Madras High Court
M/S.Pan Resorts Limited vs H.H.Marthanda Varma on 30 October, 2014
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 03.02.2011 Reheard on 28.10.2014 DATED : 30.10.2014 Coram: THE HONOURABLE MR.JUSTICE S.RAJESWARAN Cont.P.Nos.1763 to 1765 of 2007 Cont.P.No.1763 of 2007 1.M/s.Pan Resorts Limited rep. By its Director Sharath Kakumanu 2.M/s.Pioneer Technical Service (P) Limited rep. By its Director Sharath Kakumanu 3.M/s.Pioneer Textile Machinery (P) Limited rep. By its Director Sharath Kakumanu 4.M/s.Apple Advertising and Marketing (P) Limited rep. By its Director Sharath Kakumanu 5.M/s.Kakumanu Developers (P) Limited rep. By its Director Sharath Kakumanu 6.M/s.Ajay Developers (P) Limited rep. By its Director Sharath Kakumanu 7.M/s.Sudarshan Hotels (P) Limited rep. By its Director Sharath Kakumanu 8.M/s.Sarath Hotels (P) Limited rep. By its Director Sharath Kakumanu 9.M/s.Sri Murugan Hotels (P) Limited rep. By its Director Sharath Kakumanu 10.M/s.Tirumal Builders (P) Limited rep. By its Director Sharath Kakumanu 11.M/s.Sri Subbiah Engineers and Builders (P) Limited rep. By its Director Sharath Kakumanu 12.M/s.Hotel Snow White (P) Limited rep. By its Director Sharath Kakumanu 13.M/s.Velavan Hotels (P) Limited rep. By its Director Sharath Kakumanu 14.M/s.K.S. Hotels & Builders (P) Limited rep. By its Director Sharath Kakumanu 15.M/s.Leena Hotels and Builders (P) Limited rep. By its Director Sharath Kakumanu 16.M/s.Geetha Subbiah Engineers & Builders (P) Limited rep. By its Director Sharath Kakumanu 17.M/s.Hotel Temple View (P) Limited rep. By its Director Sharath Kakumanu 18.M/s.Arun Developers (P) Limited, Rep. By its Director Sarath Kakumanu 19.Kakumanu Charitable Trust, rep. By its Managing Trustee Sarath Kakumanu .. Petitioners All having their registered office at 195, (Old No.125) St.Mary's Road, Alwarpet, Chennai -18. vs. 1.H.H.Marthanda Varma 2.P.Pyarelal Jain 3.M/s.Siddharth Builders Limited, rep. By its Director S.Jeyachandran Registered office at 12, Babu Rajendraprasad II Street, West Mambalam, Chennai 33. 4.S.Jeyachandran 5.K.S.Geetha .. Respondents Prayer: Contempt Petition filed under Section 11 of Contempt of Court Act to issue notice of contempt to the respondents herein and for their wilful disobedience of the orders passed by this Court dated 25.09.2006 in A.No.219/2006 in C.S.No.158/2006 extending the interim order until 19.10.2006 and punish them in accordance with the relevant provisions of the Contempt of Court Act. For Petitioners : Mr.R.Parthasarathy for Mr.Sathish Parasaran For Respondents R1 : Mr.A.R.Karunakaran R5 : Mr.K.V.Babu Cont.P.No.1764 of 2007 Kakumanu Charitable Trust, rep. By its Managing Trustee Sarath Kakumanu 195, (Old No.125) St.Mary's Road, Alwarpet, Chennai -18. .. Petitioners vs. 1.H.H.Marthanda Varma 2.K.Venugopal 3.T.P.Mageshkumar 4.K.S.Geetha .. Respondents Prayer: Contempt Petition filed under Section 11 of Contempt of Court Act to issue notice of contempt to the respondents herein and for their wilful disobedience of the orders passed by this Court dated 25.09.2006 in A.No.228/2006 in C.S.No.160/2006 extending the interim order until 16.10.2006 and the orders dated 17.10.2006 extending the interim order until 19.10.2006 and punish them in accordance with the relevant provisions of the Contempt of Court Act. For Petitioners : Mr.R.Parthasarathy for Mr.Sathish Parasaran For Respondents R1 : Mr.A.R.Karunakaran R2 & R3 : Mr.Vijaya Narayanan Senior Counsel for Mr.R.Devaprasad R4 : Mr.K.V.Babu Cont.P.No.1765 of 2007 Kakumanu Charitable Trust, rep. By its Managing Trustee Sarath Kakumanu 195, (Old No.125) St.Mary's Road, Alwarpet, Chennai -18. .. Petitioners vs. 1.H.H.Marthanda Varma 2.K.Venugopal 3.T.P.Mageshkumar 4.K.S.Geetha .. Respondents Prayer: Contempt Petition filed under Section 11 of Contempt of Court Act to issue notice of contempt to the respondents herein and for their wilful disobedience of the orders passed by this Court dated 25.09.2006 in A.No.223/2006 in C.S.No.159/2006 extending the interim order until 16.10.2006 and the orders dated 17.10.2006 extending the interim order until 19.10.2006 and punish them in accordance with the relevant provisions of the Contempt of Court Act. For Petitioners : Mr.R.Parthasarathy for Mr.Sathish Parasaran For Respondents R1 : Mr.A.R.Karunakaran R2 & R3 : Mr.Vijaya Narayanan Senior Counsel for Mr.R.Devaprasad R4 : Mr.K.V.Babu COMMON ORDER
1.Contempt Petition No.1763 of 2007:
This contempt petition has been filed by the plaintiffs in C.S.No.158 of 2006 under Section 11 of the Contempt of Courts Act. In the affidavit filed in support of Contempt Petition No.1763 of 2007, it is stated that the deponent of the affidavit is a Director of Petitioners 1 to 18 and the Managing Trustee of the 19th petitioner.
