Bombay High Court
Bai Avabai Hormusji Tata Trust For ... vs Shernaz Faroukh Lawyer And 6 Ors on 16 July, 2024
Author: M. M. Sathaye
Bench: Nitin Jamdar, M. M. Sathaye
2024:BHC-OS:10404
Digitally
signed by
ANANT
ANANT KRISHNA
KRISHNA NAIK APPEAL 10-2023 Group J.doc
NAIK Date:
2024.07.16
20:11:58
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 10 OF 2023
IN
REPORT NO. 1 OF 2016
IN
TESTAMENTARY SUIT NO. 29 OF 2012
Manek Dara Sukhadwalla )
Residing at 6/8, Rustom Baug, )
Victoria Road, Byculla, )
Mumbai - 400027 ) ....Appellant
Versus
1 Shernaz Faroukh Lawyer )
Age: 63 yrs, Parsee Zoroastrian, )
Indian Inhabitant of Pune, )
Residing at:J-701, Marvel Ritz (East), )
Tupe-Patil Road, Behind Amanora Mall, )
Hadapsar, Pune - 411 036 )
2 Villy Pirojsha Avassia )
(also known as Villie Pirojsha Avassia) )
Age: 83 years, Parsee Zoroastrian, )
Indian Inhabitant of Mumbai, )
Residing at B/19, Keval Mahal, )
64, Marine Drive, )
Mumbai - 400 020 )
akn 1/38
::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::
APPEAL 10-2023 Group J.doc
3 Rustom Nanavaty )
4 Farida Nanavaty )
Parsee Zorostrian, Indian Inhabitant, )
Residing at B/5, Model House, )
Girgaon, Mumbai - 400004 )
5 Shivax Dolikuka )
Residing at Shantiniketan CHS. )
1st Floor, Flat No. 102, Achole Road, )
Next to Achole Talao, )
Nallasopara (E), Palghar )
6 Jonathan S. Solomon )
Administrator of the estate of )
Burjor J. Dalal having his office at )
Calot House, 3rd Floor, 8/10, )
M. P. Shetty Marg, Tamarind Lange, )
Fort, Mumbai - 400 023 ) ...Respondents
WITH
APPEAL (L) NO. 901 OF 2023
IN
REPORT NO. 1 OF 2016
IN
TESTAMENTARY SUIT NO. 29 OF 2012
Jamsheed Minocher Panday, )
A Parsi Zoroastrian, Indian Inhabitant of )
Mumbai, P-26, Cusrow Baug, SBS Road, )
Colaba, Mumbai 400 001 ) ....Appellant
akn 2/38
::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::
APPEAL 10-2023 Group J.doc
Versus
1 Shernaz Faroukh Lawyer )
Age: 60 Years, Indian Inhabitant, )
R/at: Silver Dale, Survey No. 61/2B1, )
Mudhwa Road, )
Pune - 411 036 )
2 Villy Pirojsha Avassia )
(also known as Villie Pirojsha Avassia) )
Age: 90 years, Parsee Zoroastrian, )
Indian Inhabitant of Mumbai, )
Residing at B/19, Keval Mahal, )
64, Marine Drive, )
Mumbai - 400 020 )
3 Manek Dara Sukhadwalla )
Aged 70 years, A Parsi Zoroastrian, )
Indian Inhabitant of Mumbai )
R/at: Rustom Baug, Victoria Road, )
Mumbai - 400027 being the sole )
Executor named under the Will of the )
Deceased dt. 8.09.2011 )
4 Shiavax Hoshie Dolikuka )
Indian Inhabitant, R/at Shantiniketan CHS, )
1st Floor, Flat No. 102, Achole Road, )
Next to Achole Talao, )
Nallasopara (E), Palghar )
5 Rustom Nanavaty )
R/at B/5, Model House, )
Girgaon, Mumbai - 400 004 )
akn 3/38
::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::
APPEAL 10-2023 Group J.doc
6 Farida Nanavaty )
R/at B/5, Model House, )
Girgaon, Mumbai - 400004 )
7 Gospi G. Bharucha )
(nee Gospi Hoshi Dolikuka) )
r/at: Flat No. 601, Silver Cascade, )
Mount Mary, Bandra (West), )
Mumbai - 400 050 )
8 Bai Avabai Hormusji Tata Charitable Trust )
Through Dadi Lam being Trustee, )
Residing at 2nd Floor, Bhulabhai Desai Road, )
Mumbai - 400 026 )
9 Amoha Traders Pvt. Ltd. )
Registered office at, 315, )
Dalamal Towers, 3rd Floor, A-Wing, )
Nariman Point, Mumbai - 400 021 )
10 Jonathan S. Solomon )
(Administrator of the estate of )
Burjor J. Dalal) having his office at )
Calot House, 3rd Floor, 8/10, )
M. P. Shetty Marg, (Tamarind Street), )
Fort, Mumbai 400 023 ) ...Respondents
WITH
APPEAL NO. 11 OF 2023
IN
REPORT NO. 1 OF 2016
akn 4/38
::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::
APPEAL 10-2023 Group J.doc
IN
TESTAMENTARY SUIT NO. 29 OF 2012
Bai Avabai Hormusji Tata Trust for )
Charitable Objects )
Through Dadi Lam being Trustee )
Residing at 2nd Floor, Bhulabhai Desai Road )
Mumbai 400 026 ) ....Appellant
Versus
1 Shernaz Faroukh Lawyer )
Age: 63 yrs, Parsee Zoroastrian, )
Indian Inhabitant of Pune, )
Residing at:J-701, Marvel Ritz (East), )
Tupe-Patil Road, Behind Amanora Mall, )
Hadapsar, Pune - 411 036 )
2 Villy Pirojsha Avassia )
(also known as Villie Pirojsha Avassia) )
Age: 83 years, Parsee Zoroastrian, )
Indian Inhabitant of Mumbai, )
Residing at B/19, Keval Mahal, )
64, Marine Drive, Mumbai - 400 020 )
3 Manek Dara Sukhadwalla )
Residing at 6/8, Rustom Baug, )
Voctoria Road, Byculla, )
Mumbai - 400 027 )
4 Rustom Nanavaty )
akn 5/38
::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::
