Bombay High Court
Rustam Phiroze Mehta vs State Of Maharashtra And Ors on 15 July, 2021
Equivalent citations: AIRONLINE 2021 BOM 1990
Author: S.J. Kathawalla
Bench: S.J. Kathawalla, Milind Jadhav
Digitally
signed by
NITIN NITIN DINKAR
JAGTAP
DINKAR Date:
JAGTAP 2021.07.16
16:47:18
+0530
PA-Nitin Jagtap 1 / 67 WPL-3221-2021-Final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 3221 OF 2020
Rustam Phiroze Mehta, )
Aged : Adult, Occu : Business, Indian Inhabitant, )
residing at Raj Mahal, Ground Floor, 33, Altamount )
Road, Mumbai - 400 026 )... Petitioner
Versus
1. State of Maharashtra, )
Through the ofce o Government Pleader, )
Bombay High Court, Mumbai )
2.The Collector, )
Pune District, New Collector Ofce Building, )
Station Road, Opposite Sassoon Hospital, )
Pune - 411 001 )
3.The Tahasildar, )
Pune City, New Collector Ofce Building, )
Station Road, Opposite Sassoon Hospital, )
Pune - 411 001 )
4.Marvel Sigma Homes Private Limited, )
(Formerly known as Marvel Dwellings Private Limited)
a company having its registered ofce at 301/02, Jewel )
Towers, Lane No. 5, Koregaon Park, Pune - 411 001 )
being represented through one o its Directors )
Mr.Vishwajeet Subhash Jhavar )...Respondents
Mr. Sharan Jagtiani, Senior Advocate with Ms. Shradha Achliya, Ms. Vinsha Acharya,
Mr. Ranjit Agashe i/b Ms. Namrata Agashe or the Petitioner
Mr. Kalel AGP or Respondent Nos. 1 to 3
PA-Nitin Jagtap 2 / 67 WPL-3221-2021-Final.doc
Mr. Amit Gharte or Respondent No. 4
CORAM : S.J. KATHAWALLA &
MILIND JADHAV, JJ.
RESERVED ON : 23RD MARCH, 2021
PRONOUNCED ON: 15TH JULY, 2021
ORAL JUDGMENT: (PER S.J. KATHAWALLA, J.)
1. By the above Writ Petition Shri Rustam Phiroze Mehta ('the Petitioner') has prayed or a writ in the nature o Mandamus or any other appropriate writ against Respondent Nos. 2 and 3, i.e. The Collector, Pune District and The Tahsildar, Pune City respectively, mandating them to comply with the Order-cum- Directions dated 15th April, 2019 issued by the Maharashtra Real Estate and Regulatory Authority, Mumbai. By an Order dated 20 th January, 2021 the Petitioner was allowed to amend the Petition and seek urther ad-interim / interim relie s against Respondent No. 4 - Marvel Sigma Homes Private Limited which relie s are sought in aid o the fnal relie .
2. Admit.
3. By this Order, we will consider whether the Petitioner is entitled to the ollowing interim relie s as sought in the present Writ Petition (as amended pursuant to Order dated 20th January, 2021):
"b)(ii) That pending the hearing and fnaa disposaa of the present Petition, Respondent No.4 and/or its group companies, their ofcers, servants, agents, assigns, representatives and any other person, caaiming through or under them, be restrained by a temporary injunction from directay or indirectay in any manner seaaing, transferring or creating any third party rights in any of their PA-Nitin Jagtap 3 / 67 WPL-3221-2021-Final.doc movabae or immovabae properties;
b)(iii) That pending the hearing and fnaa disposaa of the present Petition, this Hon'bae Court be paeased to direct Respondent No.4 to deposit the principaa sum of Rs.11,36,33,625/- admitteday payabae by Respondent No. 4 to the Petitioner or any other amount as this Hon'bae Court may deem ft, to be appropriated towards the decretaa amount payabae by the Respondent No. 4 to the Petitioner."
4. Apart rom considering whether the Petitioner is entitled to the above interim relie s sought in prayer clauses b(ii) and b(iii) reproduced hereinabove, we will also consider herein whether Respondent No. 4 acting through its Director, Shri Vishwajeet Jhavar ('Shri Jhavar') has inter ered with the administration o justice by breaching various Orders o Disclosure passed by this Court against Respondent No. 4 by fling alse Afdavits o Disclosure. I we are prima acie satisfed o such conduct, we will then proceed to consider what action ought to be taken in relation to such breach, keeping in mind the act that this is not a Contempt Petition under the Contempt o Courts Act, 1971 ('Contempt of Courts Act') but a Writ Petition under Article 226 o the Constitution o India.
SUBJECT MATTER OF THE PRESENT WRIT PETITION:
5. The present Writ Petition (L) No. 3221 o 2020 has been fled by the Petitioner who was the Original Complainant be ore the Maharashtra Real Estate Regulatory Authority ('RERA'). The Petitioner is an "allottee" as defned under Section 2(d) o the Real Estate (Regulation and Development) Act, 2016 ('the said Act'). Respondent No.1 is the State o Maharashtra. Respondent No.2 is the PA-Nitin Jagtap 4 / 67 WPL-3221-2021-Final.doc Collector, Pune ('the Collector'). Respondent No.3 is the Tahsildar, Pune ('the Tahsildar'). Respondent No. 4 is Marvel Sigma Homes Pvt. Ltd. ('Respondent No. 4'), a Company engaged in the business o development and construction. 5.1. The Petitioner had fled Complaint No. CC005000000010528 ('the Complaint') under Sections 12, 14, 18 and 19 o the said Act against Respondent No.
4. The main grievance in the Complaint be ore RERA was that under Articles o Agreement dated 1st August 2014, the Petitioner paid the entire consideration o Rs.10,61,18,790/- to Respondent No. 4 towards purchase o Flat No. 1001 admeasuring 326.55 sq. mtrs., on the 10th foor, 'A' Wing in Respondent No. 4's Project 'Marvel Ribera' at Pune, alongwith two covered car parking spaces and an open terrace admeasuring 119.10 sq. mtrs. (Carpet area) collectively re erred to as ('the said Premises') and that there was a gross delay in handing over possession o the said Premises. There ore, the Petitioner fled the Complaint seeking return o the amount paid and interest thereon, including compensation under the a oresaid provisions o RERA.
5.2. By an Order dated 1st March, 2018, ('the said Order'), the Adjudicating Ofcer allowed the said Complaint and directed Respondent No. 4 to pay Rs.14,05,57,705.46 (Rupees Fourteen Crores Five Lakhs, Fi ty-Seven Thousand Seven Hundred and Five and Forty-Six Paisa only) along with interest at the rate o 10.05% p.a. ('the Decretal Amount') to the Petitioner.
5.3. As Respondent No. 4 ailed to pay the Decretal Amount, the Petitioner PA-Nitin Jagtap 5 / 67 WPL-3221-2021-Final.doc initiated execution proceedings against Respondent No. 4. The said execution proceedings were allowed by RERA and consequently RERA issued a Recovery Certifcate dated 12th April, 2019, against Respondent No. 4 or recovering the Decretal Amount as arrears o land revenue. Therea ter, RERA on 15 th April, 2019, vide its Letter o even date, directed the Collector to execute the said Recovery Certifcate. A copy o this Letter was not orwarded to the Petitioner. By its Letter dated 4th June, 2019, the Collector directed the Tahsildar to execute the Recovery Certifcate. The earlier Letter o RERA dated 15 th April, 2019 addressed to the Collector was re erred to therein. A copy o this Letter dated 4 th June, 2019 was orwarded to the Petitioner. According to the Petitioner, despite the a oresaid direction dated 15th April, 2019, the Collector and the Tahsildar both ailed to comply with the said direction and ailed in per orming their statutory obligations. The Petitioner addressed a letter to Respondent No. 3 - Tahsildar calling upon him to take steps or realising the amount due to the Petitioner. As there was no action taken by Respondent No. 3 - Tahsildar and Respondent No. 2 - Collector, the Petitioner fled the present Writ Petition under Articles 226 and 227 o the Constitution o India, seeking issuance o a Writ o Mandamus against the Collector and Tahsildar to comply with the Direction dated 15th April, 2019 and to per orm their statutory duties to recover the amounts under the Recovery Certifcate as arrears o land revenue. According to the Petitioner, till today an amount o approximately Rs.17,45,50,137.14/- (Rupees Seventeen Crores Forty-Five Lakhs Fi ty Thousand One Hundred Thirty-
PA-Nitin Jagtap 6 / 67 WPL-3221-2021-Final.doc Seven and Fourteen Paisa Only) is due and payable by the Respondent No. 4 to the Petitioner.
5.4. In aid o the fnal relie that is sought against the Respondent Nos. 2 and 3, the Petitioner seeks interim relie s against Respondent No. 4 and its group companies, so that the amount to be paid to the Petitioner under the Recovery Certifcate is protected till such time as the statutory authorities secure the recovery o the same as arrears o land revenue.
ORDER DATED 9TH MARCH, 2021:
6. A ter the present Writ Petition was fled by the Petitioner and various Orders o Disclosure were passed against Respondent No. 4, which are re erred to below, Respondent No. 4 fled Interim Application (L) No. 2044 o 2021 challenging the maintainability o the present Writ Petition. Respondent No. 4 also fled Writ Petition No. 2657 o 2020 challenging the Direction dated 4 th June, 2019 issued by the Collector directing the Tahsildar to execute the Recovery Certifcate dated 12 th April, 2019 issued by RERA against Respondent No. 4. Since Respondent No. 4 challenged the maintainability o the present Writ Petition, this Court considered it necessary to decide the said Interim Application be ore considering the application or interim relie s in this Writ Petition. As the grounds o challenge with respect to the maintainability o the present Writ Petition raised in the a oresaid Interim Application fled by Respondent No. 4 and the challenge to the manner o execution o the PA-Nitin Jagtap 7 / 67 WPL-3221-2021-Final.doc Recovery Certifcate in Writ Petition No. 2657 o 2020 also fled by Respondent No. 4, were substantially the same, both were heard together.
6.1. By an Order and Judgment dated 9 th March, 2021, the a oresaid Interim Application and Writ Petition No. 2657 o 2020 were dismissed, and the hearing o the present Writ Petition including the application or interim relie s sought by the Petitioner, were directed to proceed. We were in ormed that Respondent No. 4 has fled a Special Leave Petition against the Order and Judgment dated 9 th March, 2021. It appears that the Special Leave Petition has not been circulated or listing and there is no stay in relation to the present proceedings.
ISSUES FOR CONSIDERATION :
7. Pursuant to the Order dated 9th March, 2021, we proceeded to hear the present Writ Petition. The two issues which have allen or our determination are as under :
7.1. Whether Respondent No. 4 and its Director Shri Jhavar have inter ered with the administration o justice by fling alse and incorrect Afdavits o Disclosure and by also violating and breaching various Orders o this Court?; I so, the consequences o such breach?
7.2. Whether the Petitioner is entitled to interim relie s set out in the prayer clauses (b)(ii) and (b)(iii) o the present Writ Petition, especially considering that Respondent No. 4 is a Private Limited Company?
PA-Nitin Jagtap 8 / 67 WPL-3221-2021-Final.doc FACTUAL BACKGROUND :
8. Since the actual background o the disputes has been set out in detail in the Order dated 9th March, 2021, we are not repeating the same in the present Order.
The relevant acts have also been set out in the earlier paragraphs o this Order. ORDERS OF THE COURT AND AFFIDAVITS OF THE RESPONDENTS:
9. Be ore recording the submissions o the parties on the issues set out in paragraph 7 hereinabove, it is necessary to set out in detail the events that transpired during the hearing o the present Writ Petition.
9.1. On 3rd March, 2020, a ter hearing the Advocates or the parties and being prima acie satisfed that there had been inaction by the Collector and the Tahsildar in per orming their statutory duties and complying with the a oresaid Direction dated 15th April, 2019, issued to them by RERA, the Tahsildar was directed to remain present be ore this Court on 5th March, 2020.
9.2. On 5th March, 2020, the Tahsildar could not remain present and requested this Court to keep the matter on 6 th March, 2020. In view thereo , the matter was adjourned to 6th March, 2020.
9.3. On 6th March, 2020, the Tahsildar personally remained present be ore this Court. On the same date, the Tahsildar fled an Afdavit in Reply to the Petition.
