1 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO. 87 OF 2008 IN WRIT PETITION NO. 1508 OF 1996 IN ORDER DATED 4.10.2007 IN CONTEMPT PETITION NO. 48 OF 2007 John Rodricks and Others .. Petitioners Versus Municipal Corporation of Greater Mumbai and others .. Respondents Mr. B. Unnikrishnan for the Petitioners Ms. T. H. Puranik for Respondent No.1 Mr. Cyrus Ardheshir a/w Mr. D. S. Patil i/by Mr. B.B. Parekh for Respondent No.3 CORAM : S. J. KATHAWALLA, J. DATE : 3rd May, 2010. P.C.: 1. By this Contempt Petition, the Petitioners have prayed that the Respondent No. 2 Sagar Builders & Developers Pvt. Ltd. and the Respondent No. 3 M/s. Far Holdings Pvt. Ltd. and their directors have committed and are continuing to commit contempt of the undertakings given by them and recorded in the Consent Terms dated 3rd September, 2 1997 and in the order dated 4th October, 2007 and therefore they be punished in accordance with the law. 2. At the outset the learned Advocate appearing for the Petitioners, on instructions, has submitted that the Petitioners are unable to justify their case of contempt against Respondent No.2- Sagar Builders & Developers Pvt. Ltd. This is because the Respondent no.2 has not given any undertaking to this Court. It is submitted that the Petitioners are therefore, pressing the reliefs sought in the contempt petition only against Respondent No.3 M/s Far Holdings Pvt. Ltd. and their directors. When this Court pointed out to the learned Advocate appearing for the Petitioners that none of the directors are joined as party Respondents to the Contempt petition nor it is pointed out in the Contempt petition as to which of the Directors have been guilty of committing contempt of the Court and against whom the punishment is sought to be enforced, the learned Advocate appearing for the Petitioners has submitted that the Directors are not named in the contempt petition nor any specific allegations are made against the directors in the Petition because the directors keep on changing. However, the learned Advocate conceded that the Petitioners ought to have joined the directors of Respondent No.3 who are guilty of committing breach of the undertakings given to this Court as parties to the petition and or atleast averred in the petition as to which of the directors are guilty of contempt and against whom the orders are 3 sought to be enforced by the Petitioners. The petition deserves to be dismissed on this ground alone. However, this Court has allowed the Advocate for the Petitioners to point out, which are the undertakings breached by the Company/ its directors. 3. The learned Advocate appearing for the Petitioners has first submitted that the Respondent no.3 had in the consent terms dated 3rd September, 1997 undertaken to give permanent alternate accommodation to the Petitioners in the "A" wing. However, they are now offering flats to the Petitioners in the "B" Wing It is submitted that even in the order passed by this Court dated 4th October, 2007 in Contempt Petition No. 48 of 2007, the Respondent no.3 had undertaken to give permanent accommodation on ownership basis to the Petitioners in "A" wing. The above contention of the Petitioners is totally misconceived and incorrect. In the consent terms dated 3rd September, 1997 there is no mention of any A wing or B wing. A reading of Clauses 3 and 4 of the consent terms shows that the Respondent No.3 has agreed and undertaken to provide to the Petitioners the permanent alternate accommodation in the new building “to be constructed”. Clause 7 of the consent terms shows that the temporary alternate accommodation is provided to the Petitioners by the Respondent No.3 in the building “being constructed”. The Petitioners are admittedly offered permanent alternate accommodation on ownership basis by the Respondent No.3 in the building which was " to be 4 constructed", on the date of signing of the consent terms as agreed and undertaken in clause 4 of the consent terms. However, the Petitioners, contrary to the agreement recorded in the consent terms are wrongly insisting that they are entitled to be given permanent alternate accommodation in the building which was "being constructed" on the date the consent terms were signed. I am convinced that the Petitioners are only trying to take advantage of some mistake which had earlier taken place in the sanctioned plans and subsequently corrected. The mistake was pointed out to this court and recorded in the order passed by this Court dated 4th October, 2007. The undertaking given by Respondent no. 3 that the Petitioners would be put in possession of their respective premises in "A" wing, as recorded in the order dated 4 th October 2007 in contempt petition No. 48 of 2007 is complied with by the Respondent No.3 by offering permanent alternate accommodation to the Petitioners in the newly constructed building (A wing). The part certificate issued by the Mumbai Municipal Corporation pertaining to the said "A" wing is produced before this Court by the Respondent No.3. In any event, as set out hereinabove, the Agreement between the parties contained in the consent terms, itself belies the allegation made by the Petitioners qua the allotment of permanent alternate accommodation to them in the wrong building/wing. Under the circumstances, in my view, the Petitioners have not made out any case of Respondent No.3/ directors having committed contempt of Court as alleged. 5 4. It is next contended by the learned Advocate for the Petitioners that in clause 9 of the order dated 4th October, 2007 the undertaking given by the Respondent No.3 that the Petitioners would be put in possession of their respective premises in the A wing within a period of six months, is recorded. The consent terms are dated 4th October 2007. The six months period expired on 4th April, 2008. However, the Respondent No.3 offered alternate accommodation to the Petitioners only by their letter dated 5th April, 2008 which was received by the Petitioners on 7th July, 2008 thereby causing delay of 3 days. In response to this allegation, it is pointed out on behalf of the Respondent no.3 that they have been writing letters to the Petitioners to take possession of their respective flats since 1 st April 2008. However, the packets have come back with the remarks "intimation posted" and "unclaimed". A compilation of the receipts issued by the couriers as well as the postal authorities is produced before this Court which shows that since 1 st April 2008, the Respondent No. 3 has written letters to the petitioners requesting them to take possession of their respective premises. Respondent No.3 has also written letters to the Advocate for the petitioners. However, the Advocate for the Petitioners informed the Respondent No.3 that they are no longer acting for the Petitioners. In view of the aforestated facts, the letters dated 4 th April 2008 ultimately reached the Petitioners on 7 th April 2008. In my view no case of willful breach of the undertaking to handover the 6 respective flats to the Petitioners by 4 th April 2008 is therefore, made out by the Petitioners against the Respondent no.3. 5. Lastly it is contended on behalf of the Petitioners that Respondent no.3 has breached clause 7 of the consent terms wherein the Respondent no.3 had undertaken not to enter into an agreement and/or sell flat Nos. 201 and 202 in the building which was “being constructed” by the Respondent no. 3 when the consent terms were entered into, until the Petitioners were handed over their respective permanent alternate accommodation. The learned Advocate appearing for the Respondent no.3 has submitted that Respondent no.3 has not entered into any agreement and or sold flats Nos. 201 and 202 of the building and that the Petitioners have not produced any documents to show that the Respondent No.3 has breached the undertaking given in clause 7 of the consent terms. It is therefore submitted that the Respondent no.3 has not committed any breach of the undertaking as alleged by the Petitioners or otherwise. It was submitted on behalf of the Petitioners that even if the Respondent no.3 has not entered into any agreement and or sold flat Nos. 201 and 202, the Respondent no.3 has dispossessed the Petitioners from part of the said flat Nos. 201 and 202. In response thereto, the Respondent no.3 has produced letters dated 15th February, 1999 addressed to the Petitioners which shows that the Petitioners are in occupation of Flat Nos. 301 and 302 and not Flat Nos. 201 and 202. The 7 Petitioners have therefore once again failed to establish that the Respondent no.3 has committed breach of any undertaking as alleged by the Petitioners. 6. Under the circumstances, the contempt petition stands dismissed. ( S. J. KATHAWALLA, J.)