Delhi District Court
Sanjay vs Deepak Jain And Ors on 13 August, 2024
IN THE COURT OF MR. ANIL KUMAR SISODIA:
DISTRICT JUDGE (COMMERCIAL COURT)-
04,CENTRAL, TIS HAZARI COURTS, DELHI
Contempt Petition 07/2020
SH. SANJAY
S/o Sh. Badkum
R/o House no.4436
Gali Bahuji, Pahari Dheeraj,
Delhi-110006 .....Plaintiff
Versus
1. SH. DEEPAK JAIN
2. SH. ATUL JAIN
Both sons of Sh. Rishabh Kumar Jain
R/o 4544, Deputyganj, Sadar Bazar,
Delhi-110006
3. SH. NAVEEN KUMAR GUPTA
S/o Sh. Naresh Chand Gupta,
R/o House no.3902
Gali Barna, Sadar Bazar
Delhi-110006 ..... Defendants
Date of filing of the suit : 16.12.2020
Date of reserving judgment : 25.07.2024
Date of judgment : 13.08.2024
ORDER
1. This order shall dispose off an application u/o 39 rule 2A read with section 151 CPC filed by the plaintiff/applicant for initiating contempt proceedings against the Digitally signed ANIL by ANIL KUMAR SISODIA KUMAR Date:
SISODIA 2024.08.13 15:39:24 +0530 Contempt Petition 07/2020 SANJAY VS. DEEPAK JAIN &ORS. Page No. 1 of 9 respondents/defendants and for passing appropriate orders for attachment of the suit property.
2. Briefly stated the facts necessary for disposal of this case are that plaintiff filed a suit for Specific performance and permanent injunction against the defendants on the ground that plaintiff had entered into two separate bayana cum agreement to sell dated 16.12.2019 against defendant no. 1 and2 and defendant no.3 respectively, who were the joint owners of shop no.4521, measuring 7 x 22 mtrs comprising of ground floor and basement situated at Main Road, Pahari Dheeraj, Delhi for a total sale consideration of Rs.1,10,00,000/-. It was further stated in the plaint that defendants no.1 and 2 had agreed to sell their share for Rs.95,00,000/- and defendant no.3 agreed to sell his share for Rs.15,00,000/-. The plaintiff paid a sum of Rs.10,00,000/- to defendant no.1 and 2 and Rs.10,00,000/- to defendant no.3 as part sale consideration. The transaction between the parties ran into disputes and the defendants no.1 and 2 vide notice dated 28.08.2020 threatened to cancel the agreement to sell, if the balance consideration was not paid on or before 15.09.2020. Defendant no.3 canceled the agreement to sell vide notice dated 05.09.2020. These notices were duly replied by the plaintiff. Thereafter the plaintiff filed the present suit and vide order dated 06.10.2020 Ld. Predecessor of this court passed exparte injunction order against the defendants.
3. On 16.12.2020 plaintiff filed the present application u/o 39 rule 2A CPC stating that the aforesaid order dated 06.10.2020 Digitally signed ANIL by ANIL KUMAR SISODIA KUMAR Date:
SISODIA 2024.08.13 15:39:45 +0530 Contempt Petition 07/2020 SANJAY VS. DEEPAK JAIN &ORS. Page No. 2 of 9 was still in force and respondents were well aware about the said order as plaintiff had complied with order 39 rule 3 CPC. However, the respondents failed to comply with the said order and it has come to the knowledge of the plaintiff that respondents no.1 and 2 i.e. Deepak Jain and Atul Jain have transferred their 50% share in favour of respondent no.3 Naveen Kumar Gupta on 15.10.2020 and after getting the relinquishment deed from the other co-sharer raised construction on the suit shop by illegally extending public land from the front side and giving the same on rent to one Sh. Mohit Grover and Rohit Grover, who are running shop from the disputed property. The plaintiff also gave a written complaint dated 04.12.2020 to SHO, PS Bada Hindu Rao and Higher Police officials but no action was taken against the respondents. It was further stated that respondent no.3 is the authority having duty to stop unauthorized construction but it has failed to do so and respondents have clearly flouted the directions of the court and have committed offence u/o 39 rule 2A CPC despite having knowledge of the injunction order.