It states that a ter receiving the said Direction dated 15 th April, 2019 rom RERA, his ofce had issued two Demand Notices dated 11 th September, 2019 and 10th January, PA-Nitin Jagtap 9 / 67 WPL-3221-2021-Final.doc 2020 respectively to Respondent No. 4, calling upon Respondent No. 4 to pay the said Decretal Amount. Respondent No. 4 ailed to respond to these Demand Notices. The Tahsildar then carried out a search o Respondent No. 4's properties and came across Property Cards in the name o Marvel Imperial Co-operative Housing Society Ltd., Marvel Crest Condominium, etc. However, the Afdavit states that as the name on these Property Cards was not the same as that o Respondent No. 4, i.e. 'Marvel Sigma Homes Pvt. Ltd.', the Tahsildar could not execute the said Recovery Certifcate against Respondent No. 4. The stand o the Tahsildar in justifcation o him not having taken any steps towards recovery o the amounts mentioned in the RERA Recovery Certifcate, is reproduced hereunder :
" 6. I say that as per direction of the RERA, the Respondent No. 3 started the procedure by sending two notices and searching the property of Respondent No. 4, movabae as weaa as immovabae for attachment. But, due to caosure of 7/12 extract, it is difcuat to fnd out the property of the Respondent No. 4. I further say that recentay, the ofce of the undersigned got property card of simiaar name of the Respondent No. 4. However, after going through the said property card, it is reveaaed that the titae name is diferent i.e. Marvea Imperiaa Co-operative Housing Society Ltd., City Survey No. 260, area 9875.76 sq. mtrs. The second simiaar name i.e. Marvea Crest Condominium, City Survey No. 363.929 sq. mtr. The third simiaar name is i.e. Goea Ganga Construction & Reaa Estate Pvt. Ltd., City Survey No. 207, area 11027.68 sq. mtrs. Hereto annexed and marked as Exhibit 5 Coaay. are copies of the Property Cards.
7. I say that as the address provided by RERA is diferent from property card and Respondent No. 4's property and hence, our ofce is facing difcuaty in searching the property of the Respondent No. 4 for attachment and further procedure. I say that our ofce had started the proceeding from 12.06.2019 PA-Nitin Jagtap 10 / 67 WPL-3221-2021-Final.doc however, due to diferent titae and address, it is difcuat to us to search Respondent No. 4's property and to compaete further procedure. I say that hence, there is no deaay from our side in the abovesaid matter. If the Hon'bae Court directs the Respondent No. 4 i.e. defauaters to give proper titae name and address and mention the whoae property of Respondent No. 4, it wiaa be easy for us to attach and recover the due amount from Respondent No. 4 and hand over the said due amount to the Petitioner."
9.4. In addition to re erring to the averments in the Afdavit o the Tahsildar, we have also perused the extract o the Property Card annexed to the Afdavit itsel . Contrary to the Tahsildar's understanding that names and addresses in the Property Card are diferent rom those mentioned in the Recovery Certifcate, the Property Card itsel indicates that one o the projects or developments, namely, Marvel Crest, is a property or project in the name o Respondent No. 4.
9.5. In view o the a oresaid submissions made by the Tahsildar, a statement was made on behal o Respondent No. 4 that they shall fle an Afdavit setting out the assets o Respondent No. 4 and its group entities within one week. The said statement was accepted by this Court and the ollowing Order dated 6 th March, 2020 was passed :
"1. Respondent No. 4 states that the discaosure Afdavit in Repay setting out the assets of the Respondent No. 4 and its group entities shaaa be faed within one week from today. This statement is accepted."
9.6. On 11th March, 2020, Respondent No. 3 - Tahsildar, Pune, addressed a Letter to RERA stating that she was unable to locate any assets standing in the name PA-Nitin Jagtap 11 / 67 WPL-3221-2021-Final.doc o Respondent No. 4 and was there ore unable to execute the Order dated 15 th April, 2020. This Letter was produced by the Petitioner as part o a Compilation o Documents. It has not been disputed by any o the parties.
9.7. Pursuant to the Order o 6th March, 2020, Shri Jhavar, Director o Respondent No. 4, fled an Afdavit o Disclosure dated 12 th March, 2020 ("1st Disclosure Afdavit"). In the 1st Disclosure Afdavit, Respondent No. 4 only made a disclosure with respect to its Project 'Marvel Ribera', at Boat Club Road, Pune, in which the Petitioner had purchased the said Premises. Respondent No. 4 disclosed that, (i) the said Project 'Marvel Ribera' had a total o 27 fats, (ii) out o the total 27 fats, 11 have been sold and an amount o Rs. 18,54,05,681/- was receivable rom the said fats, (iii) the remaining 16 fats are unsold, but were mortgaged to ICICI Home Finance Ltd. under a Mortgage Deed dated 29 th May, 2017. Further in paragraph 7, Respondent No. 4 made a statement that, "Marvel Sigma Homes Private Limited apart from above has no other property". (Emphasis supplied). 9.8. Therea ter due to the extended lockdown and suspension o physical hearings in this Court due to the Covid-19 pandemic, this matter could be taken up only on 14th January, 2021. At that time, the Advocates or the Petitioner in ormed this Court that by the a oresaid Order dated 6 th March, 2020, Respondent No. 4 was directed to disclose "all" assets o Respondent No. 4 and its group entities. Despite the said Order, Respondent No. 4 had only disclosed details in respect o one o its Projects and had not disclosed its other assets. In support o his contention the PA-Nitin Jagtap 12 / 67 WPL-3221-2021-Final.doc Petitioner fled a Compilation o Documents comprising o details o the various projects o Respondent No. 4 and its group entities as available on the ofcial website o RERA, the sold and unsold units therein, etc., that constituted the assets o Respondent No. 4, which Respondent No. 4 had not disclosed in its 1 st Disclosure Afdavit.
9.9. A ter perusing the 1st Disclosure Afdavit and the a oresaid Compilation o Documents fled by the Petitioner, it was clear that Respondent No. 4 had violated the Order dated 6th March, 2020 and had not disclosed, (i) all other assets o Respondent No. 4; (ii) all assets o its group entities; (iii) details as to when the amount o Rs. 18,54,05,681/- was receivable rom the purchasers o the sold units in Marvel Ribera; (iv) the sold and unsold units in Respondent No. 4's projects, viz. Marvel Bounty, Marvel Cascada, Marvel Crest, etc.; (iv) the sold and unsold units in projects o its group entities, viz. Marvel Fuego, Marvel Arco, Marvel Cerise, Marvel Aurum, Marvel Sangria, Marvel Ideal Spacio, etc.; (v) bank account details o Respondent No. 4 and its group entities, monies lying therein and other investments and (vi) other immovable assets o Respondent No. 4 and its group entities. 9.10. In view o the a oresaid, this Court by its Order dated 14 th January, 2021 noted the a oresaid breach by Respondent No. 4 and granted an opportunity to Respondent No. 4 to comply with the Order dated 6 th March, 2020 in its true letter and spirit and adjourned the matter to 20th January, 2021. By the said Order dated 14th January, 2021, this Court directed as under:
PA-Nitin Jagtap 13 / 67 WPL-3221-2021-Final.doc "3. Instead of issuing notice at this stage calling upon the Director of Respondent No. 4 to show cause as to why action should not be taken against him for breach of the statement made before this Court on 6th March, 2020, we are giving an opportunity to Mr. Vishwajeet Subhash Jhavar, Director of Respondent No. 4 - Marvel Sigma Homes Private Limited, to comply with his statement as recorded and accepted in our Order dated 6th March, 2020, on or before the adjourned date. Needless to add that the said statement shall be complied with in its true letter and spirit." (Emphasis supplied).
9.11. Therea ter, Shri Jhavar on behal o Respondent No. 4 fled an Afdavit o Disclosure dated 19th January, 2021 ("2nd Disclosure Afdavit"), wherein Respondent No. 4 enclosed a Statement o Assets and Liabilities o Respondent No. 4 and its seven group entities, viz. (i) Marvel Realtors & Developers Ltd., (ii) Marvel Omega Builders Pvt Ltd. (iii) Marvel Zeta Developers Pvt. Ltd. (iv) Marvel Landmarks Private Limited (v) PAX Homes LLP (vi) Hallmark Marvel Realtors and
(vii) Marvel Realtors. In the said Statement, Respondent No. 4 disclosed, (i) names o certain projects o Respondent No. 4 and the said seven group entities; (ii) sold and unsold area in the disclosed projects; (iii) cumulative bank balances lying in the bank accounts o Respondent No. 4 and the seven group entities; (iv) encumbrances over the disclosed projects.
9.12. On 20th January, 2021, when the matter came up or hearing, the Advocates or the Petitioner in ormed this Court that despite this Court granting an opportunity to Respondent No. 4 to comply with the Order dated 6 th March, 2020 in its true letter and spirit, Respondent No. 4 had once again provided an incomplete and PA-Nitin Jagtap 14 / 67 WPL-3221-2021-Final.doc misleading Disclosure. The Advocates or the Petitioner tendered a list o group companies and LLPs o Respondent No. 4, as available on the ofcial website o the Ministry o Corporate Afairs, which showed that Respondent No. 4 had not disclosed assets o 12 group companies and 4 LLPs. The Advocates or the Petitioner also in ormed this Court that even or the entities disclosed, Respondent No. 4 had only provided partial details and had not disclosed, (a) details o each o the bank accounts o these entities and monies lying therein; (b) particulars o each o the bank accounts o disclosed entities/projects; (c) sold and unsold units in projects o these disclosed entities and monies receivable rom the sale o these units; (d) other movable assets and investments o these entities.
9.13. In view o the repeated breaches by Respondent No. 4 in complying with the Orders passed, this Court directed Shri Jhavar to remain personally present in Court on 25th January, 2021.
9.14. On 25th January, 2021, Shri Jhavar was personally present be ore this Court. On that day the Advocate appearing on behal o Respondent No. 4 in ormed this Court that in compliance o the Order dated 6th March, 2020, they now had "all" documents ready. The Court then granted another opportunity to Respondent No. 4 to comply with the Orders o this Court and directed Respondent No. 4 to place the said documents on Afdavit and urnish a copy o the same to the Advocate or Petitioner by 27th January, 2021, and the matter was adjourned to 2nd February, 2021. 9.15. Pursuant thereto, Shri Jhavar fled an Afdavit o Disclosure dated 27 th PA-Nitin Jagtap 15 / 67 WPL-3221-2021-Final.doc January, 2021 ("3rd Disclosure Afdavit"). By the 3rd Disclosure Afdavit, Respondent No. 4 produced/disclosed (i) Statement o Assets and Liabilities o Respondent No. 4 and its a oresaid seven group entities; (ii) List o sold and unsold units o some o the projects o Respondent No. 4 and the said seven group entities;
(iii) Uncertifed Bank Statements o some bank accounts o Respondent No. 4 and the said seven group entities and (iv) Mortgage Documents in respect o the assets owned by Respondent No. 4 and some o its said seven group entities. Further in paragraph 3 o the 3rd Disclosure Afdavit, Respondent No. 4 made the ollowing statement:
"3. I say that since the Respondent No. 4 and its other companies are vast, there might be some of the assets/projects/receivable, which inadvertently are not stated in the Afdavits, the Respondent No. 4 crave leave of Hon'ble Court to put the said properties on afdavits if the same is pointed to us." (Emphasis Supplied) 9.16. On 2nd February, 2021, the Advocates or the Petitioner in ormed this Court that even the 3rd Disclosure Afdavit was incomplete and Respondent No. 4 had once again fled the Disclosure Afdavit only in respect o Respondent No. 4 and the said seven group entities despite the Petitioner on the previous occasion pointing out the various other group entities o Respondent No. 4. In view o the a oresaid, by our Order dated 2nd February, 2021, we directed the Petitioner to fle an Afdavit setting out all the non-disclosures / breaches by Respondent No. 4 and the matter was adjourned to 10th February, 2021.
9.17. On 8th February, 2021, the Tahsildar levied a charge or Rs.
PA-Nitin Jagtap 16 / 67 WPL-3221-2021-Final.doc 6,25,20,100/- on the Respondent No. 4's land bearing no. 30/A, Boat Club Road, Pune.
9.18. The Petitioner fled an Afdavit dated 9th February, 2021, setting out the repeated breaches o Respondent No. 4 in complying with the a oresaid Orders passed by this Court. The Petitioner by the said Afdavit stated as under:
9.18.1. That despite being given multiple opportunities to comply with the Orders passed by this Court, Respondent No. 4 had deliberately and will ully ailed to comply with these Orders and that the Respondent No. 4 even a ter fling three Disclosure Afdavits, had ailed to disclose the ollowing assets:
a. Assets o 18 group entities o Respondent No. 4. b. Inventory o sold and unsold fats in the ollowing projects viz. (i) Marvel
Izara (ii) Marvel Tupe (iv) Marvel Cerise (v) Marvel Chaitanya (vi) Marvel Vimannagar (vii) Marvel Ideal Spacio (viii) Marvel Brisa (ix) Marvel Cetrine (xii) Marvel Aries (xiii) Marvel Cascada (xiv) Marvel Crest (xv) Marvel Castella (xvi) Marvel Arista (xvii) Marvel Merlot (xviii) Marvel Zephyr, etc. c. Details o all the bank accounts o Respondent No. 4 and the seven disclosed entities.
d. Bank account details o the ollowing projects being owned and developed by Respondent No. 4 and the said seven entities were not disclosed - Marvel Castella, Marvel Crest, Marvel Ecaso, Marvel Senitel, Marvel Merlot, Marvel Zephyr, Marvel Isola, Marvel Amora, Marvel Claro, Marvel Diva, Marvel Arista.
