Bombay High Court
Mrs. Tripti Manish Sahni vs Manish Gobindram Sahni on 20 March, 2012
Author: Roshan Dalvi
Bench: Roshan Dalvi
1 CA.146/2013-CA.286/13-WP.3682/12
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
CIVIL APPLICATION NO. 146 OF 2013
IN
WRIT PETITION NO. 3682 OF 2012
Mrs. Tripti Manish Sahni ...Petitioner
Vs.
Manish Gobindram Sahni ...Respondent
And
Citibank N.A. & Anr. ...Proposed Respondents
And
Mrs. Gulshan Gobindram Sahni ig Applicant/Proposed Rspdt.
AND
CIVIL APPLICATION NO. 286 OF 2013
IN
WRIT PETITION NO. 3682 OF 2012
Mrs. Tripti Manish Sahni ...Applicant/Petitioner
Vs.
Manish Gobindram Sahni ...Respondent
AND
WRIT PETITION NO. 3682 OF 2012
Mrs. Tripti Manish Sahni ...Petitioner
Vs.
Manish Gobindram Sahni ...Respondent
Mr. Rohaan Cama i/b. Devanshu Desai for Applicant in CA
No.146/2013 and Respondent in CA No.286/2013 in WP
No.3682/2012
Ms. Dhwani Mehta i/b. M D Partners for Respondent in WP No.
3682/2012
Ms. Kumud Bhatia for Applicant in C.A.No.286/2013 Original
Petitioner in WP No. 3682/2012 and Respondent in C.A. No. 146 of
2013
Mr. Arvind Pinto for Income Tax Officer, proposed Respondent No.2 in
C.A. No. 146 of 2013.
Mr. Satish Upaday i/b. M.V. Kini & Co. for Citibank, proposed
Respondent No.1 in C.A. No. 146 of 2013.
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2 CA.146/2013-CA.286/13-WP.3682/12
CORAM : MRS. ROSHAN DALVI, J.
Date of Reserving the Judgment : 28th February, 2013
Date of Pronouncing the Judgment: 20 th March, 2013
JUDGMENT:
Rule. Made returnable forthwith.
1. The writ petition arises out of an order of the Judge, Family Court No.7, Mumbai dated 23rd August, 2011 rejecting the application of the petitioner wife and another application of the respondent husband in respect of the sale of their matrimonial home and the EMIs to be paid for the loans taken in respect thereof.
2. The parties were married in 1997. They have two children. There have been disputes between them resulting in their separation and the consequent petition in respect of the matrimonial home initially filed by the wife in Family Court, Mumbai.
3. The matrimonial home is flat No.703 in a building called Usha Garden. The flat was purchased in the joint names of the husband and his mother on 6th April, 2006. After the basic payment was made, loan from Citibank was obtained by the purchasers. EMIs towards that loan were not paid. Citibank threatened action under the Securitisation and Reconstruction of Financial Asset Enformcement of Security Interest Act, 2002 (Securitisation Act).
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4. The wife applied to direct the husband to pay the EMIs to protect the flat which was their matrimonial home. The husband by his reply applied to sell off the flat. The Court considered it improper to allow the husband to sell off the flat. The Court observed if that was allowed, the wife and children would have no premises for residence and "they would come on roads". However the Court did not direct the husband to pay the EMIs also. Hence both the applications came to be rejected under the order dated 23rd August, 2011 impugned in the petition.
5. It is interesting that the application of the husband for sale was stated to be with the consent of his mother because he was in financial crises and the flat was the joint property of the son and mother. The husband offered to sell the flat to pay-off the bank loan and utilise the remaining amount for purchasing a new flat and offered to deposit that amount in the Court. It is interesting to set out the precise words of the husband's application in the Family Court in paragraph 10 of his affidavit which is his assurance-cum-statement.
"10. I say that upon the sale/disposal of the said flat, there will be no change in the nature of the petitioner and my daughters as they will continue to stay together with me now in a temporary rented accommodation and later move into the flat which I shall purchase out of the balance amount from the sale proceeds. The petitioner and both daughters shall move with me in the alternate accommodation by way of purchase of a new flat and/or a flat taken on leave and license whereby the petitioner will not be dispossessed of her matrimonial home. I say that there will only be a change in the address of our residence. I say that such action be just ::: Downloaded on - 09/06/2013 18:18:42 ::: 4 CA.146/2013-CA.286/13-WP.3682/12 and necessary when there is no other alternative left for me.
11. I say that the petitioner is deliberately portraying a false picture about me and my mother who are the respondents herein, merely to set her convenience and attract sympathy of the Hon'ble Court."
4. The learned Judge had however rejected both the applications and hence this writ petition came to be filed.
5. The flat is now sold. The bank is paid-off. The bank has deposited the remainder of the amount after discharge of its liabilities in this Court. Consequently the husband's application has been in-effect allowed by this Court.
6. Upon the sale of the flat a net amount of Rs.75 lakhs is lying deposited in this Court. It is this amount which according to the assurance-cum-statement of the husband in paragraph 10 of his own affidavit cited above must be used for purchase of a new flat in which the wife and the children would not be dispossessed of their matrimonial home and would only have a change of their address.
7. It may at once be stated that if parties have to own a house which is their matrimonial home, both the husband and the wife must bear the consequences of the loan. The loan must first be repaid. From the remainder, an alternate premises, which would be their future matrimonial home, would be allowed to be purchased. This was the husband's application and this is what has been ordered by the court in the above writ petition.
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8. Upon seeing that indeed the bank had to be paid-off the loan, this Court, from time to time passed directions in the writ petition for the sale of the flat. The remainder would go for the purchase of the new flat as per the husband's own assurance- cum-statement.
9. However the husband changed colour after he saw the colour of money. He has put up his mother to make the above application No. 146 of 2013 to claim the amount as her own.
She has made the ITO a party respondent on the premise that there is a certain income tax attachment for payment of income tax dues of the husband (her son). She has feigned the case of not having any relation with her son upon he and his wife "colluding and having nefarious designs". In paragraph 28 of her application she claims to have published a notice in the newspaper in 1999 that she does not have any relation with her son and her daughter-in-law. However she claims to have purchased the suit property which is the matrimonial home of the parties in 2006 along with her son (husband) and claims to have taken a joint loan along with her son (husband) in that year. She has stated that the husband, wife and she herself were residing in the suit property. She consented to her son's (husband's) application for sale of the flat in the Family Court which was stated by the husband in his affidavit.