2.It is stated that the petitioners filed C.S.No.158 of 2006 for a large number of reliefs. Along with the suit, they have filed O.A.No.219 of 2006 and O.A.No.217 of 2006 for an interim injunction. O.A.No.219 of 2006 was filed for an order of interim injunction restraining the respondents 1 to 10 from encumbering, alienating or dealing with the schedule-B mentioned property or any portion thereof other than the applicants pending disposal of the suit. O.A.No.217 of 2006 has been filed for an order of interim injunction restraining the respondents 1 to 11 from altering the physical features of the schedule B mentioned property in any manner including by demolition or constructing pending disposal of the suit.
3.It is stated that when the suit came up for hearing on 15.03.2006, this Court was pleased to order an interim injunction restraining the first respondent herein and the defendants 2 to 10 in the suit from alienating, encumbering or otherwise dealing with the suit schedule property and also pleased to grant an order of interim injunction restraining the said persons from in any manner altering the physical features of the property. The interim order granted on 15.03.2006 has been extended from time to time and on 17.10.2006, the interim order already granted was extended until 19.10.2006. However, contrary to the orders of interim injunction granted by this Court, the first respondent in this Contempt Petition proceeded to alienate his 1/9th share in the Schedule-B mentioned property through his Power of Attorney, the second respondent herein, in favour of the third respondent herein represented by the 4th respondent herein under a Deed of Sale registered as Document No.2087/2006 on 04.10.2006 on the file of Sub Registrar Office, Adyar, Chennai.
4.The 5th respondent in the Contempt Petition is none other than the sister of the deponent and she is the brain-child of the entire transactions who actively colluded with the respondents 1 to 4 herein in bringing about the sale deed in total defiance of orders of the interim injunction granted by this Court.
5.It is stated that the first respondent herein was specifically informed of the interim orders of injunction granted by this Court through Registered Post and was also given a copy of the case papers in the suit in compliance with the provisions of Order 39 Rule 3 C.P.C. However, the first respondent herein chose to remain absent in all the hearings in the suit till 19.10.2006 and on 19.10.2006, after the execution of the sale deed, he was represented by a counsel. Therefore, he cannot claim ignorance of the order of interim injunction granted by this Court.
6.The 5th respondent proceeded to forge a Power of Attorney allegedly executed by the deponent herein as well as the other directors of the petitioners 1 to 18 and and claimed herself the said power of attorney to deal with the shares of petitioners 2 to 18 herein as well as the 19th petitioner and using the said fraudulant and forged power of attorney and colluding with the respondents 1 to 4, she deliberately created the present sale deed to defeat the legitimate rights of the petitioners.
7.All of them are guilty of willful disobedience of the orders passed by this Court.
8.It is specifically stated in the affidavit that they have already filed a suit in C.S.No.799 of 2006 before this Court against the respondents 2 to 5 and others for a declaration that the power of attorney executed in favour of the 5th respondent is null and void and also for other consequential reliefs. This court was pleased to grant interim orders restraining the respondents 2 to 5 herein from acting under the power of attorney, or from interfering with the petitioners possession of the property. The said interim orders are in force even today. It has subsequently come to the knowledge of the petitioners that the 5th respondent on the strength of the forged power of attorney, executed an agreement for sale in favour of the 3rd respondent, according to which she has the power to convey the entire properties belonging to the petitioners. The 3rd respondent has filed a suit in C.S.No.812 of 2006 before this Court for a declaration that the power of attorney in favour of the 5th respondent is valid and binding on the petitioners and C.S.No.812 of 2006 is also pending.
9.It is stated that the sale deed executed by the first respondent through the second respondent in favour of the 3rd respondent who was represented by the 4th respondent as well as the agreement for sale executed by the 5th respondent are all acts, deeds and documents done and created after the interim orders passed by this Court on 15.03.2006 which have been extended from time to time and which are still in force. Thus, they are all guilty of committing contempt and hence, the petitioners filed this Contempt Petition No.1763 of 2007.
10.The 1st respondent filed a counter in Contempt Petition No.1763 of 2007. In the counter affidavit, it is stated by the 1st respondent that he has been an unfortunate victim of a fraud which led to his unintentional disobedience of the orders of this Court. While offering his unconditional apologies, he requests this Court to consider the matter leniently in the light of the accompanying facts and circumstances.
11.It is stated by the first respondent that he and his relatives own an immovable property in Adyar, Chennai, admeasuring about 4 acres. One Thiru.K.Subbaiah approached him in the year 1992 and offered to purchase the lands. Various agreements were drawn by the said Thiru.K.Subbaiah and his nominees for the purchase of only a portion of the property which is the subject matter of the suit. But the negotiations were for the sale of the entire lands. Thereafter, the said Thiru.K.Subbaiah paid them advance under the said agreement and without any reason, he and his group of nominees neglected to pay the balance sale consideration and to buy the remaining portion of the property. Right from 1993 onwards, all payments had ceased and he personally contacted Thiru.Subbaiah on several occasions and requested him to complete the transactions. Mr.Subbaiah kept on seeking for more time, but, nothing materialised. The unfortunate thing that happened was that they had conveyed undivided share to Thiru.Subbaiah's group of companies in a portion of the property located right at the front. Therefore, the balance properties have entangled in this portion and they were not able to separetely alienate the balance to any other person.
