Bombay High Court
Smt. Rita Milan Kamdar And Others vs The Collector, Palghar And Others on 11 February, 2022
Bench: S.J. Kathawalla, Milind N. Jadhav
ssp 1 / 13 M-CP-380-2021-final.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION NO. 380 OF 2021
IN
WRIT PETITION NO. 3568 OF 2021
Rita Milan Kamdar and others ... Petitioners
Versus
The Collector, Palghar and others ... Respondents
WITH
WRIT PETITION NO. 3568 OF 2021
WITH
INTERIM APPLICATION NO. 323 OF 2022
.........
Mr. Hardik Joshi instructed by Mr. Mandar Soman, for the Petitioners.
Mrs. Aruna Pai, Public Prosecutor alongwith Ms. M.P.Thakur, AGP, for the State.
Mr. A.M.Kulkarni, for the Intervenor.
Mr. Diwakar Dwivedi, for Respondent No.4.
Mr. Manoj Mohite, Senior Advocate alongwith Mr. Pranav Badheka, Amicus Curiae,
present.
Mr. Ashom Ram Pandey and Mr. Raju Sulire, present.
Mr. Amit Kumar Jha, Branch Manager GIC Housing Finance Ltd., Virar Branch,
present.
.........
CORAM : S.J. KATHAWALLA AND
MILIND N. JADHAV, JJ.
DATED : FEBRUARY 11, 2022 (through video-conferencing) P.C. :-
1. The Petitioners - Rita Milan Kamdar, widow of Milan Kamdar and her two children have filed the above Writ Petition No.3568 of 2021 seeking the following relief :
"(a) this Hon'ble Court be pleased to issue a writ of mandamus or a ssp 2 / 13 M-CP-380-2021-final.odt writ in the nature of mandamus or any other appropriate writ, direction or order under Article 226 of the Constitution of India, direction against the Respondent No.1 Ld. Collector, Palghar, Respondent No.2 Ld. Tahsildar, Vasai, Respondent No.3 Ld. Talathi, Bolinj, Virar, being the appropriate authority to forthwith execute the warrant of recovery dated 11.10.2018 being the warrant issued under Section 40(1) of RERA issued by the Maharashtra Real Estate Regulatory Authority, Bandra (East), Mumbai and further be pleased to direct the Respondent Nos.1 to 3 to expedite Recovery proceedings against Respondent No.4 in consonance with orders dated 16.04.2018 and 11.10.2018 passed by MAHARERA;"
2. Since the Partners of Respondent No.4 Developers, Shri Raju Sulire and Shri Ashok Ram Pandey were not returning the amount due to be refunded to the Petitioners and the Tahsildar, Vasai, was not taking any action in execution of the Orders passed by MAHARERA, this Court by its Order dated 18 th August, 2021, directed the said Developers to file an Affidavit before 25 th August, 2021, disclosing the details of Income Tax Returns, Bank Accounts etc., as set out in paragraph Nos.3 and 4 of the said Order dated 18th August, 2021.
3. On 25th August, 2021 the Developers informed the Court that they are settling the matter with the Petitioners and accordingly tendered Consent Minutes of Order in Court, wherein they gave the following undertakings to the Court, which the Court had accepted : (i) that the Shop Nos.21 and 22 in Wing D, Ground Floor, in the building known as Mandar Avenue, Avenue F-1, having Survey Nos.5, 5B, 5F, 5G, 5D, admeasuring about 190 sq.ft. and 300 sq.ft. respectively, situated at Village Dongare, ssp 3 / 13 M-CP-380-2021-final.odt Taluka Vasai, District Palghar, have a clear and marketable title, free from any encumbrances; (ii) that the Developers Shri Raju Sulire and Shri Ashok Ram Pandey will enter into an Agreement for Sale (Sale Deed) with the Petitioners in respect of the said two shops and put the Petitioners in possession thereof by 30 th August, 2021, and an amount of Rs.60 Lakhs would be adjusted from the total dues of Rs.90 Lakhs agreed to be paid by the Developers to the Petitioners; (iii) that the Developers shall pay an amount of Rs.30 Lakhs to the Petitioners within a period of four weeks from the date of passing of the Order dated 25th August, 2021.