10. In paragraph 34 of her application she claims that she was thrown out of the house despite being a co-owner of the suit ::: Downloaded on - 09/06/2013 18:18:42 ::: 6 CA.146/2013-CA.286/13-WP.3682/12 property. She has stated that "for years she was homeless"
and is presently staying in a rented house for no fault of herself.
She has further stated that she is a senior citizen having "no source of income" and is dependent upon the amount that "she was likely to receive" upon this Court's orders (of sale). Hence she has claimed 50% of the suit property being a co-owner/joint owner with the husband(her son).
11. In a further affidavit of the mother, she claims that the suit flat is essentially only her property, that she was running a canteen for 6 - 8 years since she was 16 years old (she is now 70 years old) to "meet daily expenses" by "shear hard work I have been able to earn my living" and has acquired several properties in her life time.
12. She claims that she initially acquired one flat in a MHADA building. She was alloted that flat on 16 th November, 1999. She has not shown how she was possessed of monies to pay the consideration for that flat and what is the consideration that she paid.
13. It must be remembered that the parties were married in 1997. The flat is purchased 2 years after their marriage. That was in the year she allegedly gave a public notice of disowning her son.
14. The mother claims that she sold that flat in 2005-2006 to one Rajeev Bhatnagar. She has produced an agreement for sale ::: Downloaded on - 09/06/2013 18:18:42 :::
7 CA.146/2013-CA.286/13-WP.3682/12 dated 30th December, 2005 registered on 5 th January, 2006 for which stamp duty of Rs.1,27,300/- was paid on 30 th December, 2005. She received Rs.28 lakhs by 3 DDs from Rajeev Bhatnagar. She has shown the deposit of the DDs in her Account No. 90 SB 400 42179 in Centurion Bank of Punjab Limited.
15. It must be appreciated that the receipt of consideration for this property is shown to have been credited in her account at the time of sale, but the payment of consideration for the same property has not been shown to have been debited to her account at the time of purchase of the property. This is the seminal suppression of the mother of the husband.
16. The wife has claimed that the suit flat belongs to the husband. His mother's name was added for the sake of convenience. The husband himself made an application for sale of his own flat. He made out a case that he had purchased it as his matrimonial home. Due to his "financial crises" he could not pay the loan and hence sought to sell the flat. In fact when the wife sought to make the mother a party respondent in the Family Court the husband has claimed that she has nothing to do with the dispute and was needlessly sought to be joined and "roped in". Now the mother has claimed that she purchased this flat along with another flat being flat No.704 in Usha Garden which is the adjoining flat herself for the consideration of Rs.28 lakhs which she received from the sale of the initial MHADA flat.
17. It does not matter how the amount received in 2006 in the ::: Downloaded on - 09/06/2013 18:18:42 ::: 8 CA.146/2013-CA.286/13-WP.3682/12 account of the mother has come to be utilised unless the purchase of the flat by her and none else is shown. At the time of the purchase her son was married. He was expected to have income to support his own family. At the time of the sale of that flat the parties had disputes.
18. Several debit entires are shown for purchase of flat No.704 by her entirely and for payment of stamp duty for the suit flat and payment of two other installments for the suit flat.
19. Her bank account makes interesting reading.
20. Rs. 28 lakhs has been received by her on 4 th January, 2006. It is invested in a FDR on 5 th January, 2006. The FDR has been closed on 19th January, 2006 upon receiving interest of Rs.4908/-. She has made payments of Rs.5 lakhs, Rs. 1 lakh, Rs.
11 lakhs etc., to her daughter soon thereafter. She has made a transfer to herself of Rs.16 lakhs on 3rd March, 2006 by inward clearing which shows that she has another bank account also in the same bank.
21. Thereafter she has commenced the transaction for purchase of two flats. It would be apt to see the dates of two purchases and then revert to her bank account.
22. The first purchase is on 6th April, 2006 of flat No.704. That flat is adjoining the matrimonial home of the parties. She has paid stamp duty of Rs.92500/- on 4th April, 2006. She has ::: Downloaded on - 09/06/2013 18:18:42 ::: 9 CA.146/2013-CA.286/13-WP.3682/12 registered the flat on 7th April, 2006. She has made the initial payment of Rs.2 lakhs to the builder Jain Associates on 7th April, 2006 by cheque dated 4th April, 2006. Thereafter she has made payment of further Rs.2 lakhs, Rs.5 lakhs, Rs. 1 lakh and Rs.4 lakhs on 14th April, 2006, 24th April, 2006, 2nd May, 2006 and 19th May, 2006. The first three entries of 14 th April, 2006, 24th April, 2006 and 2nd May, 2006 are reflected in her bank statement. The last payment of Rs. 4 lakhs of 19th May, 2006 is made from another account in her name in Lord Krishna Bank by a cheque drawn on that bank bearing No.034728. The total payments made by her for flat No.704 shown by her from her bank account is Rs.11 lakhs. She claims full ownership rights over that flat. She claims to have utilised the sale price of the MHADA flat of Rs. 28 lakhs for purchase of flat Nos. 703 and 704 in Usha Garden.
23. We must now see what she paid for the suit flat No. 703 which is the matrimonial home of the husband and wife (her son and daughter-in-law). The transaction for the suit flat must, therefore, be seen. Her son and she have purchased the suit flat on 1st June, 2006. The flat stands in the joint names of the son as the first primary holder; her name is joined with him. She has paid Rs.1.28 lakhs as stamp duty from the aforesaid account on 19th May, 2006. The agreement is registered on 2 nd June, 2006. The initial payment of Rs. 1 lakh is reflected in the agreement showing the said amount paid by cheque No. 034726 drawn on Lord Krishna Bank which is her other bank account.
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24. It is stated that both the joint owners took a loan from Citibank in respect of flat No.703. Counsel on behalf of the wife rightly argued that Citibank would require the security of business or an assured salaried income to be able to disburse the loan. The Citibank, in fact, disbursed the loan to the husband who is an income tax assessee and in fact an income tax defaulter running up his arrears to Rs.30 lakhs by way of default in payment of income tax as claimed by the income tax authority who is the respondent in the mother's application and who, accordingly, has been heard. In fact it is mentioned to Court by th ITO who is present on behalf of respondent No.2 in the application of the mother that the mother is NOT an income tax assessee at all !