12.In the meantime, he gave up all hopes of the matter getting settled. He is 86 years of age and he lost his wife in December, 2005. He has two children and his Adyar property and its entanglement with K.Subbaiah caused him a more amount of distress. Thiru.K.Subbaiah himself passed away on 29.12.2005. After his demise, his office was taken over by his daughter Geetha, the 5th respondent herein and his son, Thiru.Sharath, who is the deponent of the affidavit filed in support of the Contempt Petition. He met Thiru.Sharath on several occasions when discussions were held with Thiru.K.Subbaiah. During these meetings, one Thiru.Rajan K.Moorthy used to accompany Thiru.K.Subbaiah and Thiru.Sharath. After the demise of Thiru.K.Subbaiah, Thiru.Rajan K.Moorthy called him over phone and stated that Thiru.Sharath was looking at a third party investor who would purchase the whole property. Later on Thiru.Sharath himself expressed the same facts to him on more than one occasion. He wanted several letters from the first respondent to be back-dated for being shown to the investors, as if he was asking for time to vacate a person who resided on a portion of the properties. The first respondent obliged Thiru.Sharath believing that everything would be all right. In and around 2006, Thiru.Sharath informed the 1st respondent that there was a partition in his family, according to which, his sister Tmt.Geetha, the 5th respondent was to take over the Adyar project. The 5th respondent Geetha approached the 1st respondent at Trivandrum with a Power of Attorney dated 05.07.2006, registered as Doc.No.2443 of 2006 on the file of the District Registrar, Chennai North, executed by her brother in her favour. However, Thiru.Sharath later on alleged that the power of attorney dated 05.07.2006 is a forged one. Even today, the first respondent is still to ensure whether the power of attorney is forged at all.
13.When the above suit was filed and this Court passed orders on 25.09.2006 in A.No.219 of 2006 in C.S.No.158 of 2006, it was a rude shock to him. He immediately contacted Thiru.Sharath and Thiru.Rajan K.Moorthy and eventhen, he was assured by Thiru.K.Sharath that it was mainly targeted against the first respondent's co-owners only and not against the 1st respondent. He also informed that it was an act to enable all quick settlements with his sister. Thereafter, all the parties involved met the first respondent on several occasions and stated that there was a settlement between them. All these meetings took place in Trivandrum. According to their settlement, Thiru.Sharath and the fifth respondent were to cancel their agreements and sale deeds in favour of a third party investor for a price separately negotiated between them. The investors would deal with the owners of the properties separately. Several negotiations were held with the real estate agents, Thiru.Rajan K.Moorthy, the first respondent's advisors and representatives of the investors wherein it was resolved that the first respondent could start the process by registration of his balance share in the property in favour of such investor. It was only in these circumstances, the first respondent executed the sale deed dated 04.10.2006, registered as Doc.No.2086 of 2006 on the file of Sub-Registrar Office, Adyar, Chennai, in favour of Thiru.Jayachandran, after executing the power of attorney dated 29.09.2006 in favour of Thiru.Pyarelal Jain, a nominee of Thiru.Jayachandran.
14.It is stated by the first respondent that he has no intention to disobey the orders of this Court. He had waited for 16 long years and therefore, there was no reason for him to sell the property suddenly. It is further stated by the first respondent that the petitioner has misused the back-dated letters against the first respondent in the said suit. It is pointed out by him in the order dated 15.03.2006, in O.A.Nos.217 and 219 of 2006, in C.S.No.158 of 2006, it is submitted that Advocate, Chitra Jayachandran represented him, but, the fact remains that he never engaged that Advocate or anybody else to represent him on that date. The first respondent has also referred to the contempt petitions filed in Contempt Petition Nos.1764 and 1765 of 2007 against him for disobeying the orders dated 25.09.2006 in O.A.No.228 of 2006 in C.S.No.160 of 2006, and in O.A.No.223 of 2006 in C.S.No.159 of 2006. It is stated by the first respondent that he never disobeyed the said orders or committed contempt against the said orders dated 25.09.2006 and these two petitions have been filed for the purpose of harassing the first respondent, that too, for commercial gains.
15.While concluding his counter affidavit, the first respondent tendered unconditional apologies for disobeying the orders dated 25.09.2006 in A.No.228 of 2006 and in C.S.No.160 of 2006. He is also ready and willing to cancel the said sale deed dated 04.10.2006 and return the sale deed to Thiru.Jayachandran. His case is that he has no intention to disobey the order for any gain and he has been a victim of fraud and deceit played by Thiru.Sharath and the fifth respondent Geetha.
16.The second respondent has also filed a counter affidavit in Contempt Petition No.1763 of 2007. In his counter, it is stated by him that he has the greatest respect for this Court and if his act is to be concluded as an act of violation of any order, he tenders his unqualified, unconditional and sincere apology to this Court. It is further stated by him that the counter affidavit filed by the respondents 3 and 4 in the contempt petition may be read as part and parcel of his counter affidavit. According to him, he was appointed as the power agent of the first respondent pursuant to the negotiations made by the fifth respondent stating that the entire dispute between them and the first respondent had been resolved with the powers given to him under the deed of Power of Attorney and on the instructions as per that instrument, he executed the sale deed. He had a very limited role in the transactions and he acted bonafidely believing the representation of the fifth respondent.
