Delhi District Court
Sh. Prashant Ojha vs Ms. Shalu Ojha on 13 February, 2015
IN THE COURT OF SH. SUNIL K. AGGARWAL, ADDL. SESSIONS
JUDGE04, NORTHWEST DISTRICT, ROHINI COURTS, DELHI
CA No. 76/14
Sh. Prashant Ojha,
S/o Sh. Ramesh Ojha,
R/o H. No. 183, First Floor,
Sector 31, Faridabad, Haryana .....Appellant
Versus
Ms. Shalu Ojha,
W/o Sh. Prashant Ojha
R/o 1927A, Street No. 146,
Tri Nagar, New Delhi. .....Respondent
Appeal presented on 08.12.2014
J U D G M E N T:
1. This is an appeal under Section 29 of The Protection of Women from Domestic Violence Act, 2005 read with the relevant provisions of The Code of Criminal Procedure, 1973, of the appellant/husband against orders dated 31.10.2014, 07.11.2014, 11.11.2014, 18.11.2014 and 01.12.2014 passed by the Ld. Metropolitan Magistrate, Mahila Court, Rohini, Delhi, in Execution No. 24/3/2014 filed by the respondent wife to realize the monetary claims allowed by the said court on 05.07.2012 in her petition under Section 12 of the Protection of Women from Domestic Violence Act. It is stated that the appellant has already CA No. 76/14 Prashant Ojha Vs. Shalu Ojha Page No. 1 of 9 challenged the order of maintenance at the rate of Rs. 2,50,000/ per month from the date of filing of the petition vide Appeal No. 23/2013 and had paid a sum of Rs. 1,00,000/ during pendency of appeal. The appeal however was dismissed by Ld. Sessions Court for nonpayment of arrears by the appellant. It was further challenged in the Hon'ble High Court of Delhi and the appellant paid Rs. 10,00,000/ to the respondent during pendency thereof, where after the execution proceedings had been stayed. After realizing the sum of Rs. 10,00,000/ the respondent had approached Hon'ble the Supreme Court and vide order dated 18.09.2014 passed, the appellant's Appeal No. 23/2012 has been restored and the Sessions Court has been directed to decide the same on merits. Simultaneously, the executing Magistrate had been directed to complete the process within eight weeks and the hearing of appeal by the Sessions Court would be subsequent thereto. The appellant accordingly had offered the shares of companies, standing in his name to be attached by the executing court and transferred in the name of respondent as is reflective in many of the orders of the executing court including 29.10.2014. The respondent however refused to take them and the Ld. Executing Court observed the share certificates to be few booklets of no value without appreciating that the respondent herself had listed the said shares as attachable properties of the appellant filed with the execution petition. On the very next date i.e. 31.10.2014, the appellant had appeared before the Ld. Executing court and offered to transfer the shares but was taken into judicial custody in gross abuse of process of law without serving any notice on him when only six weeks to the directions of Hon'ble the Apex Court had elapsed.
2. On 07.11.2014, an application for cancellation of warrants of appellant was CA No. 76/14 Prashant Ojha Vs. Shalu Ojha Page No. 2 of 9 moved which the respondent has opposed claiming that the appellant has been sent to custody under execution proceedings and not against nonbailable warrants. The application was dismissed by the Ld. Executing court agreeing with the contentions of respondent. The offer of the appellant to the respondent to join his company was also refused by latter without any cause. On 11.11.2014, the respondent was further directed to submit fresh list of the properties of the appellant and warrants of attachment thereof were issued through the concerned DCP. On 18.11.2014, on production of appellant from jail and an application was moved on his behalf that two parallel proceedings cannot continue simultaneously. Further as per the provisions of Section 125 (3) & Section 421 of The Code of Criminal Procedure, first the movable and immovable properties are to be attached in the execution proceedings and before adopting said recourse, the appellant (JD before the executing court) cannot be taken into custody. Again on 01.12.2014, the custody of appellant was extended by dismissing his application without considering the arguments and the applications filed by the respondent were decided in her favour without affording an opportunity to the appellant to file reply thereto. All these orders have collectively been challenged on the ground that Ld. Executing court reflected arbitrariness in considering the applications and went on to take the appellant into custody by disregarding the procedure laid down in The Code of Criminal Procedure and the order passed by Hon'ble the Apex Court. Further the executing court exceeded in exercise of its jurisdiction under the Protection of Women from Domestic Violence Act as the personal liberty of appellant could not have been curbed at the first instance without initially adopting coercive measures against his properties as has been reiterated in the judgment Jolly George Verghese Vs. Bank of Cochin. Neither the grounds nor the CA No. 76/14 Prashant Ojha Vs. Shalu Ojha Page No. 3 of 9 provision of law was quoted in the order of detention of the appellant. The court was also unclear as to whether the appellant was taken into custody in execution proceedings or in execution of nonbailable warrants or for contempt of