1 conp-13-09-s-1207-94 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi CONTEMPT PETITION NO. 13 OF 2009 IN SUIT NO. 1207 OF 1994. Mrs. Cyra Croft. ..Petitioner. vs. Mrs. Nargis Wadia & Ors. ..Respondents. .... Ms. Deepti Chand, i/b. Leon M. Samuel, for Petitioner. Mr. Mayur Khandeparkar, i/b. K.K. Associates, for Respondents. .... CORAM : S.J. KATHAWALLA, J. DATE : 18TH MARCH 2011. P.C. : This Contempt Petition is filed by the Petitioner alleging that the Respondent No.1 by filing Appeal No. 190 of 2008 before the Divisional Joint Registrar Co-operative Societies, Mumbai, has committed contempt of the order dated 4th April 1994 passed in terms of the consent terms dated 31st March 1994 which consent terms were filed by the Respondent No.1 and her husband (now deceased) on one hand and the Respondent No.3 on the other in Suit No. 1207 of 1994. Admittedly, the Petitioner was not a party to the Suit or to the consent terms. The Contempt Petition is before this Court for admission. 2. The Petitioner is the step-daughter of Respondent No.1 (Ms. Nargis Wadia) and the step-sister of the Respondent No.2 (Mr. Roy Wadia). Suit No.1207 of 1994 was filed by the deceased Vinci J. Wadia and his wife (the Respondent No.1 herein) against M/s. Interpublicity Private Limited (the present Respondent No.3) for a 2 conp-13-09-s-1207-94 declaration that the Plaintiffs are entitled to specific performance of the Agreements dated 4th October 1978 and 23rd May 1989 in respect of Flat No.8AB, Andromeda Co-operative Housing Society Limited, 89, Worli Sea Face, Worli, Mumbai-400 025 (the Suit flat). In the said Suit the consent terms dated 31st March 1994 were filed by the parties and an order dated 4th April 1994 in terms of the consent terms was obtained. Clauses 2, 3 and 4 of the consent terms are reproduced hereunder :- “2. Ordered that the Defendant do execute all documents required by the Plaintiffs for transferring in favour of the Plaintiffs their right, title and interest of the Defendants in flat No.8AB in the building of Andromeda Co-operative Housing Society Ltd., at 89, Worli Sea Face, Bombay 25. 3. Declared by the Defendant that in view of the option exercised by the Plaintiffs under the Defendant’s resolutions dated 4th October 1978, 5thMay 1989 and 16th December 1993, to purchase from the Defendant all their right, title and interest in the shares/flat No.8AB of Andromeda Co- operative Housing Society Ltd., Worli, Bombay, being shares Nos.1 to 5 bearing Share Certificate Nos. 20 standing in the name of Plaintiff No.2, the Defendant has no right, title and interest of any kind in the said shares/flat no.8AB of Andromeda Co-operative Housing Society Ltd., Worli, Bombay as on from 31st March 1994. 4. Declared by the Defendant that as on from 31st March 1994 Plaintiffs are the full owner of all the right, title and interest in the said shares/flat No. 8AB of Andromeda Co-operative Housing Society Ltd., Worli, Bombay standing in the name of the said Plaintiff No.2.” 3. It appears that even after the said order dated 4th April 1994 was obtained in terms of the consent terms by the parties, the 3 conp-13-09-s-1207-94 Share Certificate issued by the Respondent No.4 Society continued to remain in the name of the Respondent No.1. Mr. Vinci Wadia, the husband of the Respondent No.1 and the father of the Petitioner and the Respondent No.2 expired on 18th May 2008. After the demise of the deceased Mr. Vinci Wadia, one Mr. Agarwal member of the Respondent No.4 Society and the owner of apartment 4AB complained to the Deputy Registrar, Co-operative Societies, G/S Ward, Mumbai to the effect that the Suit apartment belonged to the Interpublicity Private Limited (Respondent No.3 herein) and not to the member on record. The Deputy Registrar passed an order on 20th May 2008 wherein he accepted the case advanced by Mr. Agarwal and inter alia directed the Respondent No.1 (Ms. Nargis Wadia) to surrender the duplicate share certificate dated 18th January 1983 which stood in her sole name. 4. The said order passed by the Deputy Registrar, Co- operative Societies, was impugned by the Respondent No.1 in Appeal No.190 of 2008 filed before the Divisional Joint Registrar, Co- operative Societies, Mumbai Division, Mumbai. In the said Appeal, the Respondent No.1 contended that the Deputy Registrar did not have any powers to pass the impugned order. In the said Appeal, the Respondent No.1 has set out in detail the facts pertaining to the Suit flat and has also mentioned that Suit No. 1207 of 1994 was filed before this Court and the consent terms came to be filed in the said Suit. It is mentioned in the said Appeal that a careful observation of the said consent terms reflects that the said flat belongs to her. 5. The Petitioner herein filed an Intervention Application in the said Appeal. Interestingly, the Petitioner has not annexed her Intervention Application to the Contempt Petition though she has annexed the response of the Respondent No.1 to her Intervention Application. It appears from the said response that the Petitioner has 4 conp-13-09-s-1207-94 in her Intervention Application relied on the Will of the deceased Vinci Wadia whereunder he has bequeathed 30% of his 50% share in the Suit flat to the Petitioner herein. A copy of the said Will is annexed and marked as Exhibit ‘A’ to the