17.An additional counter affidavit has been filed by the second respondent, in which, it is stated that the petitioner companies were incorporated and promoted by Thiru.K.Subbaiah. Thiru.K.Subbaiah held 90% shares in the said company. Thiru.K.Subbaiah died intestate on 29.12.2005 leaving behind his children, Thiru.K.Sharath, K.Beena, Tmt.K.Geetha and his grand children of his pre-deceased son. Thus, the entire shares owned by K.Subbaiah devolved on his legal heirs equally. The fifth respondent is one of the legal heirs who was instrumental for the execution of the sale deed. Believing the words of the fifth respondent only, the sale deed was executed.
18.The second respondent referred to a suit filed by K.Beena for partition in C.S.No.76 of 2009 on the file of this Court, against the other legal heirs, for the partition of the estate of late K.Subbaiah. The said suit is still pending. In the said suit, it has been categorically admitted by the said K.Beena, that all the legal heirs have equal right over the petitioner company. Therefore, Thiru.K.Sharath is not the exclusive owner of the petitioner companies. He has pointed out in the additional counter affidavit that in C.S.No.158 of 2006, the petitioner companies are represented by Thiru.K.Subbaiah till this date. There was no substitution made for the petitioner company on behalf of Subbaiah after his demise. Orders were obtained in the applications, saying that Thiru.Subbaiah as the Director of the petitioner companies, but in the present contempt petition alone, Thiru.K.Sharath is shown as the person representing the petitioner companies, without substituting himself as the representative of the petitioner companies in a manner known to law, which is impermissible in law.
19.In the counter affidavit filed by the respondents 3 and 4 in Contempt Petition No.1763 of 2007, it is stated that the fourth respondent is the Director of the third respondent Company and they are ready to offer unqualified, unconditional and sincere apologies, if their act is considered to be in violation of any orders of this Court.
20.It is further stated that the properties described in all the schedules filed in support of the suit were part of a larger extent absolutely owned by his H.H.Marthanda Varma and the other Royal family members. They obtained the title to the property under a Will dated 28.11.1981 executed by his Highness Sri Padmanabadas Chitra Thirunal Balarama Varma.
21.One Thiru.K.Subbaiah, a real estate developer approached the owners of the suit property and offered to purchase portions of the same in the year 1990. For the purpose of convenience, the properties were divided into portions, out of which, certain areas were to be sold to Thiru.Subbaiah and certain other portions are to be retained by the owners. Pursuant to a broad understanding, the owners executed 17 sale deeds in favour of 17 different companies, in which, the said Thiru.Subbaiah had substantial and controlling interest. The only shareholder of these 17 companies was Thiru.Subbaiah and his family members. The 17 sale deed conveyed an undivided 17/18th share in the front portion of the suit property. The owners also executed 11 sale deeds in favour of the petitioner No.19 in the middle portion. Thiru.Subbaiah was the Managing Trustee of the 19th petitioner. Thiru.Subbaiah died on 29.12.2005 intestate leaving behind Sharath, Beena, Sujini, Ashwin and the fifth respondent Geetha as his only legal heirs. Sujini and Ashwin are the children of the pre-deceased son of Subbaiah and the rest of the children of Thiru.Subbaiah who have a common interest in the said property and in the companies owned by Thiru.Subbaiah. After the death of Thiru.Subbaiah, the said companies and the Trust are owned by the legal heirs in common.
22.It is stated in the counter that certain disputes arose between the owners of the larger extent of property and Thiru.Subbaiah and it took a lot to time to materialize and non-payment of the sale consideration by the said Thiru.Subbaiah, the beneficiaries under the Will dated 28.11.1981, excepting H.H.Marthanda Varma, executed sale deeds in favour of one Thiru.Raja Ganesan and thereby conveyed a portion of the suit property to him under two sale deeds dated 10.10.2005 registered as Doc.No.2222 and 2223 of 2005 on the file of Sub-Registrar Office, Adyar, Chennai. Both the sale deeds were challenged in C.S.No.158 of 2006 before this Court.
23.In September, 2006, the fifth respondent Geetha approached the respondents 3 and 4 through real estate agents stating that the petitioners 1 to 19 except the 18th petitioner intended to back out of the project and offered to sell their respective holdings in the property. The agent of the respondents 3 and 4 was one Thiru.Abdul Rahaman, who approached by one Thiru.P.K.Shamsudeen of Coimbatore through Thiru.Ashok Nagendrababu and Thiru.R.Ragu, Chennai-17 with a proposal whereby the suit property could be purchased. The respondents were also informed by the said agents, that the entire matter was being settled out of Court in a manner, whereby the said Raja Ganesan was willing to receive the said sale deeds consideration and accordingly the aforesaid suits be withdrawn through the fifth respondent, who is now in charge and control of petitioners 1 to 17 and 19.
