- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION jmi CONTEMPT PETITON NO.98 OF 2008 IN ARBITRATION PETITION NO.332 OF 2008. M/s. Gandhi Adhivitiya Combine. ..Petitioners. vs. Rashmi Shantilal Desai. ..Respondent. .... Mr.Chetan Kapadia, i/b. J.Sagar Associates, for the Petitioners. Mr. M.P.Vashi, a/w. Mr.Santosh Narwade & Ms.Prachi Khandge, for the Respondent. .... CORAM CORAM CORAM: S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. DATE DATE DATE : 6TH FEBRUARY,2009 : 6TH FEBRUARY,2009 : 6TH FEBRUARY,2009. P.C. P.C. P.C. : : : . The petitioners have filed this contempt petition alleging that the respondent has committed breach of the order of this Court [Coram : V.M.Kanade, J.] dated 22nd July 2008 and has, therefore, committed contempt of this Court under sections 11 and 12 of the Contempt of Courts Act, 1971. 2. It is the case of the petitioners that the respondent is the legal heir of late Mr.Shantilal Nagarji Desai (deceased), who was the tenant/occupant of a room on the ground floor being room no.10 of 31A Manhar Gandhi Chawl, admeasuring 13.94 sq.mtr., built up area, in the property known as Dhobi Ghat, situated at - 2 - Parsee Panchayat Road, Andheri, Mumbai (old tenement). An agreement dated 11th December 1996 was executed by the petitioners with the deceased whereunder the deceased had agreed to hand over to the petitioners, vacant and peaceful possession of the old structure occupied by him in consideration of the petitioners giving to the deceased, free of cost on ownership basis, a residential flat admeasuring 225 sq.ft. of carpet area, to be reconstructed on the plot where the old structures were situated. After the demise of the deceased, the respondent is in possession of the old tenement being the legal heir of the deceased. According to the petitioners, though the new building is constructed and a flat as agreed is allotted to the respondent, the respondent is not shifting in the said flat. 3. Since the said agreement between the petitioners and the deceased dated 11th December 1996 contained a provision for arbitration, the petitioners have invoked arbitration and filed a petition under section 9 of the Arbitration and Conciliation Act, 1996, inter-alia seeking the following reliefs :- (a-i) that the respondent, their agents and representatives be restrained from creating any - 3 - obstacles in regard to construction/ development of the plot; (a-ii) that the respondent be directed to forthwith hand over the possession of the existing tenement/ structure occupied by them to the petitioner." 4. Admittedly, the following order was inter-alia passed in the arbitration petition on 22nd July 2008 :- "2. Mr.Vashi, the learned counsel appearing on behalf of the respondent submits that the respondent has never obstructed or created any obstacle in regard to the construction/ development of the plot. He submits that he has no objection if ad-interim relief in terms of prayer clause (a) (i) is granted at this stage. He seeks time to file a reply to the petition. In view of this, ad-interim relief is granted in terms of prayer clause (a)(i)..........." 5. The petitioners have now filed this contempt petition on the ground that the respondent has failed to hand over the possession of the old tenement and has failed to shift into the new premises/ flat allotted to - 4 - the respondent. It is submitted that the respondent has, therefore, created an obstacle in regard to the construction/development of the plot and have thereby breached the order passed by this Court [Coram : V.M.Kanade, J.] dated 22nd July 2008. 6. The learned Advocate for the petitioners have submitted that from the contents of the arbitration petition, it is clear that the respondent was restrained from creating any obstacle in regard to the construction/development of the plot because the respondent was not shifting to the newly allotted flat and was wrongly retaining the old tenement. 7. Mr.M.P.Vashi, learned Counsel appearing for the respondent has contended that by the said order, dated 22nd July 2008, the respondent was only restrained from creating any obstacle in regard to the construction/ development of the plot. He submitted that at no point of time, the respondent has created any obstacle in regard to the construction/ development of the said plot and therefore, even on the day when the order was passed, it was stated on behalf of the respondent which was recorded by the Court that the respondent has never obstructed or created any obstacle in regard to the construction/development of the plot. In fact, for that - 5 - very reason, he informed the Court that he has no objection if ad-interim order in terms of prayer clause (a-i) is granted. He has further pointed out that in the said arbitration petition under prayer clause (a-ii), the petitioner had categorically sought directions against the respondent to forthwith hand over the possession of the existing tenement/structure occupied by him to the petitioners, which relief was not granted. 8. Mr.Vashi, has therefore, submitted, and in my view he is correct in his submission, that the relief sought in terms of prayer clause (a-ii), which is not granted to the petitioner cannot be now read into prayer clause (a-i), to mean and interpret that restraining the petitioners from creating any obstacles in regard to the construction/development of the said plot, included handing over of the possession of the old tenement and shifting into the new tenement. 9. In view of the above, in my view, no prima-facie case of contempt has been made out by the petitioners against the respondent. 10. The contempt petition is therefore dismissed with no order as to costs. - 6 - [S.J.KATHAWALLA, [S.J.KATHAWALLA, [S.J.KATHAWALLA, J.] J.] J.]