PA-Nitin Jagtap 17 / 67 WPL-3221-2021-Final.doc e. From the unsold units in the disclosed projects, Respondent No. 4 ailed to disclose which fats were mortgaged.
9.18.2. That Marvel Precast Structures India LLP, one o the a oresaid 18 entities, was actively carrying on the business o manu acturing abricated metal products. A perusal o the balance sheet o Marvel Precast, downloaded rom the MCA Website, showed that the current assets o Marvel Precast amounted to Rs. 1,11,53,002/-, which included trade receivables o Rs. 1,50,044/-, cash & cash equivalents o Rs. 8,62,459/- and Rs. 95,73,580/- being an amount advanced by way o loan and advances to third parties/vendors. The details also showed that there was no charge on the assets o the said LLP.
9.18.3. That Marvel Ora Residences LLP, one o the a oresaid 18 entities, was also actively carrying on its business. As per the Balance Sheet or FY 2019 - 2020, the value o its current assets was Rs. 59,99,94,667/- and current capital account was Rs.18,86,91,887/-. Further, the current assets included cash equivalent o Rs. 5,745/-, short term loans advanced by Marvel Ora amounting to Rs. 59,99,94,667/- (advanced to related parties) and other current assets amounting to Rs. 55,27,180/-. Further, as per the records available on the ofcial website o the Ministry o Corporate Afairs, there was no charge on the assets o this entity.
9.18.4. That in the Statement o Assets and Liabilities annexed to the 3 rd Disclosure Afdavit read with the Mortgage Documents fled by Respondent No. 4, Shri Jhavar on behal o Respondent No. 4, sought to represent that Respondent No. 4 PA-Nitin Jagtap 18 / 67 WPL-3221-2021-Final.doc was debt ridden and all its projects and the unsold units therein were mortgaged to various banks and/or fnancial institutions due to which it was unable to pay the said Decretal Amount. However, contrary to the a oresaid representation, Shri Jhavar on 20th September, 2020 had addressed an email to all its customers/purchasers inter aaia in orming them that in the last 18 months Marvel Group had sold over 1000 units across their various projects, including Marvel Cerise, Marvel Arco, Marvel Brisa, Marvel Ecaso, Marvel Cascada, etc. and had been simultaneously success ul in reducing its debt by 70% and have a target to be debt- ree by March 2021. The Petitioner stated that this clearly showed that Respondent No. 4 has been consistently making alse and misleading statements regarding its fnancial status be ore this Court to suit its beneft.
9.18.5. That Respondent No. 4 on its Ofcial Website, www.marvelrealtors.com, has stated that it was one o the "Top Real Estate Developers in Pune" and has developed various projects in Pune and Bangalore. Further, it was also stated on the Website that Respondent No. 4 and its group entities had completed 35 projects in Pune and Bangalore. Further it was stated that Respondent No. 4 and its group companies were currently developing 10 projects in Pune, viz. Marvel Piazza, Marvel Ideal Spacio, Marvel Fria, Marvel Acquanas, Selva Ridge, Marvel Ribera, Marvel Aurum, Marvel Basilo, Marvel Ecaso, Marvel Isola and 2 projects in Bangalore viz. Marvel Arista and Marvel Orial.
9.18.6 That Respondent No. 4 had several FIR's registered against it or PA-Nitin Jagtap 19 / 67 WPL-3221-2021-Final.doc
ofences punishable under the Indian Penal Code, 1860 and the Maharashtra Ownership o Flat Purchasers Act, 1963.
9.19. Therea ter, Respondent No. 4 fled its Afdavit o Disclosure dated 16 th February, 2021 ("4th Disclosure Afdavit"), without any liberty being granted to Respondent No. 4 to fle such Afdavit. In any event, we accepted the said Afdavit and took it on record. By the said Afdavit, Respondent No. 4 sought to justi y the non-disclosures o Respondent No. 4, as pointed out by the Petitioner in its a oresaid Afdavit dated 9th February, 2021. The explanation provided by Respondent No. 4 in the 4th Disclosure Afdavit is summarized as under:
9.19.1. That in its 1st Disclosure Afdavit, it disclosed only assets in Marvel Ribera because they were under the impression that the assets in the said project were "sufcient" to comply with the Order dated 6th March, 2020. 9.19.2. Respondent No. 4 admitted that it had only provided disclosure o bank accounts o its "major" entities.
9.19.3. Respondent No. 4 admitted that it had not provided details o certain projects as they were "completed" and there ore the disclosure was "irrelevant". The said statement / admission statement o Respondent No. 4 is reproduced hereunder:
"3. I say that myself have already disclose the bank accounts of major entities. I say that so far as remaining entities are concern, following is the detail chart as to the status of the said bank accounts and perusal of the said chart would itself make it clear that most of the projects are complete and therefore the disclosure of the same was irrelevant. ...
9. ...I say that major projects has already been disclosed by me. I say that so far as the Petitioner contention is concern in respect of remaining PA-Nitin Jagtap 20 / 67 WPL-3221-2021-Final.doc projects; I say that the said are irrelevant in respects of the present subject matter." (Emphasis supplied) 9.19.4. Respondent No. 4 sought to disclose details o assets o ollowing projects: Marvel Castella, Marvel Crest, Marvel Ecaso, Marvel Senitel, Marvel Selva Ridge, Marvel Orial, Marvel Sangria, Marvel Fria, Marvel Piazza, Marvel Izarra, Marvel Amora, Marvel Claro, Marvel Diva.
9.19.5. Respondent No. 4 admitted that it had not fled disclosure o other group entities because the same was "irrelevant". Respondent No. 4 by this Afdavit sought to provide a status o the other group entities. It is necessary to reproduce this statement o Respondent No. 4:
"4. So far as para No. 15 is concerns, I say that myself has disclose the information of the major group entities. I say that so far as the other group entities are concern the disclosure of the same was irrelevant and the below chart would clearly refect the same.
(Emphasis supplied) 9.19.6. Respondent No. 4 admitted that it had only disclosed "major projects"
and did not disclose other projects as their details were "irrelevant". 9.20. According to the Petitioner, even the 4 th Disclosure Afdavit was incomplete and alse or the ollowing reasons:
9.20.1. Respondent No. 4 only disclosed bank account numbers o the projects Marvel Castella, Marvel Crest, Marvel Ecaso, Marvel Senitel, Marvel Selva Ridge, Marvel Orial, Marvel Sangria, Marvel Fria, Marvel Piazza, Marvel Izarra, Marvel PA-Nitin Jagtap 21 / 67 WPL-3221-2021-Final.doc Amora, Marvel Claro, Marvel Diva. No bank statement or details o monies lying therein were disclosed or these Projects.
9.20.2. According to Respondent No. 4's ofcial website, projects Marvel Orial, Marvel Fria, Marvel Piazza, Marvel Selva Ridge are 'ongoing' projects, which Respondent No. 4 alsely represented as 'completed'. The websites and other in ormation o the Marvel Group that are available online clearly establish this. 9.20.3. No disclosure o sold / unsold inventory is made with regard to Marvel Izara, Marvel Zephyr, Marvel Cerise, Marvel Ideal Spacio, Marvel Brisa, Marvel Citrine, Marvel Arise, Marvel Cascada, Marvel Crest, etc. 9.20.4. Even in respect to the entities re erred to in the chart / table below paragraph 4 (described as 'other group entities whose discaosure is irreaevant'), it is clear that there were assets that ought to have been disclosed even i those entities are not carrying out any projects. This would include disclosure o unsold inventory o Kappa In ra Ventures Private Limited; the land owned by Marvel Luxury Realtors Private Limited; the land or consideration or sale o land by Marvel Mega Realtors Private Limited; the current assets including the receivables o Marvel Precast Structures India LLP and Marvel Ora Residences.
9.21. According to the Petitioner, despite having fled our Disclosure Afdavits, Respondent No. 4 has still not ully complied with the a oresaid Orders dated 6th March, 2020 and 14th January, 2021, passed by this Court and the ollowing assets still remain undisclosed:
PA-Nitin Jagtap 22 / 67 WPL-3221-2021-Final.doc 9.21.1 Details/particulars o when the amount o Rs. 18,54,05,681/- is receivable rom sold units in 'Marvel Ribera'.
9.21.2. Movable and Immovable assets o the ollowing entities - Kappa In ra Ventures Pvt. Ltd., Marvel Skyscrapers Pvt. Ltd., Marvel Dreamland Homes Pvt.
Ltd., Marvel Foundation, Marveledge Realtors Pvt. Ltd., Epsillon Real Estate Pvt. Ltd., Marvel Asta Constructions Pvt. Ltd., Kappa Homes LLP, Marvel Precast structures India LLP, Marvel Ora Residences LLP, Marvel Group Holdings and Investments LLP, Marvel Elegant Homes LLP.
9.21.3. Bank account statements and details o monies lying therein or the ollowing projects owned by Respondent No. 4 and its group entities viz. Marvel Castella, Marvel Crest, Marvel Ecaso, Marvel Senitel, Marvel Piazza, Marvel Merlot, Marvel Zephyr, Marvel Isola, Marvel Amora, Marvel Claro, Marvel Diva, Marvel Arista.
9.21.4. Even or projects disclosed, all bank account details have not been provided.
9.21.5. Inventory o sold and unsold fats or the ollowing projects owned and developed by Respondent No. 4 viz., (i) Marvel Aries (ii) Marvel Cascada (iii) Marvel Crest and (iv) Marvel Castella.
9.21.6. Inventory o sold and unsold fats or the ollowing projects owned and developed by the group entities o Respondent No. 4 viz., (i) Marvel Izara (ii) Marvel Tupe (iii) Marvel Cerise (iv) Marvel Chaitanya (v) Marvel Vimannagar (vi) Marvel PA-Nitin Jagtap 23 / 67 WPL-3221-2021-Final.doc Ideal Spacio (vii) Marvel Brisa (viii) Marvel Cetrine (ix) Marvel Arista (x) Marvel Merlot (xi) Marvel Zephyr, etc. 9.21.7. Marvel Precast Structures India LLP and Marvel Ora Residences LLP, are two group entities whose fnancial statements and assets were not disclosed. The Petitioner states that this is signifcant because both o them disclose substantial current assets in their fnancial statements. In the case o Marvel Ora Residences LLP, the current assets amount to Rs. 59,99,94,667/- and the capital account refects an amount o Rs. 18,86,91,887/-. This entity appears to have given a short-term loan to another group entity. The Petitioner states that these details have been withheld in the earlier disclosures because it would show the capacity o Respondent No. 4 and its related entities to satis y the Recovery Certifcate, which it is obstructing. ORDER PASSED BY THE SUPREME COURT OF INDIA :
10. On 28th February, 2021, a ter this Court had granted three opportunities to Respondent No. 4 to ully comply with the Orders o Disclosure dated 6 th March, 2020 and 14th January, 2021, and the Respondent No. 4 had fled three Disclosure Afdavits, Respondent No. 4 challenged these Orders by fling SLP (C) No. 2122/2021 and SLP (C) No. 2123/2021 be ore the Supreme Court. 10.1. By an Order dated 12th February, 2021, the Supreme Court while upholding the approach adopted by this Court, dismissed the said SLPs. By the said Order, the Supreme Court held as under:
"We give our full imprimatur to the approach adopted by the High PA-Nitin Jagtap 24 / 67 WPL-3221-2021-Final.doc Court to ensure that in one manner or the other the petitioner honours the decree which has been passed against him.
The Special Leave Petition is dismissed.
Pending applications stand disposed of."
(Emphasis supplied) It is relevant to note here that Respondent No. 4 never served a copy o the said SLPs upon the Petitioner. The Petitioner had not fled a caveat be ore the Supreme Court and was there ore not aware o the fling o the SLP or the Order. Further Respondent No. 4 also suppressed the a oresaid Order dated 12 th February, 2021 rom this Court, despite the matter having been heard a ter that. This Court learnt o the a oresaid Order only upon receiving a copy o it rom the Supreme Court Registry. In act, Advocate Shri Amit Gharte representing Respondent No. 4 be ore us in ormed us that even he was not aware o the SLP's being fled by Respondent No. 4 be ore the Supreme Court, since the same were fled by engaging some other Advocates. SUBMISSIONS OF THE PARTIES:
ISSUE NO. 1 : AS SET OUT IN PARAGRAPH 7.1.:
11. Shri Sharan Jagtiani, Learned Senior Advocate representing the Petitioner has made the following submissions :
11.1. That a ter the Order dated 6 th March, 2020 was passed, this Court granted multiple opportunities to Respondent No. 4 to comply with its Orders.
Respondent No. 4 not only ailed to comply with the said Orders but also made alse PA-Nitin Jagtap 25 / 67 WPL-3221-2021-Final.doc and incorrect statements in the said our Disclosure Afdavits in order to mislead this Court thereby obstructing the administration o justice and delaying the hearing o this Writ Petition or grant o urgent interim relie s.
