Achyut Shridhar Godbole v. Pravin Vikkram Satra

16. Subsequently on 13.03.2023, the proceedings were listed for further consideration when the learned Counsel for the Petitioners submitted that in view of the existing position, the Petitioners would accept one time compensation. In the light of market value of similarly placed properties and considering the huge time period that had lapsed without the Petitioners getting possession of the flats, it was stated that the claim of the Petitioners would be in excess of Rs. 4.[5] Crores. In this regard, the advocate appearing for the Respondent informed the Court that the Respondent had offered Rs. 3 Crores, but the same was unacceptable to the Petitioners.

17. In this backdrop, without prejudice to the rights and contentions of the parties, the Respondent, who was present in person in Court, undertook to deposit Rs. 1 Crore in two tranches to show his bona fide. It is an admitted position that the said amount was indeed deposited in this Court.

18. The proceedings remained pending and when they came up for hearing on 29.08.2023, the Petitioners reduced their demand for amicably settling the disputes to an amount of Rs. 3.75 Crores. The learned Counsel for the Respondent took time to take instructions in the matter.

19. Since the Respondent refused to agree to the proposal made on behalf of the Petitioners, on 05.09.2023, this Court took up proceedings for hearing and consideration. The learned Counsel for the Petitioners was heard, while learned Counsel appearing for the Respondent sought adjournment due to non-availability of the Counsel briefed in the matter. This Court took note of the fact that prima facie the Respondent appeared to have violated undertakings given to this Court with impunity and since the matter appeared to be serious, it was to adjourned to 07.09.2023.

20. On 07.09.2023, the learned Counsel for the parties were heard, while the Respondent / alleged contemnor remained present in Court.

21. This Court took up Contempt Petition (L) No. 84 of 2017, as well as Show Cause Notice No. 1 of 2022 with Show Cause Notice (Lodging) No. 1661 of 2022, for consideration.

22. Mr. Drupad Patil, learned Counsel appearing for the Petitioners referred to the chronology of events and submitted that the Respondent had with impunity violated undertakings given to this Court. It was submitted that for the past almost 20 years, the Petitioners have been waiting for possession of flats, which were supposed to be handed over to them in the year 2004. It was submitted that after 10 years i.e. in the year 2014, the Respondent agreed to execute Consent Terms before this Court, giving specific undertakings to complete construction and hand over the flats along with all permissions within 9 months. The same was not adhered to, as a consequence of which, the Petitioners were constrained to file Notices of Motion before this Court. It was submitted that this Court showed indulgence to the Respondent by calling upon the Municipal Corporation and Government Authorities to examine why the necessary compliances were not being ensured. Eventually it came to light that the Respondent had violated the directions of this Court and even undertakings given to this Court about submitting appropriate applications before the Municipal Corporation for issuance of PR Cards and occupancy certificate. It was submitted that the construction of the flats was completed in the year 2018, much beyond the timeline undertaken in the Consent Terms, but in the absence of occupancy certificate the same was of no avail.

23. By referring to various orders passed by this Court, including the specific order dated 20.03.2019, issuing Contempt notice in Contempt Petition No. 84 of 2017 and order dated 10.01.2022, issuing notice for Contempt under Rule 1035 of the Bombay High Court (Original Side) Rules, 1980, the learned Counsel for the Petitioners submitted that this Court had already found prima facie case against the Respondent / alleged contemnor.

24. It was submitted that considering the age of the Petitioners and the long period of time that had elapsed, which had completely tired them, certain offers were made but the Respondent did not adopt a reasonable approach and eventually the Petitioners were constrained to press for appropriate orders in the Contempt Petition.

25. It was submitted that the Respondent was not justified in claiming that the Contempt Petition was barred by limitation under Section 20 of the Act of 1971, for the reason that the Petitioners have been suffering from a continuing wrong over the years and despite indulgence shown by this Court during the pendency of the Contempt Petition, the Respondent had violated with impunity the undertakings given to this Court and also directions issued by this Court. It was submitted that therefore, limitation could not be an issue against the Petitioners.