24.The fifth respondent is said to be willing to sell the holdings of petitioners 1 to 17 and 19 to avoid a protracted litigation with the owners. The respondents 3 and 4 were to negotiate separately with the 9 owners of the larger extent for purchasing their portions. The respondents were assured that the aforesaid litigations would be withdrawn and the respondents could purchase the remaining 1/18th share in the land described in the front portion of the suit property directly from the aforesaid beneficiaries under the said Will. Detailed discussions were held with the said beneficiaries at Trivandrum and Chennai in the presence of the agents, legal advisors of petitioners 1 to 19 and the legal heirs of K.Subbaiah. During the course of the meetings, it was understood that H.H.Marthanda Varma, the 1st respondent who also knew Thiru.Rajan Moorthy from the days of K.Subbaiah was also assured about the settlement. The respondent's agents were given to understand that fifth respondent Geetha also spoke to the first respondent and confirmed to propose the settlement. It was on the basis of all these assurances and developments that the respondents 3 and 4 agreed to the proposal to purchase the suit property from petitioners 1 to 17 and 19 and from the owners of the said larger extent. The first respondent also produced a general power of attorney dated 05.07.2006 registered as Doc.No.2443 of 2006 on the file of the District Registrar, Chennai, which was executed by Sharath, Beena, Sujini and Ashwin in favour of the fifth respondent Geetha. The Power of Attorney executed on 05.07.2006 empowered the fifth respondent to sell the properties owned by the petitioners 1 to 17 and 19 and the other legal heirs, to negotiate with prospective purchasers and to execute the sale documents. The power of attorney was executed pursuant to the resolutions passed by the petitioner companies, empowering Sharath and Beena as fellow directors to execute a general power of attorney favouring the fifth respondent and the copies thereof were also handed over to the respondents agents. Based on the aforesaid documents and extensive discussions, the first respondent was approached in Trivandrum and paid the agreed amount. The first respondent also executed a Power of Attorney in favour of the respondent's representatives dated 29.09.2006 registered as Doc.No.299 of 2006 on the file of Sub-Registrar Office, Sasthamangalam, Trivandrum. Under a Deed of Sale dated 04.10.2006, the first respondent, through his said power agent, conveyed his 10% out of the 1/18 undivided share in the front portion of the suit property in favour of the respondents.
25.It is stated that the 5th respondent for and on behalf of the petitioners 1 to 17 and 19, Sharath, Beena, Sujini and Ashwin entered into an agreement dated 13.09.2006 with the respondents and thereby agreed to sell the suit properties belonging to the petitioners 1 to 17 and 19 and others to the respondents for a consideration calculated at Rs.45,00,000/- per ground. The total sale consideration for 45.26 grounds was put at Rs.20,36,70,000/-. The respondents paid a sum of Rs.2 crores by a Demand Draft dated 13.09.2006 issued by the Tamil Nadu Mercantile Bank Limited, as advance. All of a sudden, the respondents were shocked to see a public notice issued in the Indian Express on 21.10.2006, by Sharath and Beena stating that the aforesaid power of attorney dated 05.07.2006 has been forged and fabricated. It is known that certain disputes arose among the legal heirs of Thiru.K.Subbaiah and the respondents 3 and 4 could not be made to suffer on account of the same. The respondents 3 and 4 are the bonafide purchasers who entered into the agreement of sale dated 13.09.2006 for valuable consideration and who also purchased the undivided interest in the suit property under the sale deed dated 04.10.2006 for valuable consideration.
26.It is stated that already a suit was filed in C.S.No.812 of 2006 by the respondents to declare that the power of attorney dated 05.07.2006 is valid and binding and also for a consequential injunction. In O.A.No.857 of 2006 in C.S.No.812 of 2006, this Court on 06.11.2006 ordered status quo to be maintained by the petitioners in respect of the suit properties.
27.It is stated by S.Jayachandran, the 4th respondent who is a Director of the third respondent company that he had not committed deliberate and willful disobedience of the order of injunction granted by this Court. He was only informed by the fifth respondent that the litigation between the parties would be compromised and would be closed when he pays the balance sale consideration under the agreement of sale. There is no collusion between him and the fifth respondent since he parted with the valuable consideration for the sale deed and also for the agreement of sale. He was made to believe that the fifth respondent being the daughter of K.Subbaiah was eventually representing the petitioners interest and entering into this sale agreement with him for the sale of the suit property for valuable consideration.
28.It is stated by the respondents 3 and 4 that the petitioners have already filed A.No.4378 of 2006 in C.S.No.799 of 2006 for leave to initiate appropriate proceedings, challenging the two sale deeds dated 04.10.2006 executed in their favour. The petitioners have the right to agitate the issue by obtaining necessary leave. Hence, the respondents 3 and 4 prayed for the dismissal of the contempt proceedings.
29.The fifth respondent Geetha filed a separate counter affidavit in Contempt Petition No.1763 of 2007. She also tenders her unconditional apology to this Court in the event of any violation of the Court orders. She further states that she is in no way connected with the disputes in common and she has been unnecessarily dragged into this petition. She is not a party to the suit or the applications and hence, she is not a necessary nor a proper party in the contempt petition.
30.According to her, the entire dispute is between the petitioners and the respondents 1 to 4. She is not aware nor she is a party to the alleged sale deed dated 04.10.2006 said to have been executed by the first respondent acting through the second respondent in favour of the third respondent represented by the fourth respondent. She is also not a witness to the execution of the sale deed.