25. Indeed the husband's name is the first name as the holder of the flat. The flat indeed belongs to the husband. Hence the husband filed an application without his mother in the Family Court to sell the flat. He offered to purchase a new flat which would be the alternate matrimonial home of the parties and in which his wife and children would reside peaceably. That offer was not a genuine offer. The act of the mother has shown the intention of the husband. Despite the skill and labour of Mr. Cama that has gone into his arguments in showing the bank account of the mother to prove that the suit flat belongs to her, his effort has come to nothing as such are the facts of the case demonstrated by the documents of the parties.
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26. Though the mother has claimed, as aforesaid, in her application that she has been homeless for years and has no source of income except what she would receive from this application for which she made her application, she has made a further affidavit in a bid to show how she has been a successful business woman having a tremendous income from which she has purchased several properties including the suit flat. She has titled herself a "self made woman" and shown how she has purchased a shop, MHADA tenement, the aforesaid two flats from the sale of that tenement etc.
27. To substantiate her sturdy financial position she has produced the statement of another bank account.
28. That also makes interesting reading and deserves a good look. Assuming that that is for the relevant period to show her financial acumen from her catering business which she commenced 54 years ago, and carried on for 6 - 8 years, the bank statements are enough to show her complete lack of bona fides.
29. The statement is of Account No. 034 0001 00000 5614.
The name of the bank is not shown in the photocopy of the statement that is produced showing her customer details on the top followed by the bank entries, but appears to be the statement of account in her name in Lord Krishna Bank. That account begins from 3rd April, 2006 and is for entries up to 31 st January, 2008 which she calls the relevant period. The very first ::: Downloaded on - 09/06/2013 18:18:42 ::: 12 CA.146/2013-CA.286/13-WP.3682/12 entry shows the credit balance of Rs.7,52,414/-. It is not known and now shown how that credit came to be. The withdrawal of Rs.4 lakhs under cheque No. 034728 is shown from that account after certain other withdrawals. If the credits in the account are not explained the debits cannot be accepted. She must first show how she had Rs.4 lakhs in her account to pay the builder therefrom.
30. She claims to show other payments made to the builder for flat No.703 for which there are no corroborating receipts issued by the builder. These payments are sought to be reflected in the bank account No. 034 0001 00000 5614. Rs. 1 lakh is paid on 8th May, 2006 when the account had a balance of Rs. 7 lakhs and odd which is not explained.
31. There are two other interesting credits of Rs.6.22 lakhs and Rs. 3 lakhs which are not explained. Rs. 2 lakhs is stated to be paid to the builder on 29th January, 2007 when the account had Rs.7.77 lakhs credit after the aforesaid two payments were deposited. Thereafter there is a complete void between 1st April 2007 and 3rd September 2007. Hence how the account continued to be maintained is not shown.
32. The payments made thereafter are even more interesting. Rs.50,000/-, Rs.10,000/- and Rs.40,000/- are deposited on 4 th September, 2007. This was when the credit balance in the account was rock bottom. After deposit of Rs.50,000/- the balance is only Rs.50293.15. There is a credit balance of ::: Downloaded on - 09/06/2013 18:18:42 ::: 13 CA.146/2013-CA.286/13-WP.3682/12 Rs.1,00,293.15 on 4th September, 2007 by the aforesaid three cheques. On the same day a cheque for Rs.1 lakh is shown to be issued to Jain Associates and stated to be for flat No.703. There is no receipt of the builder for that payment.
33. Similarly on three other dates in September 2007 Rs.20000/-, Rs. 60,000/-, Rs. 10,000/- and Rs.10,000/- are deposited again making a credit balance of Rs.100293.15 on 28 th September, 2007. The builder is paid Rs.1 lakh on that day itself ostensibly for flat No.703, but which is not corroborated by any receipt of the builder for that flat.
34. Similarly in the next month on 3rd October, 2007, 4th October, 2007 and 6th October, 2007 Rs.25000/-, Rs.25000/- and Rs.50,000/- are deposited in the account and on 6 th October, 2007 itself Rs.75000/- and Rs.26450/- are paid to Jain Associates again allegedly for flat No.703, but which is not corroborated by any receipt for that flat.
35. Immediately thereafter on 9th October, 2007 Rs.42,300/- is deposited in the account and on 10th October, 2007 Rs.42240/- is paid to the builder. Before each of these payments the balance was in the region of Rs.200/- to Rs.300/-. After the debit entry for payment to the builder similar is the balance being less than Rs.500/-. The minimum balance charge of Rs.28/- has been levied on 30th November, 2007, 31st December, 2007 and 31st January, 2008 ! ::: Downloaded on - 09/06/2013 18:18:42 ::: 14 CA.146/2013-CA.286/13-WP.3682/12
36. Such is the wealthy woman who acquired enormous immovable properties including her son's matrimonial home in which she by her grace allowed her son to live with his family peaceably and happily, though she was so tormated that she had issued a public notice disowning her son.
37. It is unmistakably clear that the applicant mother has no source of income. She is indeed a homeless person having no source of income as claimed by her in paragraph 34 of her initial application. She is used and propped up by her son to make a false show of having a separate property.
38. The son, an income tax assessee is shown to be the defaulter. The son having taken the bank loan has been shown to be a defaulter. The son obviously tried to hoodwink the income tax authorities initially into not showing at least some of his acquired wealth from his earned income. The son thereafter played foul with his wife and children. He has thrown his hands up and neglected to support and maintain them constraining his wife to file an application for maintenance in which she has been granted maintenance by the court. The son thereafter claimed to dishouse and dispossess his wife and children on the ostensible ground of sale of her matrimonial home. He gave a false assurance to the court to rehouse his wife and children in what he called their alternative matrimonial home and when the time for rehousing came he again put up his mother. Since this Court would not believe her false claim she has been constrained to show her bank accounts. The bank accounts only exposed her ::: Downloaded on - 09/06/2013 18:18:42 ::: 15 CA.146/2013-CA.286/13-WP.3682/12 dishonesty as much as her son's defaults.
