Delhi High Court - Orders
Court On Its Own Motion vs Lalit Modi on 24 April, 2023
Author: Najmi Waziri
Bench: Najmi Waziri, Sudhir Kumar Jain
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS.(CRL) 2/2021, CRL.M.A. 6391/2021, CRL.M.A.
20585/2021 & CRL.M.A. 4213/2023
COURT ON ITS OWN MOTION ..... Petitioner
Through:
versus
LALIT MODI ..... Respondent
Through: Mr. Tushar Parashar, Ms. Anumeha
Singhai, Advocate with Mr. Lalit
Modi in person.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN
ORDER
% 24.04.2023 The hearing has been conducted through hybrid mode (physical and virtual hearing).
1. In the context of facts as discussed in the judgment dated 12.02.2021, this court was of the opinion that the respondent had committed contempt of court. Therefore, notice was issued to him. The relevant portion of the said judgment is reproduced as under :-
"7. This Court finds that a learned Single Judge in Ex.P.69/2017 filed by the respondent/decree holder passed an injunction order dated 15th April, 2019 against the appellant/judgment debtor. The relevant position of the said order reads as under:-
"6. Till the next date of hearing, the non-Signature Not Verified Digitally Signed CONT.CAS.(CRL) 2/2021 Page 1 of 10 By:JITENDRA Signing Date:28.04.2023 13:17:54
applicant/judgment debtor is restrained from creating any third party rights in property described as Property No.32, Paschimi Marg, Vasant Vihar, New Delhi -110057."
8. On 28th January, 2020, the appellant/judgment debtor in Ex.P.69/2017 denied the respondent/decree holder‟s apprehension that the latter would handover possession of suit premises to Romi Garg in CS(OS) No.109/2017. The order dated 28th January, 2020 is reproduced hereinbelow:-
"1. Learned senior counsel for the decree holder prays that hearing of the present petition be deferred as the requisite documents are presently not available on record. He, however, submits that the decree holder apprehends that in case the suit filed by the Objector/applicant in Execution Application (OS) 169/2018, wherein judgment has already been reserved, is decreed, the judgment debtor may, in order to scuttle the rights of the decree holder in the present petition, hand over possession of the suit premises to the said applicant without any execution proceedings being initiated by the said applicant.
He, therefore, prays that the judgment debtor be restrained from handing over possession of the premises in question, even if the applicant‟s suit were to be decreed in the meanwhile.
2. In response, learned counsel for the judgment debtor submits that the apprehension of the decree holder is misconceived as the judgment debtor is conscious of the fact that there are various orders passed by various courts directing the judgment debtor to maintain status quo, which it does not intend to violate.
3. In view of the stand taken by the learned counsel for the judgment debtor, no orders as prayed for are required to be passed at this stage.
4. List on 21.04.2020."
Signature Not Verified Digitally Signed CONT.CAS.(CRL) 2/2021 Page 2 of 10 By:JITENDRA Signing Date:28.04.2023 13:17:549. It is pertinent to mention that on 17th June, 2020, the appellant in CS(OS) No. 109/2017, wherein a decree dated 14th May, 2020 for specific performance had been passed against the appellant, made a statement that he had received four cheques totaling to Rupees Seven Crores (Rs. 7,00,00,000/-) in the name of his daughter "and the sale deed will be executed within ten days". Since the statement made in CS(OS) No. 109/2017 on 17th June, 2020 has been found to be contemptuous by the learned Single Judge in the impugned order in Ex.P.69/2017, the relevant portion of the said order is reproduced hereinbelow:-
"5. The plaintiff has handed-over four cheques bearing Nos. 721530, 721531, 721532 and 721533 dated 16th June, 2020; first two cheques for a sum of Rs.2 crores each and third and fourth cheque for a sum of Rs.1,50,50,000/- each, all drawn on Corporation Bank, Hauz Khas Branch, New Delhi.
6. Mr. Lalit Modi states that he has received the four cheques and the sale deed will be executed within 10 days.
7. Application is accordingly disposed of modifying the operative portion of the judgment dated 14th May, 2020 permitting the plaintiff to hand-over a sum of Rs.5,69,00,000/- with interest @ 8% per annum minus TDS, instead of Mr. Lalit Modi in the name of Ms. Sonia Modi for which four cheques have been handed-over and sale deed in terms of agreement to sell be executed in the name of nominee of the plaintiff i.e. Ganesh Info Services Pvt. Ltd., when the physical and vacant possession of the suit property will also be handed- over to the plaintiff or his nominee by the defendant."
