, Director of M/s. Conwood Construction & Developers Pvt. Ltd. and ors. .. Respondents Mr. S.G. Kurup and Mr. S.P. Yadav for petitioner. Mr. P. K. Dhakephalkar, Sr. Advocate, Mr. P.S. Dani, Mr. G.S. Godbole, Mr. P.K. Shroff, Mr. D.V. Deokar, Mr. V.P. Shroff, Mr. A. Lohia, Mr. Himanshu Mahajan, Ms. Jayalaxmi Gand i/by M/s. Parimal K. Shroff and Co. for respondent nos.1 to 3. Mrs. A.S. Pai, APP for State. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. MARCH 17, 2011. P.C. 1. Heard Mr. Kurup, the learned counsel for the petitioner. 2 cri-cp-2-11 2. Initially, the petitioner – society had filed a Contempt Petition on the Civil Side of this court and it came up before the learned Single Judge on 8/12/2010, when it was found that the allegations made in the petition were in the nature of commission of criminal contempt. Hence, the Contempt Petition was directed to be re-registered as Criminal Contempt Petition with a further direction to place the same before the appropriate Bench and that is how this petition, re-registered as Criminal Contempt Petition No. 2 of 2011, came up before us. 3. We have perused the affidavit-in-reply as well as the affidavit- in-rejoinder and heard the learned counsel for the respective parties. As per the petitioner – society when the trial court passed the restraining order on 27/10/2009 in Notice of Motion No. 1829 of 2009 filed in S.C. Suit No. 987 of 2009, the developer had not handed over the possession of the flats and the said order came to be challenged by the developer (defendant no.4) in Appeal From Order No. 1187 of 2009. On 29/12/2009, when an order of stay, on the trial court’s order, was sought, as per the petitioner a false statement was made in the affidavit filed by Shri Vinod K. Goenka, Director of defendant no.4 and the court was misled on the basis of such a false statement. As per Mr. Kurup, the said affidavit was nothing short of 3 cri-cp-2-11 causing interference in the administration of justice and the court was misled on the basis of a false statement made on oath, regarding handing over of the possession of 50 flats in Building No. 84. Para 5 of the said affidavit reads as under:- “5. I further place on record that to the knowledge of Respondent No.1, the said M/s Conwood Ashish Associates had created third party rights in favour of various Purchasers of premises in respect of the said Building knwon as “PRAKRITI”. I am informed that the said M/s. Conwood Ashish Associates had given keys of the premises in the said Building PRAKRITI to various Purchasers of premises for furnishing purposes pending receipt of Occupation Certificate from the Respondent No.2. I further place on record that there are in all 50 flats in said Building No. 84. I am informed that the said Conwood Ashish Associates have sold and transferred and created third party rights for all 50 flats and also received consideration. I am informed that 48 flats are sold outright and 2 flats are given on Leave & License basis. I am also informed that on receipt of Occupation Certificate from 23/10/2009 onwards, said Conwood Ashish Associates has also handed over possession of all the flats and premises to 48 flat purchasers and 2 Licensees in the said Building and they are now in occupation/possession of their respective premises. I say that whether they have physically occupied or not and/or 4 cri-cp-2-11 when they may occupy cannot be any concern of this Defendant and/or said M/s Conwood Ashish Associates. A tabular statement showing the name of flat purchasers and Licensee of two flats, respective flat number and date of handing over of the possession of these 50 flats as directed by this Hon’ble Court to be placed on records is annexed hereto and marked Exhibit-”C”. Also annexed hereto and marked as Exhibit - “D” hereto is a copy of one of the stamped and registered Agreement for Sale as a specimen that also shows said M/s Conwood Ashish Associates having developed said Building 84 and same also reflects the P.A.N. No of said Firm issued by Income Tax Authorities. Also annexed hereto and marked Exhibit -”E” is a specimen copy of letter issued to Flat Purchaser of Flat No. 1201 A wing for handing over possession of the said Flat and similar Letters are issued to respective other flat purchasers and said Licensee.” The trial court had made Notice of Motion No. 1829 of 2009 absolute in terms of prayer clauses (a), (b) and (c) by its order dated 27/10/2009 and the said prayer clauses read as under:- “(a) That pending the hearing and final disposal of the Suit, the Hon’ble Court be pleased to pass an order restraining the defendant Nos.3 & 4 from handing over flats and/or 5 cri-cp-2-11 possession in the building No. 84 of the prospective Flat Purchasers and/or to the flats owners who have already purchased the flat in the building No.84; (b) That pending the hearing and final disposal of the Suit, the Hon’ble Court be pleased to restrain Defendants Nos.1 and 2 from issuing Occupation Certificate (OC) and/or sanctioning any new proposal or existing proposal or granting any IOD/CC to Defendant No.3 and 4 with regards to building No. 84 under construction. (c) That pending the hearing and final disposal of the suit, this Hon’ble Court, be pleased to restrain the Defendants No.3 and 4 from further carrying out and completing any work of construction with respect to the building No.84 and upon the plot of land reserved for recreation ground as shown in the plan annexed with the Plaint at Exhibits “D” in respect of the property situate Gokuldham, Gen. A.K. Vaidya Marg, Goregaon (East), Mumbai – 400 063 in any manner whatsoever.” 