The Azad Nagar Co-Op Hsg Soc Ltd vs East West Developers And 31 Ors

Santosh

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION (L) NO. 174 OF 2019 IN CONTEMPT PETITION (L) NO. 38 OF 2017 IN NOTICE OF MOTION (L) NO. 553 OF 2015 IN SUIT NO. 2160 OF 2009

The Azad Nagar Co.op. Hsg. Soc. Ltd. ...Petitioner Versus East & West Developers & ors. ...Respondents

Mr. Karl Tamboly, a/w Gaurav Jangle, Dimple Merchant, i/b I. V. Merchant & Co., for the Petitioner. Mr. Nilesh Ojha, a/w Abhishek Mishra, Manasi Jain, Mangesh Dongre, i/b Tamsin Monis, for Respondent no.1. Mr. Nimay Dave, a/w Bhavik Lallan, Shrinivas Bobde, i/b HK Law Asso., for Respondent nos.3, 4, 6, 7, 9 to 29. Mr. Feroz Abdurrahim Shaikh, for Respondent nos.5 and 8. Mr. D. S. Shingade, a/w Sagar Patil, for the MCGM.

CORAM: N. J. JAMADAR, J.

DATED : 23rd JANUARY, 2020 PC:-

1. Heard the learned Counsels for the parties.

2. On 21st January, 2020, this Court had passed the

following order:

"7. Today, the learned counsel for respondent no.1 makes a statement that she has no instructions.

8. In the circumstances, there is no other go but to seek the presence of Mrs. Saranga Agarwal, Proprietrix of respondent no.1 and Mr. Anubhav Agarwal and Mr. Gokul Agarwal, her constituted attorneys, at whose instances and in whose presence the orders breach of which is alleged, have been passed.

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9. Mrs. Saranga Agarwal, Mr. Anubhav Agarwal and Mr. Gokul Agarwal shall remain present before the Court on 23 rd January, 2020."

3. An order was passed by this Court on 9th December, 2019.

Paragraphs 2 to 5 of the said order read as under:

"2. The learned counsel for respondent no.1 states that respondent no.1 is desirous of complying with the order passed by this Court in letter and spirit.

3. As regards the order passed by this Court, on 2 nd May, 2019, the learned counsel invited the attention of this Court to the averments made in para nos.11 and 12 of the affdavit-in-reply to the effect that payment of around 145 members of the society could not be deposited on account of some discrepancies in the bank account details. The learned counsel further submits that respondent no.1 is also desirous of making payment of the transit for the subsequent period as well.

4. The respondent No.1 shall deposit amount which according to him is due to the tenants, within a period of two weeks from today, in this Court, without prejudice to the rights and contentions of the parties.

5. It is hereby made clear that the dispute regarding the ineligibility to receive the transit rent cannot be pressed into service while making the said deposit."

4. Since there was non-compliance of the order dated 9 th

December, 2019, initially by an order dated 6 th January, 2020,

at the request of the learned Counsel for the respondent, one

week's accommodation was granted. The learned Counsel for

Respondent no.1 sought further time, which was declined by

order dated 15th January, 2020.

5. Today, Mr. Ojha, the learned Counsel for respondent no.1

states that the Court could not have directed the presence of

respondent no.1 and its constituted attorneys, without a notice

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for contempt having been issued in accordance with the

provisions contained in Rule 1036 of the Contempt of Court

(Bombay High Court) Rule, 1994.

6. The circumstances in which the order was passed, were

adverted to in paragraphs 2 and 7 of the order dated 21 st

January, 2020. The learned Counsel for respondent no.1 had

submitted that she had no instructions and was not in a

position to make any statement. None was present on behalf of

respondent no.1. In the circumstances, the Court was

constrained to direct the presence of respondent no.1 and its

constituted attorneys.

7. Since a grievance is made, regarding the direction for

personal presence of the respondents to the contempt petition,

though this Court had briefy noted, in the above referred

orders, the persistent default on the part of respondent no.1 to

pay the amount of the transit rent, and, admittedly, the amount

which is due even as per the assessment of respondent no.1 has

not been deposited, despite a statement having been made

before this Court, it may be necessary now to note the orders, of

which the contempt is alleged. The frst order was passed on

20th March, 2019. The observations in paragraph 21 indicate

the repeated non-compliance of the promises and the

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observed that, "the alternative is to immediately make an order

in contempt". Paragraph 21 reads thus:

"21. Dr. Saraf is correct in pointing out that this course of action and eventuality is provided to the developer in lieu of a more stringent punishment sough by the Petitioners for contempt. The default being admitted, and that being disobedience of an order of this Court, or breach of an undertaking to this Court, the consequences must follow. Therefore, in his submission, making a further default provision is an indulgence the developer has not earned and does not deserve. Consequently, it is only fair, in his submission, that the developer accept this condition so that he does not impugn it later. As an offcer of the Court Mr. Bulsara agrees that a default provision must be made, and that a provision of the kind mentioned above is not unreasonbale. Mr. Agrawal is present when this order dictated, and he does not instruct Mr. Bulsara to voice any opposition. Mr. Agrawal's assurances, conveyed through Mr. Bulsara again and again in the past, have not been kept. He knows this. He knows that a promise without a consequence is a promise meant to be broken. He knows I will no longer accept mere promises, and that he and all his partners are not imminently at risk of an adverse order against them personally. The alternative is to immediately make an order in contempt. Hence, for himself and on behalf of his frm, he agrees to this provision. His assurance of no-more-defaults is an undertaking to the Court, with everything that this implies."

8. A further order followed on 2nd May, 2019. Paragraph 7 of

the said order reads as under:

"7. As regards the event of default set out in paragraphs 16 and 19 of the 20 th March 2019 order, having regard to the intervening events, the changes of Advocates, the fresh Chamber Summons fled by some and other factors, I will not for the present treat the delayed payment by East & West Developers as a default, and will hold the provisions of those two paragraphs of the 20th March 2019 order in abeyance for the present. This is of course on the footing that there will not be further defaults. This is also on the basis that payment as agreed by Mr. Balsara is made by tomorrow, 3 rd May 2019."

9. In the backdrop of the aforesaid orders, the non-

compliance of which is further accentuated by the breach of the

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order passed by this Court on 9 th December, 2019, wherein a

statement was made on behalf of respondent no.1 that

respondent no.1 will deposit the amount which according to

respondent no.1 is due to the tenants, without prejudice the

rights and contentions of the parties, a case for initiating action

for contempt of the orders passed by this Court is prima facie

made out.

10. Thus, issue notice to respondent no.1 through its

proprietrex Mrs. Saranga Agarwal and her constituted attorneys

Mr. Anubhav Agarwal and Mr. Gokul Agarwal under Rule 1036

of the Contempt of Court Act (Bombay High Court) Rules, 1994,

returnable on 13th February, 2020.

[N. J. JAMADAR, J.]

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