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03.
HIGH COURT OF DELHI
CCP(O) 144/2010 IN CS(OS) 631/2005
JUDGMENT
Through : Mr. Rahul Gupta and Mr. Swastik Singh, Advs.
Through : Mr. Dr. Arun Mohan, Sr. Adv. with Mr. Rohit Kumar, Adv. for the defendants in the suit and petitioner in CCP(O)144/2010.
Mr. Amit S. Chadha, Adv. for Mr. Gurmeet Singh Wadalia.
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest? G.S.SISTANI, J. (ORAL)
1. Present contempt petition has been filed by defendants under Sections 10 and 12 of the Contempt of Courts Act, 1971, seeking a direction of this Court that contempt proceedings be initiated against Mr. Gurmeet Singh Wadalia.
2. This matter has a chequered history and, thus, it is necessary to give a brief background of the case.
3. Plaintiff has filed the present suit for specific performance of an Agreement dated 30.1.2005, entered into between the parties (plaintiff and defendants no.1 and 2 in the suit) with respect to 2011:DHC:5036 Farm House No.17, Central Drive, Chhattarpur Farms, New Delhi, constructed and developed on the land forming part of Khasra NO.1335/2 (0-9), 1335/5 (2-02), 1335/6 (1-09) and 1336 (4-16), along with super structure existing thereon. The plaintiff also seeks recovery of Rs.4.60 crores in his favour and against the defendants.
4. While issuing summons in the suit and notice in the application on 10.5.2005, this Court had restrained the defendants from transferring, selling, encumbering, creating third party rights or parting with possession of the suit property. The interim order dated 10.5.2005 was confirmed by this court on 23.7.2008. Defendants thereafter filed an application being I.A.No.10810/2008 under Order XXXIX Rule 4 CPC seeking modification/clarification of the interim order granted by this Court, wherein on 24.11.2008 the following order was passed by this Court: “IA No. 10810/2008 (of the defendants under Order 39 Rule 4 CPC)in CS (OS) NO. 631/2005 Though the defendants have applied for letting out of the property which is a farm house, it is not deemed expedient to allow letting out of the property. However, the defendants are permitted to allow use and occupation of the property to said Mr. Gurmeet Singh Wadalia subject to said Gurmeet Singh Wadalia not claiming to be a tenant or in possession of the said property and further subject to Mr. Gurmeet Singh Wadalia filing an undertaking in the form of affidavit before this Court setting out the terms and conditions settled between him and the defendant and further undertaking to, on the expiry of one year from the date of commencement of use and occupation, remove himself from the property and not claiming any rights therein and not corresponding with any authorities whatsoever adversely to the interest of the defendants. Let the advance copy of the said affidavit of Mr. Gurmeet Singh Wadalia be supplied to the counsel for the plaintiff within one week. List on 8th December, 2008 It is clarified that Gurmeet Singh Wadalia shall be permitted use and occupation of the property only after the further orders of this Court.”
5. On 18.12.2008, while allowing I.A.No.10810/2008 and rejecting the arguments of learned counsel for plaintiff, Mr. Gurmeet Singh Wadalia, was permitted to occupy the suit premises. Operative portion of the order dated 18.12.2008 reads as under: “The counsel for the plaintiff otherwise is satisfied with the affidavit of Mr. Gurmeet Singh Wadalia. The undertakings of Mr. Gurmeet Singh Wadalia as contained in the affidavit are accepted by this court and Mr. Gurmeet Singh Wadalia is ordered to be bound by the same. It is stated that Mr. Gurmeet Singh Wadalia was present in this court earlier but had to leave. The defendants to prior to allowing Mr. Gurmeet Singh Wadalia use of the property in terms of his affidavit to have a copy of this order signed from him in further token of acceptance hereof. In the event of Mr. Gurmeet Singh Wadalia not ceasing use of the property after one year or as and when directed by the court, Mr. Gurmeet Singh Wadalia shall be liable for consequences for breaching of undertaking given to the court. Application is disposed of.”
