Calcutta High Court
Amit Dhandhania vs Neeraj Khanna on 16 October, 2023
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION (CONTEMPT)
ORIGINAL SIDE
Present :
Hon'ble Justice Moushumi Bhattacharya
CC 11 of 2023
In the Goods of:
Anirudh Chamria (Dec)
Amit Dhandhania
vs
Neeraj Khanna
For the petitioner : Mr. Sarvapriya Mukherjee, Adv.
Mr. Nikunj Berlia, Adv.
Mr. Rohit Banerjee, Adv.
Mr. Shoham Sanyal, Adv.
Mr. Subhomoy Patra, Adv.
For the respondent : Mr. Rishad Medora, Adv.
Mr. Dipankar Das, Adv.
Mr. Saptarshi Biswas, Adv.
Last heard on : 03.10.2023
Delivered on : 16.10.2023
Moushumi Bhattacharya, J.
1. The petitioner alleges contumacious violation of an order passed by this Court on 16.2.2022. By the said order, the alleged contemnor was directed to 2 maintain the state of affairs as existed on 1.7.2021 which was an interim order passed by this Court. The alleged contemnor was hence directed to keep any amounts received from sale or alienation of the concerned properties (Mussoorie properties) with the Registrar Original Side, of this Court and the amounts were to be deposited within a week from the date of the order. The alleged contemnor was also restrained from taking any further steps with regard to the properties which form the subject matter of the proceedings in the order dated 1.7.2021.
2. A brief background to the first order is necessary since the second order flows from and finds its base in the order dated 1.7.2021.
3. The petitioner filed PLA 88 of 2021 along with GA 1 of 2021 as the executor to the last Will and Testament of one Mr. Anirudh Chamria. The petitioner prayed for urgent orders in view of certain facts presented to the Court. The properties left behind by the deceased were located both at Kolkata and in Mussoorie, Uttarakhand. The sale-deed of the properties located at Uttarakhand named Shri Neeraj Khanna, alleged contemnor herein, as the vendor. The sale-deed also showed that Neeraj Khanna had relied on the Will dated 14.3.2018 which was prior to the Will dated 14.12.2019, which was the subject matter of the probate proceedings pending before the Court.
4. Upon hearing the respective contentions of the parties the Court passed an interim order for preservation of the properties which form the subject matter of the Will dated 14.12.2019 in PLA 88 of 2021. The alleged 3 contemnor/Neeraj Khanna was accordingly restrained from selling or alienating the Mussoorie and Salt Lake Properties of the deceased.
5. The order in contempt, i.e. 16.2.2022, was passed on the petitioner coming to the Court showing that the alleged contemnor / Neeraj Khanna had alienated some properties after 1.7.2021. This was also admitted by the alleged contemnor that properties had been alienated between 1.7.2021 - 9.7.2021. The alleged contemnor however submitted that he had only received a sum of Rs. 1,00,000/-. The Court hence directed the alleged contemnor to deposit any amounts received by him from sale or alienation of the Mussoorie properties with the Registrar, Original Side, of this Court.
6. The petitioner has placed extensive material to show that the alleged contemnor has received amounts in excess of Rs. 1,00,000/- from the sale / alienation of properties after 1.7.2021. The alleged contemnor, on the other hand, has refuted the charges and urged that the alleged contemnor has only received Rs. 1,00,000/- and that too as an advance from the sale of the Mussoorie properties after 1.7.2021.
7. The fact of the respondent / alleged contemnor being in willful disobedience of the order dated 16.2.2022 would be evident from the material disclosed to this court, particulars of which are summarised below:
a. The sale-deed dated 5.7.2021 admittedly executed between the alleged contemnor and one Subha Sen Roy records that Rs. 17,00,000/- has been paid by the purchaser Subha Sen Roy to the 4 seller / alleged contemnor. The words "purchaser" and "seller" have been used for Subha Sen Roy and the alleged contemnor respectively in the sale-deed. Not only that, the specific cheque numbers of HDFC Bank has also been mentioned in the sale-deed. Cheques are dated 1.9.2021 and 1.12.2021. Stamp duty has been paid in respect of the sale-deed and the possession of the land is presently with the purchaser Subha Sen Roy.
b. The sale-deed dated 6.7.2021 was executed between the alleged contemnor as the "seller" and Mussoorie Eco Park LLP as the "purchaser". The deed of conveyance records the receipt of payment of Rs. 71,70,000/- which was made over to the alleged contemnor by way of three cheques of 1.9.2021, 1.12.2021 and 1.2.2022. The fact of TDS having been paid in respect of the transaction is also part of the sale-deed. Stamp duty has also been paid in respect of the sale-deed and possession of the land is with the purchaser, Mussoorie Eco Park LLP, at present.
8. Although, the alleged contemnor insists that the alleged contemnor has not received any money save and except Rs. 1,00,000/-, this knowledge is a special fact within the knowledge of the alleged contemnor alone and hence the alleged contemnor must discharge the burden to prove the same; Sections 106 and 114(c) of the Indian Evidence Act, 1872.
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9. The contradictory statements made by the alleged contemnor as contained in the pleadings would also cast a shadow of suspicion on the stand taken by the alleged contemnor. In the affidavit-in-opposition affirmed by the alleged contemnor on 5.6.2023, the alleged contemnor says that the payment of Rs. 1,00,000/- was received as an advance which was subsequently deposited with the Registrar, Original Side of this Court on 21.2.2022. However, the alleged contemnor, in his opposition to GA 3 of 2021 pleads that he has received a sum of Rs. 1,00,000/- as an advance with regard to an agreement of sale dated 6.7.2021. This affidavit was affirmed by the alleged contemnor in March, 2022.
