vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO.422 OF 2007 CONTEMPT PETITION NO.422 OF 2007 CONTEMPT PETITION NO.422 OF 2007 Rakesh Kumar Pyarchand Lodha ... Petitioner V/s. Parel Mahatma Co-op. Hsg. Soc. Ltd. & Ors. ... Respondents Mr.Rakesh D. Dave for Petitioner Mr.Sanjay Jain with Ms.Yogini Gada for Respondent Nos.1 to 10 Mr.A.G. Purohit for Resp. No.11 CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J. MHATRE, J. MHATRE, J. DATED: JULY 18, 2008 JULY 18, 2008 JULY 18, 2008 P.C.: P.C.: P.C.: . The petition has been filed contending that the respondents have violated and breached the consent terms executed by the petitioner and respondent No.1 and one Gajanan Ramchandra Ambolkar. These consent terms were filed in R.A.D. Suit (Stamp) No.303 of 2000 in the Small Causes Court at Mumbai on 11.2.2000. Clause 7 of the consent terms records that the plaintiff i.e. the petitioner herein was already in possession of shop No.2 in the new building as an alternate temporary accommodation in lieu of the old shop No.17-2/14. It was also agreed by the parties that this shop would be handed over by the petitioner and in return he would take possession of shop No.8 in the proposed new : 2 : building. As per the Consent terms, the defendants i.e. Respondent No.1 and Gajanan Ambolkar undertook that they would not claim or demand and recover the possession of shop No.2 until they give possession of shop No.8 to the petitioner. The petitioner now complains that despite this undertaking, Respondent No.1 has allotted shop No.8 to Respondent No.11, and has thereby breached the undertaking given to Court which amounts to contempt of Court. 2. An affidavit has been filed by Respondent No.1 annexing letters dated 11.2.2007 and 29.3.2007 indicating that the society i.e. Respondent NO.1 had called upon the petitioner to exchange the possession of shop No.2 for shop No.8 as agreed in the consent terms. The society has also offered to allow the petitioner a period of 15 days for exchanging the possession. The petitioner was also informed that in the event he failed to take possession of shop No.8 and failed to hand over possession of shop No.2 within the stipulated 15 days period, necessary action would be taken against him, including initiating contempt proceedings. It appears that the petitioner did not accept this letter and, therefore, the second letter dated 29.3.2007 was sent to him enclosing the earlier letter. Again by letter of 29.3.2007, Respondent NO.1 called upon the petitioner to accept possession of shop NO.8 and to vacate shop No.2 : 3 : which was to be allotted to some other person. 3. It appears from the record that the petitioner did not care to avail of the opportunity given to him. The affidavit of 9.4.2008 annexing these letters has not been controverted by the petitioner. 4. Therefore, it is obvious that the petitioner was aware of the aforesaid letters and yet did not bother to move into shop No.8. 5. In my opinion, the petitioner has not established a case for contempt against the Respondents. The undertakings given in the Court were not for an indefinite period. Even today, Respondent No.1 is willing to hand over shop No.8 to the petitioner in a simultaneous exchange of shop No.2 which is to be allotted to Respondent No.11. The learned advocate representing Respondent No.11 submits that Respondent No.11 is willing to exchange the presmises simultaneously. However, the learned advocate for the petitioner submits that the Petitioner would require some time in order for exchanging the two premises as the furnishing and other necessary work is required to be completed in shop No.8 before the Petitioner can occupy the same. : 4 : 6. In my view, these appear to be excuses for the petitioner to avoid moving into shop No.8. The petitioner has failed to establish any contempt on the part of the Respondents. Contempt petition is dismissed. 7. However, even now, if the petitioner is willing to effect a simultaneous exchange of shop No.2 for shop No.8, he may inform the society within a period of one month from today and the society shall permit the exchange. 8. The earlier order granting of status quo will continue for a period of 30 days from today.