31.She denies that she is a brain child of the entire transactions nor is there any necessity for her to collude with the respondents 1 to 4 to bring about the alleged sale deed. She says that she has been authorised by the petitioner companies to act on their behalf for the sale of various properties. She denies that the power of attorney has been forged. She reiterates that the deponent of the affidavit filed in support of the contempt petition and three others executed a valid power of attorney in her favour. The said power of attorney has been duly registered as Doc.No.2443 of 2006 on the file of the District Registrar at Chennai North and photographs have also been affixed while registering the documents. As the power of attorney has been challenged already in C.S.No.799 of 2006, she reserves her right to take appropriate stand in the said suit. Hence, she prayed for the dismissal of the contempt petition against her.
2.Contempt Petition No.1764 of 2007:
32.This has been filed by Kakamanu Charitable Trust against the four respondents under Section 11 of the Contempt of Courts Act, for their willful disobedience of the orders passed by this Court dated 25.09.2006 in A.No.228 of 2006 in C.S.No.160 of 2006, extending the interim orders dated 16.10.2006 and the orders dated 17.10.2006 extending the interim orders until 19.10.2006 and to punish them in accordance with the Contempt of Courts Act.
33.In the affidavit filed in support of Contempt Petition No.1764 of 2007, Thiru.Sharath S/o K.Subbaiah, who is the Managing Trustee of the petitioner Trust, states that the petitioner filed C.S.No.160 of 2006 for specific performance and other reliefs. Along with the suit, the petitioner Trust filed two applications for interim injunction in O.A.No.228 of 2006 and O.A.No.229 of 2006. O.A.No.228 of 2006 has been filed to issue an order of interim injunction restraining the respondents 1 to 10 from encumbering, alienating or dealing with the schedule B mentioned property, pending disposal of the suit. O.A.No.229 of 2006 has been filed for an order of interim injunction restraining the respondents 1 to 11 from altering the physical features of the Schedule B property in any manner whatsoever including by demolition or construction, pending disposal of the suit.
34.It is stated that on 15.03.2006, when the suit came up for hearing, this Court was pleased to grant an order of interim injunction, restraining the first respondent herein and the defendants 2 to 10 in the suit from alienating, encumbering or otherwise dealing with the suit schedule property and also pleased to grant an order of interim injunction, restraining the said persons from in any manner altering the physical features of the property. The said order of interim injunction was thereafter periodically extended and on 17.10.2006, this Court was pleased to extent the interim order till 19.10.2006. Therefore, eversince 15.03.2006, there has been an order of interim injunction as stated above. However, contrary to the orders of interim injunction granted by this Court, the first respondent proceeded to alienate his 1/9th share in the schedule B mentioned property through his power of attorney i.e. the second respondent herein and to in favour of the third respondent under a deed of sale registered as Doc.No.2086 of 2006 on 04.10.2006 on the file of the Sub-Registrar Office, Adyar, Chennai.
35.According to the petitioner, the fourth respondent who is the daughter of Thiru.K.Subbaiah and the sister of the deponent of the affidavit, is the brain child of the entire transaction who actively colluded with the respondents 1 to 3 herein in bringing about the sale deed by defying the orders of interim injunction granted by this Court.
36.It is stated that the first respondent is very much aware of the entire Court proceedings and in spite of the same, he executed a sale deed. Similarly, the fourth respondent forged a power of attorney allegedly executed by the deponent as well as the other trustee and using the said fraudulant and forged power of attorney, she colluded with the respondents 1 to 3 herein and deliberately created the present sale deed.
37.It is stated that they have already filed a suit in C.S.No.799 of 2006 before this Court against the respondents 2 to 4 herein and others for a declaration that the power of attorney executed in favour of the fourth respondent is null and void and for other consequential reliefs. It is stated that an interim order has been passed by this Court restraining the respondents 2 to 4 from acting under the said power of attorney or from interfering with the possession of the petitioners property. It is further stated that on the strength of the forged power of attorney, the fourth respondent executed an agreement for sale in favour of the third respondent herein agreeing to convey the entire properties belonging to the petitioners. M/s.Siddharth Builders filed a suit in C.S.No.812 of 2006 before this Court for a declaration that the power of attorney granted in favour of the fourth respondent is valid and binding on the petitioners and the said suit is also pending as on today.
38.In short, it is stated that the sale deed executed by the first respondent through the second respondent and in favour of the third respondent as well as the agreement for sale executed by the fourth respondent are all acts, deeds done and documents created after passing of the interim orders by this Court on 15.03.2006 which have been periodically extended and therefore, all of them are guilty of committing contempt and they are to be punished.
39.In Contempt Petition No.1764 of 2007 also a similar counter affidavit has been filed by the said K.S.Geetha who is the fourth respondent herein.
3.Contempt Petition No.1765 of 2007:
40.This has been filed by the very same Kakumanu Charitable Trust against the four respondents for their willful disobedience of the orders passed by this Court on 25.09.2006 in A.No.223 of 2006 in C.S.No.159 of 2006. One Sharath Kakumanu has sworn to the affidavit filed in support of the Contempt Petition in his capacity as the Managing Trustee of the petitioner Trust.
41.It is stated that the petitioner filed C.S.No.159 of 2006 for specific performance of the agreement for sale dated 02.04.1992 and also for the other reliefs. Along with the suit, the petitioner filed O.A.No.223 of 2006 for an order of interim injunction restraining the respondents 1 and 10 from alienating the schedule B mentioned property pending disposal of the suit and another application in O.A.No.224 of 2006 for an order of interim injunction restraining the respondents 1 to 11 from altering the physical features of the schedule B mentioned property pending disposal of the suit. On 15.03.2006, interim orders were granted by this Court and they were extended from time to time. On 17.10.2006, the interim orders already granted extended until 19.10.2006. However, contrary to the orders of interim injunction granted by this Court, the first respondent proceeded to alienate his 1/9th share in the schedule B mentioned property through the power of attorney, the second respondent herein, to and in favour of the third respondent under a deed of sale dated 04.10.2006 registered as Doc.No.2086 of 2006 on the file of Sub-Registrar Office, Adyar, Chennai.