39. The bank accounts show only Rs.28 lakhs deposited without the corresponding entry of showing the purchase price of the MHADA tenement. Similarly the bank account only shows the stamp duty paid for flat No.703 and no other amounts.
Other amounts shown to be paid to Jain Associates, the builder may well be for flat No.704 for which the receipts are mischievously suppressed to falsely contend that they were paid for flat No.703. Further the bank account shows that amounts are deposited on a single day, a single week or a single month (4/9/2007, September, 2007 and the first week of October, 2007) which are immediately paid out to make a show of the payment for the suit flat from the account shown to be the name of the mother.
40. It is impossible for the applicant mother to earn these amounts in a single day or week and leaving her bank account bereft of funds and wholly dry thereafter. Even excepting that the credit entries are for flat No.703 only, it is clear that the amounts are deposited in the account of the mother all by cash deposits between September and November, 2007 by none other than the son in whose name the flat stood for payment for the suit flat.
41. It must be remembered that for the other flat from Rs.28 lakhs received by her she has shown only Rs.11 lakhs spent from her account. If that is her own flat, the other debit entries from ::: Downloaded on - 09/06/2013 18:18:42 ::: 16 CA.146/2013-CA.286/13-WP.3682/12 Lord Krishna Bank would also be made for that flat only as there is no other source of funds for that flat. No other bank loan is claimed to be taken for that flat.
42. Nevertheless an explanation was sought by the Court about these numerous inexplicable credit entries in both her accounts. Mr. Cama, on behalf of the mother, upon taking instructions, explained that there are entries of receipt of rents by the mother from the shop that she owns and which she has tenanted.
43. When she purchased the shop is not shown in the statement like the MHADA tenement. It is stated to be purchased long back in 1984. The source of that purchase has not been shown. The dates of the receipt of the rent of the shop would be important to note. They are as follows:
Sr.No. Amount Date
1 10,000 7/3/2005
2 5000 30/3/2005
3 10000 23/4/2005
4 8750 3/4/2006
5 10000 18/4/2006
6 10000 15/5/2006
7 50000 4/9/2007
8 10000 4/9/2007
9 40000 4/9/2007
10 20000 14/9/2007
11 60000 27/9/2007
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44. It is impossible to accept this incredible explanation. Rent income would be receivable each month. If the tenant defaults in the payment of rent it would be receivable after certain months in a lumpsum or otherwise. There are 3 deposit entries in March, 2005 and April, 2005 of Rs.10000/-, Rs.5000/- and Rs.10,000/-. Thereafter from May 2005 to 2 nd March, 2007 there is no rent entry shown at all in Account No. 90 SB 400 42179. Similarly the cash deposit entries are in the other account of the applicant mother being account No. 034 0001 00000 5614. The cash deposit entries are two entries of Rs. 8750/- and Rs.10,000/- in April, 2006, Rs.10,000/- in May, 2006 followed by no such entires from June, 2006 to March, 2007. Again the cash deposit entries are in September, 2007 and October, 2007 as stated above leaving almost a zero balance.
45. These accounts only show the user for making various cross entries. And that is by the mother who pays no income tax having a son who is a defaulter assessee.
46. Besides these, in the other bank account there are 3 entries of Rs.5 lakhs, Rs. 1 lakh and Rs. 11 lakhs showing payment made to Gunita Malhotra who is stated to be her daughter. These payments are made soon after the receipt of Rs.28 lakhs was credited to the applicant's account from the sale of the MHADA tenement. Hence it is seen that from Rs. 28 lakhs Rs.17 lakhs are paid by the applicant to her daughter.
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47. Similarly there is one transfer entry of Rs.16 lakhs by inward clearing showing another account of the applicant in the same bank. One cheque payment was made to the builder of Rs.
5 lakhs which is later stated to be returned. There is a credit entry of Rs. 10 lakhs which is not explained. By these payments of Rs.17 lakhs to the daughter, Rs.16 lakhs as a transfer to herself and Rs. 5 lakhs to the builder, Rs.28 lakhs received from the sale of MHADA tenement and Rs. 10 lakhs also received is shown to be entirely defrayed. The balance of Rs.28000 and odd which was in the account prior to the deposit of the sale proceeds of the MHADA tenement came back to Rs.28000 and odd after these entries !
44. Several amounts which have been credited to the account are withdrawn immediately and invested in FDRs (at the opportune time.) Nothing has been invested in the suit flat. Instead a loan has been taken by the husband (her son).
45. The account also shows certain receipts from G.M. Educational Institute. It is not the mother's case that she has dabbled into business of the educational institute at all. In her affidavit showing the assets of her husband, filed in the Family Court the wife has shown that her husband is trustee of G.M. International School at Goregaon. The bank account which is ostensibly of the mother shows 3 credit entries of Rs. 3 lakhs, Rs.1 lakh and Rs.4.25 lakhs credited to her account on 7 th April, 2006, 21st July, 2006 and 11th December, 2006 from that ::: Downloaded on - 09/06/2013 18:18:42 ::: 19 CA.146/2013-CA.286/13-WP.3682/12 institute being receipts of amounts from G.M. Educational Institute. Similarly the wife, in the said affidavit has shown her husband's business in Shri Ram Auto. The mother's account shows payments of Rs.45000 and Rs.45000 made therefrom to Shri Ram Auto.
46. The accounts stated to be of the mother are, therefore, a camouflage for the accounts showing the income of the son. The property purchased by the son showing his mother's name as the joint holder is obviously with the same ugly intent. At best, the mother is a joint owner for the sake of convenience. She has neither earned the amount to pay for the suit property nor actually paid for it from her own separate individual genuine bank account.
47. The entries in the Bank accounts show the handiwork of a shrewd, tax evasive businessman. It is not the product of the applicant/mother who claims to be having no source of income.
48. From the evidence produced by the mother herself it is made crystal clear that the son has deposited amounts in her account which she has withdrawn to show payments made for the suit flat. The suit flat is not purchased by the mother out of her own known source of income being her catering business or even otherwise.