11.2. That the ollowing instances clearly show that Respondent No. 4 has disobeyed the Orders passed by this Court and made alse and incorrect statements during the hearing o the present Writ Petition, to mislead the Court:
11.2.1. In its 1st Disclosure Afdavit, despite this Court specifcally directing Respondent No. 4 to disclose all assets o Respondent No. 4 and its group entities, Respondent No. 4 only disclosed details in respect o its project 'Marvea Ribera'.
Respondent No. 4 knowing ully well that this was not the only project and/or asset o Respondent No. 4 and its group entities, made a alse statement that other than the said project Marvel Ribera, it had no other assets. He submitted that fling o three more Afdavits therea ter by Respondent No. 4 itsel shows that the a oresaid statement was alse and was made will ully and deliberately in order to mislead this Court at the frst instance.
11.2.2. In the 4th Disclosure Afdavit, Respondent No. 4 has sought to justi y its 1st Disclosure Afdavit by stating that it did not disclose other assets because it was under the impression that disclosure in respect o the project Marvel Ribera and the assets in the said project would be "sufcient" so as to comply with the Order passed by this Court. The 1st Disclosure Afdavit clearly stated that out o 27 fats, 11 had been sold and 16 unsold units were mortgaged. Further it was also stated in the said PA-Nitin Jagtap 26 / 67 WPL-3221-2021-Final.doc Afdavit that a sum o Rs. 18,54,05,681/- was receivable rom the purchasers o the sold units, but when at the hearing on 14 th January, 2021, this Court enquired whether the said amount had been received, Respondent No. 4's answer was in the negative. In the a oresaid circumstances, Respondent No. 4 could never have been under the belie that the assets disclosed in the 1st Disclosure were sufcient. 11.2.3. The frst three Afdavits fled by Respondent No. 4 only disclosed limited entities and projects and sought to represent to this Court that these were the only entities and projects o Respondent No. 4 and its group entities. However, a ter the Petitioner pointed out in its Afdavit dated 9 th February, 2021 that Respondent No. 4 had not disclosed various other entities and projects, Respondent No. 4 in the 4th Disclosure Afdavit admitted that it had disclosed only "major" entities and projects o Respondent No. 4 and its group entities as disclosure with respect to others was "irrelevant".
11.2.4. In the 4th Disclosure Afdavit, Respondent No. 4 has stated that it did not disclose assets o projects Marvel Orial, Marvel Fria, Marvel Piazza as the same are "completed" projects. The said statement is belied by the act that Respondent No. 4 on its ofcial website has represented that these three projects, are 'ongoing' projects o Respondent No. 4.
11.2.5. In the 4th Disclosure Afdavit, Respondent No. 4 has stated that it did not disclose the group entities Marvel Precast Structures India LLP and Marvel Ora Residences LLP as they are not operational. This statement o Respondent No. 4 is PA-Nitin Jagtap 27 / 67 WPL-3221-2021-Final.doc belied by the fnancial statements o these entities produced by the Petitioner which clearly show that in the Financial Year 2019-2020 one o the LLP's has advanced loan amounts o approximately Rs. 60 crores to its related parties. That it again begs the question how these entities had money to advance such huge loans i they were not operational.
11.3. That these acts o Respondent No. 4 and o Shri Jhavar, in repeatedly disobeying the a oresaid Orders and will ully breaching the undertakings given by it to this Court, amounts to civil contempt, or which the Petitioner may initiate separate proceedings. In addition thereto, the acts o Respondent No. 4 and Shri Jhavar in repeatedly making alse and incorrect statements on oath be ore this Court, in order to inter ere with and obstruct the administration o justice, also amounts to contempt in ace o the court, as well as perjury. In view thereo , he submitted that Respondent No. 4 and Shri Jhavar ought to be held guilty o contempt and detained in custody. 11.4. That the above submissions are ortifed by the Judgment in Cipla Limited vs. Mr. Krishna Dushyant Rana 1, wherein a Learned Single Judge o this Court ordered civil imprisonment o the De endant or a period o three months in view o the De endant's deliberate, will ul, contumacious conduct in disobeying the Orders passed by the Court, by making alse and incorrect statements on oath, thereby obstructing the administration o justice. That like the acts o the present case, in Cipla Limited, supra, the de endant being a Judgment Debtor had been directed by this 1 2016 SCC OnLine Bom 5895 - Paras 1 to 22 and 27 PA-Nitin Jagtap 28 / 67 WPL-3221-2021-Final.doc Court to disclose on oath all his assets (movable and immovable). The de endant fled our successive Afdavits to disclose its assets and in each o the Afdavits, suppressed its assets and did not provide a complete disclosure. In view thereo , this Court held that as the de endant had made alse and incorrect statements to the Court, the de endant was guilty o having committed grave and serious act o contempt o this Court. This Order and Judgment was challenged by the De endant be ore the Division Bench o this Court in Commercial Appeal No. 18 o 2016. The Division Bench by its Order dated 19th December 20172 dismissed the Appeal and upheld the Judgment passed by the Single Judge. The De endant then challenged the said Order dated 19 th December 2017 by fling SLP (Civil) No. 3872 o 2018 be ore the Supreme Court. The Supreme Court also dismissed the said SLP on 19th February, 20183 and upheld the Order passed by the Single Judge and the Appeal Court.
12. Shri Amit Gharte, Learned Advocate representing Respondent No. 4 made the following submissions :
12.1. That the Petitioner's contention that Respondent No. 4 has not disclosed its assets and o its group entities is incorrect. 12.2. That when the said Order dated 6th March, 2020 was passed, Respondent No. 4 immediately fled the 1st Disclosure Afdavit disclosing the assets in respect o the project 'Marvel Ribera'.
12.3. That the said Afdavit was fled under a bona fde belie that as the 2 Mr. Krishna Dushyant Rana vs. Cipla Limited (Commercial Appeal No. 18 o 2016) - Rel Paras 24, 29 to 37 3 Mr. Krishna Dushyant Rana vs. Cipla Limited - SLP No. 3872 o 2018 PA-Nitin Jagtap 29 / 67 WPL-3221-2021-Final.doc subject amount involved in the present Writ Petition was approximately Rs.
14,00,00,000/, the said Disclosure that Respondent No. 4 is to receive approximately Rs. 18,00,00,000/- in the said Project rom 11 sold fats, would be a sufcient disclosure or the amount involved in the present Writ Petition. 12.4. That on the next occasion i.e. 14th January, 2021, when it was in ormed that a detailed disclosure needs to be fled by Respondent No. 4, Respondent No. 4 immediately fled its 2nd Disclosure Afdavit on 20th January, 2021, which included the chart as to the number o projects and the loans outstanding against the Respondent No. 4 and its group entities.
12.5. That therea ter vide the 3rd and 4th Disclosure Afdavits, the Respondent No. 4 has in detail disclosed the assets, liabilities, fats sold and unsold, bank details o Respondent No. 4 and its group entities.
12.6. That there ore Respondent No. 4 has to the best o its ability made every efort to comply with the Orders o Disclosures and there ore cannot be held guilty o contempt.
12.7. That it is not the case o any party that the said disclosures fled on record are alse or misrepresenting.
12.8. That Respondent No. 4 has not committed any 'wil ul' breach o any undertaking or statement given to this Court and there ore no contempt action can be initiated against Respondent No. 4.
12.9. That the Supreme Court has in its Judgment in the case o Anil Sarkar PA-Nitin Jagtap 30 / 67 WPL-3221-2021-Final.doc vs. Hirak Ghosh4, inter aaia held that a mere disobedience o an order may not be sufcient to amount to a civil contempt within the meaning o Section 2(b) o the Contempt o Courts Act, 1971. The element o willingness is an indispensable requirement to bring home the charge within the meaning o the Contempt Act. 12.10. That i the Petitioner is aggrieved by non-disclosure o complete assets o Respondent No. 4, which according to the Respondent No. 4 has been disclosed, the Petitioner instead o seeking a contempt action, ought to have sought or en orcement o the said Order. That in the case o Kanvar Singh Saini vs. High Court of Delhi5, the Supreme Court has held that or en orcement o the interim and fnal orders / decree o courts, including undertaking given to the Court, a proper and advisable frst mode or en orcement o the order is to fle an application seeking en orcement o interim order / undertaking given to the Court, rather than fling a contempt proceeding seeking contempt action. When the matters relate to in ringement o a decree or decretal order embodying rights between the parties, contempt jurisdiction cannot be invoked merely because the other remedy would take time; urther the contempt jurisdiction is attracted when disobedience o Court's order or undertaking to the Court is wil ul and contumacious (see part C o the Written Arguments o Respondent No. 4).
12.11. That the Supreme Court in Food Corporation of India vs. Sukhadeo Prasad6, has held that contempt action cannot be used or en orcement o money 4 AIR 2002 SC 1405 5 (2012)4 SCC 307 - Para 18 6 (2009) 5 SCC 665 PA-Nitin Jagtap 31 / 67 WPL-3221-2021-Final.doc decree or directions/order or payment o money. That the said principles are also applicable in the acts o the present case and under the garb o contempt proceedings, the en orcement o money decree cannot be ordered.
12.12. That the Petitioner has ailed to fle any proceedings including contempt proceedings against Respondent No. 4. That neither have the contempt proceedings been pre erred, nor this Court has taken suo motu cognizance o any such contempt. Further, no contempt notice has been issued or a show cause notice prior to such contempt notice has been issued to Respondent No. 4 stating the charges and/ or contentions which the present Respondent No. 4 needs to answer. 12.13. That Respondent No. 4 is unaware on what grounds/charges the Petitioner is seeking contempt action against them. That without anything on record / on afdavit, as to under what circumstances and on what grounds the Petitioner is seeking contempt action against Respondent No. 4, the Petitioner cannot merely rely upon a Judgment passed in Cipla Ltd.(supra) to seek contempt action. In any event the Judgment in Cipaa Ltd. arises out o a Summary Suit, which was pending on the Original Side o this Court and the Single Judge was exercising the powers o the Civil Court. Further in paragraph 12, the Single Judge has specifcally held that the De endant had fled a alse afdavit and made alse statement be ore the Court, which resulted in the contempt action. That this Court is not exercising jurisdiction o a civil court in its original jurisdiction and the present proceedings are under Article 226 and there ore no contempt proceedings will lie.
PA-Nitin Jagtap 32 / 67 WPL-3221-2021-Final.doc 12.14. That Chapter XXXIV o the Bombay High Court Rules, Appellate Side, regulates the procedure or initiating contempt action under Article 215 o the Constitution o India and the Contempt o Courts Act, 1971. Rules 8, 9, 10, 22 and 24 o the said Rules makes it clear that the relie s sought by the Petitioner or holding Respondent No. 4 guilty o contempt cannot be granted inter aaia unless the Petitioner fles a separate application or disobedience o order by Respondent No. 4; a notice is issued to the contemnor by this Court calling upon the contemnor to show cause why no action should be taken against him and Respondent No. 4 is granted 14 days to reply to such Notice.
13. Shri Jagtiani, in rejoinder, submits that the a oresaid Judgment in Anil Sarkar (supra) relied upon by Respondent No. 4 does not support the Respondent No. 4's contention, as the question whether the disobedience o the order was will ul or not is required to be ascertained on the basis o acts o each case. He also submitted that by the Judgments in the case o Kanwar Singh (supra) and Food Corporation of India (supra), the Supreme Court held that contempt jurisdiction cannot be used or en orcement o decree passed in a civil suit as the person had initiated proceedings under Order 39 Rule 2A o the Code o Civil Procedure or breach o a decree, instead o fling execution proceedings under Order 21 Rule 32 o CPC. He submitted that the said ratio is not applicable to the acts in the present case as the Petitioner is not seeking contempt or non-compliance o the decree at all. 13.1. Shri Jagtiani also submitted that the ulfllment o Rules 8, 10, 22 and 24 PA-Nitin Jagtap 33 / 67 WPL-3221-2021-Final.doc o the Appellate Side Rules, as relied upon by Respondent No. 4 are not necessary when the contempt is committed in the ace o the Court. Shri Jagtiani relied upon Section 14(1) o the Contempt Act read with Rule 4 o the Appellate Side Rules which deal with contempt in the ace o the court.
ISSUE NO. 2 AS SET OUT IN PARAGRAPH 7.2
14. Shri Sharan Jagtiani, Learned Senior Advocate representing the Petitioner has made the following submissions :
14.1. That in the present case, the Collector and Tahsildar have completely ailed to discharge their statutory duties and exercise powers con erred on them under the Maharashtra Land Revenue Code, 1966 ("the Code") to execute the said Recovery Certifcate. That despite receiving the direction rom RERA on 15 th April, 2019 to execute the Recovery Certifcate, the Tahsildar sent demand notices to Respondent No. 4 only on 11th September, 2019 and then on 10th January, 2021, which Respondent No. 4 ailed to comply with. Therea ter, the Tahsildar carried out a search o Respondent No. 4's properties rom the property cards available with her.
