Bombay High Court
Ashok Punjabi And 18 Ors vs High Class Developers And 4 Ors on 16 June, 2023
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
6 nms 2556-19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CONTEMPT PETITION NO 75 OF 2012
IN
NOTICE OF MOTION NO 278 OF 2011
IN
SUIT NO 196 OF 2011
Ashok Punjabi and 18 Ors. ...PETITIONER
versus
High Class Developers and 4 Ors. ...RESPONDENT
ALONG WITH CONTEMPT PETITION NO. 163 OF 2019 IN NOTICE OF MOTION NO. 278 OF 2011 IN SUIT NO 196 OF 2011 Madanmohan Murarilal Kotia ...PETITIONER versus Kotia Nirman Commercial Premises & Ors. ...RESPONDENT Mr. Anuj Desai a/w Umesh Tawari i/b. M/s. S. Ashwinikumar & Co. for the Applicant.
Mr. Ajay Panicker a/w Rajat Bhogale i/b. Ajay Law Associates for Respondent No.3 in CONP/163/19. For the Petitioner in Page 1 of 7 JUNE 16, 2023 Laxmi ::: Uploaded on - 19/06/2023 ::: Downloaded on - 20/06/2023 03:26:54 ::: 6 nms 2556-19.doc CONP/75/2012 Mr. Yashesh Kamdar a/w Abhishek Bhat, Nirav D. i/b. S. K. Legal Associates LLP for Respondent No.4 in CONP/163/19. Ms Kejali Mastakar for MCGM.
CORAM: B. P. COLABAWALLA, J DATE: JUNE 16, 2023 P. C.
1. At the outset, Respondent No. 4 in Contempt Petition No. 75 of 2012 and Respondent No. 4 in Contempt Petition No. 163 of 2019 tender an unconditional apology to this Court.
2. Both Contempt Petitions arise from an Order of this Court dated 4th April 2012 passed in Notice of Motion No. 278 of 2011 in Suit No. 196 of 2011.
3. By Order dated 13th April 2023, Notice of Motion No 2556 of 2019 in Contempt 163 of 2019 was allowed in terms of prayer clause
(a) pursuant to which and by consent of all parties, Mr Prakash Tathe, an Associate of this Court, was appointed as Court Commissioner. The Court Commissioner was directed to visit the site on 15 th April 2023 and file a report in respect of the usage and occupation of the 24 car parking Page 2 of 7 JUNE 16, 2023 Laxmi ::: Uploaded on - 19/06/2023 ::: Downloaded on - 20/06/2023 03:26:54 ::: 6 nms 2556-19.doc spaces/basement of Kotia Nirman Building. Accordingly, the Court Commissioner has filed his Report dated 20th April 2023.
4. By Order dated 25th April 2023, the Court Commissioner was directed to visit the site and complete inspection of basement room Nos. 4 to 6 and file an additional report in respect of the occupation and usage of room Nos 4 to 6 to which keys were not made available on 15 th April 2023. The Court Commissioner has filed his Additional Report dated 3rd May 2023 in this regard.
5. It is informed by learned counsel for Respondent No. 4 in Contempt Petition No. 75 of 2012 and by learned counsel for Respondent No. 4 in Contempt Petition No. 163 of 2019 that the parking slots marked 1A, 2A, 3A and 4A are claimed by Respondent No. 3 in Contempt Petition No. 163 of 2019, Mr. Sunil T. Kotia, and the remaining parking slots marked A are claimed by Respondent No. 4 in Contempt Petition No. 163 of 2019, Mr. Rajesh Kotia, while the parking slots marked B are claimed by Respondent No. 4 in Contempt Petition No. 75 of 2012, Mr. Madanmohan M. Kotia.
