Delhi High Court
Yashaswi Aggarwal And Anr. vs Sh. Rakesh Aggarwal And Ors. on 4 August, 2014
Author: G.P. Mittal
Bench: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 4th August, 2014
+ I.A. No. 22682/ 2012 (Order XXXIX Rule 2A CPC) in CS (OS)
1561/1994
YASHASWI AGGARWAL AND ANR. ..... Plaintiffs
Through Mr. Jeevesh Nagrath, Advocate with
Mr. Rikky Gupta, Advocate and Ms.
Avsi Malik, Advocate
versus
SH. RAKESH AGGARWAL AND ORS. ..... Defendants
Through Mr. Manish Vashisht, Advocate with
Mr. Sameer Vashisht, Advocate and
Mr. Y.R. Sharma, Advocate for D-1
and D-2.
Mr. Sandeep Sindhwani, Sr. Advocate
with Mr. Deepak Sahni, Advocate for
D-8.
Mr. Ravi Gupta, Sr. Advocate with
Mr. Lalit Gupta, Advocate
for D-14.
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
1. By virtue of this order, I propose to dispose of the application under
Order 39 Rule 2A of the Code of Civil Procedure, 1908 (CPC) read
with Section 151 CPC preferred by the Plaintiffs (applicants) for
initiating action of contempt against Defendant No. 8, her sons
Defendants No. 4 to 7 and Defendant No. 14, Caravan Commercial
Company Ltd. for violating the order dated 24.11.2009.
2. A suit for partition in respect of property bearing no. 42-44, Sunder
Nagar, New Delhi was preferred by the minor Plaintiffs, through their
IA No.22682/2012 in CS(OS) No.1561/1994 Page 1 of 11
next friend Mrs. Asha Aggarwal. Along with the suit, an application
I.A. No. 4108/ 1997 under Order 39 Rules 1 & 2 CPC read with
Section 151 CPC was also filed by the Plaintiffs for restraining the
Defendants from transferring, alienating, encumbering or disturbing
the status quo of the property as it was existing on the date of filing of
the suit and the application. By an order dated 07.05.1997, the parties
(to the suit) were directed to maintain status quo in respect of the
property bearing no. 42-44, Sunder Nagar, New Delhi.
3. I.A. No. 4696/ 2005 was preferred by Defendant No. 12 for
modification of the order dated 07.05.1997. The order was modified
by the Court by an order dated 16.09.2005. Since this order will be
relevant for reference a little later, the same is extracted hereunder:
"The counsel for the Plaintiffs states that his clients will
have no objection in case the Defendant No. 12 exercises his
rights and deals with his undivided share without parting
with the possession of any portion of the property.
In view of the statement made by the counsel for the
plaintiffs, the order dated 07.05.1997 is modified to the
extent that the status quo will be maintained in respect of
possession of the parties to property no. 42-44, Sunder
Nagar, New Delhi. However, Defendant No. 12 shall be
entitled to exercise his rights and deal with his undivided
share in the property."
4. It is the case of the Plaintiffs (applicants) that thereafter I.A. No. 3084/
2006 was filed by Defendants No. 9 to 11 and 13 for vacation of the
status quo order dated 07.05.1997. The said application was dismissed
by this Court by an order dated 22.08.2007. Thereafter, another
application I.A. No. 12948/ 2008 was preferred by Defendant No. 8
IA No.22682/2012 in CS(OS) No.1561/1994 Page 2 of 11
under Order 39 Rule 4 CPC for discharging the status quo order dated
07.05.1997. The application came to be disposed of by an order dated
24.11.2009, whereby Defendant No. 8 was also permitted to deal with
her undivided 1/3rd share in the property. It is this order which is
alleged to have been violated by Defendant No.8, her sons Defendants
No. 4 to 7 and Defendant No.14, Caravan Commercial Company Ltd.
Therefore, it will be apposite to extract the order dated 24.11.2009
hereunder for ready reference:
"This application has been made under Order 39 Rule 4
CPC on behalf of Defendant No. 8 with a prayer that the
court should modify the status quo order dated 7th May,
1997 which was earlier modified on 16th September, 2005.
It is submitted by learned counsel for Defendant No.8
that Defendant No.8 was entitled to undivided 1/3rd share in
the property. This court vide order dated 16th September,
2005 had given liberty to Defendant No. 12, who was
similarly placed that Defendant No.12 shall be entitled to
exercise his rights and deal with his undivided share in his
property. He states that Defendant No. 8 is also entitled for
the same liberty.