4. The Developers breached the aforesaid undertakings given to the Court. In view thereof, the matter was placed before this Court on 16 th November, 2021. On that day, Shri Ashok Ram Pandey, was present in Court. He informed the Court that Shri Raju Sulire is absconding and his address is not known to him. The Advocate representing the Developers stated that Shri Raju Sulire was not responding to his calls as well as messages. This Court therefore, by its Order dated 16 th November, 2021 issued a bailable warrant in the sum of Rs.15,000/- against Shri Raju Sulire and made the same returnable on 18th November, 2021 at 2.30 p.m. The Developers were also directed to comply with the Order dated 18 th August, 2021, i.e. to make disclosures as set out in paragraph No.3 therein.
5. On 18th November, 2021 the matter was adjourned to 22 nd November, 2021. On 22nd November, 2021 pursuant to the Order passed by this Court dated 16 th ssp 4 / 13 M-CP-380-2021-final.odt November, 2021, Shri Raju Sulire, Partner of Respondent No.4 was present before the Court. Admittedly he has breached the Order dated 25 th August, 2021 passed by this Court to the extent of not handing over the said two shops free from encumbrances and also not making payment of Rs.30 Lakhs as undertaken, within a period of four weeks from the date of the Order. Only since an undertaking was given on that day by Shri Ashok Ram Pandey and Shri Raju Sulire to get a cancellation deed executed by them in favour of the third party in respect of the said shops on or before 25 th November, 2021, and to also make part payment of Rs.5 Lakhs by 25 th November, 2021 to the Petitioners, the Court accepted their undertakings and adjourned the matter to 25th November, 2021, when Shri Ashok Ram Pandey and Shri Raju Sulire were directed to remain present in Court on that day and on all the adjourned dates unless their presence was exempted by this Court.
6. On 25th November, 2021 the Court was informed that Shri Ashok Ram Pandey and Shri Raju Sulire have breached the undertaking to get the cancellation deed executed and registered in respect of the said two shops which were to be transferred in the name of the Petitioners. Shri Ashok Ram Pandey and Shri Raju Sulire now gave an undertaking to the Court to get the cancellation deed executed by the third party in respect of the said two shops and register the same by 26th November, 2021. They further gave an undertaking to issue a cheque of Rs.5 Lakhs by the afternoon of 25th November, 2021 to the Petitioners. They also gave an ssp 5 / 13 M-CP-380-2021-final.odt undertaking that upon presentment of the cheque of Rs.5 Lakhs, the same shall not be dishonoured on any ground whatsoever. The undertakings were accepted by this Court and the matter was adjourned to 26th November, 2021 at 4.30 p.m.
7. On 26th November, 2021 the Court was informed by the Advocates representing the Petitioners that the Developers have failed to handover a cheque of Rs.5 Lakhs to the Petitioners as undertaken. The Advocate for the Developers informed the Court that Shri Bharat Patil and Shri Manoj Jain who had agreed to execute the cancellation deeds are not contactable. Upon realizing that nothing stated by the Developers can be relied upon, this Court by its Order dated 26 th November, 2021 directed Shri Bharat Patil and Shri Manoj Jain to remain present before this Court on 29th November, 2021 at 10.30 p.m. On the same day, this Court also directed the Registry to issue Show Cause Notices against the Partners of Respondent No.4, i.e. Shri Raju Sulire and Shri Ashok Ram Pandey under Rule 9 of Chapter XXIV of the Bombay High Court Appellate Side Rules, 1960, made returnable on 2 nd December, 2021 at 10.30 a.m. The post-dated cheques issued and handed over by Shri Ashok Ram Pandey were handed over to the Advocate for the Petitioners.
8. On 29th November, 2021 Shri Manoj Jain and Shri Bharat Patil were present in Court. They informed the Court that they are not in touch with the Partners of M/s. Om Mandar Realtors, namely Shri Ashok Ram Pandey and Shri Raju Sulire and have not agreed to execute any cancellation deed as alleged by them. In ssp 6 / 13 M-CP-380-2021-final.odt view thereof, the matter was adjourned to 2nd December, 2021.