APPEAL 10-2023 Group J.doc
5 Farida Nanavaty )
Parsee Zorostrian, Indian Inhabitant, )
Residing at B/5, Model House, )
Girgaon, Mumbai - 400004 )
6 Shivax Dolikuka )
Residing at Shantiniketan CHS. )
1st Floor, Flat No. 102, Achole Road, )
Next to Achole Talao, )
Nallasopara (E), Palghar )
7 Jonathan S. Solomon )
Administrator of the estate of )
Burjor J. Dalal having his office at )
Calot House, 3rd Floor, 8/10, )
M. P. Shetty Marg, Tamarind Lane, )
Fort, Mumbai 400 023 ) ...Respondents
WITH
APPEAL NO. 14 OF 2023
IN
REPORT NO. 1 OF 2016
IN
TESTAMENTARY SUIT NO. 29 OF 2012
Amoha Traders Pvt. Ltd. )
Having registered office at, 315 )
Dalamal Towers, 3rd Floor, A-Wing, )
Nariman Point, Mumbai - 400021 ) ....Appellant
Versus
akn 6/38
::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::
APPEAL 10-2023 Group J.doc
1 Shernaz Faroukh Lawyer )
Age: 63 yrs, Parsee Zoroastrian, )
Indian Inhabitant of Pune, )
Residing at:J-701, Marvel Ritz (East), )
Tupe-Patil Road, Behind Amanora Mall, )
Hadapsar, Pune - 411 0 )
2 Villy Pirojsha Avassia )
(also known as Villie Pirojsha Avassia) )
Age: 83 years, Parsee Zoroastrian, )
Indian Inhabitant, )
Residing at B/19, Keval Mahal, )
64, Marine Drive, )
Mumbai - 400020 )
3 Manek Dara Sukhadwalla )
Residing at 6/8, Rustom Baug, )
Victoria Road, Byculla, )
Mumbai - 400 027 )
4 Rustom Nanavaty )
5 Farida Nanavaty )
Parsee Zorostrian, Indian Inhabitant, )
Residing at B/5, Model House, )
Girgaon, Mumbai - 400004 )
6 Shivax Dolikuka )
Residing at Shantiniketan CHS. )
1st Floor, Flat No. 102, Achole Road, )
Next to Achole Talao, )
Nallasopara (E), Palghar )
akn 7/38
::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::
APPEAL 10-2023 Group J.doc
7 Jonathan S. Solomon )
Administrator of the estate of )
Burjor J. Dalal having his office at )
Calot House, 3rd Floor, 8/10, )
M. P. Shetty Marg, Tamarind Lange, )
Fort, Mumbai 400 023 ) ...Respondents
********
Mr. Girish Godbole, Senior Advocate a/w Mr. Kedar Kanetkar i/b Pan
India Legal Services LLP for Appellant in Appeal (L) No.901 of 2023
Mr. Atul Damle, Senior Advocate a/w Mr. Premlal Krishnan, Ms. Rehmat
Lokhandwala, Mr. Nadeem Shama, Mr. Siddharth Seshadri, Mr. Prashant
Bothre and Ms. Payal Wardhan i/b Pan India Legal Services LLP for
Appellant in Appeal No. 10 of 2023.
Mr. Pankaj Vijayan i/b Intra Legal for Appellant in Appeal No. 11 of
2023.
Mr. Somiran Sharma i/b PMH Law for Appellant in Appeal No. 14 of
2023
Mr. Karl Tamboly a/w Mr. Jonathan S. Solomon, Ms. Meetali Mendhe,
Mr.Agastya Shreenivasan (Through VC) & Ms. Sakshi Sharma, for
Administrator
Mr. Darius Khambata, Senior Advocate a/w Mr. Rahul Narichania,Senior
Advocate, Mr. Parag A. Kabadi, Mr. Tushar Hathiramani & Ms. Anshita
Sethi i/b DSK Legal for Respondent No. 1
Mr. Manish Bohra i/b A. S. Khan and Associates for Respendent Nos. 5
&6
akn 8/38
::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::
APPEAL 10-2023 Group J.doc
CORAM : NITIN JAMDAR &
M. M. SATHAYE, JJ.
RESERVED ON : 6 MAY 2024
PRONOUNCED ON : 16 JULY 2024
JUDGMENT (Per M. M. Sathaye J) :
1. Heard learned Counsel for the parties.
2. This is a group of four Appeals, challenging a common judgment and order pronounced on 21 December 2018 by learned Single Judge of this Court (Coram: A. K. Menon, J) in Report No. 1 of 2016 and Supplementary Report No. 1 of 2016 in Testamentary Suit No. 29 of 2012. Appeal No. 10 of 2023 is filed by Original Defendant No. 1-Mr Manek Dara Sukhadwalla. Appeal No. 11 of 2023 is filed by Noticee-Bai Avabai Hormusji Tata Trust. Appeal No. 14 of 2023 is filed by Noticee No. 2-Amoha Traders Pvt. Ltd and Appeal (L) No. 901 of 2023 is filed by Jamsheed Minocher Panday.
3. Facts giving rise to these Appeals, shorn of unnecessary details are as under :
3.1. There are two competing wills of deceased testator viz. Purvez Burjor Dalal, who died at Mumbai on 7 December 2011 (hereinafter "the Deceased" for short). Deceased was Parsi.
3.2. First will is dated 22 November 2010 propounded by the akn 9/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc Respondent No. 1 and her mother - Respondent- No. 2. This will is in favour of Respondent No. 2 and her children.
Respondent No. 2 is now no more.
3.3. Second will is dated 8 September 2011 propounded by Mr. Sukhadwalla, the Appellant in Appeal No. 10 of 2023. Second will is apparently towards charity under which Mr. Sukhadwalla is made a sole executor.
