1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. NOTICE OF MOTION NO. 845 OF 2009 IN APPEAL NO. 643 OF 2007 IN NOTICE OF MOTION NO. 1022 OF 2006 IN SUIT NO. 895 OF 2006 Sevaram Ratiram Agarwal .. Appellant Vs Jainarayan Ratiram Agarwal & Ors .. Respondents Mr. Charanjeet Chandrapal for the Appellant Mr. A.V. Anturkar i/b Mr. Vishal Thadani for respondent nos. 1 and 2 CORAM : B.H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. DATE : 1st February, 2010 P.C.: 1. Heard Mr. Chandrapal, the learned counsel for the Applicant. The prayers in this Notice of Motions are as under:- 1. That, in view of the new facts (which were hidden by the respondents all throughout even before the learned single Judge) being brought before this Hon'ble Court in terms of Exhibit A - D of the Affidavit in Support of the Notice of Motion, the operation and effect of the order dated 06.08.2007 passed by His Lordship Hon'ble Justice S.J. 1.nma845-09 2 Vajifdar be stayed until final disposal of the appeal. 2. That in view of what is stated herein above in prayer clause 1, a suo motu notice of criminal contempt of court be issued by this Hon'ble Court under section 15 of the Contempt of Courts Act, 1971 and/ or suitable orders which may include an investigation by the police as well as the Prohibition and State Excise Officers be passed in - order to come to verify the forgery / falsity of the documents. 3. Pending hearing and final disposal of this notice of motion, the Collector (Mumbai Suburban) be directed to suspend the subject licence temporarily, as the operation of the business under the said licence violates the Bombay Prohibition Act, 1949 read with its rules, needless to state in view of the suspension of the licence, the subject licence shall not be renewed for the year 2009-2010. 4. Interim and Ad-interim Relief in terms of prayer clause 3, stated herein above. 5. For such other reliefs as the Hon'ble Court may deem fit and proper. 6. For costs 7. The Hon'ble Court may grant other reliefs as may be deemed fit and proper. 8. Costs of this motion be provided for. 2. Mr. Anturkar appears for the respondents / original plaintiffs who have filed affidavit in reply and opposed the Notice of Motion. 1.nma845-09 3 3. In Suit No. 895 of 2006, the Plaintiffs had taken out Notice of Motion No. 1022 of 2006 and the same was made absolute by the learned trial Judge vide his order dated 06.08.2007, in terms of prayer clauses (a) to (e), except the words bracketed in red ink in prayer clause (d). The said order is the subject matter of challenge in Appeal No. 643 of 2007 which has been admitted on 12.03.2008. 4. Notice of Motion No. 243 of 2008 was taken out by the Appellant / Defendant praying for stay to the operation of the impugned order in Appeal and the said Motion was dismissed by the Division Bench on 30.04.2008. 5. It was submitted by Mr. Chanderpal, the learned counsel for the Appellant that under the Right to Information Act, the Defendant got some additional information which was not placed before the learned trial Judge when the interim relief was granted against the Defendant and obtained such an order by suppressing said material, was nothing short of the contempt of the Court. He, therefore, urged that the appropriate orders be passed by initiating proceedings for such contempt. 6. We have gone through the reliefs granted by the learned trial Judge in favour of the Plaintiffs and prayer clauses (a) to (e) do not leave 1.nma845-09 4 any scope of doubt that there will be a chance for the Plaintiffs to violate the said oder. Even prayer clause (e) of Notice of Motion No. 1022 of 2006 does not leave any scope of doubt that the Plaintiffs may violate or act in breach of the said relief. As per prayer clause (e) in the said Notice of Motion, in the event, Defendant No.1 contends that he is not in possession of Excise licence Nos FL Il 62 and CL/FL/TOD-III-115, then Office of the Collector of Mumbai [Mumbai Suburban District] State Excise Department may be directed by this Hon’ble Court to issue duplicate excise licence. 7. Thus, so fas as the present Notice of Motion is concerned, the first prayer of injunction was already rejected by this Court in Notice of Motion No. 243 of 2008 and for the second prayer regarding initiating criminal contempt against the Plaintiffs, we do not find prima facie material that the Plaintiffs have acted in breach of any interim relief granted to them in Notice of Motion No. 1022 of 2006. Hence, the appropriate remedy for the Defendant, if so desired would be to move a fresh Motion in the pending suit, on the basis of the information, he claims to have received under the Right to Information Act. 1.nma845-09 5 8. In view of the above, the Notice of Motion is rejected. [SMT. V.K. TAHILRAMANI, J.] [B.H. MARLAPALLE, J.] 1.nma845-09