6. Admittedly, Mr. Gurmeet Singh Wadalia, did not sign the order sheet as directed by this Court on 18.12.2008, however, an application being I.A.No.141/2009 was filed by Mr. Gurmeet Singh Wadalia under Order XXXIX Rule 2A CPC on 3.1.2009, wherein it was alleged by Mr. Gurmeet Singh Wadalia that defendants had duped him of Rs.81.00 lakhs, as the defendants had entered into an agreement with him with regard to sale of suit property for a total sale consideration of Rs.5.40 crores, out of which, approximately a sum of Rs.81.00 lakhs was paid by him to the defendants - by means of two pay orders in the sum of Rs.1.81 lakhs, each, both dated 25.8.2008 drawn on ICICI Bank; Rs.67,40 lakhs was paid by him in cash to the defendants; and two post dated cheques bearing no.235184 and 235185 dated 1.12.2008, drawn on HSBC Bank in the sum of Rs.5.00 lakhs, each, (in total Rs.10.00 lakhs) were handed over by him to the defendants and further the applicant was misled and cohersed to file the undertaking in the Court. Mr. Gurmeet Singh Wadalia claimed himself to be a purchaser of the suit property. The plaintiff thereafter filed an application, being I.A.No.9471/2009, under Order XXXIX Rule 2A CPC, alleging that defendants had committed contempt on the ground that defendants had entered into a transaction with Mr. Gurmeet Singh Wadalia despite the interim order granted by this Court on 10.5.2005, which was also confirmed by this Court on 23.7.2008. The defendants also filed a contempt petition, being CCP(O) 60/2009, alleging contempt against Mr. Gurmeet Singh Wadalia, wherein the following prayer was made by the defendants:
7. On 23.12.2009, while considering both the applications, being I.A.Nos.9471/2009 & 141/2009 and the contempt petition No.60/2009, filed by plaintiff, Mr. Gurmeet Singh Wadalia and defendants, respectively, following order was passed by this Court.
9. The applicant, Mr. Gurmeet Singh Wadalia, has not placed on record any receipt showing cash payment of Rs.67.40 lac. It does not sound to reason that a person who had not even executed the Agreement to Sell would part with such a huge cash without a receipt. However, I consider that in order to adjudicate upon the issue whether the defendants violated the orders of the court, it would be necessary to record evidence on this issue. Mr. Gurmeet Singh Wadalia had filed an affidavit in the court about occupying the premises in accordance with the court orders. His plea that he executed the affidavit on some assurance of the defendants cannot be taken on the face value unless he is subject to crossexamination by the plaintiff and the defendants. His plea that he had entered into premises in part performance of the sale agreement in August itself is also to be decided by way of evidence. I, therefore, consider that the applications and the contempt petition filed in the suit can be decided only after evidence on this issue is recorded. Thus, following issues are framed:-
1. If the defendants were guilty of violating the interim injunction order granted by the court on 10th May, 2005 and confirmed on 23rd July, 2008?
2. Whether the applicant, Mr. Gurmeet Singh Wadalia was guilty of contempt?
10. The evidence on these issues be recorded along with the evidence in the main case. However, in view of the peculiar circumstances, it is directed that the applicant, Mr. Gurmeet Singh Wadalia, who had filed affidavit before the court shall be bound by the order passed by the court in the suit of the plaintiff and also in view of Section 52 of the Transfer of Properties Act. He would be at liberty to sue the defendants for his rights viz-a-viz defendants. The applicant, Mr. Gurmeet Singh Wadalia, shall file his affidavit by way of evidence within four weeks from today.
11. List before Joint Registrar for fixing dates of cross-examination and for evidence in the main case on 25th February, 2010.”
8. While passing the order dated 23.12.2009 this court was of the view that the matter would require leading of evidence and accordingly issues were framed.
9. In this background after a gap of one year, the second contempt petition, being CCP(O)144/2010, has been filed by the defendants on 23.12.2009, which is being decided by the present order.
10. Dr. Arun Mohan, learned senior counsel appearing on behalf of the contempt petitioner [defendant in the suit], submits that while passing the order dated 23.12.2009 the Court has taken into consideration various factors and has also come to the conclusion that both the applications and the contempt petition can only be decided after the evidence is recorded.