Learned counsel for the plaintiffs states that as far as
Defendant No. 8 is concerned, her 1/3rd share in the
property is not disputed and counsel for the plaintiffs has
no objection in case the similar order as in respect of
Defendant No.12 has been passed is also passed in favour
of Defendant No.8.
In view of this submission, the application for
modifying the status quo order dated 16th September, 2005
is allowed and it is observed that Defendant No. 8 shall be
entitled to exercise her rights and deal with her undivided
1/3rd share in the property.
The application stands disposed of."
IA No.22682/2012 in CS(OS) No.1561/1994 Page 3 of 11
5. The Plaintiffs grievance is that a bare reading of the orders dated
16.09.2005 and 24.11.2009 will make it abundantly clear that though
Defendants No. 8 and 12 were given liberty to deal with their
undivided share in the suit property, but there was an absolute
restriction so far as transfer of property and possession was concerned
and the status quo order dated 07.05.1997 in respect of possession of
the suit property was never varied. It is averred that the order dated
24.11.2009 was passed in presence of the counsel for Defendant No.
14, who had been impleaded as a Defendant in the suit. It is stated that
Smt. Pushpa Devi and her sons, i.e. Defendant No. 8 and Defendants
No. 4 to 7 were residing on the ground floor of the suit property. At
the time of entering into an Agreement to Sell, they (Defendants No. 4
to 8) parted with possession of the ground floor of the suit property in
favour of Defendant No. 14, which was in violation of the status quo
order dated 07.05.1997 read with orders dated 16.09.2005 and
24.11.2009. The Plaintiffs, thus, pray for punishing Defendants No. 4
to 8 and Defendant No. 14 with the following prayers:
"a) Initiate action against Defendant No. 8, her sons i.e.
Defendants No. 4 to 7 and Defendant No. 14, Caravan
Commercial Company Limited, through its Directors/
Principal Officers under Order 39 Rule 2A CPC by
ordering the detention of Defendants No. 4 to 8 and
Directors/ Principal Officers of Defendant No. 14 in
Civil Prison.
b) Attach the ground floor of the suit property bearing
no. 42-44, Sunder Nagar, New Delhi.
c) Pass such other and appropriate orders as this
Hon'ble Court deems fit and proper in the facts and
circumstances of the case."
IA No.22682/2012 in CS(OS) No.1561/1994 Page 4 of 11
6. Replies and rejoinders to the application have been filed by the
Defendants and the Plaintiffs respectively. It has not been disputed by
Defendant No. 8 as also by Defendant No. 14 that vacant and peaceful
possession of the ground floor of the property bearing no. 42-44,
Sunder Nagar, New Delhi has been handed over to Defendant No. 14.
Para 3 (on page 12 of the Agreement to Sell) specifically records that
vacant and physical possession of the ground floor and constructed
areas of the super structures have been offered by the vendor which
includes Defendants No. 4 to 8 and has been occupied by the vendee
i.e. Defendant No. 14.
7. It may be mentioned that Defendants No.4 to 7 have been impleaded
as a party to this contempt application as they were the confirming
parties to the Agreement to Sell dated 15.11.1991. A perusal of record
shows that Defendants No.4 to 7 were ordered to be proceeded ex
parte in the main suit. Initially, Mr. Deepak Sahni, Advocate
appeared on behalf of Defendants No.4 to 7 in addition to Defendant
No.8 on 28.02.2013. However, on the next date, Mr. Deepak Sahni,
Advocate appeared only on behalf of Defendant No.8. A letter was
also placed on record that Mr. Deepak Sahni, Advocate had been
representing only Defendant No.8 and, therefore, the court notice of
the application could not have been served upon him on behalf of
Defendants No.4 to 7. The counsel for the Plaintiffs sought time to
file fresh address of Defendants No.4 to 7, but that too was not done.
Since Defendants No.4 to 7 were not served with the notice of this
application and since Defendant No.8 was the vendor, this application
cannot proceed against Defendants No.4 to 7.
IA No.22682/2012 in CS(OS) No.1561/1994 Page 5 of 11
8. The short question for disposal of the application under Order 39 Rule
2A CPC is whether there is disobedience of the status quo order dated
07.05.1997, which was subsequently modified by an order dated
24.11.2009?
9. I have heard Mr. Jeevesh Nagrath, Advocate for the Plaintiffs
(applicants) and Mr. Sandeep Sindhwani, learned Sr. Counsel for
Defendant (Respondent) No.8 and Mr. Ravi Gupta, learned Sr.