4. When A.O. No. 1187 of 2009 came up for hearing before the learned Single Judge on 19/12/2009, the learned Sr. Counsel relied upon the affidavit filed by the present respondent no.1 and those submissions reproduced in para 2 of the order passed by the learned Single Judge on that day are reproduced as under: 6 cri-cp-2-11 “2. Mr. Jahagirdar points out that prayer clauses (a) and (b) have become infructuous since Defendant Nos.3 and 4 had handed over possession of the flats in building No.84 to the flat purchasers prior to the date of the impugned order. The names of the flat purhcasers are mentioned in the affidavit filed by one Mr. Vinod K. Goenka, Director of the appellant. This affidavit indicates the names of the persons who have been given possession of their flats between 23rd and 26th October, 2009. These flats according to Mr. Jahagirdar have been handed over pursuant to the occupation certificate issued by the Corporation. He therefore, submits that the entire building has been completed and only certain works are to be finished. These are the paving of the roof, the swimming pool which is situated on the roof and the internal work in some flats which require certain finishing work. He therefore submits that the appellants be permitted to carry out this work without creating equities in favour of the appellants.” 5. If regards be had to the order passed in Notice of Motion No. 1829 of 2009, the defendant nos.3 and 4 were restrained from handing over flats and/or possession in building no.84 to any other prospective flat purchasers and/or to the flat owners who have already purchased the flats in the said building and defendant nos.3 and 4 were restrained from 7 cri-cp-2-11 further carrying out and completing any work of construction with respect to the building no.84 and upon the plot of land reserved for recreation ground as shown in the plan annexed with the Plaint at Exhibit “D”. 6. As per Mr. Kurup with a deliberate intention so as to persuade this court to stay the order dated 27/10/2009 impugned in A.O. No. 1187 of 2009, a false affidavit was filed by the respondent no.1 stating that all the 50 flats were sold and possession thereof was handed over to the purchasers before the said order. He has invited our attention to the affidavit of respondent no.2 filed in Civil Application No. 81 of 2010 in A.O. No. 75 of 2010 and more particularly the dates of stamp duty and registration status. He submitted that the said statement indicates that the conveyance of some flats was not registered and in respect of other flats, the conveyance was registered only after 27/10/2009 (for example Flat Nos.401, 501, 1001 and 1201 etc.). 7. In the statement made in the affidavit filed by respondent no.2 and as reproduced hereinabove (para 5), all that was stated was that all the 50 flats were sold and their possession was handed over, as was learnt by respondent no.1, prior to 27/10/2009 and to the parties who had purchased 8 cri-cp-2-11 these flats prior to the said date. We, therefore, do not find a prima facie case, even at this stage, to hold that any false statement was made in respect of handing over of possession of all the 50 flats in building no.84 prior to 27/10/2009. Whether the possession was handed over prior to 27/10/2009, in fact, does not remain an issue in dispute in view of the order dated 19/12/2009 and more particularly the following observations in para 3 therein. This court in para 3 observed, “3. The learned advocate for the respondent plaintiff opposes this application and contends that though the possession has been handed over to the flat purchasers before the order was passed, the appellants did not disclose this fact to the trial court......” It is thus clear that the present petitioner-plaintiff had admitted the factum of possession of the flats to the purchasers before the order was passed by the trial court. 8. Even otherwise, Section 15 of the Contempt of Courts Act, 1971 deals with the procedure to be followed in initiating criminal contempt petitions in cases of contempt other than those referred to in Section 14 of the said Act. No doubt, this court has power to take 9 cri-cp-2-11 cognizance of contempt petition on its own motion, but it appears that after the learned Single Judge passed his order on 19/12/2009, the petitioner submitted an application to the learned Advocate General for the State of Maharashtra on 23/12/2010 through Shri Shivaji Yadav, Advocate for seeking consent to initiate the criminal contempt proceedings and by is communication dated 14/2/2011, the learned Advocate General rejected the application. Mr. Kurup stated across the bar that the said communication dated 14/2/2011 is a subject matter of challenge in a separate writ petition. 9. Be that as it may, we are satisfied that no case has been made out to even take cognizance suo moto for criminal contempt as defined under Section 2(c) of the Contempt of Courts Act, 1971. 10. Hence, the petition is rejected summarily. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)