11. Dr. Arun Mohan has justified filing of the second contempt petition on the ground that in the second contempt petition the prayer made by the petitioner is that without deciding as to whether Mr. Gurmeet Singh Wadalia is guilty of contempt or not the undertaking given to this Court by Mr. Gurmeet Singh Wadalia should be enforced and warrants of possession should be issued for the suit property.
12. Dr. Arun Mohan, learned senior counsel appearing on behalf of the contempt petitioner (defendants in the suit), submits that defendants are willing for appointment of a Court Receiver, who may keep the possession of the suit property till the disposal of the suit, however, prays that Mr. Gurmeet Singh Wadalia should not be permitted to flout the undertaking given Mr. Gurmeet Singh Wadalia to Court. Senior counsel further submits that any petition for contempt is to be decided in two parts, firstly, the order should be enforced and secondly in case the person is found guilty then the punishment is to be awarded. Senior counsel has further justified filing of the second contempt petition on the ground that while passing the order dated 23.12.2009 question of grant of possession was kept open by the Court. In support of this submission senior counsel has drawn the attention of the Court to the relevant portion of the order dated 23.12.2009, which is reproduced below: “The evidence on these issues be recorded along with the evidence in the main case. However, in view of the peculiar circumstances, it is directed that the applicant, Mr. Gurmeet Singh Wadalia, who had filed affidavit before the court shall be bound by the order passed by the court in the suit of the plaintiff and also in view of Section 52 of the Transfer of Properties Act. He would be at liberty to sue the defendants for his rights viz-a-viz defendants…..”
13. Dr. Arun Mohan, senior counsel, submits that in the concluding portion of the order dated 23.12.2009 the Court had issued a declaration that Mr.Gurmeet Singh Wadalia, who had filed affidavit/undertaking before the Court, that he would be bound by the order passed by the Court in the suit. It is contended that the order refers to order dated 18.12.2008 by which the undertaking of Mr.Gurmeet Singh Wadalia was accepted. Dr. Arun Mohan further submits that by the order dated 18.12.2008, passed in the suit, the undertaking given by Mr.Gurmeet Singh Wadalia was accepted by the Court and he was granted permission to occupy the suit premises for a period of one year. Senior counsel further submits that although liberty was granted to Mr. Gurmeet Singh Wadalia to sue the defendants for enforcing his rights, however, Mr. Gurmeet Singh Wadalia has not taken any steps to safeguard his rights. Dr. Arun Mohan, senior counsel, contends that in cases of specific performance a party must approach the court expeditiously, as observed in a recent decision rendered by the Apex Court in Civil Appeal Nos.7254-7256/2002 titled as Mrs. Saradamani Kandappan v. S. Rajalakshmi & Ors., more particularly para 28(iii), wherein the Apex Court had observed that although limitation for filing a suit for specific performance is three years but it does not mean that a purchaser can wait for one or two years to file a suit and obtain specific performance. Para 28(iii) of the judgment reads as under:
14. Dr. Arun Mohan, senior counsel, submits that Mr. Gurmeet Singh Wadalia has not approached the Court to safe guard his interest in view of the fact that there is no written agreement between the defendants and Mr. Gurmeet Singh Wadalia and handing over possession of the suit property in the absence of written agreement without paying necessary stamp duty would be hit by the provisions of Section 23A of The Indian Stamp Act and would also require registration. Senior counsel further submits that a careful reading of para 10 of the order passed by Shiv Narayan Dhingra, J, on 23.12.2009 gives liberty to the defendants, which has been exercised by the defendants by filing the present contempt petition for enforcement of the undertaking given by Mr. Gurmeet Singh Wadalia to the court. Dr. Arun Mohan, senior counsel next submits that the prayer made in this contempt petition could not have been pressed by the defendants at the time of hearing of the two applications and the earlier contempt petition, as one year period, as permitted by this court, had not elapsed.