Counsel for Defendant (Respondent) No.14. The learned Sr. Counsel for Defendant No.8 and Defendant No.14 have vehemently argued that although the entitlement of the Plaintiffs in respect of 1/3 rd share in property no. 42-44, Sunder Nagar is in dispute, but even if the case of the Plaintiffs is accepted as it is, they (Plaintiffs and Defendants No. 1 to 3) were entitled only to 1/3rd share in the property bearing no. 42- 44, Sunder Nagar. They were in possession of the entire first floor which was approximately 50% of the built-up area in these properties. Thus, the undivided shares of the Plaintiffs and Defendants No. 1 to 3 would be much less than the entire area of the first floor and thus, if possession of the ground floor of the suit property was transferred by Defendants No. 4 to 8 in favour of Defendant No. 14, there cannot be any violation of the status quo order dated 07.05.1997, modified by subsequent order dated 24.11.2009 as the Plaintiffs will be entitled to seek their share out of only 1/3rd share of the properties. The learned Sr. Counsel for the Defendants urge that although there was specific mention to maintain status quo with regard to possession and transfer of the properties by the parties in the order dated 07.05.1997 while permission was granted to Defendant No. 12 to deal with his share, there was no such restriction imposed on Defendant No. 8 while her IA No.22682/2012 in CS(OS) No.1561/1994 Page 6 of 11 application for discharge of the status quo order was disposed of by the order dated 24.11.2009.
10. The three co-owners, i.e. Defendants No. 3, 8 and 9 had entered into an Agreement to Sell on 15.11.1991 with Defendant No. 14 for a sum of Rs. 1.90 crores and Rs. 30 lakhs was paid to the co-owners through cheque as part payment. Thereafter, another registered Agreement to Sell dated 16.11.1992 was executed by all the co-owners in favour of Defendant No. 14 and they received a further sum of Rs. 36 lakhs by cheques. It is urged that these agreements and the payments are not in dispute. It is urged that Defendant No. 14 also instituted a suit for specific performance of contract against Defendants No. 3, 8 and 9 being CS (OS) 2443/ 1993 in which an order of status quo dated 27.10.1993 was passed. Upon tenants vacating the suit property, despite status quo, Plaintiffs and Defendants No. 1, 3 and 8 occupied separate portions of the suit property. Local Commissioner appointed by the Court gave report dated 18.04.1994 that the Plaintiffs and Defendants No. 1 to 3 were in possession of the entire first floor, whereas Defendant No. 8 was in possession of the entire ground floor. It is urged that CCP 70/ 1994 filed by Defendant No. 14 in CS (OS) 2443/ 1993 is pending adjudication. It is the case of Defendant No. 14 that in order to frustrate the decree of specific performance to be passed in favour of Defendant No. 14, Defendant No. 3, through her grandsons, instituted the present suit on the frivolous plea of HUF Funds/ coparcenaries without filing even a single document. It is urged that after 20 years of litigation, Defendants No. 8, 9 to 13 and Defendant No. 14 amicably settled their disputes which was intimated to this Court on 02.06.2011 in CS (OS) 2443/ 1993. The prayer of the IA No.22682/2012 in CS(OS) No.1561/1994 Page 7 of 11 Plaintiffs in that suit for possession was not granted. Defendant No. 14 had already undertaken not to create any third party interest. It is stated that no violation of any order was ever done by Defendant No.
14. The learned Sr. Counsel for Defendant No. 8 and Defendant No. 14 urge that when an order is ambiguous and is reasonably capable of more than one interpretation, proceedings for contempt would not be maintainable. In support of their contention, the learned Sr. Counsel for Defendant No. 14 placed reliance on Tamilnad Merchantile Bank Shareholders Welfare Association v. Tamilnad Merchantile Bank Ltd., (2008)15 SCC 529 and Sushila Raje Holkar v. Anil Kak, (2008) 14 SCC 392. It is urged that the main suit of the Plaintiffs is not maintainable and the application under Order 7 Rule 11 CPC preferred by Defendant No. 14 is pending which could not be heard and therefore also, Defendant No. 14 cannot be held guilty of contempt. Learned Sr. Counsel for Defendants No. 8 in support of his proposition has placed reliance on K.K. Puri v. M.K. Industries, 1997(40) DRJ 797.
11. It may be mentioned that subsequently, another application on mentioning was moved on behalf of the Defendant No. 14 for addressing further arguments urging that Defendant No. 14 in the absence of fair and sufficient opportunity would be prejudiced. The application I.A. No. 13644/ 2014 was dismissed by the Court with the observation that full opportunity was granted to Mr. Ravi Gupta, Senior Advocate, who not only addressed oral arguments, but was also permitted to place on record written submissions in the afternoon which were subsequently filed and placed on record.