49. The wife has shown several properties of the husband in her application filed in the Family Court which is annexed as ::: Downloaded on - 09/06/2013 18:18:42 ::: 20 CA.146/2013-CA.286/13-WP.3682/12 Exhibit-N to the above writ petition. These are "(a) flat No.1103, CTS No.7, Survey No.41, in Satellite Highets at Anand Nagar, Lokhandwala Extention Road, opp: Oshiwara Bus Depot, Andheri(W), Mumbai 400 012. (b) Shastri Nagar Surya Mukhi CHS Ltd., Shop No.2, Bldg. No.26, Shastri Nagar, Goregaon(W), Mumbai-400 014 (sold last month for approx. Rs. 1 Crore). ( c ) Shop No.6/7 Pimpri Pada, Gokhul Dham, Goregaon(East), sold in the year 2009-10".
50. She has also shown the husband's business at (Head Office) Shri Ram Auto Showroom, 3 Wheelers, A-4, Anand Nagar, B.M. Colony, Behind Oshiwara Police Station, Jogeshwari(W), Mumbai-400 012 and branch office at Budha Nagar, Marve Cross Road, Near Tata Powers House, Malwani, Malad(W), Mumbai-95.
51. The mother is not even an income tax assessee. She has wholly sought to be out of the income tax dragnet. A woman with means to purchase a shop and two flats must have income which would be assessable to tax. She must file her returns and show how she is not assessable to tax. She has not done that. Her son has filed his income tax returns and defaulted in payment of tax by not showing the correct income so that the income tax authorities have sought to levy penalty and interest upon his declared income and sought to attach his properties.
52. The assessment order dated 21st December, 2011 passed against the husband shows a turnover of Rs.69.14 lakhs claiming ::: Downloaded on - 09/06/2013 18:18:42 ::: 21 CA.146/2013-CA.286/13-WP.3682/12 expenses of Rs.65.76 lakhs and showing a net profit of Rs.3.36 lakhs which has been disbelieved and rejected and 50% of the expenses are disallowed in the absence of genuineness of expenses. His total income is rounded to Rs.64.36 lakhs on which he has been assessed to income tax. The income tax assessment is produced by the mother in her further affidavit.
Upon the Income Tax Office being made respondent No.2, the Income Tax Officer has produced the total liability towards income tax dues of the husband of Rs.27.66 lakhs with further interest of Rs.3.30 lakhs. Hence the total income tax liability as on the date of the hearing of the above applications and petition is Rs.30.96 lakhs. The same rises each day.
53. The son has sought to dispose his properties to evade the attachment. The mother has sought to use up the matrimonial home to clear the tax dues of the son. Hence it is seen why she has sought to make the ITO a party respondent in her own application. She would rather have her son's property attached by Income Tax Authorty than allow her daughter-in-law to reside there. Her son would rather have his matrimonial home cleared to tax evasion and save his other ill-gotten properties.
54. Nevertheless the income tax authority is stated to have attached the shop of the son and his matrimonial home being flat No.704. The attachment order is not produced. Only an assessment order dated 21st December, 2011 is produced by the mother. The Income Tax Authority might do well to consider the attachment of the other flat for the mother's claimed income as ::: Downloaded on - 09/06/2013 18:18:43 ::: 22 CA.146/2013-CA.286/13-WP.3682/12 well.
55. The Income Tax Authority has not made its own application at all. It is only respondent No.2 in the mother's application.
56. The application of the wife for the purchase of the alternative residential flat in lieu of her matrimonial home which came to be sold upon the pretense of her husband to pay off rightful dues of Citibank is required to be thus viewed. In fact she has applied for withdrawal of Rs.75 lakhs for a matrimonial home and in the alternative withdrawal of 50% of the amount for alternative residential accommodation for herself and her two minor daughters and in the alternative she has fairly applied for withdrawal of Rs.26.66 lakhs after deduction of the then income tax dues of Rs.21.66 lakhs therefrom.
57. It would now have to be seen how the applications of the wife, the income tax authority or the mother should be allowed. This leaves the question whether the wife's claim could be entertained or sacrificed in view of the alleged attachment or a sound discretion for securing both these worthy claims be exercised.
58. The right of a wife to be protected in her matrimonial home came to be considered by Courts in England under the common law, the law of justice, equity and good conscience and later under the Matrimonial Homes Act, 1967. It cannot be ::: Downloaded on - 09/06/2013 18:18:43 ::: 23 CA.146/2013-CA.286/13-WP.3682/12 gainsaid that wives who are equal partners in matrimony would have equal rights in their matrimonial home with their husbands.
59. In the case of Rimmer vs. Rimmer, (1953) 1 QB 63, the husband and the wife purchased the home, in which they lived, for diverse amounts paid by both of them. The husband had, of course, paid a larger share. Upon the desertion of the wife by the husband, he sold the house. The wife applied under Section 17 of the Married Women's Property Act, 1882 for a share of the sum realised on the same. It was held that it would be fair and just that the sum realised on the house, which was so largely a windfall, should be divided between the husband and wife equally. (Jones vs. Maynard (1951) Chancery 572 approved).
60. In the case of Falconer vs. Falconer, (1970) 3 All England Report 449 C.A. = (1970) (1) W.L.R. 1333, the concept of trust inferred from the conduct and surrounding circumstances of the spouses who owned or lived in a home which was their matrimonial home came to be considered. In that case the house was purchased in the name of the wife. She mortgaged the house. The husband stood surety. The husband paid certain amounts for "extras" for the house as well as housekeeping money to the wife. He also paid half of the mortgage instalments and rates. Thereafter he left the house alleging desertion by the wife.
61. It was held by Lord Denning that where one spouse makes ::: Downloaded on - 09/06/2013 18:18:43 ::: 24 CA.146/2013-CA.286/13-WP.3682/12 a substantial financial contribution to a matrimonial home in the name of the other, a trust may be inferred from their conduct and the surrounding circumstances. Referring to the judgments in Gissing vs. Gissing as well as Pettitt vs. Pettitt it was observed thus:-
"..... the principles on which a matrimonial home which stands in the name of husband or wife alone, is nevertheless held to belong to them both jointly (in equal or unequal shares). It is done, not so much by virtue of an agreement, express or implied, but rather by virtue of a trust which is imposed by law. The law imputes to husband and wife an intention to create a trust, the one for the other. It does so by way of an inference from their conduct and the surrounding circumstances, even though the parties themselves made no agreement upon it. This inference of a trust, the one for the other, is readily drawn when each has made a financial contribution to the purchase price or to the mortgage instalments. The financial contribution may be direct, as where it is actually stated to be a contribution towards the price or the instalments. It may be indirect, as where both go out to work, and one pays the housekeeping and the other the mortgage instalments. It does not matter which way round it is. It does not matter who pays what. So long as there is a substantial financial contribution towards the family expenses, it raises the inference of a trust. But where it is insubstantial no such inference can be drawn; see the cases collected in the dissenting judgment of Edmund Davies L.J. In the Court of Appeal [1969] 2 Ch. 85, 97, which was upheld by the House. The House did, however, sound a note of warning about proportions. It is not in every case that the parties hold in equal shares. Regard must be had to their respective contributions. This confirms the practice of this court. In quite a few cases we have not given half-and-half but something different."