3.4. It appears from the record that both Mr. Sukhadwalla and Respondent Nos. 1 and 2 filed Testamentary Petitions for probate of the respective wills propounded by them and also filed competing caveats. Both Probate Petitions were converted into Testamentary Suits. Testamentary Petition No. 5 of 2012 filed by Mr. Sukhadwalla was converted into the Testamentary Suit No. 25 of 2012 and Testamentary Petition No. 341 of 2012 filed by the Respondent No. 1 and her mother was converted into the present Testamentary Suit No. 29 of 2012.
3.5. The Respondents filed Notice of Motion No. 138 of 2012 in their Testamentary Suit No. 29 of 2012 seeking appointment of Administrator and an injunction restraining Mr. Sukhadwalla from disposing of or parting with the possession of assets, interests etc. of the estate of the Deceased and for direction to Mr. Sukhadwalla to disclose movable and immovable assets left akn 10/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc behind by the Deceased as well as acts and things done by Mr. Sukhadwalla with regard to assets of the estate and to render true and full inventory and accounts of his dealings.
3.6. By the order dated 21 June 2012, this Court granted ad-interim relief restraining Mr. Sukhadwalla as prayed and also directing him to disclose the information as sought. The prayer of the appointment of the Administrator was not pressed at that stage.
3.7. By order dated 24 December 2013, learned Single Judge of this Court appointed Administrator in the Notice of Motion No. 138 of 2012.
3.8. Mr. Sukhadwalla filed Appeal (L) No. 7 of 2014 challenging the said order dated 24 December 2013, which Appeal was dismissed by the Division Bench of this Court under order dated 8 August 2014. (2014 SCC Online Bom 847).
3.9. Mr. Sukhadwalla filed SLP against the order of the Division Bench dated 8 August 2014. The said SLP was dismissed on 5 September 2014 by the Hon'ble Supreme Court, thereby confirming the appointment of the Administrator.
3.10. Pursuant to the directions of this Court, the Administrator filed various reports from time to time including the present Report No. 1 of 2016 and Supplementary Report No. 1 of 2016. Series of communications ensued between the Administrator and Mr. akn 11/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc Sukhadwalla and other entities, however the Administrator faced non-co-operation from Mr. Sukhadwalla and other involved parties.
3.11. In the facts and circumstances narrated in the reports, the Administrator sought various directions from the Court, out of which prayer clauses (e) and (g) were pending.
3.12. By the impugned order, learned Single Judge of this Court directed Administrator to draw a complaint to be filed and provide a draft complaint to the Prothonotary and Senior Master within the stipulated period. It was further directed that upon the draft complaint being lodged, subject to scrutiny of its contents, the Prothonotary and Senior Master was directed to forward it on behalf of the Administrator to the Commissioner of Police, Mumbai, who was in turn directed to nominate a suitable team of officers to initiate an investigation into the complaint and the affairs of the deceased Purvez Burjor and the progress of the investigation was directed to be reported to Prothonotary and Senior Master on a fortnightly basis. It was clarified that the Prothonotary and Senior Master is at liberty to seek appropriate clarifications from the Court.
3.13. As on today it is common ground before us that still prayer clauses (e) and (g) of the report are pending.
akn 12/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::APPEAL 10-2023 Group J.doc
4. Heard learned Senior Advocate Mr. Damle for Appellant- Sukhadwala, Senior Advocate Mr. Godbole for Appellant-Jamsheed Minocher Panday, Advocate Mr. Sharma for Appellant-Amoha Traders Pvt. Ltd. ('Amoha Traders' for short), Advocate Mr. Vijayan for Appellant Bai Avabai Hormusji Tata Trust ('Bai Avabai Trust' for short), Senior Advocate Mr. Khambata for the Respondent/Plaintiffs and Adv. Mr. Tamboly for the Administrator. Perused voluminous record with their assistance.
SUBMISSIONS ABOUT MAINTAINABILITY
5. At the outset, preliminary objection to maintainability of the appeals is raised. It is submitted that the impugned order is not a 'judgment' as per clause 15 of the Letters Patent. It is not finally determining the controversy. Valuable rights of the parties are not being decided. Mere inconvenience or prejudice to Appellants is not enough. The impugned Order is not an order under section 269 of the Indian Succession Act, 1925 ('the said Act' for short) and therefore it is not appealable under section 299 thereof. If the impugned Order is taken as one passed under section 340 of the Code of Criminal Procedure 1973 ('Cr.P.C.' for short), then appeal is barred under section 341 thereof. Appellants- Amoha Traders and Bai Avabai Trust are mere noticees and Mr. Panday is not even a noticee. Appeal of Mr. Panday will also be not maintainable since his Appeal is restricted to seeking expunction of certain paragraphs in the impugned order. Judgments of Shah Babulal akn 13/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc Khimji vs. Jayaben D. Kania 1, Shyam Sel and Power Limited and Anr. Vs Shyam Steel Industries Limited2 and Dinesh Jajodia vs. Citi Bank.3 are relied upon in support of these submissions.
6. Per contra, it is submitted on behalf of the Appellants that the present Appeal is maintainable under Clause 15 of the Letters Patent and the impugned Order is 'judgment' within the meaning of clause 15 thereof. Many observations in the impugned Order are seriously prejudicial to the Appellants. There is no direction as to who should sign the complaint and the complaint is directed to be sent to the Commissioner of Police instead of Magistrate. It is submitted that Section 340 of Cr.P.C. requires preliminary inquiry and clear findings about commission of defined offences as set out in section 195. In light of these provisions, the impugned order does not amount to an order passed in exercise of powers under section 340 of the CrPC and therefore, bar under section 341 will not apply. If the impugned order is considered as an order under section 269 of the Indian Succession Act, 1925 then the Appeal is maintainable under section 299 thereof. If the impugned order is taken to have been passed under inherent powers of the Court under section 151 of the Code of Civil Procedure, 1908 (CPC) then Appeal is maintainable under clause 15 of the Letters Patent considering the observations in the impugned order and its nature. The impugned order is passed without hearing one of the Appellant - Mr. Panday. It directs 1 (1981) 4 SCC 8 2 (2023) 1 SCC 634 3 (2016) SCC Online 5757 akn 14/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc filing of criminal complaint and investigation and therefore has serious consequences for the Appellants, causing them great prejudice and therefore in view of the judgment of the Shah Babulal Khimji (supra) the Appeal against the order of the Single Judge is maintainable. Judgments of The District Magistrate of Howrah & Ors vs Kashmira Begum Khan & Ors4 and P. S. Sathappan vs. Andhra Bank Ltd (Full Bench of Supreme Court)5 are relied in support of this contention.