9. On 2nd December, 2021 the Advocate for Respondent No.4 informed the Court that the Partners of Respondent No.4, namely Shri Ashok Ram Pandey and Shri Raju Sulire are absconding and are not in touch with him and all attempts made by him to contact them have failed. In view thereof, this Court directed the Registry to issue non-bailable warrants against Shri Ashok Ram Pandey and Shri Raju Sulire and made the same returnable on 6th December, 2021 at 10.30 p.m.
10. On 10th December, 2021 the Court was informed that since there was some technical error in the Order, the non-bailable warrants could not be executed. In view thereof, the Registry was directed to issue fresh non-bailable warrants of arrest against Shri Ashok Ram Pandey and Shri Raju Sulire, made returnable on 20 th December, 2021.
11. On 20th December, 2021 Shri Ashok Ram Pandey and Shri Raju Sulire were not produced before the Court. Again on 5 th January, 2022 the Court was informed that the police is unable to trace the whereabouts of Shri Ashok Ram Pandey and Shri Raju Sulire. In view thereof, on 5th January, 2022 this Court passed the following Order :
"1. Shri Ashok Ram Pandey and Shri Raju Sulire, partners of Respondent No.4 - Om Mandar Realtors were appearing before this Court upto 26th November, 2021. After this Court directed them to comply with certain directions, Shri Ashok Ram Pandey and Shri Raju Sulire stopped appearing before the Court despite specific orders. This Court by its Order ssp 7 / 13 M-CP-380-2021-final.odt dated 2nd December, 2021 was therefore, constrained to issue non-bailable warrants against Shri Pandey and Shri Sulire. Despite more than four weeks having passed, the concerned Police Authorities inform the Court that they are unable to execute the said non-bailable warrants. Since both the individuals are having their respective families at Mumbai and Goa, the Police authorities cannot be heard to say that they are unable to execute the warrants even after more than a month having elapsed. In view thereof, the returnable date of the non-bailable warrants is extended upto 18 th January, 2022. A copy of this order shall be forthwith forwarded by the Registrar ( Judicial I) of this Court to the Commissioner of Police, Vasai Virar Mira Bhayander for immediate action. If the said non-bailable warrants are not executed, despite this Order, the Court shall be constrained to seek assistance of the Home Ministry in this regard. Stand over to 18 th January, 2022."
12. On 18th January, 2022 when the matter was called out before us, we were once again informed by the Learned AGP that the police authorities have not been able to execute the non-bailable warrants since they have not been able to trace either Shri Ashok Ram Pandey and/or Shri Raju Sulire. This Court therefore, directed Shri Sadanand Date, Commissioner of Police, Mira Bhayandar and Vasai Virar to appear before this Court through video conferencing. The presence of Shri Date was sought by the Court, because the Court was unable to accept that despite Shri Ashok Ram Pandey and Shri Raju Sulire having their respective family members residing in Mumbai, the police authorities have been unsuccessful in tracing them and executing the non-bailable warrants issued against them since the last almost two months.
13. On 19th January, 2022, Shri R.K.Mane, Police Inspector of Arnala Police ssp 8 / 13 M-CP-380-2021-final.odt Station has appeared before us. Shri Ashok Ram Pandey and Shri Raju Sulire also appeared before us. The Police authorities were therefore, directed to execute the pending non-bailable warrants issued by this Court against them in accordance with law and submit their compliance report to this Court on 21 st January, 2022. On 20th January, 2022 the matter was mentioned before this Court. After perusing our Order dated 19th January, 2022, it was clarified that Shri Ashok Ram Pandey and Shri Raju Sulire be detained in civil prison until they are produced before this Court on the adjourned date, i.e. 21st January, 2022 at 3.00 p.m.
14. On 21st January, 2022 this Court passed the following Order :
"Perused our earlier orders passed in the above proceedings. Today, Mr.Ashok Ram Pandey and Mr. Raju Sulire are produced from Civil Prison, Byculla, Mumbai before this Court.
2. Advocate Aditya Talpade and Advocate Pratik Karande have informed the Court that they have filed the above Interim Application seeking discharge on the ground that Mr.Ashok Ram Pandey and Mr. Raju Sulire have not given them correct instructions because of which they have been shown in poor light. In view thereof, Advocate Aditya Talpade and Advocate Pratik Karande are discharged from representing Mr.Ashok Ram Pandey and Mr. Raju Sulire in the above proceedings. The above Interim Application is accordingly disposed off.