According to the Tahsildar, the Property Cards disclosed names o certain properties in the name o Marvel Imperial Co-operative Housing Society Limited, Marvel Crest Condominium, etc. However, as the names on these Property Cards were not the same as that o Respondent No. 4, i.e. 'Marvel Sigma Homes Pvt. Ltd.', she was unable to execute the said Recovery Certifcate. That the Property Card annexed, itsel shows that Marvel Crest Condominium is owned by Respondent No. 4, which PA-Nitin Jagtap 34 / 67 WPL-3221-2021-Final.doc the Tahsildar ailed to consider. That instead o exercising the powers con erred on revenue ofcers under the Code to execute a Recovery Certifcate, the Tahsildar vide her Letter dated 11th March, 2020 in ormed RERA that as she could not locate the properties o Respondent No. 4, she was unable to execute the Recovery Certifcate. Thus, it is clear that there has been complete inaction by the Collector and the Tahsildar in complying with their statutory obligations.
14.2. That the events that have transpired during the hearing o the present Writ Petition, clearly show that Respondent No. 4 has no intention o complying with the said Recovery Certifcate and/or o paying the said Decretal Amount. That Respondent No. 4 has made every attempt to delay the payment o the said Decretal Amount to the Petitioner. Initially, Respondent No. 4 did not comply with the demand notices o the Tahsildar. Therea ter, once the present Writ Petition was fled, Respondent No. 4 in order to delay the hearing o the present Writ Petition did not provide complete disclosure o its assets and that o its group entities, despite repeated orders passed by this Court.
14.3. That in the various Disclosure Afdavits fled by Respondent No. 4, Respondent No. 4 has sought to represent to this Court that it was debt ridden and had no means to pay the dues o the Petitioner. However, rom a perusal o these Disclosure Afdavits, the Petitioner has been able to ascertain that at least an amount o Rs. 2,90,15,211.69/- (Rupees Two Cores Ninety Lakhs Fi teen Thousand Two Hundred Eleven and Sixty-Nine Paisa) is lying in the bank accounts o Respondent PA-Nitin Jagtap 35 / 67 WPL-3221-2021-Final.doc No. 4 and its group entities which have no charge on it. There are various other bank accounts as well, which have not been disclosed by Respondent No. 4 and which may also have monies lying therein, which are ree o any charge / lien. That as per the list o sold and unsold units in various projects disclosed by Respondent No. 4, there are 192 unsold units in the projects owned by Respondent No. 4 and approximately 449 unsold units in the various projects owned by the group entities o Respondent No. 4. Further, group entities o Respondent No. 4 has been advancing monies to the tune o Rs.60 crores to its related entities, which clearly show that Respondent No. 4 and its group entities have the required unds to pay the Decretal Amount but is with malafde intention avoiding to pay the same. In view thereo , he submitted that Respondent No. 4 despite having the means to pay the said Decretal Amount was re using to pay the same to the Petitioner.
14.4. That the Supreme Court by its Order dated 12 th February, 2021 passed in SLP (C) No. 2122-2123 o 2021, has already upheld the approach o this Court in ensuring that in one manner or the other the Respondent No. 4 honours the decree which has been passed against it. That in view o the a oresaid Order, the interim relie s as sought by the Petitioner ought to be granted.
14.5. That prayer clauses b (ii) and b (iii) ought to be granted. That the Petitioner apprehends that i the a oresaid interim relie s are not granted, Respondent No. 4 may deal with all its assets in order to deprive the Petitioner o its undisputed dues. That the ratio laid down by the Supreme Court in the case o Deoraj vs. State of PA-Nitin Jagtap 36 / 67 WPL-3221-2021-Final.doc Maharashtra7 in support o the necessity or grant o interim relie s in a Writ Petition keeping in mind the ends o justice, is squarely applicable to the acts and circumstances o the present case, more particularly to the conduct o Respondent No. 4 in the present case.
14.6. That in exercise o its inherent powers under Article 226 o the Constitution o India, this Court has the jurisdiction to pass orders and/or directions against a private person and in the present case against Respondent No. 4, which is a Private Limited Company. That the Allahabad High Court in the case o Shri Ram Singh & Anr. vs. Special Judge E.C. Act & Ors. 8 has held that a High Court, while being seized o a writ petition under Article 226 o the Constitution, can also pass any order including an order in the nature o an injunction against a private person in exercise o its inherent powers. That while arriving at the a oresaid fnding, the Allahabad High Court has relied upon the Judgment o the Supreme Court in Dwarka Nath vs. Income-tax Ofcer9, wherein the Supreme Court, while considering the scope and ambit o the powers o the High Court under Article 226 o the Constitution, held that the High Court while exercising its writ jurisdiction can issue any order or direction, which it considers necessary to be issued.
15. Shri Amit Gharte, Learned Advocate representing Respondent No. 4, has made the following submissions :
15.1. That Respondent No. 4 is a Private Limited Company registered under 7 2004 4 SCC 697 - Paras 10 to 13 8 1993 SCC OnLine All 38 - Paras 10 to 18 9 AIR 1966 SC 81 (Coram: K. SUBBA RAO, J.C. SHAH AND S.M. SIKRI, JJ.) PA-Nitin Jagtap 37 / 67 WPL-3221-2021-Final.doc the Companies Act, 1956 and does not per orm a public unction and urther does not discharge any public duty and there ore Article 226 o the Constitution o India and the Writ 0 Mandamus and/ or any other writ or order or directions cannot be invoked or passed against Respondent No. 4.
15.2. That Respondent No. 4 is governed by RERA and there ore the grievance or action, i any, against Respondent No. 4 has to be within the rame work o RERA.
15.3. The Supreme Court, in its Judgment in the case o VST Industries Limited vs. VST Industries Workers Union and another 10, has held that Article 226 can be invoked only when the authority or person per orms a public unction, or discharges a public duty and not against a private person. 15.4. That the Judgment in Shri Ram Singh (supra) relied upon by the Petitioner is not applicable to the acts o the present case as the same does not specifcally deal with issuance o the Writ o Mandamus against a private limited company.
15.5. That interim relie s sought by the Petitioner will severely afect the projects o the Marvel Group and that the Marvel Group and Respondent No. 4 would be agreeable to the Petitioner selling of the Flat agreed to be purchased by the Petitioner and to retain the sale proceeds in satis action o the Recovery Certifcate.
16. Shri Jagtiani has distinguished the Judgment relied upon by the 10 2001 1 SCC 298 - Para 8 and 11 PA-Nitin Jagtap 38 / 67 WPL-3221-2021-Final.doc Respondent No. 4 in VST Industries (supra) and submitted that the said Judgment relied upon by the Respondent No. 4 has no application in a situation where the fnal relie is undoubtedly directed against a statutory authority that is a part o the 'State' and in aid o that, interim relie is directed against a private party that has beneftted rom the inaction o the statutory authority. He submitted that in the present case the Petitioner has not sought issuance o a Writ against the Respondent No. 4, which is a Private Limited Company.
16.1. Without prejudice to the a oresaid, Shri Jagtiani submitted that the said Judgment in VST Industries (supra) does not consider the judgment o the Supreme Court in Dwarka Nath (supra) and is there ore per incuriam, or at any rate, cannot be relied upon to de eat the grant o interim relie s.
FINDINGS AND CONCLUSIONS :
ISSUE NO. 1 : "Whether Respondent No. 4 and its Director Shri Jhavar have inter ered with the administration o justice by fling alse and incorrect afdavits o disclosure and by also violating and breaching various orders o this Court?; I so, the consequences o such breach?"
17.1. The liability o the Respondent No. 4 under the Recovery Certifcate is not in dispute. The Recovery Certifcate has attained fnality. The amount owed to the Petitioner is a repayment o the amount already paid by the Petitioner to Respondent No. 4 or purchase o a fat in its project, and interest on that amount as ordered by the PA-Nitin Jagtap 39 / 67 WPL-3221-2021-Final.doc Adjudicating Ofcer. Thus, the Orders o Disclosure against Respondent No. 4 are a step-in aid o the recovery o this amount, which is sought or in the above Petition fled against Respondent Nos. 2 and 3 or ailure to discharge their statutory duties in relating to realising the amount due under the Recovery Certifcate. 17.2. Having set out and considered the various Orders and the Afdavits o Disclosure fled by Respondent No. 4, as also the Afdavit o the Petitioner commenting on the lack o disclosure, and having also considered the submissions o both sides on this aspect, we have no hesitation in concluding that Respondent No. 4 and its Director, Shri Jhavar, have wil ully and deliberately breached the Courts Orders. Not only is this a case o wil ul disobedience o our Orders but in the acts o this case, such wil ul non-compliance and alse and incomplete afdavits also tend to inter ere with the administration o justice, as these disclosures are necessary to enable us to pass efective orders in the Writ Petition.
17.3. The act that Respondent No. 4 has fled our Afdavits o Disclosure, all o them in purported compliance o this Court's Order dated 6 th March, 2020 (and reiterated by the Order o 14th January, 2021), itsel indicates that the frst three Afdavits, even according to Respondent No. 4, were inadequate and non-compliant. What is relevant to note is the casual manner, in which these Afdavits have been fled in brazen disregard to what was stated in the Orders. For instance, in the 1 st Disclosure Afdavit, Respondent No. 4 has only given details o one o the projects o Respondent No. 4, i.e. the subject project 'Marvel Ribera'. The purported disclosure PA-Nitin Jagtap 40 / 67 WPL-3221-2021-Final.doc made qua the subject project was that out o the total 27 fats, 11 fats have been sold and an amount o Rs. 18,54,05,681 was receivable towards sale consideration o the said fats. The remaining 16 fats are unsold, but were mortgaged to ICICI Home Finance Ltd., under a Mortgage Deed dated 29 th May, 2017. Further in paragraph 7 o the 1st Disclosure Afdavit, Respondent No. 4 made a statement that, "Marvel Sigma Homes Private Limited apart rom above has no other property". Details o other projects o Respondent No. 4 or o any o the group entities were not disclosed. In the 4th Disclosure Afdavit, at paragraph 2, there is an attempt to justi y this by saying that details o other projects were not disclosed since Respondent No. 4 was under the impression that the amount o assets including receivables disclosed by Respondent No. 4 in the 1st Disclosure Afdavit would be sufcient to comply with the Court's Order dated 6th March, 2020 (wrongly re erred to as 4th March, 2020). 17.4. The above stand o Respondent No. 4 is belied by the act that a ter the 1st Disclosure Afdavit was fled, in response to the Court's query as to realisation o the receivable o Rs. 18,54,05,681/-, Respondent No. 4 told the Court that this amount has not been received and no indication was given as to when this amount would in act be received. In act, no particulars o this substantial amount o receivables were disclosed in any o the later Afdavits especially when the 4 th and last Disclosure Afdavit was fled on 12 th February, 2021 and the 1 st Disclosure Afdavit was fled on 12th March, 2020. Despite this, Respondent No. 4 seeks to justi y its breach in the 1st Disclosure Afdavit by suggesting that what was disclosed was PA-Nitin Jagtap 41 / 67 WPL-3221-2021-Final.doc sufcient. That apart, the determination o whether a disclosure is sufcient or not, is not to be made by the party who is ordered to make disclosures by the Court when the terms o the Order seeking disclosure are clear and categorical. Thus, the conduct o wil ul breach and obstruction commenced with the 1 st Disclosure Afdavit which was sought to be justifed by the Respondent No. 4 even a ter about a year, by which time the Respondent No. 4 was obviously aware that the Court was not satisfed with the disclosures made.
17.5. The conduct o Respondent No. 4 in not taking responsibility to ensure ull compliance with our Orders stood exposed rom the statement made in the 3 rd Disclosure Afdavit namely, "I say that since the Respondent No. 4 and its other companies are vast, there might be some of the assets/ projects, which inadvertentay are not stated in the Afdavits, the Respondent No. 4 crave leave of Hon'ble Court to put the said properties on afdavits if the same is pointed out to us." (Emphasis Supplied) 17.6. We are there ore o the view that such an Afdavit is unacceptable and a clear indication that Respondent No. 4 had no intention to make serious eforts to comply with our Orders as noted above. In act, as the 4 th Disclosure Afdavit demonstrates, the reason or not making ull disclosures in the earlier Afdavits is not because Respondent No. 4 or its Director could not access details o Respondent No. 4's projects and assets o those o its group entities, but because Respondent No. 4 and Shri Jhavar only chose to make disclosure o assets o "major" entities and projects that they regarded as relevant. This is in complete breach o our Orders, PA-Nitin Jagtap 42 / 67 WPL-3221-2021-Final.doc which are clear and unqualifed qua the disclosure that was required to be made. 17.7. We are also in agreement with the submission o the Petitioner that the alse and incomplete disclosures up to the fling o the 3 rd Disclosure Afdavit have been highlighted in the Petitioner's Afdavit dated 9 th February, 2021. The contents and submissions in relation to this Afdavit o 9 th February, 2021 have been set out and discussed in the oregoing paragraphs and the same are there ore not reproduced herein. However, it is pertinent to note that up to the fling o the 3 rd Disclosure Afdavit, the disclosures o various group entities had not been made. Some o those group entities appear to be developing ongoing projects. In other instances, they have completed projects, and would there ore in all probability have unsold inventory. Other group entities, such as Marvel Precast Structures LLP and Marvel Ora Residences LLP, appear to have assets in the orm o receivables o loans advanced by them. In the case o Marvel Ora Residences, the amount loaned by it is substantial, being about Rs. 59.99 crores. This disclosure is relevant since it indicates that the group entities have unds and resources or access to unds and resources which are being used to fnance other group entities rather than the Marvel Group discharging its liability to persons such as the Petitioner. At this stage, however, what is more important to note is the act that these disclosures were never made by the Respondent No. 4 and were brought to light by the Petitioner in its Afdavit o 9 th February, 2021. 17.8. The other important aspect o the non-disclosure is what is set out in paragraphs 26 and 27 o the Petitioner's Afdavit dated 9 th February, 2021. This is in PA-Nitin Jagtap 43 / 67 WPL-3221-2021-Final.doc relation to various projects that have not been disclosed, including those o the seven entities in respect o which some disclosure was made by Respondent No. 4. The details o these projects have already been listed above. The Petitioner has relied upon the Website o the Marvel Group being available at the url:
www.marvelrealtors.com. The Petitioner has then also placed on record the entities and projects in relation to which no bank account details and disclosures have been made.