CONSIDERATION
7. We have carefully considered the submissions. In case of Shah Babulal Khimji (supra) certain parameters are laid down to determine whether the Appeal under letters patent would be maintainable. One of the criteria is, whether the valuable rights are effected. Though it is sought to be contended by the Respondents that by merely directing that there should be an investigation, rights of the Appellants are not affected, the Appellants do carry a perception that the observations made in the impugned order might influence the police machinery in the investigation that is likely to be launched against the Appellants. It is on this perception that they have pressed this Appeal on merits. Therefore, it is necessary to either set aside the observations made in the impugned order or clarify its purpose. The decision in Shah Babulal Khimji (supra) itself states that the examples given therein are not to be treated as final list and in the facts and circumstances of the case the Appeal could be 4 2023 SCC OnLine Cal 1847 5 AIR 2004 SC 5152 akn 15/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc held to be maintainable. The facts and circumstances with which the learned Single Judge has passed an order and the directions which are given, are not routine orders and therefore, according to us, it is necessary to look into the merits of the challenge and not dismiss the same at the threshold, on the ground of maintainability of the Appeal. However, we may hasten to add that the opinion that the Court may form to decide whether the Appeal needs to be heard on merits is not final and conclusive for the decision on merits.
8. The impugned order has made certain observations about the Appellants, as listed below.
In paragraph 23 it is held that revival of Bai Avabai Trust and 'fabrication' of letter heads and receipt leads one to believe that the Trust is being used for the purpose of receiving kickbacks and true nature of the trust has to be ascertained. In the same paragraph it is held that the Defendant No. 1- Sukhadwalla has been collecting cash amount on behalf of the estate and not depositing it in the estate account. It is further observed that the Defendant No. 1 has suppressed bank accounts. In paragraph no. 66 it is observed that one can proceed on the basis that the Defendant No. 1- Sukhadwalla is an Executor of his own wrong in the facts of the present case even before the decision is arrived at in a suit. In paragraph no. 70 it is observed that the Appellants have failed the test of probability in rebutting the allegations made against them. In paragraph No. 79 it is observed that the Appellants have been non-
akn 16/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::APPEAL 10-2023 Group J.doc cooperative and their behaviour is causing material prejudice to the estate and administration of justice. In paragraph no. 88, is it concluded that the Appellants have been engaged in deceitful conduct. In paragraph no. 90, it is held that the Appellant - Bai Avabai Trust is being used as screen to siphon away the funds of the estate. In paragraph no. 92 it is held that the estate of the deceased has been targeted.
9. It cannot be said that those observations will not raise a likelihood of prejudice for the Appellant. They will have to be dealt with at least for the purpose of their effect on likely criminal investigation. Therefore, we are inclined to entertain the Appeals to look into merits. The impugned order passed by the learned Single Judge has arisen in peculiar facts and circumstances and all fact situations are not covered in Shah Babulal Khimji (supra) .
10. We also find that though Section 340 of CrPC is referred in the impugned order as one of the provisions relied upon by the Respondent/Plaintiffs calling upon the learned Single Judge to order investigation, over all reading of the impugned order would clearly show that the impugned order is not passed as an order under Section 340 of the CrPC. Therefore, even though the operative part directs filing of criminal complaint and initiation of criminal investigation, the impugned order cannot be interpreted as an order under Section 340 of CrPC. In that view of the matter, these Appeals cannot be held as barred under Section 341 of CrPC.
akn 17/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::APPEAL 10-2023 Group J.doc
11. The remaining argument about maintainability based on Section 269 and 299 of the said Act is misplaced in as much as the Respondent/Plaintiffs themselves have argued that the power exercised in the impugned order is plenary and inherent power of this Court being the High Court.
SUBMISSIONS ABOUT MERITS
12. Mr. Damle made following submissions on merits. He submitted that the impugned order wrongly records that the Administrator has sought inquiry. The Administrator in his report has sought disclosure, which is already complied with by the Appellants. Only prayer clauses (e) and (g) are pending which pray for payment/return of money from the Appellants to the estate of the Deceased. There is no prayer calling upon the Court to direct inquiry or investigation. There is an error apparent on the face of the record in directing extraordinary measures. He submitted that the Administrator derives his powers from the original order of appointment, which directs him to adopt appropriate proceedings for recovery, which he can adopt anytime. Without there being any evidence, the impugned order records the findings that the Appellants are intermeddling with the estate. Learned Single Judge has assumed jurisdiction for ordering an inquiry without specifying how, from where and under what circumstances the power is exercised. There are no allegations by the Administrator which can attract the provisions of Section 195 of the CrPC. There is no case of furnishing false or fabricated akn 18/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc documents. The stage of recording of evidence has not reached. The matter is being considered on the basis of affidavits. The Administrator has not filed any complaint against the Appellants for the offences falling under criminal statutes. He submitted that Section 340 of the CrPC cannot be invoked under circumstances recorded in the impugned order. Since the impugned order directs lodging of the complaint before the Commissioner of Police, the procedure contemplated under CrPC is given a go by. The impugned order has virtually resulted in a situation where no further investigation is required but trial should commence based on the report lodged at the instance of the directions in the impugned order. He relied on the judgments of Amarsangh Nathaji vs. Hardik Harshadbhai Patel & Ors. 6and judgment of Iqbal Singh Marwah and Anr. vs Meenakshi Marwah and Anr. 7
13. He further submitted that there are no allegations that after the appointment of the Administrator, the Appellant- Sukhadwalla or other co-Appellants have dealt with/attempted to deal with the estate of the deceased. The exercise of power is not warranted in the Testamentary jurisdiction to order the Court monitored investigation. The impugned order directing Court monitored investigation, has grave effect on the Appellants loosing substantive rights including personal liberty guaranteed under the Constitution of India and therefore, the impugned order affects the Appellant most adversely. The Administrator himself has 6 AIR 2016 SC 5384 7 AIR 2005 SC 2119 akn 19/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc wide powers and if he requires additional powers, he ought to have made an Application. No such Application is made. The Administrator cannot take advantage of the allegations made by the Plaintiffs. The Judgment of M. V. Elisabeth vs. Harwan Investment and Trading 8 heavily relied upon by the Respondents (Plaintiffs and Administrator) was given in a suit instituted under admiralty jurisdiction of the High Court and it is distinguishable in as much as that judgment itself records that so far as Admiralty Law is concerned, the statute is not a self-contained code. The Indian Succession Act, 1925 is a self-contained code. The inherent powers under section 151 of the CPC also could not have been invoked.
