Bombay High Court
Sunil Kishanlal Soi(H.U.F.)And 19 Ors vs Shirish Girish Dikshit And 24 Ors. And ... on 4 March, 2019
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.238 OF 2019
IN
NOTICE OF MOTION NO.1526 OF 2017
IN
SUIT NO.1097 OF 2015
Shivprakash Jani & Ors. .. Applicants
In the matter between
Sunil Krishanlal Soi (HUF) & Ors. .. Plaintiffs
Vs.
Shirish Girish Dikshit & Ors. .. Defendants
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Mr.Kunal Bhanage for the applicant in both the Notices of Motion.
Mr.Rishabha Shah a/w Ms.U. Misquitta i/by Rawal Shah for the plaintiff.
Mr.Harinder Toor a/w Mr.V.C. Khatri for the defendant nos.1 to 3.
Mr.Ishwar Nankani a/w Ms.Janaki Garde i/by Nankani Associates for
the defendant nos.4 to 23.
Mr.R.Y.Sirsikar a/w Mr.D.S. Shingade for MCGM.
Ms.Jyoti Chavan, AGP for the State.
Mr.Arun Panikkar a/w Mr.Mangesh Sawant for the applicant in CHS (L)
No.1257 of 2018.
---
CORAM : R.D. DHANUKA, J.
DATE : 4th March 2019 P.C.:
. By this notice of motion, the applicants who are not parties to the Suit No.1097 of 2015 have prayed for an order and direction against the Economic Offences Wing (EOW) of the Mumbai Police to ::: Uploaded on - 08/03/2019 ::: Downloaded on - 13/03/2019 08:21:12 ::: ppn 2 11.nms-238.19.doc de-freeze the bank accounts of the applicant nos.1 and 2 so as to enable the applicants to deposit an amount of Rs.55 lakh each and the applicant no.3 to deposit an amount of Rs.30 lakh in this Court.
2. The plaintiffs have filed a Suit bearing No.1097 of 2015 inter alia praying for an order, decree and declaration that the Memorandum of Understanding dated 9th November 2008 being Exhibit 'C' and the Permanent Alternative Accommodation Agreements are valid, subsisting and binding and for seeking specific performance thereof and for various other reliefs.
3. It is the case of the plaintiffs that the defendant nos.1 to 3 had committed breach of the Development Agreement entered into between the plaintiffs and the defendant nos.1 to 3. In the notice of motion filed by the plaintiffs, this Court passed orders from time to time making various observations about the conduct of the defendant nos.1 to 3 in compliance with their obligations under the Development Agreement. This Court has granted interim relief in favour of the plaintiffs in the said notice of motion.
4. Pursuant to the complaint made by the original plaintiffs, ::: Uploaded on - 08/03/2019 ::: Downloaded on - 13/03/2019 08:21:12 ::: ppn 3 11.nms-238.19.doc EOW has initiated an enquiry against the defendant nos.1 to 3. This Court has passed various orders from time to time supervising the said enquiry conducted by the said EOW. In this respect, it would be appropriate to refer to some of the orders passed by this Court issuing various directions from time to time to the EOW to record the statements of various parties and to take various steps to conduct the said enquiry after hearing all the parties.
5. By an order dated 8th January 2018, this Court took cognizance of the complaint No.30448 dated 4th April 2016 filed by the plaintiffs with EOW. This Court had directed the EOW to submit its report to this Court on 9th January 2018 at 3.00 p.m. which might assist the Court in granting further protective reliefs to the plaintiffs.
6. By an order dated 10th January 2018, after hearing various parties including Deputy Commissioner of EOW, this Court directed the Deputy Commissioner of Police, Matunga Zone-IV and the Senior Inspector of Matunga Police Station to remain present before this Court on 11th January 2018 and to submit their report to this Court setting out the steps taken by them upon receiving the complaint from EOW. Matter thereafter appeared before this Court on 11 th January 2018. The ::: Uploaded on - 08/03/2019 ::: Downloaded on - 13/03/2019 08:21:12 ::: ppn 4 11.nms-238.19.doc Deputy Commissioner of Police Ms.N.Ambika along with the Senior Inspector of Police, Matunga Police Station were present in Court. This Court was apprised of the steps taken by the EOW and the investigation being carried out.