(emphasis supplied) Signature Not Verified Digitally Signed CONT.CAS.(CRL) 2/2021 Page 3 of 10 By:JITENDRA Signing Date:28.04.2023 13:17:54
10. This Court is of the prima facie opinion that in view of the orders dated 15th April, 2019 and 28th January, 2020, the appellant could not have made a solemn statement before the other learned Single Judge in CS(OS) No. 109/2017 on 17 th June, 2020 that he would execute a sale deed within ten days. In fact, the statement made by the appellant before another learned Single Judge on 17th June, 2020 in CS(OS) No.109/2017 is not an innocuous statement and has sanctity attached to it as it was accompanied by a receipt of Rupees Seven Crores (Rs.7,00,00,000/-). Prima facie, the said statement constitutes an unconditional undertaking to execute the sale deed in favour of the Romi Garg.
11. The argument that no contempt had been committed as the appellant had neither executed the sale deed nor handed over the possession of the suit property to Romi Garg is fallacious. This Court is in agreement with the view of learned Single Judge that the appellant could not execute the Sale Deed as the respondent-decree holder had immediately filed a fresh suit being CS (OS) No. 150/2020 challenging the settlement dated 17th June, 2020 and to protect its rights under the Award passed in its favour on 21st November, 2016 / 12th January, 2017. Though initially the learned Single Judge on 20th June, 2020 in CS (OS) 150/2020 had directed the appellant to deposit the keys of the subject property with the Registrar General of this Court, yet upon an appeal being filed by the appellant being FAO(OS) 34/2020, the said order was modified by the Division Bench on 06th July, 2020 after recording the undertakings given by the appellant and Romi Garg that they would not execute the sale deed till further orders were passed in CS(OS) 150/2020. Consequently, it was not for want of trying or lack of effort on the part of the appellant that the sale deed could not be executed and/or possession of the suit property could not be delivered!
12. Further, this Court is of the prima facie view that the aforesaid undertaking dated 17th June, 2020 is misleading, false, mischievous and based on half truth as the appellant did not disclose the subsisting injunction orders dated 15th April, Signature Not Verified Digitally Signed CONT.CAS.(CRL) 2/2021 Page 4 of 10 By:JITENDRA Signing Date:28.04.2023 13:17:54 2019 and 28th January, 2020 to the other learned Single Judge on 17th June, 2020 in CS(OS) No.109/2017 and he did not qualify his undertaking by stating that he would seek vacation of the aforesaid subsisting injunction orders.
13. A feeble attempt was made to suggest that the injunction orders dated 15th April, 2019 and 28th January, 2020 were on record in CS(OS) No.109/2017. But it is an admitted position that the said injunction orders were neither annexed to the application being I.A. No.4558/2020 nor highlighted or brought to the notice of the Court that passed the order dated 17th June, 2020. Consequently, the disclosure of injunction orders dated 15th April, 2019 and 28th January, 2020 had not been done in a forthright manner, as no Court can be expected to go through a voluminous file while deciding an interim application in a disposed of suit.
14. While it is true that the Romi Garg had taken steps to vacate the injunction in his appeal being FAO(OS) No. 116/2018, yet this Court finds that the appellant had taken no steps to get the injunction orders dated 15 th April, 2019 and 28th January, 2020 vacated within ten days.
15. This Court is also of the prima facie opinion that the unqualified statement/undertaking made by the appellant accompanied by receipt of Rupees Seven Crores (Rs.7,00,00,000/-) was part of a stratagem to obtain a „direction / legal cover‟ from the other learned Single Judge in CS(OS) 109/2017 to execute a sale deed and to hand over possession of the suit property in favour of nominee of Romi Garg in violation of the injunction orders in subsistence in Ex.P.69/2017
16. This Court is of the prima facie view that „litigants cannot play one Court against the other‟ without disclosing full facts upfront. In fact, it prima facie seems that the appellant tried to use another Court proceeding [CS (OS) 109/2017] as a „shield‟ to violate subsisting injunction orders in Ex.P. 69/2017.
17. Keeping in view the aforesaid, this Court is of the prima facie opinion that the judgments cited by learned senior counsel for the appellant are inapplicable to the present case.
Signature Not Verified Digitally Signed CONT.CAS.(CRL) 2/2021 Page 5 of 10 By:JITENDRA Signing Date:28.04.2023 13:17:54In fact, this Court is of the prima facie view, as stated hereinabove, that not only receipt of Rs.7,00,00,000/- as sale consideration, but also the undertaking to execute the sale deed within ten days without moving the Coordinate Bench in Ex.P. 69/2017 for vacation of the binding injunction orders, was a wilful violation of the subsisting injunction orders but also to prejudice and/or with intent to interfere with due course of judicial proceeding or obstruct or tends to obstruct, the administration of justice. Consequently, this Court is of the view that it is a fit case to initiate suo moto criminal contempt proceeding against the appellant. Registry is directed to open a separate file wherein a copy of the present appeal along with today‟s order shall be placed on record..."
