Case: SHYAM SAHNI Vs. ARJUN PRAKASH AND OTHERS

date of hearing i.e. 07.03.2017, respondent No.1 offered three properties owned by his mother-in-law (Rama Khanna from Amritsar) by depositing title deeds stating that he has no other security to offer. Observing that respondent No.1 has failed to comply with his undertakings/statements, on 26.05.2017, the learned Single Judge directed respondent No.1 to deposit his passport and made an order restraining respondent No.1 from leaving India. 23. According to respondent No.1, he has shown his bonafide by producing additional security before the Court by depositing original title deeds of three properties belonging to his mother-in-law (Rama Khanna from Amritsar) to the tune of Rs.4.45 crores. Learned counsel for respondent No.1 has submitted that equitable mortgage of the suit property (i.e. 68, Friends Colony (West), First Floor, New Delhi) was made even in the first week of October, 2007 which was much prior to the ex-parte stay order dated 02.06.2008. Learned counsel further submitted that in October, 2008, additional Working Capital was granted to the company-M/s. Soul & Attires Creations Private Limited for Rs.5 crores (against Stock and Book Debts) as per banking regulations. According to respondent No.1, this enhanced limit is never a loan against the property; but only against Stocks and Book Debts. Learned counsel appearing for respondent No.1 has submitted that respondent No.1 is a bonafide legal owner of the suit property by means of registered will made in his favour by his father-Sarabjit Prakash dated 29.09.2006 who had the legal title in his name by way of registered sale deed executed by his wife Usha Prakash in exercise of the power vested in her through the registered Power of Attorney dated 03.01.2002 given to her by her mother Niamat Sahni and thus, respondent No.1 claims title over the suit property No.68, Friends Colony (West), First Floor, New Delhi. The question regarding the correctness of the sale deed executed by Usha Prakash – mother of respondent No.1 in favour of Sarabjit Prakash and the dispute raised regarding the title of the property could be determined only in the suit after parties adduced oral and documentary evidence. 24. The short point falling for consideration is whether respondent No.1 is to be proceeded for contempt and whether the learned Single Judge was right in directing the deposit of first respondents passport. Of course, on 15.07.2013, Sarabjit Prakash and respondent No.1 filed an undertaking that they shall clear dues of Bank of India and the suit property shall be cleared of all charges/encumbrances within a period of four months and that they shall make arrangement of the loan amount to be paid to the Bank of India from other moveable and immoveable properties. Subsequently also, Sarabjit Prakash and respondent No.1 filed an undertaking before the Court. Having filed the undertaking, it was required of the first respondent to keep up to his undertaking filed before the Court. On behalf of respondent No.1, learned counsel submitted that respondent No.1 was making genuine efforts to pay the amount to the Bank and clear the charge on the property; but due to unavoidable circumstances, they could not clear the charge over the suit property. As pointed out earlier, Sarabjit Prakash was suffering from illness and passed away within one week after the order was passed on 20.10.2015. 25. Since repeated undertakings were filed and the same were not complied with, learned Single Judge directed respondent No.1 to surrender his passport. The said order was passed to ensure the presence of the first respondent and compliance of the order of the Court. It cannot be said that the learned Single Judge exceeded the jurisdiction or committed an error in ordering surrender of the passport. In order to ensure the presence of the parties in the contempt proceedings, the Court is empowered to pass appropriate orders including the surrender of passport. While dealing with child custody matter, in David Jude vs. Hannah Grace Jude and Another (2003) 10 SCC 767 , the Supreme Court directed Union of India to cancel the passport of contemnor No.1 and to take necessary steps to secure the presence of contemnor No.1 with the child in India and to ensure her appearance before the Court on the date of hearing. 26. It is pointed out that the Division Bench proceeded as if the learned Single Judge has ordered impounding of the passport of respondent No.1; whereas, the learned Single Judge has only directed respondent No.1 to deposit his passport in the Court. As discussed earlier, the purpose of directing respondent No.1 to surrender his passport was only to ensure the presence of respondent No.1 who was filing repeated undertakings before the Court but was not complying with the same. In our view, the Division Bench was not right in setting aside the order of the learned Single Judge in directing respondent No.1 to deposit his passport before the Court and the judgment of the Division Bench cannot be sustained. In order to ensure the presence of respondent No.1 and to ensure further progress of the trial, the order of the learned Single Judge directing respondent No.1 to deposit his passport before the Court stands confirmed. 27. On behalf of the appellant, it is stated that in view of the order of the Division Bench, the contempt petition has been disposed of by the learned Single Judge on 04.12.2018 and prayed for restoration of the contempt petition. Since the suit is of the year 2008 and much of the courts time has been spent on the interim orders and on the contempt petition, we are not inclined to issue direction for restoration of the contempt petition. Since, the suit is of the year 2008 and the trial has already commenced and the matter is said to have been pending for cross-examination of the defendants witnesses, it is suffice to direct early expeditious disposal of the suit at the same time, ensuring that respondent No.1 will be available at the stage when the suit is disposed and in case he suffers an adverse decree.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Of course, on 15.07.2013, Sarabjit Prakash and respondent No.1 filed an undertaking that they shall clear dues of Bank of India and the suit property shall be cleared of all charges/encumbrances within a period of four months and that they shall make arrangement of the loan amount to be paid to the Bank of India from other moveable and immoveable properties. Subsequently also, Sarabjit Prakash and respondent No.1 filed an undertaking before the Court. Having filed the undertaking, it was required of the first respondent to keep up to his undertaking filed before the CourtAs pointed out earlier, Sarabjit Prakash was suffering from illness and passed away within one week after the order was passed on 20.10.201525. Since repeated undertakings were filed and the same were not complied with, learned Single Judge directed respondent No.1 to surrender his passport. The said order was passed to ensure the presence of the first respondent and compliance of the order of the Court. It cannot be said that the learned Single Judge exceeded the jurisdiction or committed an error in ordering surrender of the passport. In order to ensure the presence of the parties in the contempt proceedings, the Court is empowered to pass appropriate orders including the surrender of passport. While dealing with child custody matter, in David Jude vs. Hannah Grace Jude and Another (2003) 10 SCC 767 , the Supreme Court directed Union of India to cancel the passport of contemnor No.1 and to take necessary steps to secure the presence of contemnor No.1 with the child in India and to ensure her appearance before the Court on the date of hearing26. It is pointed out that the Division Bench proceeded as if the learned Single Judge has ordered impounding of the passport of respondent No.1; whereas, the learned Single Judge has only directed respondent No.1 to deposit his passport in the Court. As discussed earlier, the purpose of directing respondent No.1 to surrender his passport was only to ensure the presence of respondent No.1 who was filing repeated undertakings before the Court but was not complying with the same. In our view, the Division Bench was not right in setting aside the order of the learned Single Judge in directing respondent No.1 to deposit his passport before the Court and the judgment of the Division Bench cannot be sustained. In order to ensure the presence of respondent No.1 and to ensure further progress of the trial, the order of the learned Single Judge directing respondent No.1 to deposit his passport before the Court stands confirmedwe are not inclined to issue direction for restoration of the contempt petition. Since, the suit is of the year 2008 and the trial has already commenced and the matter is said to have been pending for cross-examination of the defendants witnesses, it is suffice to direct early expeditious disposal of the suit at the same time, ensuring that respondent No.1 will be available at the stage when the suit is disposed and in case he suffers an adverse decree