15. Present contempt petition has been opposed by both, learned counsel for the plaintiff and by learned senior counsel appearing on behalf of Mr. Gurmeet Singh Wadalia. While, Mr. Rahul Gupta, learned counsel for the plaintiff, submits that it is the defendants, who is really guilty of contempt and are the real villains of the peace inasmuch that defendants had entered into a transaction with Mr. Gurmeet Singh Wadalia, in violation of the injunction order which was sought to be legalized by misleading the court and by filing an application being I.A.No.10810/2008 under Order XXXIX Rule 4 CPC, and thus, have violated the injunction order passed by this Court on 10.5.2005, which was confirmed on 23.7.2008. Counsel further submits that the purpose of filing an application for modification was not as innocent as it seems as at the time of filing of the said application the defendants had already sold the property to Mr. Gurmeet Singh Wadalia. The aim and purpose of the applicant was to legalise the transaction entered into between the defendants and Mr. Gurmeet Singh Wadalia in utter disregard and in gross violation of the orders passed by this Court.
16. Counsel Mr. Gupta and Mr. Chadha, counsel for Mr. Gurmeet Singh Wadalia, submit that a second contempt petition is not maintainable as in the earlier contempt petition being CCP(O)60/2009, an identical prayer was made by defendants which was rejected.
17. Both, counsel for Mr. Gurmeet Singh Wadalia and respondent, submits that interpretation sought to be given by Dr. Arun Mohan is an afterthought and assuming that it is taken to be correct then there is no justification, reason or ground as to why this petition has been filed after a gap of one year or why no review or modification was sought by the applicant. It is submitted that the order dated 23.12.2009 in fact takes care of all the eventualities and the said order has attained finality.
18. Mr. Amit Chaddha, learned senior counsel appearing on behalf of Mr. Gurmeet Singh Wadalia, submits that present contempt petition is a gross abuse of the process of the court and the stand taken by the petitioner in the present contempt petition is extremely dishonest. Senior counsel further submits that Mr. Gurmeet Singh Wadalia was not aware about the dispute between the plaintiff and defendant, Mr. Gurmeet Singh Wadalia was completely kept in the dark and he was forced to part with large sums of money and the present contempt petition has been filed primarily to derail the trial as during trial the dishonesty of the defendants would be exposed. Senior counsel next submits that Mr. Gurmeet Singh Wadalia was handed over possession of the suit property by the defendants in the month of August, 2008, even prior to filing of I.A.No.10810/2008 under Order XXXIX Rule 4 CPC, by the defendant, which is evident from various independent documents. Mr. Gurmeet Singh Wadalia had applied for a Tata Sky connection, air conditioners were installed and contractors were employed for various renovation works including construction of swimming pool. Senior counsel next submits that present contempt petition is not maintainable as the prayer made in this contempt petition is identical to the earlier contempt petition [CCP(O)60/2009] filed by the defendants.
19. It is submitted by Mr. Amit Chaddha that while hearing both the applications under Order XXXIX Rule 2A CPC and contempt petition, the question with regard to handing over possession was also argued before the Court and this prayer was rejected. Elaborating his arguments further Mr. Amit Chaddha submits that in fact in para 10 of the order dated 23.12.2009 the court has simply observed that “in view of the peculiar circumstances the applicant, Mr. Gurmeet Singh Wadalia, who had filed affidavit before the Court, shall be bound by the order passed by the Court in the suit”. Senior counsel next submits that this specific observation was passed as Mr.Gurmeet Singh Wadalia was not a party in the main suit for specific performance and accordingly if the suit was decreed in favour of the plaintiff, Mr. Gurmeet Singh Wadalia would be bound by the judgment and decree and not that he was to vacate the premises as per the undertaking given to Court. Mr. Amit Chaddha, senior counsel, also submits that while hearing the contempt petition in case the Judge was inclined to pass an order with regard to handing over possession a specific order would have been passed at the first instance and in case defendants were aggrieved by the order dated 23.12.2009, passed by Dhingra, J, either the order would have been assailed or an application for clarification or modification would have been filed by the defendants. It is next submitted by Mr. Amit Chaddha, senior counsel, that present contempt petition filed by the defendants is also an afterthought. Mr. Amit Chaddha, senior counsel, while supporting the arguments of Mr. Rahul Gupta, learned counsel for the plaintiff, submits that there is no explanation rendered by the defendants as to why the defendants waited for one year before filing the present contempt petition.