6. The findings of the Commissioner recorded in the two Reports would show that various scrap items such as cupboards, racks, Page 3 of 7 JUNE 16, 2023 Laxmi ::: Uploaded on - 19/06/2023 ::: Downloaded on - 20/06/2023 03:26:54 ::: 6 nms 2556-19.doc cloths, utensils, tables and chairs are strewn across various parking spots marked A as well as B. Additionally, one big blue colour container is found lying in parking spots 5A and 6A and one air conditioner is found installed in the third basement room attached to unnumbered parking A slot. Basement Room Nos. 4 to 6 are interconnected and attached to a Godrej Locker Vault Door and the Report shows that three racks consisting of small lockers numbered 1 to 158 are installed on one wall. Learned counsel are ad-idem that all materials found in the basement are required to be removed in order to ensure compliance with the Order of this Court dated 4th April 2012.
7. Learned counsel for Respondent No. 4 in Contempt Petition No. 163 of 2019 submits that the Godrej locker vault door along with the three racks of lockers was installed in basement room Nos. 4 to 6 since prior to the passing of Order dated 4 th April 2012. However, without getting into the controversy of whether the said locker was installed prior to or subsequent to the Order dated 4 th April 2012, learned counsel submits that Respondent No. 4 is willing to remove the three racks consisting of small lockers in order to put an end to the controversy.
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8. In light of the aforesaid submissions, Respondent No. 4 in Contempt Petition No. 163 of 2019 agrees and undertakes to remove all scrap materials found lying in parking slots marked A, including, one drum, one metal rack, some metal plates, two steel long tables, cloths, wooden rack, one chair, one table, one wooden cabinet, four cabinets of small lockers, utensils and the air conditioner installed in basement room No. 3 within a period of two weeks from today. 9 Respondent No. 4 in Contempt Petition No. 163 of 2019 agrees and undertakes to remove the big blue colour container kept in parking slots 5A and 6A within a period of four weeks from today.
10. Learned counsel for Respondent No. 4 in Contempt Petition No. 163 of 2019 submits that the three locker racks found in basement room Nos. 4 to 6 are large in size and of considerable weight making removal of the same a tedious process. Learned counsel further submits that these lockers have remained largely unused and, therefore, have considerable resale value and accordingly, Respondent No. 4 would be inclined to sell the same and have the racks removed by the purchaser. Respondent No. 4, therefore, requests for a longer period of Page 5 of 7 JUNE 16, 2023 Laxmi ::: Uploaded on - 19/06/2023 ::: Downloaded on - 20/06/2023 03:26:54 ::: 6 nms 2556-19.doc time to have the same removed from the basement room Nos. 4 to 6. Respondent No. 4 states that he shall remove the three racks of lockers within a period of 16 weeks from today. It is accordingly so ordered. No further time shall be granted.
11. Respondent No. 1 in Contempt Petition No. 163 of 2019, being Kotia Nirman Commercial Premises Co-op. Soc. Ltd., agrees and undertakes to remove the cupboard found lying near car parking lift of A side within a period of two weeks from today.
12. Respondent No. 4 in Contempt Petition No. 75 of 2012 agrees and undertakes to remove the scrap materials found in parking slots marked B, including, some wooden articles and scrap articles and one cupboard found lying in the basement room Nos. B-1, B-2, B-3 and B-4 within two weeks from today.
13. Respondent No. 4 in Contempt Petition No. 75 of 2012, Mr. Madanmohan M. Kotia, Respondent No. 1 in Contempt Petition No. 163 of 2019, Kotia Nirman Commercial Premises Co-op. Soc. Ltd., and Respondent No. 4 in Contempt Petition No. 163 of 2019, Mr. Rajesh Page 6 of 7 JUNE 16, 2023 Laxmi ::: Uploaded on - 19/06/2023 ::: Downloaded on - 20/06/2023 03:26:54 ::: 6 nms 2556-19.doc Kotia, undertake to this Court that they shall not in future store any goods or material in the 24 parking spaces that are the subject matter of the injunctions granted by Order dated 4th April 2012.
14. The parties are put to notice that any breach of the undertakings recorded in this Order shall be viewed as an aggravated contempt on the part of such defaulting party.
15. With the aforesaid observations and directions, the Show Cause notice issued to the contemnors stand discharged and Contempt Petition No. 75 of 2012 and Contempt Petition No. 163 of 2019 stand disposed off.
16. List both aforesaid Contempt Petitions on 14 th July, 2023 for recording Compliance.
17. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
[ B. P. COLABAWALLA, J ].
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