26. It was submitted that the Respondent / alleged contemnor was granted sufficient opportunity to purge the Contempt and yet, he took no positive steps in the matter and at the stage of hearing of the Contempt Petition, it was stated on behalf of Respondent / alleged contemnor that this Court should consider an application filed on his behalf for re-calling the order, whereby Consent Terms were taken on record and the original arbitration petition was disposed of, so that the parties could be sent for arbitration. It was submitted that this approach of the Respondent / alleged contemnor is such that it amounts to aggravated contempt and this Court and that in the interest of justice, the respondent ought to be punished by invoking powers under Article 215 of the Constitution of India and the provisions of the Contempt of Courts Act, 1971. The learned Counsel for the Petitioners relied upon the sequence of events, the affidavits on record and the orders passed by this Court from time to time, to contend that, not only should the Respondent be punished for Contempt of this Court, but appropriate orders ought to be passed against the Respondent / alleged contemnor for purging the contempt. In that light, reliance was placed on judgment of this Court in the case of Shantiniketan (Air-India) Co-operative Housing Society Limited Vs. Prajakta Engineering and Constructions Pvt. Ltd. & Ors.[1] and judgment of the Hon’ble Supreme Court in the case of State Bank of India & Others Vs. Dr. Vijay Mallya.[2]

27. On the other hand, Mr. Bhavesh Parmar, learned Counsel appearing for the Respondent / alleged contemnor submitted that, in the first place, the Contempt Petition itself deserved to be rejected as being barred by limitation. It was submitted that the order disposing of the arbitration petition as per the Consent Terms was passed, as far back as on 10.10.2014. As per the Consent Terms the constructed flats along with all permissions were to be handed over within 9 months of the date of the said order. It was submitted that therefore, 9 months period was over in July, 2015 and the Contempt Petition ought to have been filed by July, 2016. Admittedly, the Contempt Petition was filed on 13.12.2017, being hopelessly barred by limitation. It was submitted that as per settled law, this Court could not take cognizance of the Contempt Petition at all, and therefore, Contempt Petition (L) No. 84 of 2017, deserved to be dismissed on that count alone.

28. As regards Show Cause Notice No. 1 of 2022 with Show

Cause Notice (Lodging) No. 1661 of 2022, based on order dated 10.01.2022, attention of this Court was invited to Rule 1035 of the Bombay High Court (Original Side) Rules, 1980. It was submitted that a perusal of the said Rule would show that the said notice was not in compliance with the Rules and on this count alone the said notice deserved to be recalled/discharged. Therefore, it was submitted that none of the two contempt proceedings can proceed against the Respondent.

29. Without prejudice to the said contentions, the learned Counsel appearing for the Respondent submitted that the documents on record show that as per the Consent Terms, it was the Court Receiver who was supposed to complete the construction within the given timeline. It was submitted that the Respondent was acting as per the directions of the Court Receiver. It was submitted that the Petitioners were not entitled to claim that the Respondent had committed contempt of directions issued by the Court Receiver, as no such contempt can ever lie. It was further submitted that all compliances were ensured, including issuance of PR Cards. The matter was stuck on the question of height of the building. The Respondent had proceeded with the construction on the basis of no objection issued by the Municipal Corporation itself, recording the site elevation, as per the plan, to be 8.500 meters. It was further submitted that after the flats were constructed and when the stage arrived for issuance of occupation certificate, the Municipal Corporation insisted on clearance from the Civil Aviation Department. At this stage, it was found that the site elevation was actually 11.430 meters and not 8.500 meters.

30. It was submitted that the said fact came to light when an architect engaged by the respondent gave his report on 16.03.2020. The officers of the Municipal Corporation filed affidavits to the effect that the no objection certificate dated 07.12.2007, issued to the Architect engaged by the Respondent proceeding on the basis that the site elevation was 8.500 meters, was not found in the record of the Municipal Corporation. But, the respondent could not be blamed for the same and that in that regard the Respondent had even submitted a letter / complaint to the police. It was submitted that since all parties had proceeded on the basis of the no objection certificate dated 07.12.2007, issued by the Municipal Corporation, it could not be said that the Respondent was liable to be punished for contempt due to failure in obtaining occupation certificate for the flats. It was submitted that since the Civil Aviation Department cannot give its no objection in view of the site elevation being 11.430 meters instead of 8.500 meters, no case for contempt is made out, as it is impossible to comply with the Consent Terms, the undertakings given therein and the consequent directions issued by this Court from time to time.

31. It was submitted that in the face of such reality, there was no question of the Respondent being proceeded against in contempt jurisdiction and that therefore, the dispute between the parties could be resolved only through arbitration, for which the Respondent has already moved an application to recall the order passed by this Court on the basis of Consent Terms and to send the parties to arbitration.

32. It was submitted that when the facts and circumstances now before this Court, clearly indicate that complying with the undertaking given to this Court is impossible, no case is made out for proceeding in contempt jurisdiction. On this basis, it was submitted that the Contempt Petition (L) No. 84 of 2017 deserved to be dismissed and that Show Cause Notice No. 1 of 2022, with Show Cause Notice (Lodging) No. 1661 of 2022 also deserved to be recalled/discharged.