4. Notice of the application was issued to the respondents. Respondent no.3 has filed reply to the application, raising preliminary objections that application is abuse of process of law and plaintiff has suppressed material facts from the court in order to obtain favourable order. It was stated that summons of the suit were received by the respondent no.3 on 20.10.2020 and the copy of ex-parte interim order passed on 06.10.2020 was not annexed with the summons. The respondent was neither aware of any such order passed by the court nor had any knowledge of the suit Digitally signed ANIL by ANIL KUMAR SISODIA KUMAR Date:
SISODIA 2024.08.13 15:40:00 +0530 Contempt Petition 07/2020 SANJAY VS. DEEPAK JAIN &ORS. Page No. 3 of 9 filed against him by the plaintiff prior to 20.10.2020. It was further stated that the plaintiff did not contact the respondent even after obtaining the order dated 06.10.2020 even though, he was residing in the same area nor any such order was sent to the respondent through whatsapp. It was further stated that the notice dated 12.10.2020 annexed by the plaintiff along with the application was never received by the respondent which shows that respondent had no knowledge about the ex-parte order dated 06.10.2020. It is further stated that the respondent himself has stated in the WS filed on 28.11.2020 that defendant no.1 and 2 had released their 50% share in the property in favour of the respondent no.3 through the Release deed on 15.10.2020 which was got registered on 19.10.2020. It was stated that the action of the respondent was neither deliberate nor intentional nor willful as respondent was not aware about the order passed by the court.
5. On merits, the contents of the application have been denied and it has been denied that the respondent has raised construction on the disputed property by extending illegally on the public land from the front side or that the same was given on rent to Sh. Mohit Grover and Rohit Grover. It was also denied that the plaintiff had given complaint to the police officials after he came to know about the aforesaid fact or that no action was taken by the police. It was stated that the complaint dated 04.12.2020 was filed by the defendant after receiving the copy of WS filed by the defendant. It was denied that respondent no.3 had flouted the orders of the court and it was stated that respondent no.3 had committed contempt of the court. A prayer was made for Digitally signed by ANIL ANIL KUMAR KUMAR SISODIA Date:
SISODIA 2024.08.13 15:40:12 +0530 Contempt Petition 07/2020 SANJAY VS. DEEPAK JAIN &ORS. Page No. 4 of 9 dismissal of the application.
6. Plaintiff filed rejoinder wherein he reiterated the facts stated in the application and has denied the facts contrary to it.
7. I have heard Ld. Counsel for the plaintiff as well as counsel for respondent no.3 and have perused the record carefully.
8. Before proceeding further, it would be beneficial to reproduce the operative part of the order dated 06.10.2020 passed by the Ld. Predecessor of this court as under:-
"12. In the facts and circumstances, I am satisfied that the plaintiff is entitled for grant of ex-parte ad interim injunction. Accordingly, the defendants, their agents, servants, successors, assigns, representatives and heirs etc. are hereby restrained from selling, alienating, transferring, disposing off or in any manner creating any third party interest in respect of the suit property i.e. Shop no.4521, measuring 7 x 22 meters comprising of ground floor and basement, situated at main road, Pahari Dheeraj, Delhi as more specifically shown in red colour in the site plan till the final disposal of the suit.
Application accordingly stands allowed."
Digitally signed by ANIL ANIL KUMAR KUMAR SISODIA SISODIA Date:
2024.08.13 15:40:26 +0530 Contempt Petition 07/2020 SANJAY VS. DEEPAK JAIN &ORS. Page No. 5 of 9
9. The primary object of Rule 2-A of Order 39 of CPC is not to punish a person, who has disobeyed the order of injunction, but to enforce the order. The willful disobedience, no doubt, invites wrath of penal action as envisaged in the said provision, hence, where any action is done in violation of a order or stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not to allow perpetuation of the wrong doing. These provisions are intended to maintain majesty of judicial order, to preserve rule of law and to ensure the faith of litigant in the administration of justice.
10. So far as the scope of Order 39 Rule 2-A CPC is concerned, the same has been considered by different courts from time to time. A constitution bench of Hon'ble Supreme Court in State of Bihar Vs Rani Sana Bati Kumari, AIR 1961 SC 221, has categorically held that the said provision deals with the willful defines of the order passed by the Civil Court. The Apex Court has held that there must be willful disobedience of the injunction passed by the court and order of punishment be passed unless the court is satisfied that the party was, in fact, under a mis-apprehension as to the scope of the order or there was no unintentional wrong for the reason that the order was ambiguous and reasonably capable of more than one interpretation or the party never intended to disobey the order but conducted himself in accordance with the interpretation of the order.