court. The appellant time and again offered to transfer his properties in the name of the respondent but the executing court wanted him to produce the properties and articles which he never owned or controlled. The court did not construe as to how the respondent was maintaining herself from 2007 onwards and being an educated person was capable of maintaining herself better than the appellant. The reasons for detention of appellant beyond the mandatory period of 30 days have not been explained. The detention of appellant was directed by mechanically passing impugned orders in the face of various judgments referred on his behalf. The court believed the respondent of no payment having been received by her even when she had been paid a sum of Rs. 11, 00,000/ by the appellant. The constant refusal of the court to perceive the submissions of appellant pertaining to his partnership outlets of various companies through statutory records is beyond the administrative procedure of the country. The appeal thus urged for immediate release of the appellant from Jail by suspending his detention during its pendency for which the appellant undertook to abide by the conditions that may be imposed.
3. By the time the respondent was served with notice of appeal and matter could appropriately be heard by Ld. Predecessor of this court, the appellant was released from detention by Ld. Executing court vide a detailed order dated 22.12.2014 passed in this behalf till the disposal of his appeal against the order of grant of maintenance which has since been restored by Hon'ble the Apex Court.
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4. The matter was listed for filing reply to the grounds of the appeal but in view of changed circumstances by then, the respondent chose not to file any vide statement dated 17.01.2015 and it was contended that in view of the release of appellant, the appeal has become infructuous.
5. I have heard Sh. Prashant Mendiratta and Sh. Udit Mehra, Advocates, Learned Counsels for appellant/husband, Sh. Maninderjeet Singh, Advocate, Learned Counsel for the respondent/wife and carefully perused the record. On the strength of precedent Laljee Yadav Vs. State of Bihar, MANU/BH/1281/2011, Ashok Prasad Vs. State of Bihar, MANU/BH/1042/1999 , Kantaben Mafatlal Vs. Govindbhai Manubhai Patni, I (1998) DMC 424, Shakuntalabai Vs. Nand Kishor Joshi, I (1995) DMC 113, it is argued on behalf of the appellant that he could not have been kept in prison mechanically except on being shown that he had failed to comply with the order of executing court 'without sufficient cause'. Further the Magistrate could not have sent the opponent husband to jail at once for execution of the maintenance order without following the procedure laid down under Section 421 of The Code of Criminal Procedure.
6. The application for execution of order dated 05.07.2012 of the Mahila Court had been filed on 25.07.2012. The appellant as judgmentdebtor had entered appearance therein through counsel on 10.09.2012. Despite there being no stay of the execution in CA No. 23/12 after a lull period of about six months, the appellant had paid a sum of Rs. 1,00,000/ on 10.01.2013 through cheque. The appellant was further directed to pay a sum of Rs. 3,00.000/ on the next date. He CA No. 76/14 Prashant Ojha Vs. Shalu Ojha Page No. 5 of 9 however offered just Rs. 1,00,000/ on 19.02.2013 which apparently was not accepted. The warrants of attachment of movable properties of appellant as per the list filed by the respondent were directed to be issued. Subsequently, further a sum of Rs. 1,00,000/ was paid by the appellant on 02.04.2013 vide demand draft with promise to further pay like amount on the next date. It is reported on 27.04.2013 that the previous cheque of Rs. 1,00,000/ has bounced. Since the warrants of attachment against the properties of appellant/JD had already returned unexecuted, warrants of arrest were directed to be issued against the appellant/JD on 27.04.2013. Thereafter, repeated warrants of arrest/nonbailable warrants were issued against the appellant but could not be executed by the Police. The counsel for appellant apprised the court on 10.09.2014 about the orders being awaited in SLP (Crl.) No. 66220/2014 and thereby sought two week's time to produce his client. The coercive process was kept on hold by the executing court on this submission. The offer of transfer of shares of appellant in the name of respondent was given by former's counsel on 07.10.2014 but it was refused by latter. The offer was repeated on 29.10.2014 but was not taken as it was observed that the appellant could have sold of the shares in the interregnum and paid consideration to the respondent in compliance of orders of Hon'ble the Supreme Court. His exemption nevertheless was allowed by imposing cost and the matter was fixed for 31.10.2014. The appellant had appeared on that day and repeated the stale offer without even telling the estimated value of offered shares. The Executing court aghast with his conduct, vacated the stay in respect of coercive process against him and sent the appellant to prison. His detention was extended from time to time till 22.12.2014. In the meanwhile, warrants of attachment against the movable and immovable properties of appellant were also issued but in vain.