7. On 25th January 2018, this Court considered the report submitted by the EOW and noticed that the said investigation was at a preliminary stage. This Court also directed the Court Commissioner to take steps for sale of some of the properties of the defendant nos.1 to 3. On 12th February 2018, after perusing the report submitted by the EOW, this Court observed that the defendant no.1 had collected crores of rupees by providing security of property on which the tenants who are deprived of their roof, have to be rehoused, the defendant no.1 had not given them their new flats and had left them completely in the lurch. This Court adjourned the matter on 16th February 2018 to enable the EOW to submit its further report. On 16 th February 2018, after perusing the report submitted by the EOW, this Court noted that Mr.Shirish Girish Dikshit was not co-operating with the Investigating Officer and was misguiding the investigation. This Court further held that the EOW shall submit its further investigation report to this Court on 23 rd February 2018. The investigation carried out by the EOW would assist the Court ::: Uploaded on - 08/03/2019 ::: Downloaded on - 13/03/2019 08:21:12 ::: ppn 5 11.nms-238.19.doc in passing protective orders sought by the plaintiffs who have been rendered roofless since the last nine years by Mr.Dikshit. It was further observed that Mr.Dikshit had taken away their original flats and demolished the same in the year 2009 by promising them new flats of larger areas but has not put up a single brick to commence reconstruction in the last nine years, leaving the original flat owners completely in the lurch.
8. On 13th March 2018, this Court issued further directions in respect of sale of the flats. On 2 nd April 2018, this Court has perused the report submitted by the EOW and observed that EOW had yet to trace where the funds were parked by the developer. This Court adjourned the matter to 4th April 2018. On 4th May 2018, EOW submitted its report dated 4th May 2018 and pointed out that the investigation was going on to ascertain the role of Mr.Shirish Girish Dikshit and others in respect of the complaints received from the persons who had been cheated by Mr.Dikshit and others. This Court recorded the undertaking rendered by wife as well as son of the defendant no.1 who was present in Court that they would vacate the residential flat No.502/770 at Vimal Smruti, Dr.Ghanti Road, Dadar Parsee Colony, Mumbai 400 014 within a period of six week from the date of the said order. The defendant no.1 was ::: Uploaded on - 08/03/2019 ::: Downloaded on - 13/03/2019 08:21:12 ::: ppn 6 11.nms-238.19.doc already in the Arthur Road Prison at that point of time. Notice of Motion No.1526 of 2017 is still pending. Various directions have been issued by this Court from time to time in the said notice of motion.
9. In so far as the notice of motion filed by the applicants is concerned, it is the case of the applicants that pursuant to various orders passed by this Court in the pending investigation report, EOW has freezed the bank accounts of the six parties who are members of the Jani family and who had certain transactions with the defendant nos.1 to 3. This notice of motion is filed by only three of the family members, namely Shivprakash Jani, Ajay Jani and Anup Jani. It is their case that since they had received a sum of Rs.55 lakh, Rs.55 lakh and Rs.30 lakh respectively from the defendant nos.1 to 3, without prejudice to their rights and contentions, they are ready and willing to deposit the said amount in this Court. It is submitted that since they are not the parties to the suit and their bank accounts are freezed by the EOW, whatsoever amounts are received by them can be deposited by them in this Court and bank accounts freezed by the EOW shall be de-freezed.
10. Mr.Bhanage, learned counsel for the applicants invited my attention to the averments made in the affidavit in support of the notice ::: Uploaded on - 08/03/2019 ::: Downloaded on - 13/03/2019 08:21:12 ::: ppn 7 11.nms-238.19.doc of motion and also to the additional affidavits filed by his clients. He submits that in so far as the applicant no.3 Anup Jani is concerned, though his bank account is freezed, there is no sufficient balance to match the figure of Rs.55 lakh which was received by him from the defendant nos.1 to 3, he is ready and willing to deposit the said amount in this Court within such time, as may be granted by this Court without prejudice to his rights and contentions.
11. Mr.Shah, learned counsel for the plaintiffs states that in view of the gross breaches of the obligations committed by the defendant nos.1 to 3, member of the plaintiffs' Association who had purchased the flats from the defendant nos.1 to 3 have been suffering for last several years and are deprived of the accommodation in the new building proposed to be constructed by the defendant nos.1 to 3 in lieu of the tenanted premises occupied by his clients. He submits that his clients have no objection if the applicants are allowed to deposit the amounts received from the defendant nos.1 to 3 in this Court without prejudice to the rights and contentions of his clients, which amounts can be available for the purpose of satisfying the claim of the plaintiffs.
12. Mr.Toor, learned counsel for the defendant nos.1 to 3, on the ::: Uploaded on - 08/03/2019 ::: Downloaded on - 13/03/2019 08:21:12 ::: ppn 8 11.nms-238.19.doc other hand, strongly opposes this notice of motion on various grounds. First objection raised by the defendant nos.1 to 3 is that this Court has no jurisdiction to entertain this notice of motion on the ground that the bank accounts of the applicants have been freezed in view of the action initiated by the EOW in the complaint filed by the plaintiffs. He submits that the accounts of the applicants have been freezed under the provisions of Section 102 of the Code of Criminal Procedure, 1973 and not under the orders passed by this Court. He further submits that investigation is pending against the defendant nos.1 to 3 and thus the remedy of the applicants, if any, would be to make an application under Section 457 of the Code of Criminal Procedure, 1973 only before the concerned Metropolitan Magistrate and not by filing this notice of motion before this Court.
