1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO. 80 OF 2008 IN CUSTODY PETITION NO. 14 OF 1995 Sujata Agrawal. ... Petitioner. V/s. Sandip Agrawal. ... Respondent. Mr. M.M. Vashi for the Petitioner. Mr. Biswajit Mukherji, Shovendu Banerjee and Anoshak Davar i/b. G.C. Tule for the Respondent. CORAM : S.C. DHARMADHIKARI, J. DATE : 26TH MARCH 2009. P.C :- The Petitioner and the Respondents were married on 30th November 1987. On 1st March 1990 a son named Karan was born. From 16th May 1995, the Petitioner and Respondent No.3 were living separately. 2 2. Custody Petition No.14 of 1995 was filed and on 30th July 1997 this Court passed an order directing that custody of the minor should continue with the Petitioner - Mother, that the Respondent - Husband to pay to the Petitioner - Wife a sum of Rs.4,000/- per month, commencing from January 1996 and clear off all arrears of maintenance. The order directs payment of a sum for maintenance of the minor. The order also directed that the Respondent can have access to the minor. After all these orders and directions were passed, this Court noted the fact that various investments are made by the Respondent - Father in the name of Karan. The Respondent - Father filed an affidavit in this Court giving particulars of all investments and assuring that he would protect the investments till Karan attains majority. The Petitioner - Wife insisted that yearly extracts relating to the investments in the name of the minor be provided but the Court refused to grant any such directions and observed that the Respondent - Husband is bound to take necessary steps to protect the interest of the minor. 3. The Custody Petition and the Suit were both disposed off. 3 4. The present Contempt Petition is filed stating that the minor would be completing the age of 18 years on 1st March 2008. It is alleged that the details of the assets and investments presently standing in his name ought to have been forwarded to the Petitioner - Wife so that the minor on attaining majority gets the necessary benefit, however, that request is refused by the Respondent. Reliance is placed on the letter dated 24th March 2007, copy of which is annexed as Exhibit `C' . 5. The Respondent replied to this letter on 4th April 2007 (Exhibit D) and stated as under :- “ That as regard the details of the asserts and investments of Master Karan Agrawal and the manner in which I intend to hand over the same to him upon attaining majority on 01/03/2008 are concerned, I am to state that the modalities are being worked out for the said transfer and the same would be informed to your client in due course. 4 You are requested to await correspondence in this regard which will be made at the approrpriate time. As almost a year remains for the said transfer, I request you to inform your client that I will be forwarding the details of the assets and investments which I hold propose to transfer the same to Karan in due course.” 6. It also appears that on 5th September 2007, another letter was addressed on behalf of the Petitioner inviting the attention of the Respondent to the abovementioned statements and also requesting that Tax Returns of the son, who will be attaining majority need to be filed. In such circumstances, the Permanent Account Number of the son be also intimated. 7. On 8th February 2008, the Respondent enquired from the Petitioner that since Karan will be attaining majority, he wanted to know the postal address of Karan and to which Branch of Life Insurance Corporation of India at Mumbai, the LIC policies have to be transferred. It appears that Karan's postal address and the Branch of 5 Life Insurance Corporation was informed by the Petitioner on 16th February 2008. 8. Subsequently, the Petitioner as also Karan addressed a letter dated 5th March 2008 through their Advocate to the Respondent and stated that he should confirm as to whether the LIC Policies notified have been transferred and whether the last premium has been paid and when the future premium is due and what happens to the other investments. The attention of the Respondent was invited to the Balance sheet of Karan as on 31st March 1996. In such circumstances, the Advocate stated that the details of the Demat Account in Calcutta alongwith the latest statement of Demat Account and details of PAN Card, etc. be forwarded. PPF Account be also transferred was the request. On 19th March 2008, the Respondent addressed a letter to the son Karan Agrawal, a copy of which is annexed as Annexure F-4 page 29. This letter reads thus :- “ I have received a letter dated 5th March, 2008 from Shri A.M. Vernekar, B.A.LL.M. Advocate, High Court. In the said letter it was stated that the letter was addressed 6 on behalf of “both Ms. Sujata Agrawal and Karan Agrawal”. I am enclosing herewith the copy of the said letter for your ready reference. Kindly let me know whether the said letter was addressed on your behalf or not, to enable to me give a proper reply.” 9. This letter was replied by Karan on 27th March 2008 and he stated as under :- “ I have received your letter dated 19.03.2008 and confirm that I had instructed Mr. A.M. Vernekar, Advocate, to address to you the letter 05.03.2008. I also wish to further inform you that I have also retained the services of Mr. A.M. Vernekar, Advocate, to oversee the transfer of my assets which were held by you during my minority, in my name, and for this purpose he will correspond with you in future.” 