42.It is stated that the fourth respondent is none other than the own sister of the deponent and she is the brain child of the entire transaction and who actively colluded with the respondents 1 to 3 in bringing about the sale deed in total defiance of the interim orders granted by this Court.
43.It is stated that the first respondent is very much aware of the Court proceedings and in spite of the same, he deliberately executed a deed of sale. It is further stated that the fourth respondent K.S.Geetha forged a power of attorney alleged to have been executed by the deponent as well as the other trustees and using the said fraudulant and forged power of attorney, she colluded with the respondents 1 to 3 herein and deliberately created the present sale deed.
44.It is stated that the petitioner has already filed a suit in C.S.No.799 of 2006, challenging the power of attorney and in that suit, they obtained interim orders restraining the respondents 2 to 4 from acting under the said power of attorney or from interfering with the petitioners possession of the property. In spite of the same, the fourth respondent on the strength of the forged power of attorney executed an agreement for sale in favour of the third respondent agreeing to convey the entire property belonging to the petitioners. M/s.Siddarth Builders filed a suit in C.S.No.812 of 2006 before this Court for a declaration that the power of attorney in favour of the fourth respondent is valid and binding on the petitioners.
45.In short, the case of the petitioner is that the sale deed executed by the first respondent through the second respondent and to in favour of the third respondent as well as the agreement for sale executed by the fourth respondent are all acts, deeds, documents done or created after passing of the orders of interim injunction by this Court and therefore, they are guilty of committing contempt of the Court.
46.In Contempt Petition No.1765 of 2007 also, the fourth respondent K.S.Geetha filed a counter affidavit by taking a similar stand, which she has taken in the other two Contempt petitions.
47.Heard the learned counsel appearing for the petitioners, the learned counsel appearing for the first respondent, Thiru.R.Vijayanarayanan, the learned senior counsel appearing for respondents 2 and 4 and the learned counsel appearing for the other respondents in the other Contempt Petitions. I have also gone through the entire documents made available on record.
48.This matter was already argued and thereafter posted on 28.10.2014 before me for certain clarifications. All the learned counsel appearing for the parties made their submissions fully, once again in detail, with regard to the entire matter.
49.The learned counsel appearing for the petitioners vehementally contends that inspite of the interim orders passed by this Court, the respondents in each of the Contempt Petitions, deliberately and willfully defied the same by executing sale deeds and sale agreements and therefore, they are to be punished for their open defiance of the interim orders granted by this Court.
50.Per contra, the learned counsel for some of the respondents and Thiru.R.Vijayanarayanan, the learned senior counsel appearing for some of the respondents, submits that there is no willful disobedience of the orders and in fact, the facts narrated by the respondents in the Contempt Petition No.1763 of 2007 would make it very clear that they are the victims of the circumstances and surroundings and in such circumstances, it cannot be said that there is a willful disobedience of the Court orders. The learned senior counsel further points out that already proceedings have been initiated challenging the two sale deed by filing separate suits and the suits are pending challenging and supporting the alleged power of attorney said to have been executed in favour of the said K.S.Geetha. In such circumstances, the learned senior counsel submits that the contempt proceedings are not appropriate, as it requires elaborate evidence taking and this could easily gone in the separate suits pending before this Court. The learned senior counsel winds up his arguments by submitting that in view of the enormity of the problem and the peculiar facts and circumstances of the case, it is better to decide the issue in the suits which are pending before this Court rather than in contempt proceedings which are quasi-judicial in nature.
51.I have considered the rival submissions carefully and I have also gone through the judgments cited by the learned counsel appearing for the respective party.
52.The following facts are not disputed and which are as follows:
a)The Contempt Petition No.1763 of 2007 has been filed by the petitioners on the ground that when the interim injunction granted by this Court was very much in force, the first respondent Thiru.H.H.Marthanda Varma alienated his 1/9th share in the schedule B mentioned property through the second respondent who is his power of attorney and in favour of the third respondent company represented by its Director / the fourth respondent under a Deed of Sale dated 04.10.2006 registered as Doc.No.2087 of 2006 on the file of the Sub-Registrar Office, Adyar, Chennai;
b)It is true that when documents 2087 of 2006 was registered, the order granted in O.A.No.219 of 2006 in C.S.No.158 of 2006 was in force;
c)Contempt Petition No.1764 of 2007 has been filed by the petitioner Trust stating that when the interim order of injunction granted by this Court was in force, the first respondent H.H.Marthanda Varma alienated his 1/9th share in the schedule B mentioned property through the second respondent / the power of attorney to and in favour of the third respondent Thiru.T.P.Mahesh Kumar, under a Deed of Sale dated 04.10.2006 registered as document No.2086 of 2006 on the file of Sub-Registrar Office, Adyar, Chennai;
d)This sale deed dated 04.10.2006 was executed and registered when the interim order granted by this Court in O.A.No.228 of 2006 in C.S.No.160 of 2006 was in force;
e)The petitioner already filed a suit in C.S.No.799 of 2006 before this Court for a declaration to declare that the power of attorney executed in favour of K.S.Geetha is null and void;
f)M/s.Siddharth Builders Limited, the third respondent in Contempt Petition No.1763 of 2007 filed a suit in C.S.No.812 of 2006 for a declaration that the power of attorney in favour of the fifth respondent is valid and binding on the petitioners;
g)The petitioners have already filed C.S.No.799 of 2006 challenging the two sale deeds dated 04.10.2006 and the suit is still pending.