17.9. Respondent No. 4 has attempted to justi y its non-disclosures in its 4 th Disclosure Afdavit dated 12th February, 2021, the contents o which have also been set out above. In paragraph 3, Respondent No. 4 has stated that the non-disclosure o bank account details o various projects is because most o the projects are complete.
A list o those supposedly completed projects is then given. The act that a project is complete is no reason to not disclose it. It is possible that even or a complete project, there may be unsold inventory and the bank accounts maintained would be a relevant part o any disclosure.
17.10. Moreover, the Petitioner has correctly pointed out by relying upon the Website o the Marvel Group that certain projects namely, Marvel Orial, Marvel Fria, Marvel Piazza and Marvel Selva Ridge, are in act ongoing projects and not 'complete'. The relevant extracts o the Website o the Respondent No. 4 / the Marvel group are reproduced below :
PA-Nitin Jagtap 44 / 67 WPL-3221-2021-Final.doc PA-Nitin Jagtap 45 / 67 WPL-3221-2021-Final.doc Thus, it can be seen that the statements made by Respondent No. 4 are clearly alse to its own knowledge and contrary to the in ormation that Respondent No. 4 is providing to the public at large in relation to its own business.
17.11. We are also o the view that the reason or not fling disclosure o the entities mentioned in paragraph 4 o the 4 th Disclosure Afdavit, by describing it as irrelevant, because disclosure o major group entities had been made, is wholly untenable. As has been noted above, the Petitioner's response to this part o Respondent No. 4's Afdavit also establishes that at least some o those entities had assets or unsold inventory that were substantial and had to be disclosed. We reiterate that it is not or Respondent No. 4 to unilaterally decide what is relevant and irrelevant in complying with an Order o Disclosure. As already pointed out, the current assets (including receivables rom the short-term loans advanced) o Marvel Ora Residences LLP are very substantial and clearly indicate that the Marvel Group has access to PA-Nitin Jagtap 46 / 67 WPL-3221-2021-Final.doc unds, the source o which is not being disclosed. As noted in the context o the Petitioner's Afdavit o 9th February, 2021, even some o the other group entities have assets, which Respondent No. 4 never disclosed, because it described them as 'irrelevant' and outside the category o 'major' entities. 17.12. In view o what is set out above, it would be relevant to set out the observations o a Single Judge o this Court in Cipaa Limited, (supra).
"1. This is one of those matters where the court is anguished with the conduct of the defendant who despite being given repeated opportunity has repeateday abused the aiberty granted by the court. It is rather unfortunate that the defendant, who is probabay in his 30's at aeast from the appearance, if aet of to continue with his behaviour, it wiaa erode the faith that the pubaic have on judiciary. The ruae of aaw is premised upon the faith reposed by the peopae in the justice deaivery system. To prevent erosion of that faith contemptuous behaviour in the face of the court needs a strict treatment.
15. It shouad be noted that in every successive afdavit defendant stated that he has discaosed every asset, whereas the fact that he has been faing successive afdavits to discaose more and more assets and give particuaars thereof shows the defendant was making faase statement in each of the afdavits.
18. The defendant has made faase and incorrect statements and has given undertaking to this Court that he has discaosed every asset that he has, knowing the same to be faase and incorrect. I am satisfed that the defendant is guiaty of having committed grave and serious act of contempt of this Court. This court gave a very aong rope to the defendant to come out caean, to come out honest, to come out truthfua and be transparent to the court but every opportunity given has been abused by the defendant. Repeateday faase statements have been made. The attempt is to drag on the matter so that the defendant can get away. The conduct of the defendant has scandaaized and aowered the dignity of the court in the eyes of the pubaic. The action of the PA-Nitin Jagtap 47 / 67 WPL-3221-2021-Final.doc defendant has been deaiberate, unaawfua and purposeay done with a view to misaead the court, by making deaiberate, faase, misaeading and incorrect statements. In Advocate Generaa, High Court of Karnataka v. Chidambara, the Karnataka High Court has aaso head that any person who makes a faase statement on oath wouad be interferring with the administration of justice.
19. The Hon'bae Supreme Court of India in the case of Re: Bineet Kumar Sing v. Unknown has in caear terms head that a faase or misaeading or wrong statement deaiberateay and wiaafuaay made by a party to the proceedings wouad undoubteday tantamount to interference with the due course of judiciaa proceeding.
20. In the present case the conduct of the defendant caearay brings to aight the fact that the defendant has no respect for this Court. It caearay shows that the defendant feeas that making faase statements incauding undertaking to the courts and thereafter breaching them or not compaying with the directions given by the Court wouad have no consequences. The conduct of the defendant is wiaafua, deaiberate and contumacious. The Supreme Court in Leeaa David v. State of Maharashtra, in caear terms that the court is not precauded from taking recourse to summary proceeding when a deaiberate contempt takes paace and the punishment is given forthwith by the court on hoading the contumacious guiat of contempt and sending them to prison.
21. In Jennison v. Baker it is stated the aaw shouad not be seen to sit by aimpay, whiae those who defy it go free, and those who seek its protection aose hope. It is aaso settaed that a course of conduct which abuses and makes a mockery of the judiciaa process and which thus extends its pernicious infuence beyond the parties to the action and afects the interest of the pubaic in the administration of justice needs a strict treatment.
22. The defendant has made a mockery of the judiciaa process. A decree has been passed against the defendant way back in 2011. The chamber summons was taken out for the reaiefs as mentioned above. Even though the chamber summons was served upon the defendant in September-2013, the defendant did not fae any repay untia June-2015. Even in the afdavit in repay, i.e., frst afdavit, he does not discaose the entire truth about aaa the assets in his name. Stiaa he states in the end of the afdavit that he has PA-Nitin Jagtap 48 / 67 WPL-3221-2021-Final.doc discaosed everything. When he was given another chance to expaain, he faes second afdavit in which, again, he does not discaose aaa the assets but stiaa makes a statement that he has discaosed aaa movabae and immovabae assets to the court. But when the annuaa returns which were annexed to the second afdavit was considered, it came to aight that he had other assets in his name which have not been discaosed in his afdavit. 3rd opportunity and 4th opportunity was given to the defendant and he faed third afdavit dated 13.7.2015 and fourth afdavit dated 8.9.2015 but stiaa chose to be economicaa with truth. When the court asked him as to how he paid the aoan taken for the two skoda cars, the defendant's counsea on instructions from the defendant stated frst it was paid by cash and then it was changed to one car in cash and other in cheque and again it was changed to everything by cheque from Cosmos bank, but there is no mention of Cosmos bank in any of the documents. At every stage whenever afdavits were faed, the defendant was made aware that he shouad be truthfua in his afdavit. The defendant was aaso aware that he had to discaose aaa the assets and that is why in the afdavits he has been signing of by saying 'I discaosed my aaa movabae and immovabae assets'. He had stated that right in the frst afdavit. If that was true, there wouad not have been a need to fae the second afdavit in which aaso he has stated he has discaosed aaa assets. But stiaa he had to fae third and fourth afdavit. Therefore, the defendant knew aaa the time that he was making faase statement before the court in the form of afdavits and in efect was making a mockery of the judiciaa process. The opportunity given to fae further afdavit was misused and abused. The conduct of the defendant was contumacious because he couad not care. His demeanor has been that he couad make faase statements, give undertakings to the court and breach them and it wouad have no consequences. The action of the defendant has been deaiberate, wiaafua and purposeay done with a view to compaeteay misaead this court. By making faase statement on oath, knowing it to be faase statement, the defendant has interfered with the administration of justice. In my view, if this conduct of the defendant is not deaat with frmay, that may resuat in scandaaizing the institution and aowering its dignity in the eyes of the pubaic.
25. In view of the above, I hoad the defendant has disobeyed the orders PA-Nitin Jagtap 49 / 67 WPL-3221-2021-Final.doc made under Order XXI Ruae 41(2) of the code of civia procedure.
27. In view of the deaiberate wiaafua contumacious conduct of the defendant and thereby obstructing the administration of justice, the defendant deserves to be detained in civia prison for three months, the maximum period provided."
17.13. As mentioned above, the Order and Judgment o the Single Judge was confrmed by a Division Bench and therea ter by the Supreme Court. Although, the Judgment in Cipaa (supra) was in the context o consequences o non-disclosure under Order 21 Rule 41(3) o the Code o Civil Procedure, 1908 ('CPC'), the Judgment itsel also relies upon the general principles that are undamental to the rule o law. The Judgment (which in turn re ers to various other relevant decisions o the Supreme Court and other Courts) clearly supports the proposition that such brazen and continuous disregard or orders o the Court including by making alse and misleading statements would also obstruct and inter ere with the administration o justice. This entitles the Court in a given case to take recourse to summary proceedings when a deliberate contempt takes place and the punishment is given orthwith by the Court. 17.14. We are in agreement with the views expressed in Cipaa (supra). We also fnd that the Judgments relied upon by the Respondent No. 4 in the case o Ania Sarkar (supra) is o no relevance and renders no assistance to Respondent No. 4. For the reasons noted above, we fnd that the breach and non-compliance o our Orders by Respondent No. 4 was indeed wil ul and deliberate and did afect the administration o justice. It was not a case where there was one in raction and therea ter Respondent PA-Nitin Jagtap 50 / 67 WPL-3221-2021-Final.doc No. 4 complied with our Orders.
17.15. The Judgments in Kanwar Singh Saini (supra) and Food Corporation of India (supra) relied upon by the Respondent No. 4 to contend that the Court ought to exercise discretion when exercising powers under the Contempt o Courts Act and that the contempt jurisdiction ought not to be used or en orcement o a decree where proceedings in en orcement have been initiated, are equally o no assistance to the Respondent No. 4.
17.16. Although these are not proceedings under the Contempt o Courts Act, it would be entirely within the jurisdiction and power o this Court under Article 226 o the Constitution o India, to deal with the very serious issue o Respondent No. 4's wil ul disobedience and inter erence in the administration o justice by deliberately not complying with the various Orders o Disclosure made by this Court rom time to time, and by fling alse and incomplete Afdavits. As regards the exercise o discretion, be ore taking such action, we may note that we have given several opportunities to Respondent No. 4 to comply with our Orders. There is also no merit in the submission that contempt proceedings are not a substitute or proceedings or execution or en orcement. This submission is o no relevance in the present case, where the grievance o the Petitioner is that the statutory authorities are taking no steps to ensure recovery o the amounts under the Recovery Certifcate, because o which the present Petition has been fled. The issue o Respondent No. 4's wil ul breach and inter erence with the administration o justice has come up because o its PA-Nitin Jagtap 51 / 67 WPL-3221-2021-Final.doc conduct, in the course o this very Writ Petition. Thus, there is absolutely no merit in the submission o Respondent No. 4 by relying on the above Judgments. 17.17. This takes us to the question as to what action ought to be taken against Respondent No. 4 and its Director Shri Jhavar, who, being an executive Director o Respondent No. 4, has afrmed all the Afdavits o Respondent No. 4. Though we would have been justifed in orthwith considering Shri Jhavar's conduct as being inter erence in the administration o justice or all the reasons noted above, we are instead inclined to take suo moto cognizance o Respondent No. 4 and Shri Jhavar's conduct, and direct that a Notice be issued to Respondent No. 4 and Shri Jhavar under Section 14 o the Contempt o Courts Act read with Rule 4 o the Appellate Side Rules, 1960, and call upon Respondent No. 4 and Shri Jhavar to respond as to why Shri Jhavar should not be punished under the a oresaid provisions or obstruction and inter erence with the administration o justice and lowering the dignity o this Court. Such Notice will be issued by the Appellate Side Registry o the Bombay High Court. All proceedings in relation to such Notice will be in accordance with the provisions o the Contempt o Courts Act and the Appellate Side Rules. Our observations as above may be considered relevant only or the purposes o our decision to take suo moto cognizance and or issuance o the said Notice to Respondent No. 4 and Shri Jhavar. 17.18. Independent o the above, the Petitioner will be at liberty to institute proceedings or civil contempt under the provisions o the Contempt o Courts Act, i so advised.