20. I have heard counsel for the parties and have carefully perused the orders dated 24.11.2008, 18.12.2008 and the detailed orders passed on 23.12.2009. The basic facts which are not in dispute are that the plaintiff has filed the present suit for specific performance of an agreement dated 30.1.2005, entered into between the parties (plaintiff and defendants no.1 and 2 in the suit and petitioner in the contempt petition) with regard to the suit property. Interim order was granted by this Court on 10.5.2005, which was subsequently confirmed by this Court on 23.7.2008. The defendants (petitioner herein) moved an application being I.A.No.10810/2008 under order XXXIX Rule 4 CPC seeking modification/clarification of the order. The interim order was modified and on 18.12.2008 the undertaking given by Mr. Gurmeet Singh Wadalia was accepted by the Court and he was permitted to use the suit property for a period of one year on various terms and conditions.
21. Soon after order dated 18.12.2008 was passed Mr. Gurmeet Singh Wadalia filed I.A.No.141/2009 on 3.1.2009 bringing to the notice of the Court the fraud played upon him by the defendant (peitioner herein) I.A.No.9471/2009 was filed by the plaintiff against the defendant and in a way supported the stand of Mr. Gurmeet Singh Wadalia.
22. The defendants (petitioner herein) then filed CCP 60/2009 with the prayer that this Hon‟ble Court be pleased to proceed against the Mr. Gurmeet Singh Wadalia for contempt of this Hon‟ble Court and punish the Mr. Gurmeet Singh Wadalia in accordance with law and be further sought a direction to Mr. Gurmeet Singh Wadalia to hand over peaceful vacant possession of the property bearing No.17 Central Drive, Chattarpur, Mehrauli, New Delhi to the petitioners/defendants.
23. Present contempt petition, being CCP(O)144/2010, has been filed by the defendants with the following prayers:
1. Proceedings be initiated against S. Gurmeet Singh Wadalia for not removing himself from the premises No.17 Central Drive, Chattarpur Farms, New Delhi and thereby committing, and continuing to commit, contempt by not removing himself from the premises; and
2. Enforcement of the undertaking for removing himself (S: Gurmeet Singh Wadalia) from the property No.17, Central Drive, Chattarpur Farms, New Delhi, by issue of warrants for possession in respect of property No.17 Central Drive, Chattarpur Farms, New Delhi and delivery of possession to the owners (i.e. defendants).
24. A reading of prayers made in both the contempt petitions would show that except for change of wording in both the contempt petition, the defendants had inter alia prayed that Mr. Gurmeet Singh Wadalia be directed to hand over possession of the suit premises. The relief claimed in both the contempt petitions is identical. By an order dated 23.12.2009 issues were framed. While considering both the applications under Order XXXIX Rule 2A and contempt petition the Court was of the view that it would be necessary to record evidence.