h)Contempt Petition No.1765 of 2007 has been filed by Kakamanu Trust against the respondents by stating that when the interim order granted in O.A.No.223 of 2006 in C.S.No.159 of 2006 was still in force, the first respondent Thiru.H.H.Marthanda Varma proceeded to alienate his 1/9th share in the suit schedule B mentioned property through the second respondent / power of attorney and in favour of the third respondent, Thiru.T.P.Maheshkumar under a Deed of Sale dated 04.10.2006 registered as Doc.No.2086 of 2006;
i)The sale deed dated 04.10.2006 registered as Doc.No.2086 of 2006 was executed and registered when the order of interim injunction granted in O.A.No.223 of 2006 in C.S.No.159 of 2006 was in force;
j)In short, the petitioners are aggrieved by the two sale deeds i.e. sale deed dated 04.10.2006 registered as Doc.No.2087 of 2006 and sale deed dated 04.10.2006 registered as Doc.No.2086 of 2006 on the file of Sub-Registrar Office, Adyar, Chennai on the ground that these two documents came into existence despite the interim orders of injunction granted by this Court were in force.
53.The respondents have stated that they have not committed willful disobedience of the order passed, as they were made to believe by K.S.Geetha who is none other than the sister of the deponent. In fact, the case of the first respondent Thiru.H.H.Marthanda Varma is that all the subsequent developments viz., the meetings, discussions and other dealings with the legal heirs of K.Subbaiah including the deponent and K.S.Geetha made him to believe that there was an out of Court settlement and therefore, there was nothing wrong in executing the two sale deeds. In fact, they specifically stated that it is K.S.Geetha who brought about the entire problem by representing that she has got a valid power of attorney under which she has been authorised to deal with the entire property. The said K.S.Geetha is not a respondent / part in the suit proceedings. In such circumstances, the respondents / contemnors other than K.S.Geetha pleaded that they are the victims of the circumstances and their surroundings and therefore, they have not willfully disobeyed the orders of the Court. They also offered their unconditional and sincere apologies. The power of attorney K.S.Geetha on the other hand, stands by the genuineness and veracity of the power of attorney states that she has been validly and properly authorised by the said power of attorney and the same has also been properly executed therefore, it is a legal document which has empowered her to deal with the property.
54.As already referred to by me, the power of attorney is also under challenge in C.S.No.799 of 2006 filed by the petitioners. The third respondent in Contempt Petition No.1763 of 2007 i.e. M/s.Siddharth Builders Limited filed a suit in C.S.No.812 of 2006 for a declaration that the power of attorney given in favour of the said K.S.Geetha is valid and binding on the petitioners. Both the suits are pending and in such circumstances, the veracity of the power of attorney could be gone into only in the two suits by letting in proper and necessary evidence by both the parties.
55.The genuine stand taken by the other respondents in the contempt petitions is that they have been misled and they are the victims rather than willful defaulters. They also offered unconditional apologies. In a civil suit where an order of interim injunction is granted and if the same is violated, the Court can definitely punish them, if the Court comes to the conclusion that there is a deliberate and willful disobedience of the interim orders passed by the Court resulting in grave injustice and miscarriage of justice.
56.In the light of the above facts and circumstances, the petitioners are not able to establish at this juncture about the willful readiness and willingness of the contemnors to disregard and disobey the interim orders of this Court. But, due to the questionable conduct of the contemnors two sale deeds came into existence, one is Doc.No.2087 of 2006 dated 04.10.2006 and another is Doc.No.2086 of 2006 dated 04.10.2006. It is not in dispute that challenging these two sale deeds, already a suit is initiated in C.S.No.799 of 2006 and the same is pending.
57.If that being so, whether there is willful and deliberate disobedience of the Court orders by the contemnors can still be gone into in that suit and therefore, instead of rejecting the Contempt Petitions on the ground that they have not disregarded the order willfully, I am directing that these Contempt Petitions are to be posted and taken up along with the suit, in which, both the sale deeds are questioned, so that elaborate evidence can be let in by both the parties. Since both the sale deeds are under challenge, the accompanying facts and whether any willful and deliberate disregard of the Court order has been committed, could be meticulously gone into by the trial Court to find out whether there is an attempt on the part of the contemnors to defy the interim orders of this Court as contended by the petitioners. Further the fact they have been misled and as such they are the victims rather than defaulters, as submitted by the respondents in the Contempt petitions, could also be conveniently decided in the suit.
58.At the time of pronouncing the judgment, it was informed by the learned counsel appearing for the first respondent that the first respondent/contemnor passed away and if that being so, any observation/finding given against him in this order will not survive at all and the order will hold good for other contemnors.
59.In the result, the Contempt Petition Nos.1763 to 1765 of 2007 are directed to be posted along with C.S.No.799 of 2006. No costs.
30.10.2014 Internet: Yes Index : Yes cse S.RAJESWARAN, J. cse Pre-delivery order made in Cont.P.Nos.1763 to 1765 of 2007 30.10.2014