Bombay High Court
Samer Khan And Anr vs Dipesh Mehta And Anr on 8 March, 2021
Author: G.S. Patel
Bench: G.S. Patel
22-MPTL2617-2019.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISCELLANEOUS PETITION (L) NO. 2617 OF 2019
Samer Khan & Anr ...Petitioners
Versus
Dipesh Mehta & Anr ...Respondents
Mr Ashish Kmat, with Archit Jayakar, Divya Tyagi, Prasad Sawant, & Pooja Yadav, i/b Jayakar & Partners, for the Petitioners. Mr Rumi Mirza, with Kaushal Thakker, i/b Prashant Kulkarni, for the Respondents.
CORAM: G.S. PATEL, J
DATED: 8th March 2021
PC:-
1. This is a Miscellaneous Application seeking removal of the Executors, administration and accounts. It pertains to the estate of Late Rajkumar Pitamber and late Mrs Sunita Rajkumar Pitamber. The immediate purpose of this order is to ensure complete compliance with the order dated 14th December 2020 of the Hon'ble Mr Justice BP Colabawalla, which reads like this:
Atul G. Digitally signed by Atul G. Kulkarni "The present Miscellaneous Petition has been Kulkarni Date:
2021.03.09 10:59:05 +0530 filed seeking a direction to the Executors to complete the distribution of the estate of the deceased as per the Will dated 14th April 2005 and for their removal as Executors. Several other reliefs are also sought in the Petition.Page 1 of 7
8th March 2021 22-MPTL2617-2019.DOC
2. There are serious allegations made against the Executors. One such allegation is with reference to a property in Goa which is owned by a Company called Monterifa Investments Pvt. Ltd of which the deceased was a 95% shareholder. The serious allegation with reference to this is that Petitioner No. 2 allegedly transferred 50% of the share holding of this company to Respondent No. 1 for a paltry sum of Rs. 20 Lakhs when the Goa property itself admeasuring approximately 20,000 sq. mtrs.
3. I have gone through the Petition and find that there are some serious allegations leveled against the Executors. Considering that I am not hearing the Petition today, I think it would be in the fitness of things that pending the hearing and final disposal of this Petition, the Executors are directed to make disclosures as more particularly set out in prayer clause (p) of the Petition.
4. In these circumstances, pending the hearing and final disposal of the Petition, Respondent Nos. 1 and 2 shall provide the following, as more particularly set out in prayer clause (p):-
"(p1) a thorough, complete, true and faithful account and inventory(ies) of the Estate from the demise of the Deceased upto the date of this Petition alongwith the originals/copies of all supporting documents, evidence, bank statements, copies of investments forming part of the Estate of the Deceased, from the date of the demise of the Deceased till the date of this Petition, as per Section 317 of the Indian Succession Act.Page 2 of 7
8th March 2021 22-MPTL2617-2019.DOC (p2) a complete account and inventory(ies) of such of the properties/assets still remaining a part of the Estate as on the date of this Petition as per Section 317 of the Indian Succession Act.
(p3) Details of the undisclosed bank account (1) HSBC Bank Current Account No. 002-492569- 001 (of Mr Pitamber) (2) HDFC Bank Savings Account No. 0601670006304 and all transactions that have taken place in the aforesaid accounts, from the date of the demise of Mr. Pitamber and the Deceased, till date.
(p4) a thorough, complete, true and faithful account of
(i) immovable properties and movable properties,
(ii) Jewellery;
(iii) Furniture and fixtures;
(iv) pieces of art;
(v) shares;
(vi) investments;
(vii) bonds;
(viii) mutual funds;
(ix) bank account and bank statements
and details of monies spent
therefrom which were not
disclosed/included in the Probate Page 3 of 7 8th March 2021 22-MPTL2617-2019.DOC Petition(s) along with details of the manner in which any part thereof was liquidated or utilised, from the date of the demise of Mr. Pitamber and the Deceased till the date of this Petition.
(p5) copies of all the Income Tax Returns filed on behalf of the Estate of the Deceased and Mr. Pitamber for each Financial year, from the date of the demise of Mr. Pitamber and the Deceased till date.