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7. So far as the initial order dated 31.10.2014 of detention of appellant is concerned, the same had become barred by time on 08.12.2014 when the present appeal was preferred. There is no allegation for condonation of delay nor has it been otherwise explained except for saying that since further detention orders had been passed in its continuation, the initial order cannot be discerned in isolation. The proposition however is not backed by any legal provision hence cannot be accepted.
8. The proceedings under the Protection of Women from Domestic Violence Act are quasicivil in nature that is why a separate execution application needs to be filed for implementation/enforcement of the orders passed on petitions under Section 12 thereof. Reliance on the precedent in Jolly George Verghese case itself reflects that even the appellant understands the proceedings in that context. The reference to issuance of nonbailable warrants against the appellant thus is just misnomer and has to be perceived akin to warrants of arrest against the appellant/JD. The plea about detention of appellant for contempt of court had been raised on behalf of the respondent on 01.12.2014 on which the executing court did not give its observations. The detention of appellant therefore cannot be imputed in that context.
9. An attempt at the first instance was made by learned Executing court to realize the arrears of maintenance by attachment of listed properties of the appellant. On absolute failure, the attempt was made to secure the presence of appellant apparently to retrieve the details of his properties but finding him CA No. 76/14 Prashant Ojha Vs. Shalu Ojha Page No. 7 of 9 recalcitrant despite affording adequate opportunities, he was detained in prison on 31.10.2014 in execution of warrants of arrest, the appellant having already specified not to own any immovable property. It has to be kept in mind that arrears maintenance of about Rs. 1,50,00,000/ had accumulated against the appellant by then. It cannot therefore be off hand contended that the executing court had straightaway detained the appellant into prison without exhausting the initial process of making attempts to realize the decreetal amount by attaching his movable/immovable properties.
10. It is strange that the appellant continued to offer his paper shares to the respondent without supplying details thereof nor specifying their estimated market value. It has not been disclosed even in the present appeal. The apparent reason may be that they have negligible value otherwise he would have been more than happy to discharge his liability if the value thereof were substantial. Reference to meager share of appellant in the joint family properties in Indore and unconditional transfer thereof in the name of respondent, was also made during the course of arguments. Such an offer without details and specifications cannot be considered a valid offer at all.
11. The executing court having limited jurisdiction could not have ventured to assess the working and earning potential of respondent and give benefit thereof to the appellant. It was just obliged to execute the order without going behind it as merits thereof were examined by the court passing the order.
12. Since the prayer in appeal is only for release of the appellant by CA No. 76/14 Prashant Ojha Vs. Shalu Ojha Page No. 8 of 9 suspending his judicial custody during the pendency of appeal has been made and relief to that extent has already been granted to the appellant by Ld. Executing Court vide order dated 22.12.2014, nothing really remained to be adjudicated in the appeal except the above academic exercise. It is nevertheless necessary to observe that the mention in appeal about the conduct of learned Executing Court has been found to be in bad taste and the appellant and his learned counsels are expected to refrain from it.
13. In view of above, the appeal is disposed off as having been rendered infructuous by order dated 22.12.2014 of the Executing Court. Parties are left to bear their respective costs. Trial Court record is released with an attested copy of this order.
Appeal file be consigned to Record Room.
Announced in the open court on 13th February, 2015 (Sunil K. Aggarwal) Addl. Sessions Judge04 (NorthWest) Rohini Courts, Delhi CA No. 76/14 Prashant Ojha Vs. Shalu Ojha Page No. 9 of 9