PA-Nitin Jagtap 52 / 67 WPL-3221-2021-Final.doc 17.19. For all o the above reasons we answer the frst issue as set out above in the afrmative and the consequences o our conclusion are as set out hereinabove. ISSUE NO. 2 : Whether the Petitioner is entitled to the interim relie s as set out in prayer clauses (b)(ii) and (b)(iii) o the present Writ Petition, especially considering that Respondent No. 4 is a Private Limited Company?
18. As regards grant o interim relie s prayed or, the ollowing two questions arise or our consideration :
(i) whether a prima acie case has been made out against Respondent Nos. 2 and 3 or non-per ormance o their statutory duties under the Maharashtra Land Revenue Code, or realisation and recovery o the amount under the Recovery Certifcate;
(ii) whether Respondent No. 4, being a Private Limited Company, can be subjected to interim relie s in exercise o our writ jurisdiction under Article 226 o the Constitution o India.
18.1. Having considered the material on record, we are prima acie satisfed, that Respondent Nos. 2 and 3 have done nothing in discharge o their statutory duties to secure recovery o the Decretal Amounts under the Recovery Certifcate. Although the Tahsildar issued a demand notice dated 11 th September, 2019, no steps were taken especially considering that Respondent No. 4 did not reply to the notice. There are powers available to the Tahsildar under the provisions o the Maharashtra Land Revenue Code, inter alia under Section 263 and Section 267 read with Rule 17 o the PA-Nitin Jagtap 53 / 67 WPL-3221-2021-Final.doc Maharashtra Realisation o Land Revenue Rules, 1967, to acilitate such recovery. No steps were taken pursuant to the powers available under these provisions. The Tahsildar did absolutely nothing therea ter, despite the Petitioner addressing letters to the Tahsildar to take steps or making the recovery under the Recovery Certifcate. 18.2. The Afdavit fled by Respondent No. 3 - Tahsildar dated 6 th March, 2020 is itsel an indication that there was complete and unjustifed inaction on her part. We have already reproduced hereinabove paragraphs 6 and 7 o this Afdavit. The stand o the Tahsildar essentially is that since in the Property Card there is no project or property that bears the name o Respondent No. 4, no action or recovery could be taken. In act, the Property Card annexed to the Afdavit o 6 th March, 2020 itsel indicates that Marvel Crest is a project o Respondent No. 4 - Marvel Sigma Homes Pvt. Ltd. Despite this, no steps were taken by the Tahsildar even in respect o the project Marvel Crest. This shows a complete lack o efort and application o mind by the ofce o Tahsildar in discharging its statutory duty.
18.3. It is pertinent to note that a ter fling the Afdavit dated 6 th March, 2020, the Tahsildar addressed a letter to RERA on 11th March, 2020 that she could not locate the properties o Respondent No. 4 and was unable to execute the Recovery Certifcate. We have already re erred to this letter above. The same establishes complete ailure and abdication o duties by the Tahsildar. In act, as on the date o writing this letter, the Tahsildar had done nothing to secure the execution and realisation o monies due under the Recovery Certifcate. This letter is yet another PA-Nitin Jagtap 54 / 67 WPL-3221-2021-Final.doc indication that the Tahsildar was not interested in ensuring realisation o the amount under the Recovery Certifcate.
18.4. Respondent No. 4 contended that Respondent Nos. 2 and 3 are now taking steps and that the Tahsildar has, on 8 th February, 2021, levied a charge on Respondent No. 4's property or Rs. 6.25 crores at 30/A Boat Club Road Pune. We fnd that this solitary measure during the pendency o the Writ Petition, and that too a ter gross inaction and abdication o duty, is not enough to satis y us that Respondent Nos. 2 and 3 are taking the necessary steps in accordance with law. It is not the contention o Respondent Nos. 2 and 3 that the Petition ought to be dismissed in view o the steps taken by them. Their Afdavit on record shows that they have pleaded helplessness in ensuring recovery o the amounts due under the Recovery Certifcate. It is not or Respondent No. 4 to make a sel -serving submission that the actions taken by Respondent Nos. 2 and 3 against Respondent No. 4 itsel are enough to satis y this Court. For these reasons, we fnd that a strong prima acie case has been made out in this Writ Petition to consider the grant o interim relie s.
18.5. The next aspect that requires consideration is the contention o Respondent No. 4 that being a Private Limited Company or entity, no relie s can be granted against it in a Writ Petition under Article 226 o the Constitution o India. This submission has been made in the Written Submissions fled on behal o Respondent No. 4. Much a ter the application or interim relie s was reserved or Orders, Respondent No. 4 fled yet another Interim Application being IA (Stamp) No. PA-Nitin Jagtap 55 / 67 WPL-3221-2021-Final.doc 11023 o 2021 on 21st May, 2021. The same came to be listed be ore us on 15 th June, 2021. By this Interim Application ('IA'), Respondent No. 4 sought to raise this very issue which was already argued by it as a preliminary issue afecting the maintainability o the Writ Petition. By our Order dated 15 th June, 2021 we disposed o this IA by stating that the issue o grant o relie s against a private entity such as Respondent No. 4 will be considered by us, as the same had been raised by Respondent No. 4. 18.6. In considering this submission or opposition to grant o interim relie s against Respondent No. 4, it is to be noted that the fnal relie s in the Writ Petition seek a Mandamus against Respondent Nos. 2 and 3 to exercise their statutory duties and take efective steps or the realisation o the amount due and payable to the Petitioner under the Recovery Certifcate. It is not the case o any o the Respondents including Respondent No. 4 that the Writ Petition seeking such a Writ o Mandamus is not maintainable or is misconceived. The maintainability o the Writ Petition must be determined with re erence to the fnal relie s that are sought, and we have no doubt that such a Writ Petition would be maintainable under Article 226 o the Constitution o India.
18.7. It is well settled that grant o interim relie s is in aid o fnal relie s in any proceeding, such as a Writ Petition or a Suit. In the present case, the interim relie s in terms o prayer clauses (b)(ii) and (b)(iii), which are directed against Respondent No. 4 ( or deposit and injunction) and its assets, as also assets o its group entities, are clearly in aid o the fnal relie s seeking action by the statutory authorities or PA-Nitin Jagtap 56 / 67 WPL-3221-2021-Final.doc realisation o the undisputed amounts under the Recovery Certifcate. In the wide and extraordinary jurisdiction under Article 226 o the Constitution o India, there would be no embargo, or restriction on the grant o interim relie s against an errant private party in aid o the fnal relie s prayed or in the Writ Petition. The Court will o course have to be mind ul, o the acts and circumstances in a given case, o whether a private law action is being substituted by exercise o a writ remedy. That is not the case here, since the Petitioner in the present case has already obtained an Order rom the Adjudicating Ofcer constituted under the RERA Act or repayment o the amounts paid by the Petitioner with interest. That has, in turn, led to a Recovery Certifcate. It is the ailure to act in relation to that Recovery Certifcate that has led to this Writ Petition and the interim relie s sought or. I the interim relie s as sought or by the Petitioner are not granted, it is extremely likely or possible that Respondent No. 4 and its group entities will deal with, or urther encumber or mortgage their assets and there will be no prospect or possibility o realisation under the Recovery Certifcate. The conduct o Respondent No. 4 and its Director as noted above, justifes such apprehension.
18.8. We see merit in the reliance placed by the Petitioner on the Judgment o the Allahabad High Court in Shri Ram Singh (supra) which in turn relies upon and reproduces the relevant extract rom the Supreme Court decision in Dwarka Nath (supra). The relevant paragraphs o the Judgment are reproduced hereunder :
"10. But as regards the second question as to whether the appeaaate or revisionaa PA-Nitin Jagtap 57 / 67 WPL-3221-2021-Final.doc order passed by a district court is amenabae to a writ jurisdiction, the Fuaa Bench in Ganga Saran's case has head as under.
"With respect to the second question to be answered by us, we are not incained to deaa with it eaaborateay here. Sufce it to say that the view of the Supreme Court in Qamaruddin's case (supra) that ordinariay an interaocutory order passed in civia suit is not amenabae to extraordinary jurisdiction of the High Court under Art. 226 of the Constitution, no doubt is based upon recognised principae taken into consideration by the court in refusing the writ. In our opinion, this view of the Supreme Court in Qamaruddin's case is based on assumption that a revision under S. 115, CPC to High Court is maintainabae and the party agrieved can invoke revisionaa jurisdiction of the High Court. But in a situation where a revision is barred against the appeaaate or revisionaa order passed by the district courts and said order sufers from patent error of aaw and further causes manifest injustice to the party agrieved can it be said that such an order is not amenabae to extraordinary jurisdiction of the High Court under Art. 226 of the Constitution. In our opinion, aathough every- interaocutory order passed in civia suit is not subject to review under Art. 226 of the Constitution but if it is found from the order impugned that fundamentaa principae of aaw has been vioaated and further that such an order causes substantiaa injustice to the party agrieved, the view taken by the Supreme Court in Qamaruddin's case (supra) wiaa not precaude such a writ being issued by the High Court under Art. 226 of the Constitution. But onay such writ petition under Art. 226 or 227 of the Constitution wouad be maintainabae where writ can be issued within the ambit of the weaa-estabaished and recognised principaes aaid down by the Supreme Court as weaa as by the various High Courts in that regard. The opinion expressed by the Supreme Court in Qamaruddin's case (supra) to the extent that a writ of mandamus cannot be issued to a private individuaa unaess he is under statutory duty to perform a duty is in accord with weaa estabaished principae regarding writ of certiorari and mandamus and need no reiteration or eaaboration at our hand............ Where an agrieved party approaches High Court under Art. 226 of the Constitution against an order passed in civia suit refusing to issue injunction to a private individuaa who is not under statutory duty to perform pubaic duty or PA-Nitin Jagtap 58 / 67 WPL-3221-2021-Final.doc vacating an order of injunction, the main reaief is for issue of a writ of mandamus to a private individuaa and such a writ petition under Art. 226 of the Constitution wouad not be maintainabae. Foaaowing the decision of the Supreme Court in Qamaruddin's case (supra) this court cannot issue a writ of mandamus to a private party unaess he is under a statutory duty to perform a pubaic duty."
(Emphasis suppaied)
11. From the above passage quoted from Ganga Saran's case (supra) it is evident that so far as maintainabiaity of writ of certiorari against the impugned order is concerned, it is not in doubt. It is aaso not in doubt that a writ of mandamus against the subordinate courts is maintainabae. What is in doubt is whether a writ of mandamus against a private person can be issued if such private person is not under any statutory obaigations to perform a pubaic duty for the performance of which a writ of mandamus is normaaay issued.
12. In Dwarika Nath v. Income-tax Ofcer, AIR 1966 SC 81, the Supreme Court whiae considering the scope and ambit of powers of High Court under Art. 226 of the Constitution, has made the foaaowing observations (at page 84):
"This Articae is couched in comprehensive phraseoaog and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. The Constitution designeday uses a wide aanguage in describing the nature of power, the purpose for such and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in Engaand but the scope of those writ petitions aaso is widened by the use of the expression 'nature' for the said expression does not equate the writ petition that can be issued in India with those in Engaand but onay draws an anaaog from them. That apart, High Courts can aaso issue directions, orders or writs other than the prerogative writs. It enabaes the High Courts to mouad the reaief to meet pecuaiar and compaicated requirements of the country, any attempt to equate the scope of the power of High Courts under Art. 226 of the Constitution with that of the Engaish Courts to issue prerogative writs is to introduce an unnecessary proceduraa restrictions grown over the years in a PA-Nitin Jagtap 59 / 67 WPL-3221-2021-Final.doc comparativeay smaaa country aike Engaand with a unitary form of Government to a vast country aike India functioning under a federaa structure. Such construction defeats the purpose of Articae itseaf."
13. The above observations of the Supreme Court in Dwarika Nath's case (supra) tend to support the view that a writ in the nature of mandamus may be issued against a private individuaa in view of the aanguage of wide ampaitude of Art. 226 is couched with. It is no doubt true that a writ jurisdiction under Art. 226 of the Constitution is in the nature of supervisory jurisdiction and not appeaaate one and that it is not a substitute for the ordinary remedies avaiaabae under the normaa aaw of the aand and the High Court may under Art. 226 decaine to interfere if an equaaay efcacious aaternative remedy is avaiaabae. The remedy for injunction is avaiaabae under the Civia P.C. and the Specifc Reaief Act 1963 but this is onay a seaf imposed restriction. There is no absoaute bar. It is a question of discretion to be exercised on sound principaes of aaw, justice and equity. Whether to grant or not to grant an ad interim injunction is certainay a matter invoaving the exercise of judgment and discretion of the subordinate Civia Courts and the High Court may not interfere in the matter but in its supervisory jurisdiction under Art. 226 of the Constitution, the High Court can certainay see whether the orders passed by the Subordinate courts sufer from any error of jurisdiction, patent iaaegaaity or perversity etc. and I am aaso of the opinion that the High Court whiae exercising its writ jurisdiction against an appeaaate or revisionaa order can issue a writ of certiorari/mandamus not onay against the subordinate courts but it may aaso issue any order or direction, not necessariay in the nature of a writ, which it considers necessary to be issued in order to efectuate its certiorari jurisdiction.