13. It is submitted by the learned counsel that the defendant nos.1 to 3 had paid various amounts to the applicants which were much more than the amounts reflected in the notice of motion filed by the applicants and if this Court comes to the conclusion that the applicants can be permitted to deposit the amounts, they should be directed to deposit the said amount with interest.
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14. In support of this submission, learned counsel for the defendant nos.1 to 3 placed reliance on the judgment of the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujaratt, (2002) 10 SCC 283 and in particular paragraphs 3, 5, 8, 9 and 21, judgment of the Hon'ble Supreme Court in the case of State of Maharashtra Vs. Tapas D. Neogy, (1997) 7 SCC 685 and in particular paragraphs 5, 6 and 12, judgment of the Rajasthan High Court in the case of Ganesh Vs. The State and Anr., 1998 Cri. L.J. 475 and in particular paragraphs 9 and 10 and the judgment of the Hon'ble Supreme Court in the case of Manish Goel Vs. Rohini Goel, (2010) 4 SCC 393 and in particular paragraphs 14, 15, 18 and 19 thereof.
15. It is submitted by the learned counsel that even if the Hon'ble Supreme Court exercises the powers under Article 142 of the Constitution of India, such powers cannot be contrary to the law or ignorance of the statutory provisions nor is the power exercised merely on sympathy.
16. It is lastly submitted that since the applicants have been using the amounts received from the defendant nos.1 to 3 and if this Court comes to the conclusion that there should be directed to deposit ::: Uploaded on - 08/03/2019 ::: Downloaded on - 13/03/2019 08:21:12 ::: ppn 10 11.nms-238.19.doc the amount, they should be directed to deposit the said amount with interest. Learned counsel placed reliance on the judgment of the Hon'ble Supreme Court in the case of K.S. Satyanarayana Vs.V.R. Narayana Rao, (1999) 6 SCC 104 and in particular paragraph 8 thereof.
17. Learned counsel for the defendant nos.4 to 23 states that his clients have obtained a decree against the defendant nos.1 to 3 and thus if this Court accepts the submissions of the applicants, the applicant should be directed to deposit the entire amount with interest.
18. Ms.Chavan, learned AGP appearing for the EOW invited my attention to various reports brought to the notice of this Court in which this Court has passed various orders from time to time and would submit that considering the conduct of the defendant nos.1 to 3 and in view of the complaint filed by the plaintiffs with EOW, investigation against the defendant nos.1 to 3 is still going on. She submits that pursuant to various orders passed by this Court from time to time supervising the investigation being carried out by the EOW, EOW has taken various steps during the course of the investigation and have recorded the statements made by various parties. She submits that during the course of such investigation and in view of various orders passed by ::: Uploaded on - 08/03/2019 ::: Downloaded on - 13/03/2019 08:21:12 ::: ppn 11 11.nms-238.19.doc this Court, EOW has yet to trace out the complete amounts paid and/or invested by the defendant nos.1 to 3.
19. It is submitted that the EOW has carried out investigation and having found that various amounts were deposited by the defendant nos.1 to 3 in the accounts of the applicants, the EOW has freezed those accounts which are the subject matter of this notice of motion. She submits that EOW has no objection if the applicants are allowed to deposit the amounts received from the defendant nos.1 to 3 in this Court during the pendency of the investigation carried out by the EOW. She submits that the said deposit can be made subject to the outcome of this suit or may be subjected to the further orders, as may be passed by this Court.
20. It is not in dispute that the suit for specific performance filed by the plaintiffs against the defendant nos.1 to 3 is still pending before this Court. Various orders reflecting the conduct of the defendant nos.1 to 3 in keeping the members of the plaintiffs' Association in lurch are already passed by this Court from time to time after hearing all the parties including the defendant nos.1 to 3. This Court has also passed several orders from time to time in presence of the defendant nos.1 to 3 ::: Uploaded on - 08/03/2019 ::: Downloaded on - 13/03/2019 08:21:12 ::: ppn 12 11.nms-238.19.doc issuing various directions to the EOW to conduct investigation against the defendant nos.1 to 3 and to trace out the assets of the defendant nos.1 to 3 to enable this Court to pass further protective orders sought by the plaintiffs against the defendant nos.1 to 3.
