1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO.354 OF 2004 Ulka Prakash Modgekar and Ors. .. Petitioners Versus M/s.Bagadia Builders & Developers & Ors. .. Respondents Mr.M.S.Lagoo for petitioners Mr.G.S.Godbole i/b. P. Banerjee and S.D.Dharmadhikari for respondent No.1. Mr.B.D.Joshi for respondent No.3. CORAM : S.C.DHARMADHIKARI, J. DATE : 15th April 2010. P.C.: 1] This is a contempt petition alleging deliberate and willful breach and violation of an undertaking given to this Court and the order made in terms thereof. 2] It is contended by Mr.Lagoo appearing on behalf of petitioners that each one of them is a senior citizen and awaiting possession of row houses which have been constructed by the first respondent. The first respondent was delaying handing over possession which led to institution 2 of proceedings in this Court and particularly Appeal from Order No.218 of 2001. During the pendency of the same it has been recorded that the disputes are amicably resolved and consent terms signed by parties were placed on record. It is urged that the consent terms record undertakings and particularly the undertaking of respondent No.1. My attention is invited to clause 3 of the terms filed in the Court, based upon which the order was passed. It reads thus:- ". The parties to the present appeal from order have settled their dispute and accordingly have arrived at the following consent terms:- "1. The appellants are permitted to delete the names of respondent No.4 to 14 from the array of parties. 2. The respondent No.1 through Shri Shravankumar P. Bagadia hereby undertakes to earmark and reserve undisputed location for six bungalows in Type "B" for the appellants as per the description and area in the agreement dated 5/2/1995 as shown in the accompanying site plan and 3 marked as Annexure "A" hereto. The respondent No.1 undertake to construct bungalows for allotment to the plaintiffs as per the plan jointly prepared by parties and annexed hereto as Annexure "B" hereto. 3. The respondent No.1 through Shri Shravankumar P. Bagadia agrees and undertakes to complete the construction of six bungalows as per the agreement dated 5/12/1995 along with its schedule and annexures for the appellants 1 to 6 in accordance with the type B plan (Annexure A and B referred to above) within 18 months from the sanction of said plan by the Ambernath Municipal Council (respondent No.3) and shall hand over peaceful, valid and legal possession of the bungalows to the respective appellant, immediately after issuance of the completion/ occupancy certificate by the Ambernath Municipal Council. The respondent No.1 undertakes to withdraw all earlier building proposals in so far as the said six bungalows are concerned and submit the revised type B plan (Annexure B) complete in all respects, to the Ambernath Municipal Council within two weeks from the 4 date of the order of the Hon'ble Court. 4. The parties agree and accept the respective rights and responsibilities under the Agreement dated 5/12/1995 subject to modifications made as above. 5. The plaintiffs can inspect the construction of their bungalows from time to time. The respondent Nos. 1 and 2 agree and undertake to supply copy of the sanctioned plan to the appellant immediate after sanction. 6. The appellants shall withdraw the suit being Special Civil Suit No.70 of 2000 pending in the Court of Civil Judge, Senior Division Kalyan in view of the order passed in terms of these consent terms Minutes of order within one week from the date of the order. The suit notice issued by plaintiffs terminating the contract under agreement dated 5/12/1995 shall stand withdrawn. 7. The plaintiffs/ appellant have no objection if from the 5 date of order of this Hon'ble Court, the respondent No.1 continues the construction work on all other parts of the land and sells the flats, shops, garages etc. at his will." 3] It is urged that despite considerable time having lapsed from the date of the order of this Court and the undertakings, no steps are taken by the first respondent to put the petitioners in possession. Mr.Lagoo submits that the petitioners approached the concerned Municipal Council and they were informed that respondent No.1 builder has not furnished the development surcharge with the Corporation and unless and until the said amount is paid, the Corporation cannot issue documents required by parties. Reliance is placed upon a letter dated 12th July 2004 in that behalf. 4] It is submitted that the first respondent is avoiding compliance with the undertaking and now raises the issue of a suit being pending against the Ambarnath Municipal Council. It is submitted that the pendency of the said suit has nothing to do with the obligation of compliance with the 6 undertaking given to this Court. For all these reasons and considering that the petitioners are awaiting handing over of possession, this Court should proceed and take action under Contempt of Courts Act, 1971. 5] On the other hand Mr.Godbole appearing for first respondent has invited my attention to the affidavits in reply filed by first respondent in this Court on 22nd April 2008 and 29th May 2008. He submits that no case of civil contempt has been made out. Contempt Petition is completely misconceived and must be accordingly dismissed. 6] Having perused the petition and the annexures thereto, including the order of this Court so also all affidavits on record, I am of the opinion that this contempt petition deserves to be dismissed. It is not as if the petitioners are unaware of on going dispute which is the subject matter of pending civil suit. In any event, in answer to the contempt petition, the first respondent has placed on record complete details of the steps taken to obtain occupation certificate. He has pointed out first that copy of building plan was submitted to the Ambarnath Municipal Council. Amended plan of the proposed residential lay out and building was also submitted to the Municipal Council through Architect. The 7 commencement certificate was issued on 10th June 2002. Thereafter, the construction work was commenced and on completion of the same, an application was made for issuance of completion certificate on 7th December 2003. It is at that stage that the Ambarnath Municipal Council raised a demand of penalty and the correspondence between the developer and the Council ensued. In the correspondence it was pointed out that the development charges worth Rs.7,71,550/- have already been deposited. The copies of the correspondence between Ambarnath Municipal Council and the developer/ their Advocate is placed on record. It is this correspondence which led to filing of special civil suit No.199 of 2006 in the Court of Civil Judge, Senior Division, Kalyan praying for issuance of completion certificate and refund of excess amount. Perusal of the affidavit leaves me in no manner of doubt that the first respondent has taken necessary steps to comply with the undertaking given to this Court and the order made in furtherance thereof but on account of the further development leading to filing of the civil suit that the final occupation certificate could not be obtained. 7] This is not a case where the Court can in contempt jurisdiction issue any further directions to the Municipal Council nor can it permit the 8 petitioners to occupy the premises without proper occupation certificate. This is not a case of deliberate and willful breach and violation of an order and undertaking given to this Court. In such circumstances and finding that no case of civil contempt is made out that I proceed to dismiss this contempt petition. It is accordingly dismissed. No costs. (S.C.DHARMADHIKARI, J)