14. Mr. Godbole made the following submissions on merits. The impugned order was passed behind the back of the Appellant Mr. Panday and without any notice to him and without hearing the Appellant. The impugned order is clearly prejudicial to the Appellant, which is obvious from the observations made in the impugned order, especially paragraph no. 90 to 94 thereof. He submitted that the Administrator has not made any allegations against the Appellant Mr. Panday and no relief is sought against him. There are serious allegations and observations made against the Appellant with regard to the estate of the deceased, which is based on observations in the administrator's report. Since the Appellant was neither a party nor a noticee, he did not get any opportunity to oppose the allegations. It is submitted that the Appellant had no occasion to 8 1993 Supp (2) SCC 433 akn 20/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc counter material produced by the Plaintiffs or observations made in the Administrator's report and therefore, could not respond to the allegations. It is submitted that Appellant has produced all the documents rebutting the allegations in his Appeal.
15. Mr. Sharma appearing for the Appellant Amoha Traders Pvt. Ltd. made the following submissions. The impugned directions issued by learned Single Judge are beyond the surviving prayers (e) and (g) of the Administrator's Report. The Court ought to have confined itself to determining the said prayers. The directions issued for criminal investigation are beyond the scope of Section 340 of the CrPC. Learned Single Judge has failed to appreciate the difference between "inquiry" and "investigation" as defined under CrPC. The Appellant - Sukhadwalla who is appointed as an Executor, is within his rights to deal with the property of the deceased under section 211 read with section 307 of the said Act. Section 227 of the said Act provides that after the probate is granted, it will relate back to the death of the Testator and grant of Probate validates all intermediate acts of the Executor. The Payments made to the Amoha Traders by the Appellant Sukhadwalla is prior to ad- interim order dated 21 June 2012 and therefore, cannot be questioned. The directions for criminal investigation cannot be passed by the Probate Court exercising powers under the said Act. Even though the Court's power under Article 215 is independent, it could not have ignored procedural provisions of the Contempt of Courts Act, 1971. Assuming akn 21/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc without admitting that such powers to direct investigation exists under Article 215, it ought to be used only in exceptional circumstances, which did not exist in the present matter. The power to order the investigation, available with Hon'ble Supreme Court under Article 142(2) of the Constitution is conspicuously absent in Article 215.
16. He further submitted that every citizen has a right to enjoy peaceful life, not being hounded or interrogated by the police except for good reason. The Plaintiffs can file criminal complaint on their own and therefore, the Court must not allow its extraordinary powers to be misused. The Appellant - Amoha Traders is not the party to the Testamentary Suit. The Administrator has not filed any suit for recovery of an amount paid to Amoha Traders. The observation about the Appellants intermeddling with the estate of the deceased is unfounded and without recording any reasons or discussion under Section 303 of the said Act. The dispute about the intermeddling with the estate of the deceased can only be looked into in recovery proceedings by the Executor or by Administrator and not in Probate proceedings where the focus is only on genuineness of the will. The Plaintiffs have hijacked the Administrator's report and have pressed for order of investigation. The adverse findings are without any reason. The Plaintiffs have never approached the Court invoking Sections 192, 208 or 269 of the said Act. The Plaintiffs have neither filed an Application under section 340 of the CrPC nor filed a private complaint. The plenary and inherent powers of akn 22/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc the High Court are sought to be invoked without formal application in that regard.