10. In the light of the confirmation by Karan that the Advocate was engaged not only by the Petitioner but also by the son who is now a major, the Respondent forwarded to him the details as sought including pertaining to the LIC Policies and PAN Card, etc. Copy of this letter is annexed at pages 31-32. 7 11. Karan then forwarded details of Jewellery in his name and stated that he will file Income Tax Returns in Mumbai after the Statement of Accounts and files are received from the Respondent. 12. Thereafter, Karan wrote a letter on 17th April 2008 which reads thus :- “ I have received your letter dated 11.04.2008. Thank you for sending me the original Pan Card, and the five original policies along with the original receipts of the premium paid and the transfer request letters. Can you also let me know if my PPF Account has been transferred to Bank of India, Nepean Sea Road Branch at Mumbai as requested earlier. I would like to put in some more money in PPF. The Bank has not as yet received any transfer advice. Also please let me know the details of the shares in my name so that I can get them transferred to my Demat A/c. In Mumbai. I will be filing my Income Tax Returns for Ay 2008-09 in 8 Mumbai. So kindly send me the Profit/loss Account, Capital Account and Balance Sheet for FY 2007-2008, and also the copy of the previous year's challan and the IT Office address where the returns are filed in Kolkata.” 13. Karan addressed another letter on 24th May 2008 and stated that there is no response to his earlier letter. He desired to know the present Investment port-folio. The details of the investments made were sought so that he could plan them accordingly. That letter was not replied, therefore, Karan Agrawal addressed a letter through his Advocate on 9th July 2008 and in the last paragraph of this letter, Karan called upon the Respondent - Father to comply thus :- “ In view of the above, I have now to finally call upon you on behalf of my client Karan Agrawal to transfer all the assets including shares in M/s. Karan Exports Pvt. Ltd. Owned by Karan Agrawal and held by you alongwith the details and accounts thereof whin two weeks from the date of receipt of this letter by you. I hope that you will appreciate the spirit in which this letter is addressed to you. The time stipulation which is given herein is to stress upon you the need of 9 Karan to have the said assets urgently so that it can be put to use by him when they are needed most by him.” 14. In the meanwhile, Karan received a letter addressed by his father bearing a date as April 24, 2008, in which he has stated that the PPF Account has matured after completion of 15 years. There are no shares in the name of Karan and all shares till date were liquidated. The proceeds thereof have been invested. Karan was informed by the Respondent that all Accounts alongwith the files of the respective year will be handed over to him as soon as they are ready. The shares and the PPF position will be duly reflected therein. Karan was informed that since he was a minor, no Income Tax Returns and LIC policies are in his name and therefore, when Karan attains the majority, he can file the Returns in Mumbai. Karan was informed by the father that if jewellery details are forwarded to him he will compare and segregate the said jewellery from the others and would hand over whatever belongs to Karan. 15. Annexing this correspondence, the present Contempt Petition is filed alleging that the Respondent has failed to hand over 10 assets and investments of the said son Karan inspite of assurance given by him to the Court and admitted in the correspondence. It is alleged that the Petitioner is constrained to file the present Contempt Petition as the Respondent committed a deliberate violation of the orders passed by this Court by not handing over the assets and investements to Karan after his attaining the majority on 1st March 2008. Further, the Respondent had assured the Single Judge which assurance is recorded in his order regarding protection of assets and investments of son Karan till he attains majority but even this statement and assurance has not been adhered to. For all these reasons, it is alleged that the Contempt Petition had to be filed. This is the case of a Civil Contempt and therefore, the Court must pass appropriate orders. 16. Upon a notice being served, the Respondent filed a reply which was affirmed on 8th December 2008. In this reply, in paragraph 4(b), the Respondent states thus :- “ There is no violation of the order dated 30.07.1997 passed 11 by the Hon'ble Single Judge in Petition No.14 of 1995 by the deponent, far less deliberate or willful. In the Contempt Petition there is no allegatiion against the deponent evidencing how the purported willful or deliberate violatiion has been committed by the deponent. On the contrary the deponent has already acted and acting in terms of the order dated 30.07.1997 passed by the Hon'ble Single Judge in petition No.14 of 1995 and handed over the Original PAN Card bearing No. ADFPA3710R, Original request Letter for transfer of LIC Policy from Kolkata to Mumbai for Policy Nos. 4116 43005, 411643006, 411643007, 411643008, 411642083 and Original existing Policies report as on 23.02.2008, Original Last Paid Premium Receipt of LIC Policy Nos. 411643005, 411643006, 411643007, 411643008 and 411643083, Original LIC Policy Nos. 411643005, 411643006, 411643007, 411643008 amd 411643083 each of Rs.1,00,000/- total amounting to Rs.14,00,000/- (approx) maturity value to the son i.e. Karan of the deponent and the said facts have been diligently suppressed in the purported contempt application with the only intend to mislead the Hon'ble Court. I respectfully submit the petitioner herself has committed the contempt of Court by filing the instant application in gross suppression of facts to mislead this Hon'ble Court and I beseech the Hon'ble Court to take appropriate action against the Petitioner.” 