25. The submissions of Mr. Arun Mohan, learned senior counsel for the contempt petition/defendants, that no order with regard to handing over possession could have been passed in the earlier contempt petition as the period of one year had not elapsed, is without any force in view of the fact that when the order dated 23.12.2009, was pronounced the period of one year had already elapsed. Secondly, the defendant had filed earlier contempt petition alleging willful disobedience of the order passed by this Court and in case according to the defendant Mr. Gurmeet Singh Wadalia was guilty then why would he be allowed to stay in the property by the Court. Another factor which would prima facie show that the conduct of the defendant is not above board is the fact that Mr. Gurmeet Singh Wadalia had refused to sign the order sheet as directed by this Court in the order dated 18.12.2008 by itself would amount to undertaking not being accepted and, thus, the possession of Mr. Gurmeet Singh Wadalia would deemed to have been unauthorized. The order dated 18.12.2008 was in fact a conditional order. The Court while passing the order dated 23.12.2009, had directed the defendants, that prior to allowing Mr.Gurmeet Singh Wadalia to use the property in terms of his affidavit, to have a copy of this order signed from Mr. Gurmeet Singh Wadalia in token of acceptance, hereof no justification or reasoning has been offered as to why the defendants handed over possession to Mr. Gurmeet Singh Wadalia without complying with the directions contained in the order dated 18.12.2008 which would show that possession was already handed over by the defendant to Mr. Gurmeet Singh Wadalia prior to the Court granting permission and modifying the order. I am also unable to accept the argument of Dr. A. Mohan that no order with regard to possession was passed on 23.12.2009, as the period of one year had not elapsed and, thus, the Judge did not pass any order with regard to possession is not correct as the order did not render such a finding, when the order was pronounced and the one year period had elapsed when the order was pronounced and in case for any reason the same either had escaped the attention of the Court or assuming the period of one year had not elapsed I find no justification or reasoning for the defendants (petitioner herein) in not approaching the same Court expeditiously for clarification/modification or review or not filing a contempt petition as early as possible. The submission made by learned counsel for the defendants (petitioner herein) that para 10 of the order dated 23.12.2009 passed by Shiv Narayan Dhingra, J, is in fact a declaration that Mr. Gurmeet Singh Wadalia shall be bound by the order passed by the Court in the suit and sounds extremely attractive but the same cannot be accepted as the court was referring to the final order which would be passed in the suit and even otherwise given the facts of this case had this been the intention of this Court. Nothing prevented the Court to pass a direct order directing Mr. Gurmeet Singh Wadalia to vacate and hand over the possession or face the consequences. Even otherwise the interpretation sought to be given to the concluding portion of the order of Dhingra, J, as he then was is unacceptable. In view of the fact that the consequences of this declaration would be that Wadalia should hand over possession and such a declaration could not have been made prior to passing of the final order on merits, which question was kept open as issues were framed and parties were directed to lead evidence, so to say that a declaration was made prior to holding Mr. Gurmeet Singh Wadalia guilty would be misplaced. As far as the submission made by learned counsel for the defendants that no specific issue has been framed by the Court with regard to handing over possession in view of the declaration. I am of the view that no separate issue is required to be framed as in case the Court comes to the conclusion that Mr. Gurmeet Singh Wadalia is guilty of contempt, the court is not powerless and the police can be directed to enforce the undertaking given to Court. In the case of D.M. Belgamvala v. Tamilnadu Real Estates (P) Ltd., reported at 2010 (12) SCALE 379 and also in the case of Amar Nath Roy and Others v. Arun Kumar Kedia and Another, reported at (2011) 6 SCC 448, the Apex Court has observed: “1. Taken on Board.
2. Heard learned Counsel for the parties.
3. In the facts and circumstances of the case, time to vacate the premises in question is extended till 31st August, 2011 and if the tenants do not vacate on or before the said date, they will be evicted by police force.
4. We further make it clear that when this Court allows the petition/appeal of the landlord or dismisses the petition/appeal of the tenant and grant some time to vacate the premises in question and if the tenant does not vacate within the time granted, the tenant shall be evicted by police force. This is a general direction we are passing because we are coming across several cases where the tenants are not vacating the premises in question despite granting time by this Court or despite furnishing an undertaking to this Court with a result that the landlord has to initiate contempt proceedings or any other proceedings. Hence, we give a general direction that when tenant's petition/appeal is dismissed and he is given time to vacate then on the expiry of that time, he will be evicted by police force if he does not vacate of his own.
5. If any extension of time to vacate is desired, that application should be filed well in advance.
6. The Interlocutory Application is allowed accordingly.”
26. The submission made by learned senior counsel for the defendants that a Receiver may be appointed to take possession cannot be considered at this stage as such a prayer could have only been made by the contempt petitioners/defendants at the time of hearing of both the applications and the contempt petition filed by the defendants and the order dated 23.12.2009 has in the meanwhile attained finality. In view of above, I find the present contempt petition is not maintainable and the same is accordingly dismissed.
27. Since this Court is also informed that affidavits by way of evidence have been filed and the suit is already listed before the Joint that no unnecessary adjournments will be taken to enable the Joint G.S.SISTANI,J SEPTEMBER 27, 2011 msr