17. Mr. Vijayan appearing for Appellant - Bai Avabai Trust made the following submissions. The Appellant trust received Rs. 15 Lakhs from the Defendant No. 1 - Sukhadwalla in April 2012, which is prior to the appointment of the Administrator in December 2013. The Administrator's report is filed amongst other things, for directions to the Appellant Trust to return the sum of Rs.15 Lakhs. The Appellant has filed affidavit-in-reply providing all the details sought by the Hon'ble Court. This Court has no powers to order investigation while exercising Testamentary jurisdiction. Section 268 of the said Act provides that the proceedings of Testamentary Court are regulated by Code of Civil Procedure, as far as circumstances permit, and therefore the powers of Testamentary Court are narrower than the Civil Court. It is not a fit case to attract section 340 of the CrPC. Section 195 of the CrPC can be attracted if the offences mentioned therein are committed in relation to the Court's proceedings or if the offence is alleged to have been committed in respect of the documents produced or given in evidence in the Court. It is not the case of the Plaintiffs that the Appellant has committed offence in relation to the proceedings before learned Single Judge or has committed forgery in respect of any documents produced or given in evidence before learned Single Judge. Therefore, the provisions of Section 195 of CrPC are not attracted. It is submitted that the inherent akn 23/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc powers cannot be exercised in a manner which will be contrary to or different from the procedure expressly provided in the statute. The order is passed for investigation, when no such application was filed by the Administrator. He has relied upon the judgments of Ramchandra Ganpatrao Hande vs. Vithalrao Hande & Ors. 9, Ashok Gulabrao Bondre vs. Vilas Madhukarrao Deshmukh and Ors.10, Amarsang Nathaji vs. Hardik Harshadbhai Patel and Ors.11
18. Mr. Khambata opposed the Appeals on merits and made following submissions. The executor is a creature of the will and must act according to it. As per terms of the will dated 8 September 2011, relied upon by the Appellant - Sukhadwalla himself, he could not have dealt with the estate of the Deceased until he obtains a probate. Within 2 weeks from the date of death of the deceased, Appellant Sukhadwalla started dealing with the estate. Therefore, any transfer of money from the estate of the Deceased to the Appellant-Amoha Traders was illegal. He submitted that Executor being a creation of the will cannot act contrary to the terms of the will. 5 orders have been passed by this Court prior to the impugned order from which the conduct of the Appellants can be seen. When the estate of the deceased is 'in medio' then both the sides (viz. the executor or the beneficiary) cannot deal with the property. The administrator kept on asking for details and documents but was not getting any co-operation from the executor and the administrator was virtually stonewalled. 9 2011 AIR (Bom) 136 10 2023 (9) SCC 539 11 AIR 2016 SC 5384 akn 24/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc Appellant- Sukhadwalla, being so called executor, should not be in fact aggrieved if the money is being brought back to the estate as per prayers of the administrator.
19. Mr. Khambata then submitted that the investigation under impugned order is only for a report about the estate of the deceased to the Court and if the police authorities find anything which is likely to incur criminal liability, then they will have to proceed in accordance with law. He submitted that the position of the receiver must also apply to administrator also and relied upon the judgments of Pandurang Shamrao Laud and Ors vs Dwarkadas Kalliandas and Ors.,12 Jai Parkash and Ors. Vs Ram Sarup and Ors., 13 Anthony C. Leo vs Nandlal Bal Krishnan and Ors.14 and Universal Cables Ltd vs Arvind Kumar Newar and Ors. 15 in support of this submission.
20. He further submitted that even if the single judge was exercising testamentary jurisdiction, it is nevertheless High Court, which always retains its inherent jurisdiction and plenary powers and it is a court of record. He submitted that High Court is never powerless. If the High Court found the conduct of the Appellants non-co-operative and found enough material to conclude that the Appellants were intermeddling with the estate of the Deceased, it cannot be expected to act helpless and has exercised its inherent and plenary powers to pass the impugned order and 12 1932 SCC OnLine Bom 154 13 1958 SCC OnLine Punj 60 14 (1996) 11 SCC 376 15 2023 SCC OnLine Cal 4959 akn 25/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc no fault can be found with it. For finding the money which is already siphoned away from the estate of the Deceased, investigation is necessary. He relied upon the judgments of Amitava Das Gupta vs Nath Bank Ltd.16, Mairembam Prithviraj alias Prithviraj Singh vs Pukhrem Sharatchandra Singh17 and Vasant Narayan Sardal vs Ashita Tham and Ors18 in support of this submission.
21. He submitted that another way of looking at the impugned order is that under Article 215 of the Constitution of India, the High Court always retains all powers to stop non-co-operation with its arm (administrator). He relied upon judgments of Sahara India Real Estate Corporation Ltd and Ors vs Securities and Exchange Board of India and Anr.19 and R.L. Kapoor vs State of Madras 20 in support of his submission. He submitted that the facts of this case are gross and no interference is called for in the impugned Order.
22. Learned Counsel Mr. Sharma, in rejoinder submitted that considering various sub-sections of Section 307 of the Indian Succession Act, 1925, disposal of the property by the Executor in contravention of the restriction imposed by the will is not void ab initio. It should have been decided first whether such transfer is valid or void ab initio or merely voidable. The Plaintiffs cannot identify themselves as 16 (1970) 3 SCC 727 17 (2017) 2 SCC 487 18 2018 (5) Mh.L.J. 142 19 (2012) 10 SCC 603 20 (1972) 1 SCC 651 akn 26/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc Administrator. The Plaintiffs cannot be allowed to enlarge the scope of the Administrator's report to demand criminal investigation. The criminal investigation at the directions of the Constitutional Court is a serious measure, which puts the personal liberty of the Appellant's Directors and employees at risk. With the High Court directing special investigation and that too, a Court monitored one, the chances of Appellant getting bail or quashing under section 482 of CrPC are bleak. The criminal law is set into motion without any prayer for investigation. Police machinery can't be used to collect evidence. He submitted that the real intention of the Plaintiffs is to harass and pressurize the Appellants.
23. Mr. Tamboli learned Counsel appearing for the Administrator has taken us through various dates and events of the matter and has invited our attention to various orders passed by this Court in the past. He has also taken us through a flow chart which indicates the money trail that has taken place from out of the estate of the Deceased. He submitted that the Administrator which is appointed pendente lite has all the rights and powers of general administration other than the rights of distributing estate and the Administrator is subject to the immediate control of the Court. He submitted that the Administrator being the hand of the Court, the Court's permission is required before the Administrator can do anything. If there is a power to appoint administrator and direct him under section 247 of the said Act then there is a power to direct investigation also. He submitted that powers of the Court under section akn 27/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc 151 of the Code of Civil Procedure are available to the Court exercising Testamentary jurisdiction. The impugned order can very well be passed by exercising powers under section 247 of the said Act read with plenary powers of the High Court.
24. He submitted that observations made by this Court in all the prior orders have been made when there was not even administrator's report and the findings and observations therein apply to these appeals also.
CONSIDERATION
25. We have carefully considered the submissions on merits. It is common ground before us that when the impugned order was passed, only prayer clauses (e) and (g) of the Report were under consideration before the Testamentary Court. It is also common ground in all the appeals that there was no application before the learned Single Judge either by the Administrator or by the Plaintiffs to direct any criminal investigation or file criminal complaint in respect of dealings with the estate of the Deceased.