present Contempt Petition. In the said Will, the deceased has inter alia provided that the Suit flat should be converted to cash when the other 50% owner i.e. his wife the Respondent No.1 herein decides to do so. In paragraph 2 of the response to the Intervention Application, Respondent No.1 has submitted as under :- “2. At the outset I wish to record that Mr. Vinci Wadia had executed a Will on 29/07/2006. A careful observation of the said Will reveals that the rights of the beneficiaries are conditional in nature. So far as the right of the Intervener Applicant is concerned the same is to be realized only in case of the sale of the flat no.8AB in the Respondent no.2 society. Therefore, from the contents of the said Will, it is explicit that the so called right of the Intervener Applicant is the future right. At this juncture, the Intervener Applicant has no right, title & interest in the said flat. Consequently, the Applicant has no locus standi to intervene in the matter at this moment and therefore the Application filed by her needs to be rejected on this count also.” The Petitioner was allowed to intervene in the said Appeal. 6. The Intervenor has in the meantime filed the above Contempt Petition alleging that in view of the consent terms dated 31st March 1994 and order dated 4th April 1994 in terms of the consent terms, the Respondent No.1 ought not to have filed Appeal No. 190 of 2008 before the Divisional Joint Registrar, Co-operative Societies and that the filing of the said Appeal is an act in contempt of the order dated 4th April 1994 passed in Suit No. 1207 of 1994. The Petitioner has in the Contempt Petition submitted that she is 5 conp-13-09-s-1207-94 entitled to 15% of the share in the Suit flat according to the Will of her father, the deceased Vinci Wadia. The Petitioner has further alleged in the Contempt Petition that the Respondent Nos. 1 and 2 are intermeddling with the assets of the deceased. She has alleged that in order to protect the interest of the estate of the deceased from being intermeddled by the Respondent Nos. 1 and 2, she has filed another Petition for appointment of another Executor instead of the Executor named in the Will. It is therefore submitted on behalf of the Petitioner that the Respondent No.1 is guilty of contempt of the order dated 4th April 1994 passed in terms of the consent terms dated 31st March 1994 and that she be called upon to show cause why she should not be punished under the Contempt of Courts Act, 1971. 7. I have heard the learned Advocate for the Petitioner at length. I have perused the Contempt Petition along with its annexures. The relevant paragraphs of the consent terms are set out hereinabove. It is mentioned in the consent terms that the Plaintiffs are the full owners of the Suit flat. After the death of Mr. Vinci Wadia, a complaint was filed by one Mr. Agarwal, a member of the Respondent No.4 Society to the Deputy Registrar, Co-operative Societies, alleging that the flat is in the name of the Respondent No.3 Company as per the records of the society and that the Respondent No.1 cannot claim to be a member of the society. It is pertinent to note that it is also not the case of the Petitioner that the Respondent No.3 Company is the owner of the Suit flat as sought to be contended by Mr. Agarwal. Since the Deputy Registrar accepted the contention of Mr. Agarwal and asked the Respondent No.1 to surrender the duplicate share certificate dated 18th January 1983 issued by the Respondent No.4 in her name, the Respondent preferred an Appeal before the Divisional Joint Registrar, Co- operative Societies inter alia challenging the power of the Deputy 6 conp-13-09-s-1207-94 Registrar to pass such an order. Though she has stated in the Appeal that a careful observation of the consent terms reflects that the said flat belongs to her only, she has in the said Appeal, disclosed all the facts pertaining to the Suit flat including facts pertaining to the filing of Suit No.1207 of 1994 and the order passed therein in terms of the consent terms. In fact, she has also annexed to the said Appeal the order dated 4th April 1994 passed in terms of the consent terms by this Court in Suit No. 1207 of 1994. In any event, the allegation advanced by the Petitioner against Respondent No.1 viz. that the Respondent No.1 has claimed 100% ownership of the Suit flat in the Appeal filed before the Divisional Joint Registrar, Co-operative Societies and has therefore committed contempt of the order dated 4th April 1994, was put to rest when the Respondent No.1 in the said Appeal itself in response to the Intervention Application of the Petitioner No.1 admitted that Mr. Vinci Wadia has left a Will dated 29th July 2006 bequeathing his 50% share in the Suit flat and it is explicit therefrom that so far as the right of the Petitioner as a beneficiary in the Suit flat is concerned, the same is to be realised only in case of the sale of the Suit flat. 8. In the above facts and circumstances, I am of the view that the Petitioner has not made out even a prima facie case of the Respondent No.1 having willfully or otherwise disobeyed the order passed by this Court dated 4th April 1994 in terms of the consent terms dated 31st March 1994 in Suit No. 1207 of 1994. The Contempt Petition is therefore dismissed with costs. [ S.J. KATHAWALLA, J. ]