The Royal Commission in 1936 which observed :
::: Downloaded on - 09/06/2013 18:18:43 :::25 CA.146/2013-CA.286/13-WP.3682/12 "If on marriage she gives up her paid work in order to devote herself to caring for her husband and children, it is an unwarrantable hardship when in consequence she finds herself in the end with nothing she can call her own".
The Law Society had considered :
"In the generality of marriage, the wife bears the children and minds the house. She thereby frees the husband for his economic activities. Since it is her performance of her function which enables the husband to perform his, she is in justice entitled to share in its fruits and the Courts which 'have never been able to do justice to her'."
62. This led to the enactment of the Matrimonial Proceedings and Property Act, 1970. Under Section 5(1)(f) of the Act, the contribution made by each of the parties to the welfare of the family including the contributions made by looking after the home or carrying for the family were to be considered. The Law Commission showed the importance of Section 5(1)(f) in the contributions for the welfare of the family not only including contributions in money or money's worth but also in looking after the home and the family for example by domestic chores thereby relieving their husbands for financial employment as a factor to have been considered.
63. Consequently, it was observed in Watchal Vs. Watchal (1973) EWCA Civil 10 which inter alia dealt with the concept of the deserted wife's equitable interest thus:
".... we may take it that Parliament recognised that the wife who looks after the home and family contributes as ::: Downloaded on - 09/06/2013 18:18:43 ::: 26 CA.146/2013-CA.286/13-WP.3682/12 much to the family assets as the wife who goes out to work. The one contributes in kind. The other in money or money's worth. If the Court comes to the conclusion that the home has been acquired and maintained by the joint efforts of both, then, when the marriage breaks down, it should be regarded as the joint property of both of them, no matter in whose name it stands. Just as the wife who makes substantial money contributions usually gets a share, so should the wife who looks after the home and cares for the family for twenty years or more."
64. In the case of Williams & Glyn's Bank Ltd. vs. Boland & anr. (1979) 2 W.L.R. 550, the husband was the sole registered proprietor of the matrimonial home. The wife contributed to the purchase of the house. The husband charged the property to the Bank. The Bank claimed for possession. Section 1 of the Matrimonial Homes Act, 1967 was considered. It dealt with the spouse who had an equitable interest in a dwelling house or in the proceeds of sale. The interest of such spouse was to be considered for the right of occupation only. It was held that because the wife had contributed to the purchase of the matrimonial home she was an equitable tenant-in-common of the property under trust for sale and the estate remained vested in the husband as sole trustee. The wife, who was in actual possession of the land, would have an overriding interest to which the Bank's charge was subject and was entitled to protection of her occupation of the matrimonial home. It was held by Lord Denning that the bank was not entitled to throw her "out into the street - simply to get the last penny of the husband's debt".
65. The history of precedents with regard to the deserted ::: Downloaded on - 09/06/2013 18:18:43 ::: 27 CA.146/2013-CA.286/13-WP.3682/12 wife's equity was set out by Lord Denning thus:
"I would put on one side cases from 1949 onwards about deserted wives. In those cases the wife had no share whatever in the matrimonial home. She was a "bare"
wife as I pointed out in Gurasz vs. Gurasz [1970] P. 11,
17. In this court we gave her the protection which she rightly deserved. But the House of Lords stripped her of it. It held that she had no protection against a lender who took security on the matrimonial home : see National Provincial Bank Ltd. v. Hastings Car Mart Ltd. [1965] A.C. 1175. This was immediately rectified to some extent by the Matrimonial Homes Act 1967. It gave her a charge on the house : but it was subject to this severe restriction : it had to be registered as a Class F charge, and not all of the deserted wives had sufficient knowledge or advice to do this. That Act (as it was passed in 1967) did not apply to a wife who was entitled to a share in the house. Her position was remedied to a slight extent in 1970 by section 38 of the Matrimonial proceedings and Property Act 1970. It enables a wife, who has a share to register a Class F charge. But that amendment was of precious little use to her, at any rate when she was still living at home in peace with her husband. She would never have heard of a Class F charge: and she would not have understood it if she had. If she is to be protected at all, it will be by the decision of the judges.
The wife's share Alongside the deserted wife's equity, there was another development of even greater significance. It was the concept of the "wife's share" in the matrimonial home. In former times the house was usually conveyed into the name of the husband alone. He was the one who went out to work, earned the money, paid the deposit and the mortgage instalments. But when the wife went out to work, things changed. Her earnings came in very useful. They went into the family pool. Out of it the outgoings were paid including the deposit and the mortgage instalments. The conveyancers in the old days would ::: Downloaded on - 09/06/2013 18:18:43 ::: 28 CA.146/2013-CA.286/13-WP.3682/12 have held that the wife gained no interest whatever in the house by reason of her contributions. She got no share in the house itself. Nor, if it was sold, did she have any share in the proceeds of sale. For the simple reason that she could show no contract, no legal right whatever to support any claim : see Hoddinott v. Hoddinott [1949] 2 K.B. 406. But by a remarkable series of decisions-I do not hestaite, looking back, to call them remarkable-it was held that when a wife contributed in money or money's worth to the purchase of the house, she acquired a share in it. This started in 1953 in Rimmer v. Rimmer [1953] 1 Q.B. 63, and was carried forward in Cobb v. Cobb [1955] 1 W.L.R. 731 : Fribance v. Fribance (No.2) [1957] 1 W.L.R. 394 and Hine v. Hine [1962] 1 W.L.R. 1124. These decisions were based to some extent on section 17 of the Married Women's Property Act 1882. That ground was held by the House of Lords to be erroneous in Pettitt v. Pettitt [1970] A.C. 777 on the ground that that section was procedural only. It did not affect the rights of the parties.