2. The respondent has filed a lengthy 66 pages reply traversing the history of litigation between the parties involving the BDR Builders and Developers Private Limited and Romi Garg. However, going into the labyrinthine averments in the reply is of no consequence. What is to be seen is whether the injunction order of 15.04.2019 was wilfully or consciously breached by the respondent. The said order restrained the judgment debtor/respondent from creating any third-party rights in property bearing no.32, Paschimi Marg, Vasant Vihar, New Delhi - 110057. A year and thirteen days later, on 28.01.2020, the judgment debtor/respondent assured the court as well as Romi Garg in CS(OS) No.109/2017 that the latter's apprehension apropos handing over possession of the suit premises to another party was misconceived.
3. In a connected case {EFA (OS) 1/2021} listed today along with this petition, the appellant has sought possession of the property on the ground that a contemnor cannot enjoy the fruits of his contempt. Reliance is placed upon the dicta of the Supreme Court in Delhi Development Signature Not Verified Digitally Signed CONT.CAS.(CRL) 2/2021 Page 6 of 10 By:JITENDRA Signing Date:28.04.2023 13:17:54 Authority v. Skipper Construction (P) Ltd. and Another (1996) 4 SCC 622 which holds that the remedial orders can be passed in contempt petitions as well, which reads as under:
"...17. The principle that a contemner ought not to be permitted to enjoy and/or keep the fruits of his contempt is well settled. In Mohd. Idris v. Rustam Jehangir Babuji [(1984) 4 SCC 216 : 1984 SCC (Cri) 587 : (1985) 1 SCR 598] this Court held clearly that undergoing the punishment for contempt does not mean that the court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month's imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions in addition to punishing the petitioners for contempt of court. The argument was rejected holding that "the Single Judge was quite right in giving appropriate directions to close the breach (of undertaking)".
18. The above principle has been applied even in the case of violation of orders of injunction issued by civil courts. In Clarke v. Chadburn [(1985) 1 All ER 211] Sir Robert Megarry V-C observed:
"I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that Signature Not Verified Digitally Signed CONT.CAS.(CRL) 2/2021 Page 7 of 10 By:JITENDRA Signing Date:28.04.2023 13:17:54 although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them."
19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. v. S. Suppiah [AIR 1975 Mad 270 : (1975) 2 MLJ 54] and Sujit Pal v. Prabir Kumar Sun [AIR 1986 Cal 220 : (1986) 90 CWN 342] . In Century Flour Mills Ltd. [AIR 1975 Mad 270 :
(1975) 2 MLJ 54] it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction.
The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order...."
4. In an application moved by the BDR Builders in Ex. Pet. No.69/2017, the respondent/Lalit Modi had assured the court on 28.01.2020 that he was conscious of the fact that there are various orders passed by various courts directing him to maintain status quo, which he did not intend to Signature Not Verified Digitally Signed CONT.CAS.(CRL) 2/2021 Page 8 of 10 By:JITENDRA Signing Date:28.04.2023 13:17:54 violate. In the circumstances, no orders were passed in the application of BDR Builders which had expressed an apprehension that the judgment debtor/Lalit Modi may scuttle the rights of the decree holder and hand over the possession of the suit premises to somebody else which would, in effect, frustrate the execution proceedings.
5. Nevertheless, despite the above assurance to the court and to BDR Builders and despite the respondent being conscious of the various judicial orders passed apropos the aforementioned suit property, the respondent went ahead and received Rs.7 crores through 04 cheques from Romi Garg and in CS(OS) No.109/2017. Furthermore, he made a statement before that court that the sale deed would be executed within 10 days from the date of his receiving the cheques. He chose to conceal the specific injunction passed on 15.04.2019 and reiterated on 28.01.2020 in Ex. Pet. No.69/2017. Quite clearly, the respondent has knowingly, deliberately and wilfully breached the court's direction and has chosen to dishonour his own undertaking and assurance to the court. His action prejudices and/or interferes with the course of judicial proceedings, it also interferes with and/or obstructs the administration of justice, inasmuch as the status of a property secured by judicial order has been deliberately violated. The court proceedings in CS(OS)109/2017 have evidently been used to as a 'shield' to violate subsisting injunction orders in Ex. Pet. No.69/2017. The respondent has committed criminal contempt of court and is held guilty of the same under Section 15 read with Section 2(c) of the Contempt of Courts Act, 1971.
Signature Not Verified Digitally Signed CONT.CAS.(CRL) 2/2021 Page 9 of 10 By:JITENDRA Signing Date:28.04.2023 13:17:546. List for arguments and orders on sentencing on 03.05.2023.
NAJMI WAZIRI, J SUDHIR KUMAR JAIN, J APRIL 24, 2023/j/am Signature Not Verified Digitally Signed CONT.CAS.(CRL) 2/2021 Page 10 of 10 By:JITENDRA Signing Date:28.04.2023 13:17:54