21. A perusal of the record further indicates that EOW has acted upon those orders. Even the defendant nos.1 to 3 have also acted upon and complied with part of the orders passed by this Court. The EOW has submitted various reports from time to time which reports have been considered by this Court and further directions have been issued. None of the orders have been challenged by the defendant nos.1 to 3 before the Hon'ble Division Bench of this Court. No application has been filed by the defendant nos.1 to 3 to vacate those orders passed by this Court against the EOW and other parties till date.
22. In so far as the principles of law laid down in the judgments relied upon by the learned counsel for the defendant nos.1 to 3 are concerned, there is no dispute about proposition of law laid down by the Hon'ble Supreme Court in those judgments. However, since the civil suit filed by the plaintiffs against the defendant nos.1 to 3 is pending before this Court in which this Court from time to time issued various ::: Uploaded on - 08/03/2019 ::: Downloaded on - 13/03/2019 08:21:12 ::: ppn 13 11.nms-238.19.doc directions to ascertain the assets of the defendant nos.1 to 3 so as to pass appropriate orders in respect of those assets, this notice of motion is maintainable. None of the defendants has challenged any of the orders passed by this Court from time to time at any point of time. Since the applicants have made a statement before this Court that without prejudice to the rights and contentions of the applicants, the applicant are ready and willing to deposit the amounts received from the defendant nos.1 to 3, in my view, no prejudice of whatsoever nature would be caused to either the plaintiffs or any other defendants if the relief as prayed by the applicants is granted.
23. In so far as the submission of the learned counsel for the defendant nos.1 to 3 and the defendant nos.4 to 23 that the applicants should be directed to deposit the entire amount with interest is concerned, I am inclined to accept the submission made by the learned counsel for the applicants for the reason that neither the defendant nos.1 to 3 nor the defendant nos.4 to 23 have filed any recovery proceedings against the applicants in this Court or in any appropriate Court in respect of their rival claims against the applicants. According to the applicants, this notice of motion is filed only for the purpose of de-freezing the bank accounts of the applicants and for giving an opportunity to the applicants ::: Uploaded on - 08/03/2019 ::: Downloaded on - 13/03/2019 08:21:12 ::: ppn 14 11.nms-238.19.doc to deposit the amounts admittedly received from the defendant nos.1 to 3 in this Court.
24. I therefore pass the following order : -
(i) The Corporation Bank, Wadala Branch, Mumbai - 400 031 is directed to deposit an amount of Rs.55 lakh each from the bank accounts of Mr.Shivprakash Jani and Mr.Ajay Jani, details whereof are provided in paragraph 3 of the affidavit in support of the notice of motion dated 7 th December 2018 in this Court within three weeks from the date of communication of the order.
(ii) Upon the Corporation Bank depositing an amount of Rs.55 lakh each from the bank accounts of Mr.Shivprakash Jani and Mr.Ajay Jani, those accounts shall be de-freezed.
(iii) The applicant no.3 is directed to deposit an amount of Rs.55 lakh in this Court on or before 11th March 2019.
(iv) In so far as the accounts of Anup Jani and Urmila B. Jani are concerned, those accounts would be de-freezed upon those parties depositing an amount of Rs.55 lakh on or before 11th March 2019.
(v) It is made clear that these amounts are being deposited by the applicant nos.1 to 3 for themselves and on behalf of Urmila B. Jani by Anup Jani and are without prejudice to the rights and contentions of all ::: Uploaded on - 08/03/2019 ::: Downloaded on - 13/03/2019 08:21:12 ::: ppn 15 11.nms-238.19.doc the parties.
(vi) Upon depositing all these amounts, learned Prothonotary and Senior Master is directed to invest the said amounts in fixed deposits of any nationalized bank initially for a period of two years and for a like period after obtaining further orders from the Court.
(vii) It is made clear that this Court has not dealt with any of the rival claims made by the plaintiffs against the defendants or by the defendants against the plaintiffs or by the applicants or by any other party. All the contentions of all the parties on their rival claims are kept open.
(viii) In so far as the amounts directed to be deposited by the Corporation Bank, Wadala Branch is concerned, the said amounts should be deposited by NEFT in the account of the Prothonotary and Senior Master of this Court.
(ix) In so far as the amounts directed to be deposited by Anup Jani on behalf of himself and Urmila B. Jani, the said amounts should be deposited by demand draft or banker's cheque in the name of the Prothonotary and Senior Master of this Court.
(x) Notice of motion is disposed of in aforesaid terms.
(xi) There shall be no order as to costs.
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25. All the parties as well as the Corporation Bank, Wadala Branch, Mumbai to act on the authenticated copy of this order.
R.D. DHANUKA, J.
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