26. It would be useful to reproduce the prayer clauses (e) and (g) of the Administrator's Report which were before the learned Single Judge for consideration.
"(e) This Hon'ble Court may be pleased to direct Mr. Manek Dara Sukhadwalla and Amoha Traders Pvt Ltd., to hand over and pay the Administrator, the amount of Rs.17,08,147/- received by Amoha Traders akn 28/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc Pvt. Ltd., on or about 24th March, 2012 out of bank Account No. 6311163700 opened by Mr. Manek Dara Sukhadwalla in the name of estate of Mr. Purvez Burjor Dalal with Kotak Mahindra Bank Ltd., along with interest thereon at such rate as may be fixed by this Hon'ble Court from 24 th March, 2012 till the date of payment.
(g) This Hon'ble Court may be pleased to direct Mr. Manek Dara Sukhadwalla and Trustees of Avabai Hormusji Charitable Trust and Bai Avabai Hormusji Tata Trust, to handover and pay to the administrator the amount of Rs. 15,00,000/- received by Bai Avabai Hormusji Tata Trust on or about 11th April, 2012 from the bank Account No. 6311163700 opened by Mr. Manek Dara Sukhadwalla in the name of the estate of the deceased Mr. Purvez Bujor Dalal with Kotak Mahindra Bank Ltd., along with interest thereon at such rate as may be fixed by this Hon'ble Court from 11th April, 2012 till date of payment."
27. Bare perusal of these two prayers would show that directions were sought for return of amounts from Amoha Traders and Bai Avabai Trust with Defendant No.1 Sukhadwalla. It is admitted position before us that even after the impugned Order is passed, these prayers are pending. The Administrator was well empowered to file recovery proceedings under the order of his appointment. However, no such recovery proceedings are filed by the Administrator for recovery of such sums from the Appellants Amoha Traders and Bai Avabai Trust.
akn 29/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::APPEAL 10-2023 Group J.doc
28. Before the learned Single Judge various facts have emerged which are referred to in the impugned order. Learned Counsel for the Respondents by way of chart sought to demonstrate before us the trail and connection through which according to them the property of the deceased was sought to be siphoned off.
29. In the Notice of Motion No. 138 of 2012 in the suit, learned Single Judge of this Court on 24 December 2013 had issued various directions while appointing the Administrator. Some of the directions are quoted below :
"82 (vii) Learned administrator is also directed to file appropriate proceedings for recovery of properties forming part of the estate of the said deceased and to engage advocates and is permitted to incur expenses in that regard from the estate of the said deceased.
(x) Learned administrator is directed to take all steps so as to discover all the properties forming part of the estate of the said deceased and seeks necessary information from both the parties in that regard.
(xi) Learned administrator is at liberty to seek appropriate directions from this Court if and when any need so arises."
(Emphasis supplied)
30. The Division Bench of this Court, by Judgment and Order dated 8 August 2014, while dismissing the Appeal over the order of appointing the Administrator, observed as under:
"68. The deceased being a Parsi, the bar of section akn 30/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc 269(2) does not apply and, therefore, an administrator can be validly appointed pendente lite. The fact that section 247 falls under Chapter II dealing with limited grants does not in any manner preclude the testamentary Court from appointing an administrator. It is not necessary that the respondents are relegated to filing a separate suit and seek the relief sought in the present Notice of Motion. The filing of a suit in the present case is also not necessary in view of the fact that the situation before the testamentary Court involves two Wills with two sets of applications disclaiming any benefits under the Wills. Both sides propose that the estate should enure to charitable causes. As rightly noted by the learned Single Judge, the impugned order was passed not in respect of any specified property but generally to protect the estate in view of a serious contest which in the opinion of the learned Single Judge placed the estate to be at risk of loss or damage. When both the contesting parties are agreed on the fact that the estate must enure to charitable purposes, it cannot be gainsaid that a case is made out for appointing an administrator.
73. No doubt, the appellant's contention that the testamentary Judge hearing the probate cannot go into the matters pertaining to the title to the properties is justified. In our view, the learned Judge has not enquired into issue of title. We find it is necessary that an administrator be appointed in order to take necessary steps and safeguard the properties of the deceased attend to recovery of properties lost to the estate, including those which the respondents contend were lost due to the actions of the appellant. Such properties, assets and liabilities forming part of the estate will have to be ascertained, rents / licence fees akn 31/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc will have to be collected, taxes will have to be paid, investments made and maintenance will have to be undertaken.
74. We may mention here that the appellant has submitted, albeit in the alternative, that an injunction would suffice in the facts of the case. However, we are of the firm view that an order of injunction will not be sufficient to safeguard the properties. In the event of violation of the injunction, the property would be lost to the detriment of the estate which is required to be protected. As already observed, the estate is presently in medio and the Court would be failing in its duty if the estate is not sufficiently protected. The finding that the Al Karim property was dealt with despite the injunction on the basis of a questionable unregistered document speaks volumes. Various other circumstances have been alluded to which deal with the merits of the parties contentions and which need not engage our attention in this appeal.
78. The estate will have to be protected in order to ensure that the party who succeeds is able to carry out the testator's last wishes. To not appoint an administrator would amount to pre-judging thewe may issues and exposing the estate to risk of loss and damage in the face of serious allegations by and against the parties. The appellant also has a right to come clean and establish his claim to be the executor under a valid Will should he succeed. The appointment of an administrator to ensure protection of the estate from depletion of any kind. The invocation of power vested in the testamentary Court by virtue of section 269 has been correctly exercised."
(Emphasis supplied) akn 32/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc
31. Therefore, the Administrator was directed to endeavor to protect the estate. These observations of the learned Single Judge and the Division Bench were noticed by the learned single Judge. The Administrator was acting in furtherance of this mandate of his appointment and therefore, the impugned order had directed the Administrator to take necessary steps in consonance with the order of the learned Single Judge dated 24 December 2013 and of the Appeal Bench dated 8 August 2014 and Section 247 of the Indian Succession Act. Learned Single Judge could have straightaway issued directions to recover the money. However, the learned Single Judge has exercised caution and by the impugned order directed that the inquiry be conducted so that further course of action can be determined.