12 17. It is stated that this Contempt Petition by the Petitioner – wife/mother is not maintainable inasmuch as the minor has now attained majority. He can now handle his affairs. He has not come to the Court alleging contempt on the part of the Respondent. The mother has filed a Petition with regard to the investments in the name of the son Karan but it is Karan who will have the locus-standi to allege non-compliance, if any, of the assurance given but not the Petitioner. The Petition, at her instance, is not maintainable and must be dismissed. 18. That apart, it was contended that the order passed by this Court does not issue any directions. All that is observed in the order is that various investments are made by the Respondent in the name of Karan, particulars of which have been already furnished to the Court and to the Petitioner. The assurance was given that the investments will be protected till Karan attains majority. The request of the Petitioner to supply yearly extracts relating to these investments was not accepted and what this Court observes in its order is that no 13 directions are necessary in this regard because the Respondent is bound to take necessary steps to protect the interest of the minor. In these circumstances, such an order cannot be said to be violated or disobeyed much less wilfully. There are no directions issued by the Court. The statement accepted by the Court is with regard to protection of investments and it is false to allege that the investments are not protected. That apart, the aspect has been fully clarified in the affidavit filed in reply. The affidavit is filed without prejudice to the rights and contentions of the Respondent and more particularly, that there is no contempt. 19. After this affidavit was filed, the Petition was placed for admission before me and on 30th January 2009, I passed the following order :- “ At the request of the counsel appearing for Respondent, S.O. to 16th February 2009. In the meanwhile, and without prejudice to the rights and contentions of both the sides, the Respondent to furnish details of the investments in the name of the son of the Respondent and the Respondent and their present status. Needless to state that, the details may be furnished 14 by Advocate's letter or by filing affidavit in this Court with advance copy to be served on Mr. Vashi.” 20. The matter was again placed before me on 2nd March 2009 and a grievance was made by Mr. Vashi that the Petitioner has not been informed about the status of the investments or the manner in which any amount has been invested. The Respondent stated that the order passed on 30th January 2009 is challenged in Appeal and therefore, the Contempt Petition may not be proceeded further. 21. Refusing adjournment on the ground that is noted in my order dated 2nd March 2009, I placed this Contempt Petition for Admission. 22. I gave some time to Mr. Vashi to consider the affidavit in reply and to file a Rejoinder, if so advised. A Rejoinder affidavit is filed by the Petitioner, in which paragraph 2 reads as under :- “ 2. With reference to para 4b it is true that the Respondent has forwarded original of Pan Card and other 15 items mention in the para under reference. However, I am pointing out that on LIC Policy the Petitioner will be required to pay premium of about 3 to 5 years. Therefore, the impression sought to be given by the Respondent that the Respondent has handed over policy worth Rs.14,00,000/- to the Petitioner is not correct.” 23. It is alleged by the Petitioner that in the affidavit of 31st January 1997, filed in the Custody Petition, Respondent gave particulars of all investments made in the name of Karan. However, from some common acquaintances, the Petitioner has learnt that the Respondent has spent or lost the investments made in the name of Karan. The investment is lost in the current stock market crash. It is for these reasons that the Respondent is not filing affidavit disclosing investment in the name of Karan. 24. The arguments were heard and the matter was placed for orders today. Mr. Vashi states that the Respondent has aggravated the contempt by not making true and faithfull disclosure. The order was without prejudice to the rights and contentiions of parties. The order is innocuous inasmuch as the Court had not recorded any 16 finding on the issue as to whether a Civil Contempt is committed or not. Since, the Respondent does not want to file an affidavit, he has chosen to file an Appeal against such an order. His conduct is such that this Court must take a serious view of the same. Apart from not making a clean disclosure with regard to the investments, now, the Respondent has aggravated the matter further by refusing to comply with the order of this Court. Such a person should not be let off. The respondent may go ahead and urge that the Court should proceed to admit the Petition and take action if it is satisfied that a case is made out of Civil Contempt, but he would not comply with the Court's order. Such an attitude according to Mr. Vashi is something that this Court must not countenance and accept. For all these reasons, this Court must proceed to admit the Contempt Petition and pass appropriate and further directions. 