(p6) the investments, shares and/or monies that have been liquidated, dealt with, encumbered, monetized and/or disposed of by the Respondent Nos. 1 and 2 from the date of demise of Mr. Pitamber and the Deceased upto date;
(p7) details of the utilisation of Rs. 10,60,00,000/- received by the Deceased as consideration from the Juhu Flat;
(p8) details of the expenses incurred/payments made by Respondent Nos. 1 and 2 including legal costs or any other costs for the care or management of any property(ies) forming part of the Estate at any time after the demise of the Deceased upto the date of the filing of this Petition.
(p9) details of the bank account and copy of the bank statement into which the sum of approximately Rs. 1,30,00,000 was transferred from Petitioner No. 2's HDFC A/c 71493 into an account in the name of 'Executors of the Estate' Page 4 of 7 8th March 2021 22-MPTL2617-2019.DOC in 2007 and the purpose for which the same was transferred;
(p10) details of all the personal account(s) and copies of all the said statements of the Respondent Nos. 1 and 2 as well as copies of their Income Tax Returns from the date of demise of Mr. Pitamber and the Deceased, till date.
(p11) details of all the monies transferred out of the 2 HDFC Account Nos. 71493 and No. 45570 of Petitioner No. 2- from 1 February 2008 to March 2011.'
5. In addition to the aforesaid disclosures, Respondent Nos. 1 and 2 shall also disclose all documents including Share Transfer Forms etc in relation to the transfer of 50% share holding of the Company Monterifa Investments Pvt Ltd allegedly from Petitioner No. 2 to Respondent No. 1. The disclosure afdavit shall be filed on or before 4th January 2021 and copy of the same shall be served on the advocates for the Petitioners. If the Petitioners seek to file any response to the disclosure afdavit, they may do so by 18th January 2021 and serve a copy of the same on the advocates for Respondent Nos. 1 and 2.
6. List the above Miscellaneous Petition for hearing on 25th January 2021.
7. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order."
Page 5 of 78th March 2021 22-MPTL2617-2019.DOC
2. Even if there are typographical errors in the body of that order, the directions for disclosure are clear. There is an Afdavit but it is incomplete, for the Respondents say that some information is 'confidential'. They have indicated that they will disclose it to Court but not the Petitioners.
3. The Respondents are Executors. as between the Respondents and the named legatees, there is no such thing as 'confidential information' to the exclusion of the legatees. The Respondents stand in a fiduciary capacity vis-à-vis the Petitioners.
4. In particular, I am referring to the portion at page 1393 that is part of the Afdavit filed by the Respondents where they say they may be allowed to file 'the said information in a sealed envelope only for the scrutiny of this Hon'ble Court, if so directed'. There will be no question of submitting this information in a sealed envelope. It will be placed on Afdavit.
5. This Court's view on partial disclosures or disclosures "only to the Court" (the so-called 'sealed cover jurisprudence') is now clear. There are limited exceptions, and these are provided by statute. This case does not fall within any of those exceptions under the Evidence Act. It simply cannot. It is entirely a private civil litigation and there is no question of claiming 'privilege' of any kind as between the Respondents and these Petitioners.
6. I expect the two Respondents to make a complete disclosure on Afdavit by 11th March 2021.
Page 6 of 78th March 2021 22-MPTL2617-2019.DOC
7. The disclosure has to be exactly and completely in compliance with the order of the Hon'ble Mr Justice BP Colabawalla There will be two distinct consequences in the absence of the disclosure. First, whatever adverse inference may legitimately be drawn against the Respondents will undoubtedly be drawn. Second, I may consider suo motu initiating contempt proceedings against the Respondents for wilful disobedience of an order of this Court.
8. At this stage, Mr Mirza says he requires time until 15th March 2021 to file the Afdavit. The request is not unreasonable. The Afdavit is to be filed and served on or before 15th March 2021 on this assurance that the necessary disclosures will be made.
9. List the matter on 17th March 2021.
10. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 7 of 7 8th March 2021