3. Advocate Diwakar Diwidi now seeks to represent Mr.Ashok Ram Pandey and Mr. Raju Sulire. Mr.Diwakar Diwidi, Advocate representing Mr.Ashok Ram Pandey and Mr. Raju Sulire states that he wishes to file the Bail Application and therefore the detention of Mr.Ashok Ram Pandey and Mr. Raju Sulire in Civil Prison, Byculla, Mumbai be continued only upto 25 th January, 2022. In view thereof, Mr.Ashok Ram Pandey and Mr.Raju Sulire ssp 9 / 13 M-CP-380-2021-final.odt shall remain in Civil Prison, Byculla, Mumbai upto 25 th January, 2022. The Jailor, Civil Prison, Byculla, Mumbai will be directed to produce Mr.Ashok Ram Pandey and Mr. Raju Sulire before this Court as and when required.
4. Mr.Manoj Mohite, Senior Advocate along with Mr.Pranav Badheka and Mr.Rohan Cama, Advocates are appointed as Amicus Curiae in the matter.
5. Office shall forthwith provide a set of papers and proceedings to the Amicus Curiae.
6. Stand over to 25th January, 2022.
7. In the meantime, the earlier ad-interim order, if any, shall continue.
8. All concerned to act on an ordinary copy of this Order duly authenticated by the Personal Assistant of this Court."
15. The Contempt Notices directed to be served by an Order of this Court dated 26th November, 2021, came to be served on the Developers Shri Ashok Ram Pandey and Shri Raju Sulire only in the morning of 25th January, 2022. The Learned Advocate for the Developers stated that he has filed bail applications on behalf of Shri Ashok Ram Pandey and Shri Raju Sulire. However, the same was not received by the Court Associate. The Advocate for the Developers therefore made a request that the matter be kept on 31st January, 2022 to ensure that the bail applications reach this Court and also to enable the Developers to file an Affidavit in Reply to the Contempt Notice personally served on the Developers. He further stated that the detention of the Developers Shri Ashok Ram Pandey and Shri Raju Sulire be continued upto 31 st January, 2022. The matter was therefore, adjourned to 31st January, 2022 at 3.00 p.m. ssp 10 / 13 M-CP-380-2021-final.odt
16. On 31st January, 2022 the Advocate for the Developers Shri Ashok Ram Pandey and Shri Raju Sulire informed the Court that the matter be adjourned for a week since the Developers have informed him that they will deposit an amount of Rs.5 lakhs within that period with the Registrar Judicial I of this Court. He further stated that on the adjourned date, he will inform the Court as to how the balance amount of Rs.25 Lakhs will be paid by the Developers and he will also press the bail application. He further stated that the detention of the Developers Shri Pandey and Shri Sulire be continued upto 7th February, 2022. The request of the Advocate for the Developers was acceded to and Shri Ashok Ram Pandey and Shri Raju Sulire were directed to remain in civil prison upto 7th February, 2022 and the matter was adjourned to 7th February, 2022 at 2.30 p.m.
17. On 07.02.2022, since the State Government had declared a holiday, though both the Developers were brought to the Court premises at 2.30 p.m. by the Jail Authorities, we passed an Order extending their custody in civil prison by one day, i.e. upto 8th February, 2022 and directed the police authorities to produce the Developers on the next day i.e. on 8th February, 2022. .
18. On 08.02.2022, we passed the following Order :-
". Heard Mr. Diwakar Dwivedi, learned Advocate representing the Developers - Shri. Ashok Ram Pandey and Shri. Raju Surile. He states that he will press the Bail Application on Friday, 11.02.2022 before this Court, and until Friday Shri. Ashok Ram Pandey and Shri. ssp 11 / 13 M-CP-380-2021-final.odt Raju Surile may continue to be in Civil Prison at Byculla, Mumbai. In view thereof, Shri. Ashok Ram Pandey and Shri. Raju Surile shall continue to be in Civil Prison at Byculla, Mumbai upto 11.02.2022 and they shall be produced before this Court on 11th February, 2022 at 2.30 p.m.