But the decisions were justified in the next year by the House of Lords on a very new-and very acceptable-
ground. It was in Gissing v. Gissing [1971] A.C. 886 when the House held that, in these cases of the matrimonial home, a wife, who contributes in money or money's worth, does obtain a proprietary interest. It is done by way of a trust imposed on the husband. Even though the house is taken in the husband's name alone, the law imposes a trust upon him by which he holds the legal estate in trust for them both jointly in such shares as justice requires: see Falconer v. Falconer [1970] 1 W.L.R. 1333; Hargrave v. Newton (formerly Hargrave) [1971] 1 W.L.R. 1611 and Hazell v. Hazell [1972] 1 W.L.R. 301. This concept of a trust was adopted by the legislature. It extended it to contributions, not only to the purchase of a house, but also to improvements to it: see section 37 of the Matrimonial Proceedings and Property Act 1970. Since that time it has become universal. Nowadays most wives go out to work and their earnings are used-directly or indirectly-for the purchase or improvement of the matrimonial home. By so doing they ::: Downloaded on - 09/06/2013 18:18:43 ::: 29 CA.146/2013-CA.286/13-WP.3682/12 obtain a beneficial interest in it. The husband holds the legal estate on trust for him and his wife both jointly- usually half-shares-though it may be less or more."
66. It was concluded that the wife, who has share in the house, has an equitable interest in the land and hence the purchaser of the land or the lender of money who has knowledge or notice of the interest of the wife, takes it subject to her interest.
67. The Matrimonial Homes Act, 1967 was repealed by the Matrimonial Homes Act, 1983 (MH Act) and brought into force from 9th May 1983. The 1983 Act dealt with the consolidation of the rights of a husband or wife to occupy a dwelling house which was their matrimonial home. Section 1(1), (2), (3), (4) and (10) determined the statutory rights along with Section 9 thereof.
Under Section 1(1) where one spouse was entitled to occupy a dwelling house by virtue of a beneficial estate, interest or contract or an enactment and the other spouse was not so entitled, then such other spouse would have a right of occupation. Under that right of occupation, he or she had a right not to be evicted or excluded therefrom or a right to enter upon and occupy it.
Under Section 1(2) either spouse may apply for declaring, enforcing, restricting or terminating those rights, or for prohibiting, suspending, or restricting the right of the other.
::: Downloaded on - 09/06/2013 18:18:43 :::30 CA.146/2013-CA.286/13-WP.3682/12 Under Section 1(3), the Court could make any just and reasonable order having regard to the conduct of the spouses, the respective needs, financial resources and the needs of their children in that behalf as also to make periodical payments to the other spouse in respect of such occupation and for repayment and maintenance of the dwelling house.
Under Section 1(4), such order would remain in force for a specified period or until further orders.
Under Section 1(10), the Act would have no application to any dwelling house which was not the dwelling house of the spouses. The spouse's rights of occupation would continue until the marriage subsisted.
Under Section 9(1) of the Act, where any spouse has the right of occupation in a matrimonial home, he or she could apply for an order prohibiting, suspending or restricting the exercise of the right by the other or requiring the other spouse to permit its exercise by the Applicant.
Under Section 9(3), if the spouse had a right under a contract or an enactment to remain in occupation of the dwelling house, Section 9 would apply where they would be entitled by virtue of the legal estate vested in them jointly.
68. Hence in terms, the new legislation conferred a complete ::: Downloaded on - 09/06/2013 18:18:43 ::: 31 CA.146/2013-CA.286/13-WP.3682/12 right of occupation to both the spouses to remain in their matrimonial home peaceably and without disturbance by the others. This was despite any other contractual or statutory right and also when they were joint owners.
69. The contribution of the wife was, therefore, seen to be deeper than only "financial contribution" initially contemplated in the case of Falconer (supra). Any non-financial interest in a marriage which is a life partnership was also given due and equal importance. It is this profound concept of a sacramental relationship that is the bed-rock of common law as has developed from precedent to precedent as Alfred Lord Tennyson had poetically expounded and which the legislations in England and India have accepted and endorsed.
70. This is an incident of gender equality enshrined in our Constitution.
71. In India the rights of the Indian wives in their matrimonial home were governed by the common law. Statutes in England, the Matrimonial Homes Act, 1967, The Matrimonial Proceedings and Property Act, 1970, The Domestic Violence and Matrimonial Proceedings Act, 1976 and the Matrimonial Homes Act, 1983 (Repealing the Act of 1967) appear to be the guiding force behind the Prevention of Women from Domestic Violence Act, 2005 (D.V. Act).
72. This concept has been appreciated and accepted by the ::: Downloaded on - 09/06/2013 18:18:43 ::: 32 CA.146/2013-CA.286/13-WP.3682/12 Supreme Court an another context also. In the case of Arun Kumar Agrawal & Anr. Vs. National Insurance Company Ltd.
& Ors. (2010) 9 SCC 218 the Supreme Court considered what would be "just compensation" to be awarded to a widow upon the death by accident of her husband taking into account the gratuitous services rendered by the wife in caring for the husband and children, managing the household affairs which has been observed cannot be equated with services rendered by others. Giving a broad definition to the prime services the Supreme Court observed "it is not possible to quantify any amount in lieu of services rendered by wife/mother to the family" but that they would be entitled to adequate compensation in lieu thereof to bring about to gender equality as per the mandate under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
73. It is common knowledge that parties were married since 1997. The parties continued to be husband and wife until after the purchase of their last matrimonial home in 2006 and lived together in it until the winds of change rocked their marriage. The parties have begotten two children. No matter their disputes, the wife is entitled to continue in the matrimonial home. The children also need the care and protection of a home. The husband has accepted this fact. Upon the case of the wife that her rights were being betrayed she sued in the Family court for the necessary injunction in respect of her matrimonial home. The husband accepted that right and pretended to go along with the wife whom he had disputes. Hence he offered to ::: Downloaded on - 09/06/2013 18:18:43 ::: 33 CA.146/2013-CA.286/13-WP.3682/12 sell the flat on the sustainable ground that he was in financial crisis after he took the loan and promised to obtain another, perhaps smaller, house for his wife and children. This was despite the fact that the flat stood in the name of the husband and his mother. He claimed the consent of his mother. He never contended that the mother had made payment of any consideration for the flat No. 703, their matrimonial home. The wife's right must continue despite the husband's camouflage in wanting to pay off the bank. The wife's financial contribution is of no significance. She is an equal partner in matrimony. She lived in matrimony with the husband for more than a decade. She is entitled to an equal share in the matrimonial home. This right was her common law right now been statutorily recognized and enshrined in Section 19 of the D.V. Act. Upon the fraud of the husband (being the applicant's son) in putting up his mother as the claimant who has roped even the income tax authority to deprive his wife and children, the matrimonial Court must come to her rescue. It would be as Lord Denning had proclaimed in his golden words "justice for the bank with mercy for the wife". Justice has been done to the bank. The bank is finally paid up. The other created obstacle is the Income Tax Department. Justice would have to be done to the Income Tax Authority as well. It would have to be "Justice for Income Tax Department with mercy for the wife and children". This justice would be done from the husband's share. The husband who is seen to be an upstart and who has receded into the background is manifestly the main hero of the entire act. He having failed in his attempt to show his mother's share, only his ::: Downloaded on - 09/06/2013 18:18:43 ::: 34 CA.146/2013-CA.286/13-WP.3682/12 share must be used for the attachment of the Income Tax Authority. The wife's share must be kept secured. This would also be for the security of the children.