32. In light of the observations in the orders of the learned Single Judge and the Appeal bench during appointment of the administrator interpreting section 247 of the Indian Succession Act, it was permissible for the learned Single Judge to issue directions to bring back the estate and if such power existed, there was no reason why the inquiry could not have been ordered. All the observations made by learned Single Judge are qua the estate and not qua any person. Therefore, though elaborate arguments were advanced before us, all that we see before us is an exercise of plenary jurisdiction to find innovative method in light of complete non-cooperation by the Executor, to ensure that the matter is proceeded further and the will of the testator is given full effect.
akn 33/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::APPEAL 10-2023 Group J.doc
33. Since learned Single Judge was issuing an order which was not the order that is regularly passed in the testamentary proceedings, the learned Single Judge has given certain reasons as to why it was necessary, otherwise the order would have become without reasons. Learned Single Judge has not concluded about the role of the Appellants. The impugned order is passed since there was no cooperation from the Executor to disclose the true state of affairs. The information gathered in the investigation would be shared with the Court so that the information relevant for the subject matter can be utilized for the ultimate purpose of giving effect to the will of the Testator. Though the Appellants perceive that these observations may affect the investigation, upon detailed scrutiny, we find that the learned Single Judge has nowhere intended in the impugned order that the rights of the Appellants would be prejudiced, in case criminal proceedings are launched against them.
34. The role of the Executor of a will is to execute it as per the disposition of the testator. Therefore, if the property is brought to the Administrator so appointed, it will benefit the work of the Executor itself and there is no prejudice to the Executor. Learned Single Judge faced with non-cooperation by the Executor and having the observations made while appointing the Administrator and by the Appeal Bench on record, has directed the Administrator to take certain steps which according to learned Single Judge would aid and assist in arriving at the correct position.
akn 34/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::APPEAL 10-2023 Group J.doc
35. In any case, in view of what is observed in paragraph nos. 76 to 94 of the impugned Order, about allegations of the Plaintiffs and the events about the flow of money from the estate of the Deceased to Appellants Amoha Traders and Bai Avabai Trust and the dealings of flat in Al Karim building belonging to the estate of the Deceased coupled with common address, telephone number and email of various entities involved, leading to Mr. Panday coupled with prior observations of this Court in earlier orders of this Court (dated 24 December 2013 appointing Administrator and dated 9 January 2017 in contempt proceedings against the Appellant-Sukhadwalla), it is clear that a need for investigation is felt by the learned Single Judge to direct the Administrator to file complaint.
36. It is a settled position of law that the criminal investigation is based on a procedure with different parameters and therefore, the Appellants would have full opportunity in case prosecution is launched against them to defend it on its own merits. Therefore, though we have permitted the Appellants to cross the threshold of the maintainability of the Appeal on the ground of perceived prejudice, we do not find that there is any actual prejudice to the Appellants in the impugned order. It is not contemplated in the impugned order that the investigation should be affected by the observations made therein. The criminal investigation will therefore operate in the different field and the information gathered in the investigation when shared, would assist the Learned Single Judge in taking the matter forward.
akn 35/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::APPEAL 10-2023 Group J.doc
37. This Court is a court of Original Jurisdiction having abundant plenary and inherent powers. It is a Court of record. If the facts of the case are such that an investigation is found necessary into the dealings of parties involved, including the Appellants, then an investigation can be initiated by directing the Administrator to file a complaint. This Court while exercising even testamentary jurisdiction retains its inherent and plenary powers and can initiate such action by directing filing of criminal complaint. There is no gainsaying that the learned Single Judge of this Court was not justified in directing the Administrator to file criminal complaint in the facts and circumstances of this case. We agree to that extent with the case of the Respondent / Plaintiffs and with the caselaw relied upon by them in that behalf.
38. In this respect useful reference can be made to the judgment of H.P.S. Chawla (Supra) were Division Bench of Delhi High Court, while considering an intra-Court appeal, arising out of Testamentary Jurisdiction, just as the case at hand, has held that while exercising Testamentary Jurisdiction, the High Court does not cease to be a Court exercising inherent powers. In that case the action of the learned Single Judge in deleting / expunging scandalous and defamatory material, was held as exercise within jurisdiction.
39. In Sahara India Real Estate Case (supra), the Hon'ble Supreme Court while dealing with press and media laws, has held that orders akn 36/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc prohibiting publication for temporary period are permissible under inherent powers of High Court when the Court is satisfied that the interest of justice so requires.
40. Applying these settled principles, we do not find it necessary to interfere with the impugned order. The impugned order is not a stand- alone order but it is part of a series of orders passed in the Appeal in which foundation to such directions were already made. The order passed by learned Single Judge in exercise of the plenary and inherent jurisdiction cannot be said to be without jurisdiction. Merely because a different view is possible, is not a ground for us to set aside exercise of discretion by learned Single Judge. The learned Single Judge felt that it was the only way to correctly adjudicate the matter pending before it. Therefore, neither the order is without jurisdiction nor it has caused any real or substantive prejudice to the Appellants.
41. All that will take place is an investigation in which, if the Appellants are accused, they will have full opportunity of defending it as provided under the applicable criminal law. It is also not Respondents' case that the investigation should not proceed in accordance with applicable criminal law. The information gathered in the investigation when shared, would assist the Learned Single Judge in taking the matter forward. Though we are not inclined to interfere with the impugned order, the observations/clarifications made in this judgement will akn 37/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 ::: APPEAL 10-2023 Group J.doc adequately protect the interest of Appellants in the criminal prosecution if launched against them.
42. The Appeals are accordingly dismissed. No order as to costs.
(M. M. SATHAYE, J.) (NITIN JAMDAR, J.) akn 38/38 ::: Uploaded on - 16/07/2024 ::: Downloaded on - 17/07/2024 10:33:04 :::