2. A responsible officer from General Insurance Corporation (GIC), Virar (W) Branch shall remain present before this Court on the adjourned date with all the papers pertaining to the mortgage / charge created by Smt. Parvatama Raju Surile and Shri. Raju Surile in respect of Bungalow No. 24, Ambo Villa, Tirupati Nagar Phase II, Virar (W), Taluka Vasai, Palghar. They shall also inform the Court the amounts due and payable by Shri. & Smt. Surile to GIS as on date including interest.
3. Shri. Raju Surile states that except the charge / mortgage created by him in favour of General Insurance Company, there is no charge / mortgage created in favour of any another party and the said property is encumbered only to the aforestated extent.
4. Copy of this order shall be served on the Manager, General Insurance Company, Virar (W) Branch by hand delivery and his acknowledgment shall be obtained by the learned Advocate for the Petitioners.
5. Stand over to 11th February, 2022 at 02.30 p.m."
19. Today, the Developers have been brought to the Court and we have heard Mr. Diwakar Dwivedi, Learned Advocate representing them. He states that the Developers will deposit Rs. 5,00,000.00 today in the account of the Petitioner No.1 - Ms. Rita Milan Kamdar through RTGS, which they have subsequently done. The Developers undertake to pay an amount of Rs.10 Lakhs within 20 days from the date ssp 12 / 13 M-CP-380-2021-final.odt of their release and within 10 days from payment of the said amount of Rs. 10 lakhs, they shall pay a further sum of Rs.10 Lakhs. Again, within 10 days from the last payment of Rs. 10 lakhs, they shall pay a further sum of Rs.5 Lakhs thereafter. The undertaking is accepted. The Developers undertake to transfer two shops worth Rs.60 Lakhs in favour of the Petitioners within 60 days from the date of their release.
20. The Officer from GIC who is present in Court has informed us that Shri Sulire and his wife have taken a loan from them, but have not paid a single monthly installment from February, 2020 onwards. The amount due to GIC upto February, 2020 is Rs.86,61,675/- and the value of the property mortgaged in favour of GIC in September, 2021 is worth Rupees One Crore Eight Lakhs only.
21. In view of the above, we are inclined to keep the contempt notice issued to the Developers / Contemnors in abeyance and grant interim bail sought in the Application No. 323 of 2022 on the following conditions :
i. Interim Application No. 323 of 2022 and the Applicants therein, i.e. the Contemnors, are granted cash bail of Rs. 10,000.00 each, along with two sureties each;
ii. The Applicant/Contemnor - Shri Raju Sulire shall report to the Senior Inspector of Police, Nalasopara Police Station, Nalasopara (West) and the Applicant/ Contemnor - Shri Ashok Pandey shall report to the Senior Inspector of Police, Arnala Sagari Police Station, Virar (West), within whose jurisdiction Shri Raju Sulire and Shri Ashok Pandey reside, on every Monday, between 12:00 noon and 2:00 p.m.;
ssp 13 / 13 M-CP-380-2021-final.odt
iii. Both the Contemnors shall deposit their respective passports with the
concerned Police Stations where they report, as stipulated above and the said passports shall be held subject to further orders of the Court;
iv. The undertaking of the Contemnors that they shall pay an amount of Rs.10 Lakhs within 20 days from the date of their release and within 10 days from payment of the said amount of Rs. 10 lakhs, they shall pay a further sum of Rs.10 Lakhs, and within 10 days from the last payment of Rs. 10 lakhs, they shall pay the balance sum of Rs.5 Lakhs and also transfer the two shops worth Rs.60 Lakhs in favour of the Petitioners within 60 days from the date of their release, is accepted.
Ordered accordingly.
v. In the event of a single default or breach in the payment of the above installments by the Contemnors, the interim bail granted by this Court shall stand cancelled and the Contemnors shall be liable for arrest immediately.
vi. In order to ensure that there is no breach in payment of any of the above installments by the Developers to the Petitioners, the Petitioners shall through their Advocates report compliance to this Court within two days of receipt of the first installment of Rs.10 Lakhs, payable to them within 20 days from the date of release of the Applicants.
( MILIND N. JADHAV, J. ) ( S.J. KATHAWALLA, J. )
Digitally
signed by
KANCHAN
KANCHAN PRASHANT
PRASHANT DHURI
DHURI Date:
2022.02.12
12:18:25
+0530