74. The parties were to have a healthy, happy, nuclear matrimonial home after selling out their flat and purchasing another flat for themselves. In that flat, the income tax attachment would loom large. The wife is not responsible for the attachment. The husband is the sole defaulter. The husband claims that he has a good case in his appeal, if and when it would be prosecuted. The husband's share in the flat would not only suffice for the income tax attachment but will be amply protected by the merits of the husband's case that he has emphasized.
75. Under these circumstances how the amount lying to the credit of this writ petition be equitably used must be considered and ordered.
76. Whilst the wife's claim to her matrimonial home ranks paramount and cannot be sacrificed at the alter of the Income Tax Authority which has itself not claimed any relief and which has been deliberately, mischievously and collusively sought to be brought on record for a nefarious purpose of settling the income tax dues from the only property otherwise claimed by the wife as her matrimonial home, the Income Tax Authority's claim would have to be taken into account and secured against the husband's share in the matrimonial home.
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77. The wife has disputes with her husband. She has been tricked into the sale of the flat upon the assurance of the husband that the proceeds will be for her matrimonial home and duped into not receiving any of them upon the claim of the mother for herself and at her own instance also the income tax authority. The husband has many properties as hereinabove stated, shown by the wife. Two of the properties are stated to have been attached by the income tax authorities. The income tax dues can be recovered only from the sale of the shop which is attached.
78. It may be mentioned that the husband, who has been separately represented, orally claimed that the shop has been sold. No deed of sale is produced. The shop could not have been sold in lieu of the attachment. Even if it is sold the sale would be void as against the income tax authorities. The husband, however, seeks to discharge his income tax dues from the only property available to the wife as her matrimonial home. So be it; though he has put up his mother to claim a 1/2 share upon her name being put as a joint owner for the sake of convenience, it is now seen, for the sake of cheating his wife.
79. The husband alone must bear the obligation of paying his tax, so far evaded with all penalties and interest claimed by the Tax Recovery Officer. The husband claims that he has filed an appeal. Even that is not produced before the Court. It is for the husband to satisfy his income tax liability in accordance with ::: Downloaded on - 09/06/2013 18:18:43 ::: 36 CA.146/2013-CA.286/13-WP.3682/12 law. The wife cannot be held at stake for such payment.
80. If the wife is given the entire amount of Rs.75 lakhs which indeed is the proceeds of the matrimonial home in which she is entitled to live with her children, the husband also would be entitled to live therein. In that case, as per the assurance of the husband in the family Court application-cum-reply being his assurance-cum-statement the purchase of the property worth Rs.75 lakhs would be the alternative matrimonial home of the parties. Rs. 75 lakhs is seen indeed to be the proceeds of their matrimonial home alone in which they both are alone entitled to live with their children. However in view of the husband's conduct and the disputes, it would be more appropriate for the Court to grant separately to both of them the 1/2 share in the sale proceeds which may belong to both of them separately instead of granting to them jointly as a matrimonial home.
81. Hence 1/2 of the sale proceeds being Rs.37.5 lakhs would belong exclusively to the wife as and for the alternative residence to her matrimonial home available for her and her children's residence. The remainder of Rs.37.5 lakhs would belong exclusively to the husband subject to his income tax liability. Since it is seen that the mother's name was only a facade and her application is totally dishonest and she does not genuinely own or has paid for the suit flat which is the matrimonial home of the husband and wife, she cannot be granted any relief and cannot be disbursed any amount from the amount deposited in this Court as the part of the sale proceeds.
::: Downloaded on - 09/06/2013 18:18:43 :::37 CA.146/2013-CA.286/13-WP.3682/12 Hence following order:
1. The impugned order dated 23rd August, 2011 of the Family Court No. 7, Mumbai is modified.
2. The wife shall be entitled to withdraw Rs.37.5 lakhs from the amount of Rs.75 lakhs lying deposited to the credit of this Writ Petition in this Court. That shall be used by her in procuring a separate residential premises in which she shall be entitled to reside with her children.
3. The Tax Recovery Officer, Respondent No.2 in C. A. No. 146 of 2013 being the relevant Income Tax Authority shall be entitled to withdraw the Income Tax dues with interest and penalty subject to any appeal and order passed therein from the remainder 50% amount payable to the husband as his share in the matrimonial home.
4. Only thereafter the husband shall be entitled to withdraw the remainder of the amount lying deposited in this Court after deducting Rs.25,000/- therefrom which shall be paid to the wife as costs of prosecuting the above application No.286 of 2013 and the above petition.
5. Rule to that extent is granted.
6. The mother's application No.146 of 2013 is dismissed with costs of Rs.25,000/-.::: Downloaded on - 09/06/2013 18:18:43 :::
38 CA.146/2013-CA.286/13-WP.3682/12
7. Both above applications and the Writ Petition are disposed of accordingly.
8. This order is stayed for two weeks.
(MRS. ROSHAN DALVI, J.) ::: Downloaded on - 09/06/2013 18:18:43 :::