10. The supplementary affidavit affirmed by the alleged contemnor on 24.7.2023 pursuant to the leave granted by the Court on 7.7.2023, further discloses the following facts;
i) Two letters from two purchasers, namely, Mussoorie Eco Park LLP and Subha Sen Roy on 10 and 12 July, 2023 stating that the purchasers have paid Rs. 50,000/-, by RTGS and by cheque to the alleged contemnor. Mussoorie Eco Park LLP states that the payment was made by "three undated blank cheques" which have been issued to the alleged contemnor. This fact however is directly contradictory to the sale-deed dated 6.7.2021 which specifies payment by way of three cheques bearing dates of 1.9.2021, 1.12.2021 and 1.2.2022 amounting to a payment of Rs.
671,70,000/-. Hence, the "three dated cheques" specifically recorded in the sale-deed executed between the alleged contemnor and Mussoorie Eco Park on 6.7.2021 is patently inconsistent with the statements made in the supplementary affidavit filed by the alleged contemnor.
ii) The alleged contemnor has further stated in the supplementary affidavit affirmed by him on 24.7.2023 that the alleged contemnor does not have and / or is not operating any other bank account apart from those mentioned in paragraph 5 of the said supplementary affidavit. The alleged contemnor has annexed accounts of 5 different banks to corroborate the aforesaid stand and to say that the alleged contemnor has not received any consideration value from the two sale-deeds. This would hence be in direct contradiction to the two sale-deeds which specifically record payments received by the alleged contemnor amounting to Rs. 88,77,000/-
iii) The bank's statements disclosed however do not show receipt of Rs. 50,000/- from the two purchasers between 1.7.2021 - 9.7.2021.
iv) The fact of the alleged contemnor having at least three other bank accounts which were not mentioned in paragraph 5 of the alleged contemnor's supplementary affidavit would be evident from a 7 table enclosed in the petitioner's affidavit-in-opposition to the alleged contemnor's supplementary affidavit showing three other bank accounts maintained by the alleged contemnor in Indian Bank, Ultadanga Branch, Kolkata.
v) Even more revealing is the fact of both the purchasers being closely linked to the alleged contemnor. The majority partnership of Mussoorie Eco Park LLP is with the alleged contemnor's wife. Subha Sen Roy, the other purchaser, is a partner in Mussoorie Eco Park. The sale-deeds were hence executed between closely held family and business entities.
11. The above facts would establish that the alleged contemnor is not only in contumacious violation of the order dated 16.2.2022 by which the alleged contemnor was directed to deposit the amounts received by the alleged contemnor from sale / alienation of the Mussoorie Properties with the Registrar, Original Side of this Court within a certain time frame, but has also suppressed material facts which should have been disclosed in good faith before this Court.
12. The conduct of the alleged contemnor leads to an adverse presumption against the alleged contemnor also by reason of the fact that the alleged contemnor has failed to discharge the burden placed upon him to disprove the facts disclosed by the petitioner. Moreover, the alleged contemnor's stand was that Rs. 1,00,000/- was received as an advance for the agreements for sale. 8 The alleged contemnor has also failed to discharge the burden of proving that the receipt of payments by specific dated cheques amounting to Rs. 88,70,000/- were not in contumacious violation of the order dated 1.7.2021.
13. Sahdeo alias Sahdeo Singh vs. State of Uttar Pradesh; (2010) 3 SCC 705 relied on by learned counsel appearing for the alleged contemnor on the proposition that the provisions of the Evidence Act and The Code of Criminal Procedure are not attracted to contempt proceedings must however be seen in context. The Supreme Court in that decision was of the aforesaid view only for the reason that the proceedings have to be concluded expeditiously and the case should not rest on surmises and conjectures. In the present case, the petitioner has come with clear evidence including facts and figures and specific sale deeds to show that the alleged contemnor has indeed received payments pursuant to the two sale-deeds after 1.7.2021. On the other hand, Hindusthan Lever Shramik Karmachari Congress vs. Ashish Chakraborty; (1991) 2 CHN 109 held that consequential directions can be passed by the Court for enforcing its orders in contempt proceedings.
14. Therefore, the alleged contemnor should be called upon to make good his offer of re-initiating the two sale transactions and depositing all the payments received from the purchasers with the Court or in the alternative to take steps for cancellation of both the Sale-Deeds / Gift-Deed executed after 1.7.2021. The concerned pleadings are in paragraph 8 of the affidavit-in-opposition affirmed by the alleged contemnor on 5.6.2023.
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15. This Court is therefore of the view that the petitioner has established a fit case whereby the alleged contemnor should be called upon to deposit the amount of Rs. 88,70,000/- as disclosed by the two Sale-Deeds, with the Registrar, Original Side of this Court within two weeks from date. The alleged contemnor shall file an affidavit of compliance with this direction on the next date which will be 17.11.2023.
16. List CC 11 of 2023 along with GA 3 of 2021 on that date. An advance copy of the affidavit of compliance should be made over to the petitioner.
Urgent photostat certified copies of this judgment, if applied for, be supplied to the parties upon fulfillment of requisite formalities.
(Moushumi Bhattacharya, J.)