11. A party alleging breach is required to prove willful breach by another party beyond reasonable doubt for the purpose of Digitally signed ANIL by ANIL KUMAR SISODIA KUMAR Date:
SISODIA 2024.08.13 15:40:52 +0530 Contempt Petition 07/2020 SANJAY VS. DEEPAK JAIN &ORS. Page No. 6 of 9 seeking imposition of punishment under Order 39 Rule 2-A CPC. The court would have to make a positive finding that the party in question had knowledge of the injunction and had willfully breached or disobeyed such injunction. In Food Corporation of India Vs Sukh Deo Prasad (2009) 5 SCC 665, the Apex Court held that power exercised under Order 39 Rule 2-A CPC was similar to the power of the civil contempt under the Contempt of Courts Act, 1971 and the disobedience had to be proved "beyond any doubt" by the person who complains of such disobedience. In U.C. Surendranath Vs Mambally's Bakery (2019) 20 SCC 666, Hon'ble Supreme Court had further held that there had to be strict and irrefutable proof of disobedience for punitive action to follow under Order 39 Rule 2-A of CPC. It is further opined that the court cannot hold a person guilty of violation of its orders and proceed punitively against him merely because the circumstances give rise to a strong suspicion of the order of the court having been disobeyed. The principle that suspicion, howsoever strong, can be no substitute for proof may be justifiably be invoked while dealing with application under Order 39 Rule 2-A of CPC.
12. In the present case, perusal of the order dated 06.10.2020 passed by Ld. Predecessor of this court would show that the defendants were restrained from creating any third party interest in the suit property till the final disposal of the suit. As per the contempt application filed by the plaintiff, defendant no. 1 and 2 have transferred their 50% share in the suit shop in favour of defendant no. 3 on 15.10.2020 after passing of the order dated 06.10.2020 and have thus, flouted the order of this court.
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2024.08.13
SISODIA 15:41:06 +0530
Contempt Petition 07/2020 SANJAY VS. DEEPAK JAIN &ORS. Page No. 7 of 9
Defendant no. 3 in his WS, has admitted the fact that defendant nos. 1 and 2 had transferred their 50% share in the suit property in his favour vide registered release deed dated 19.10.2020 and he has become absolute owner of the aforesaid property. Defendant no. 3 has also taken a defence that he was not served with the copy of the ex-parte interim order dated 06.10.2020 passed by the Hon'ble Court. The plaintiff has placed on record copy of legal notice dated 12.10.2020, postal receipt dated 13.10.2020 vide which he had informed the defendants about the order dated 06.10.2020. Perusal of the record however shows that plaintiff has not placed on record the tracking report of the postal receipt to show as to when the notice dated 12.10.2020 was served on the respondents. Hence, in the absence of any such evidence on record, it cannot be presumed that defendant had knowledge of the ex-parte interim order dated 16.10.2020 passed by the court before the release deed was executed by defendant no. 1 and 2 in favour of defendant no. 3.
Another aspect of the matter is that defendants were restrained from creating third party interest in the suit property. It is an admitted position that all the respondents were the joint owners of the suit property. Hence, in my considered opinion the transfer of their shares by respondent no. 1 and 2 in favour of respondent no. 3 cannot be said to be transferred of the suit property in favour of a third party or creating an interest in favour of the third party.
13. Plaintiff has also raised another plea that defendant no. 3 had inducted Mr. Mohit Grover and Mr. Rohit Grover as tenant in Digitally signed by ANIL ANIL KUMAR KUMAR SISODIA Date:
SISODIA 2024.08.13 15:41:20 +0530 Contempt Petition 07/2020 SANJAY VS. DEEPAK JAIN &ORS. Page No. 8 of 9 the suit property after getting the relinquishment deed from other co-sharers in his favour and also raised construction in the suit property by illegally encroaching upon the public land on the front side. However, the plaintiff has not led any evidence to substantiate this claim in his evidence. In fact, evidence by way of affidavit filed by plaintiff is totally silent on this aspect. Plaintiff has not even deposed in his affidavit that defendant no. 3 has let out the suit shop to any tenant. Hence, this allegation of the plaintiff also remains unsubstantiated.
14. As regards the claim of the plaintiff that defendant no. 3 has raised unauthorized construction in the suit shop, it would be sufficient to note here that the ex-parte ad interim injunction order dated 06.10.2020 does not restrain the defendants from raising construction in the suit property. Hence, the same cannot be construed as violation of order dated 06.10.2020.
15. In view of the aforesaid discussion, I am of the considered opinion that plaintiff has failed to establish that defendants are guilty of flouting the order dated 06.10.2020. The application is accordingly dismissed being devoid of any merits.
File be consigned to record room after due compliance.
Digitally signed by ANIL ANIL KUMAR
KUMAR SISODIA
Date: 2024.08.13
SISODIA 15:41:38 +0530
(ANIL KUMAR SISODIA)
District Judge(Commercial Court)-04
Central/Delhi
Announced in open
court on 13th August, 2024
Contempt Petition 07/2020 SANJAY VS. DEEPAK JAIN &ORS. Page No. 9 of 9