IA No.22682/2012 in CS(OS) No.1561/1994 Page 8 of 1112. There is no dispute about the proposition of law as has been urged by the learned Sr. Counsel for Defendants No. 4 to 8 and Defendant No. 14 that when an order of the Court is ambiguous and is reasonably capable of more than one interpretation, proceedings for contempt should not be entertained. Can it be said that the order dated 07.05.1997 read with subsequent orders dated 16.09.2005 and 24.11.2009 was capable of two interpretations? The learned Sr. Counsel for Defendants No. 8 and Defendant No. 14 have stressed that there is no specific mention in the order dated 24.11.2009 that Defendant No. 8 will not be entitled to transfer possession of the suit property while dealing with the property and thus, even if order dated 16.09.2005 is taken into consideration, at the most, it will show that the order dated 24.11.2009 was capable of two interpretations and thus, no action of contempt can be taken against Defendants No. 8 and
14.
13. I have already extracted earlier the orders dated 16.09.2005 and 24.11.2009. Order dated 16.09.2005 categorically records no objection of the Plaintiffs in respect of the right of Defendant No. 12 to deal with his undivided share without parting with the possession of any portion of the property. The order dated 07.05.1997 was modified by order dated 16.09.2005 to the extent that Defendant No. 12 may deal in his share but status quo was to be maintained in respect of possession of property bearing no. 42-44, Sunder Nagar by the parties. By a subsequent application I.A. No. 12948/ 2008, Defendant No. 8 wanted discharge of the status quo order dated 07.05.1997, which was granted to Defendant No. 8 recording that 1/3rd share of Defendant No. 8 is not disputed and the counsel for the Plaintiffs has no objection in IA No.22682/2012 in CS(OS) No.1561/1994 Page 9 of 11 case the order as passed in respect of Defendant No. 12 is passed in respect of Defendant No. 8. Thus, everybody was aware that concession which had been given to Defendant No. 8 was similar to the one granted to Defendant No. 12 by the order dated 16.09.2005. Hence, the contention raised on behalf of Defendant No. 8 and Defendant No. 14 that the order dated 24.11.2009 with regard to dealing with the property with or without possession was ambiguous and capable of two interpretations is unfounded. It may be mentioned that in the proceedings under Order 39 Rule 2A CPC, the Court is simply to see whether there is disobedience of the order passed by the Court. It is not permissible for the Court to examine the correctness of the earlier decision which is stated to be violated. (See State of Bihar & Ors. v. Rajendra Singh & Anr., AIR 2004 SC 4419 and Union of India & Ors. v. Subedar Devassy PV, AIR 2006 SC 909). The judgments in Tamilnad Merchantile Bank and Sushila Raje Holkar (supra) and K.K. Puri (supra) relied upon by the learned Sr. Counsel for Defendant No. 14 and Defendant No. 8 will not come to the rescue of the Defendants as there was no ambiguity in the order. The contention that Defendant No. 8 was in possession of only ground floor of which possession was delivered to Defendant No. 14 and the Plaintiffs and Defendants No. 1 to 3 were in possession of more than 1/3rd share in the property and thus, there will not be any contempt is noted to be rejected for two reasons. First, as stated earlier, the order as modified by the subsequent orders was clear that possession of the property is not to be disturbed. Second, even if it is assumed that Plaintiffs and Defendants No. 1 to 3 were in possession of about 50% of the built-up portion, Defendant No. 8 was also in possession of the IA No.22682/2012 in CS(OS) No.1561/1994 Page 10 of 11 entire ground floor which must be more than 1/3 rd share of Defendant No. 8. Thus, even if Defendant No. 8 had been permitted to part with the possession of the 1/3rd portion of the property belonging to him (though it was not done), she could not have delivered the possession of entire ground floor to Defendant No. 14 which as per own showing of Defendant No. 8 about 50% of the property.
14. Thus, I have no hesitation to hold that Defendant No. 8 and Defendant No. 14 have disobeyed the status quo order dated 07.05.1997, subsequently modified by orders dated 16.09.2005 and 24.11.2009. They are guilty of committing contempt of court under Order 39 Rule 2A CPC. In order to purge themselves of contempt, Defendant No. 14 is directed to deliver vacant possession of the entire ground floor as received by it from Defendant No. 8 by virtue of Agreement to Sell dated 25.05.2011 within 8 weeks; similarly, Defendant No. 8 is directed to obtain physical possession of the entire ground floor delivered by her to Defendant No. 14 by earlier said agreement within 8 weeks. The matter of awarding punishment will be dependent on the compliance of this order.
15. List for compliance on 15.10.2014.
(G.P. MITTAL) JUDGE AUGUST 04, 2014 pst IA No.22682/2012 in CS(OS) No.1561/1994 Page 11 of 11