25. On the other hand, Mr. Mukherji, the learned Counsel appearing for the Respondent reiterates the contentions in the affidavit in reply. He submits that Karan has not come forward to allege anything against the father. The father and Karan have 17 exchanged letters and apparently, Karan has not pursued the matter further. Now, the Petitioner is using the son to settle her scores with the Respondent. The Contempt Petition should not be entertained as it is being used as a lever to pressurise the Respondent. Such is not an intent and the purpose of contempt jurisdiction. Therefore, the Contempt Petition must be dismissed. 26. I have perused the Contempt Petition and the affidavits filed on record. I have also perused the letters, copies of which are annexed to the Contempt Petition. 27. I do not propose to throw out this Contempt Petition only on the ground that Karan has not come forward to make a charge of contempt against the Respondent – Father. From a perusal of the correspondence, it is clear that all letters have been addressed jointly by the Petitioner and Karan. They have engaged a common Advocate who had correspondence with the Respondent. Even the Respondent has, in turn, replied to those letters of Karan. Once the Respondent has treated the letters addressed by the Advocate, then, 18 it is not open for him to urge that the Contempt Petition must be thrown out and dismissed only on the ground that Karan has not come forward to allege civil contempt. More so, when the contempt alleged is that of an order on the Custody Petition. That was a proceeding between the Petitioner and the Respondent. 28. However, the question remains is whether any civil contempt is committed. From a perusal of the order passed by this Court recording the assurance and statement of the Respondent, it is apparent to me that the Respondent has indeed invested some amounts in the name of his son. That he has provided details of the same to Karan is also apparent from a reading of the letters. That he has clarified the matter with regard to PAN Card, PPF, etc. is also clear. Therefore, it is not as if the Respondent has not invested any sums or made no investments in the name of his son Karan. The question is whether the investments are protected or not as assured, till Karan attains majority. From a reading of the letter addressed by the Respondent to Karan on 11th April 2008, it is clear that the amounts with LIC of India have been invested. The last premium paid 19 as on that date alongwith numbers of the policy has been informed to Karan. Even the amounts invested are intimated to Karan. In addition, in the affidavit filed before this Court while denying the charge of contempt, what the Respondent has stated that in terms of the orders passed by this Court, he has handed over original PAN Card, original request letter for transfer of LIC Policy from Calcutta to Mumbai for policy numbers mentioned in the paragraph, original existing policy report as on 23rd February 2008 and last paid premium. All this has been forwarded to the son and this fact has been suppressed from this Court. 29. From a reading of the entire correspondence and the affidavit filed in the Contempt Petition, so also the order, it is clear to me that it cannot be said that the Respondent has not abided by his assurance given to this Court of protecting the investments till Karan attains majority. The question is whether Karan has received all details with regard thereof. Now, Karan is a major and can take his own decisions. If Karan has any grievance with regard to non- furnishing of details or that the details are not reflecting the correct 20 position about the investments, it would be open for him to adopt such proceedings as are permissible in law. Surely, Contempt Petition is not the remedy open to Petitioner and Karan for obtaining such details and information. Further, if Karan is aggrieved by some acts of his father, it would be open for him to adopt substantive proceeding and claim reliefs against his father. All this remains unaffected by what the out-come of this Contempt Petition would be. One thing remains clear is that no case for Civil Contempt is made out. Once the above factual position is noted, then, this is not a case of willful disobedience of the orders or directions of this Court. Once this conclusion is reached, then, it is not necessary to deal with the contention of Mr. Vashi that the contempt is aggravated by the Respondent. It there is no case of civil contempt made out at the thresh-hold, then, filing of an Appeal against some direction in the Petition is also no contempt. In any event, the order dated 30th January 2009 itself is without prejudice to the rights and contentions of the Respondent. 30. In the result, the Contempt Petition fails and is dismissed. Needless to state that the statements made in the affidavit in reply 21 and reproduced above are accepted and there is no doubt in my mind that the Respondent – Father, after the out-come of this Petition, will forward the necessary details to his son Karan, if it is so desired by him. (S.C. DHARMADHIKARI,J.)