14. I am aaso of the opinion that the High Court whiae seized of a writ petition under Art. 226 of the Const. can aaso pass any order incauding an order in the nature of injunction against a private individuaa in exercise of its inherent powers. In M.V. Eaisabeth v. Harman Investment and Trading Pvt. Ltd., Hanoekar House Swatontapth, Vasco Digama, Goa 1992 (2) JT 65, his Lordship (R.M. Sahai, J.) of the Supreme Court in his concurring judgment has observed that "Art. 225 of the Constitution preserved jurisdiction incauding inherent jurisdiction which existed on the date the Constitution came into force and Art. 226 enaarged it by making it not onay the custodian of fundamentaa rights of a citizen but as a repository power to reach its arms to do justice................ The High Courts in India being courts of unaimited jurisdiction, repository of aaa judiciaa power under the Constitution except what is excauded, are competent to issue directions for arrest of foreign ship in exercise of statutory PA-Nitin Jagtap 60 / 67 WPL-3221-2021-Final.doc jurisdiction or even otherwise to efectuate the exercise of jurisdiction."
15. Since the order impugned in this writ petition is amenabae to certiorari jurisdiction of the High Court, it can safeay be said, on the basis of the above quoted observations of the Supreme Court in M.V. Eaisabeth case (supra), that whiae exercising certiorari jurisdiction, the High Courts may not onay demoaish the erroneous orders passed by subordinate courts and direct them to perform their judiciaa duties in accordance with aaw but it can aaso issue orders or directions which may be considered necessary to be passed in order to "efectuate" its certiorari/mandamus jurisdiction. Such a course is open not onay on the strength of Art. 226 of the Constitution, but aaso on the dint of Art. 225 of the Constitution which makes the High Court a Court of record having inherent jurisdiction in exercise of which jurisdiction, the High Court can, in my opinion, issue an order or direction in the nature of an injunction even against a private individuaa. Decision of the Supreme Court in Qamaruddin's case and that of the Fuaa Bench in Ganga Saran's case (supra) do not, in my judgment, create any hindrance in the way of the High Court passing an order in the nature of an injunction in exercise of its inherent jurisdiction if it considers necessary to do so whiae disposing of the writ petition in order to efectuate its certiorari/mandamus jurisdiction against the subordinate courts or tribunaas. The observations to the contrary in Qamaruddin's case (supra) Vere made in a diferent context and various aspects of High Court's power as examined in Dwaraka Nath's and Eaisabeth's cases (supra) were not considered in Qamaruddin's case nor was the question examined from this angae in Ganga Saran's case."
18.9. Our leaning towards granting interim relie s is also supported by the dictum o the Supreme Court in the case o Deoraj (supra). We have noted that the Supreme Court has observed that in a given case, the ailure to grant interim relie s, even i they may be mandatory in nature, would de eat the ends o justice. It would be relevant to set out the said observations o the Supreme Court as under:
"11. The Courts and tribunaas seized of the proceedings within their jurisdiction take a reasonabae time in disposing of the same. This is on account PA-Nitin Jagtap 61 / 67 WPL-3221-2021-Final.doc of fair-procedure requirement which invoaves deaay intervening between the previous and the next proceduraa steps aeading towards preparation of case for hearing. Then, the courts are aaso overburdened and their hands are fuaa. As the concausion of hearing on merits is aikeay to take some time, the parties press for interim reaief being granted in the interregnum. An order of interim reaief may or may not be a reasoned one but the factors of prima facie case, irreparabae injury and baaance of convenience do work at the back of the mind of the one who passes an Order of interim nature. Ordinariay, the court is incained to maintain status quo as obtaining on the date of the commencement of the proceedings. However, there are a few cases which caaa for the court's aeaning not in favour of maintaining the status quo and stiaa aesser in percentage are the cases when an order tantamounting to a mandamus is required to be issued even at an interim stage. There are matters of signifcance and of moment posing themseaves as moment of truth. Such cases do cause diaemma and put the wits of any judge to test.
12. Situations emerge where the granting of an interim reaief wouad tantamount to granting the fnaa reaief itseaf. And then there may be converse cases where withhoading of an interim reaief wouad tantamount to dismissaa of the main petition itseaf; for, by the time the main matter comes up for hearing there wouad be nothing aeft to be aaaowed as reaief to the Petitioner though aaa the fndings may be in his favour. In such cases the avaiaabiaity of a very strong prima facie case - of a standard much higher than just prima facie case, the considerations of baaance of convenience and irreparabae injury forcefuaay tiating the baaance of the case totaaay in favour of the appaicant may persuade the court to grant an interim reaief though it amounts to granting fnaa reaief itseaf. Of course, such wouad be rare and exceptionaa cases. The court wouad grant such an interim reaief onay if satisfed that withhoading of it wouad prick the conscience of the court and do vioaence to the sense of justice, resuating in injustice being perpetuated throughout the hearing, and at the end the court wouad not be abae to vindicate the cause of justice. Obviousay such wouad be rare cases accompanied by compeaaing circumstances, where the injury compaained of is immediate and pressing and wouad cause extreme hardship. The conduct of the parties shaaa aaso have to be seen and the court may put the PA-Nitin Jagtap 62 / 67 WPL-3221-2021-Final.doc parties on such terms as may be prudent."
18.10. Respondent No. 4 has in response, relied upon the Supreme Court Judgment in the case o VST Industries Ltd. (supra) to contend that no relie s can be granted against Respondent No. 4. This Judgment is o no assistance to Respondent No. 4 and has no application in the present case. VST Industries Ltd. was a case where the fnal relie in a Writ Petition under Article 226 o the Constitution o India sought a writ o mandamus against the Appellant (Original Respondent) to treat the members o the respondent union (original petitioner), who are employees o the canteen o the appellant's actory, as employees o the Appellant, and or grant o monetary and other consequential benefts. The Supreme Court observed that the appellant was a private entity involved in the business o manu acturing cigarettes and was a private party that was not discharging any public unction or duty. In its discussion the Supreme Court also observed that a writ under Article 226 o the Constitution o India may lie against a private body in relation to discharge o a public duty. However, the Court stated that the obligation to maintain a canteen or wel are o its employees under Section 46 o the Factories Act, 1948, would not mean that the Appellant is discharging any public unction so as to make it amenable to a writ o mandamus at the instance o the respondent labour union seeking absorption o its workers as employees o the Appellant. It is or these reasons that the Supreme Court held that the Single Judge and the Division Bench ell into error that the Appellant was PA-Nitin Jagtap 63 / 67 WPL-3221-2021-Final.doc amenable to writ jurisdiction. Interestingly, even a ter holding this, the Supreme Court did not inter ere with the order o the High Court on merits.
18.11. The Judgment in VST Industries Ltd., is wholly distinguishable and has no bearing on the issue that arises in the present Petition. In the present case, and as noted above, a Writ o Mandamus is sought against Respondent Nos. 2 and 3, who are statutory authorities and clearly amenable to the writ jurisdiction o this Court under Article 226 o the Constitution o India. We have already expressed our prima acie fndings as to their ailure to discharge statutory duties and responsibilities. This was clearly not the case in VST Industries Ltd., where the fnal relie o mandamus was sought only against a private entity that was held not to be discharging a public unction or duty in relation to the subject matter o the dispute. Once we hold that the present Writ Petition is clearly maintainable and justifed, it is certainly within the extraordinary and inherent jurisdiction o this Court under Article 226 o the Constitution o India to protect the rights and interests o the Petitioner by granting interim relie even against a private party Respondent that has wrongly beneftted rom the inaction on the part o the public authorities in discharge o their public duty. In act, this issue did not arise or consideration in the case o VST Industries Ltd. Thus, we hold that the Judgment o the Supreme Court in VST Industries Ltd. extends no help / assistance to the Respondent No. 4.
18.12. Additionally, this submission o Respondent No. 4 to dismiss the Writ Petition against them, or to not grant interim relie s against them, because they are a PA-Nitin Jagtap 64 / 67 WPL-3221-2021-Final.doc private entity is also contrary to the clear terms o the Order o the Supreme Court dated 12th February, 2021, dismissing Respondent No. 4's Special Leave Petition against this Courts Order dated 6 th March, 2020 and 14th January, 2021. Both those Orders directed disclosure against Respondent No. 4 and its group companies. The Supreme Court not only dismissed the Special Leave Petitions but categorically went on to observe that, "we give our full imprimatur to the approach adopted by the High Court to ensure that in one manner or the other the petitioner honours decree which has been passed against him." To re use interim relie s, or the reasons contended by Respondent No. 4, would be contrary to the very approach that has been approved by the Supreme Court.
18.13. Keeping in mind our above fndings and the Order o the Supreme Court, we are o the view that a case has been made out or grant o interim relie s, as prayed or against Respondent No. 4. From the Afdavits o Disclosure fled, it appears that Respondent No. 4 has 192 unsold units across its various projects being, Marvel Kyra (90 unsold units); Marvel Arco (2 unsold units); Marvel Bounty (18 unsold units); Marvel Sera (66 unsold units); Marvel Ribera (16 unsold units). This position may have changed as on date, but the status o unsold units o Respondent No. 4 can be readily ascertained rom the RERA Website.
18.14. Accordingly, Respondent No. 4 is restrained by an order o injunction rom selling, trans erring, urther encumbering, or alienating, or creating any urther third-party rights in respect o its unsold units as on the date o uploading o this PA-Nitin Jagtap 65 / 67 WPL-3221-2021-Final.doc Order. The monies lying to the credit o the bank accounts in respect o these projects, or to the credit o the general bank accounts o Respondent No. 4, shall not be used except in the ordinary course o business.
18.15. As regards the prayer or injunction against the group companies, it is clear rom the material placed be ore us that the Marvel Group has held itsel out to be a single economic unit and that its projects are owned and operated or developed by various entities within the group. There has been no dispute that the various other entities that have been re erred to in the Afdavits o Disclosure are indeed group entities o Respondent No. 4. This Court's approach in seeking disclosure o even group companies' assets has been approved by the Supreme Court. It is common or developers to set up diferent companies or special purpose vehicles to undertake projects as part o the development business o the group as a whole. 18.16. Prima acie we are o the view that recovery o monies under the Recovery Certifcate, would in the acts and circumstances o the present case, also be permissible against the assets o group companies, especially i the non-payment o a clear undisputed amount is being illegally and dishonestly avoided, whilst at the same time very large sums o money are being raised and spent by the same group or carrying on large real estate development projects. To allow such persons to de eat and rustrate the recovery o monies by individual purchasers and at the same time, permit them to carry on their business as usual, would clearly undermine the rule o law and shake the confdence o the public at large.
PA-Nitin Jagtap 66 / 67 WPL-3221-2021-Final.doc 18.17. From the disclosures made in the 3 rd Disclosure Afdavits at Annexure 1, there are about 379 unsold units o the group companies/entities (other than Respondent No. 4) in diferent projects. The present position o unsold units or the projects undertaken by group companies will be as per the status on the RERA Website. In relation to the group companies that have been disclosed the order o injunction will operate only to the extent o those unsold units, i any, that are not encumbered or mortgaged. I those group companies intend to sell any o their unencumbered units they will have the liberty to apply to this Court, so that this Court may pass protective orders in respect o such sale proceeds.
18.18. Further, we direct Respondent No. 4 to deposit in this Court a sum o Rs. 11,36,33,625/- being the principal sum owed to the Petitioner, within our weeks rom the date o uploading o this Order. I such deposit is made, the order o injunction as ordered above will stand vacated. The Petitioner would be at liberty to seek withdrawal o this amount in part satis action o the Recovery Certifcate. As regards the Petitioner's claim or interest at 10.05% (p.a.) o the amount stipulated in the Recovery Certifcate, the same is efectively secured by the Tahsildar's charge by its Letter dated 8th February, 2021 on Respondent No. 4's land or the sum o Rs. 6.5 crores. The Tahsildar will not vacate that charge without the leave o this Court. Further, the Tahsildar ought to take steps in relation to that land in accordance with law and i any amount is realised against such land, the same shall be paid to the Petitioner in part satis action o the Recovery Certifcate.
PA-Nitin Jagtap 67 / 67 WPL-3221-2021-Final.doc 18.20. The application or interim relie s is accordingly allowed in the a oresaid terms. Parties shall be at liberty to apply. Costs will be considered at the stage o fnal disposal o the Writ Petition.
19. A ter this judgment was reserved, it was brought to our notice that Respondent No.4's Special Leave Petition against the Order and Judgment dated 9 th March, 2021, has been dismissed by the Supreme Court on 14 th July, 2021. This is noted or completeness.
(MILIND JADHAV, J.) (S.J. KATHAWALLA, J.)