33. Having heard the learned Counsel for the rival parties, this Court finds that the learned Counsel appearing for the Respondent / alleged contemnor has taken two preliminary objections, one pertaining to maintainability of Contempt Petition (L) No. 84 of 2017 and the other pertaining to the suo motu Show Cause Notice issued by this Court by order dated 10th January, 2022, not being in consonance with the relevant Rules of the Bombay High Court (Original Side) Rules, 1980. It would be appropriate to first deal with these contentions and then to consider the other contentions raised on behalf of the rival parties.

34. As regards maintainability of Contempt Petition (L) NO. 84 of 2017, the preliminary objection taken on behalf of the Respondent is to the effect that the petition is barred by limitation in the light of Section 20 of the Act of 1971. It was submitted that in view of the said provision the Contempt Petition ought to have been filed within 1 year after expiry of the period of 9 months, recorded in the Consent Terms. It was submitted that if the said time period was taken into consideration, the Contempt Petition ought to have been filed by July, 2016. Admittedly, the Contempt Petition was filed on 13.12.2017 and hence, it ought to be held as barred by limitation.

35. On the face of it, the said argument appears to be attractive, but on a proper analysis of the material on record, this Court finds that the period of limitation of one year contemplated under Section 20 of the Act of 1971, has to be calculated in the facts and circumstances of each case.

36. In the case of Firm Ganpat Ram Rajkumar Vs. Kalu Ram & Others[3], the Hon’ble Supreme Court had an occasion to consider the 3 1989 Supp (2) SCC 418 aspect of limitation under Section 20 of the Act of 1971, in the context of failure of a party to hand over possession. In the said judgment, it was observed that failure to give possession, if it amounts to contempt would be a continuing wrong and there would be no scope for application of Section 20 of the Act of 1971. In the case of Pallav Sheth Vs. Custodian and others[4], the Hon’ble Supreme Court considered the provisions of the Contempt of Courts Act, 1971, in the context of the power of the High Court, as a Court of record under Article 215 of the Constitution of India and that of the Supreme Court under Article 129 thereof. While considering various provisions, the Hon’ble Supreme Court also referred to Section 20 of the Act of 1971. In the said judgment, the Hon’ble Supreme Court referred to its earlier judgment in the case of Firm Ganpat Ram Rajkumar Vs. Kalu Ram & Others (supra) and held as follows:

37. The said position of law has been followed by Division Bench of this Court in the case of Harshvardhan Bandivadekar Vs. Taramati Harishchandra Ghanekar & Ors.5. The Division Bench of this Court referred to the aforementioned judgments of the Hon’ble Supreme Court and held that since, in the facts of the said case also there was a continuing wrong, pertaining to non-compliance of an undertaking, the Contempt Petition could not be said to be barred by limitation.

38. It is also relevant to note that a learned Single Judge of this Court in the case of Pioneer Sales Agencies (P) Ltd. Vs. Olympus Superstructures Pvt. Ltd. & Anr.6, in similar circumstances concerning a continuing wrong, observed as follows:

39. This Court has perused the Consent Terms executed between the Petitioners and the Respondent on 10.10.2014, as also the order passed by this Court on the same day, disposing of the arbitration petition on the basis of the Consent Terms. The Consent Terms specifically record undertakings given by the Respondent, as to the manner in which the construction of the two flats would be completed and that such flats would be handed over to the Petitioners along with all necessary permissions to occupy and use the same. It was undertaken that the flats would be handed over within a period of 9 months from execution of the Consent Terms. This Court accepted the said undertakings given by the respondent in the order dated 10.10.2014, disposing of the Arbitration Petition as per the consent terms. Since the Consent Terms provided for appointment of Court Receiver of this Court, periodic reports of the Court Receiver were submitted and the Respondent was repeatedly called upon by the Court Receiver to abide by the undertakings given in the Consent Terms. The Petitioners were constrained to move Notices of Motion in the backdrop of the actions of the Respondent and even in affidavits filed in such Notices of Motion, the Respondent reiterated the undertakings given in the Consent Terms, promising to abide by the same, although he also sought to place on record explanations for his conduct.

40. In view of the above, this Court is of the opinion that in the facts and circumstances of the present case, the Petitioners have suffered a continuing wrong and therefore, the Contempt Petition filed on their behalf cannot be said to be barred by limitation. Hence, the said objection is rejected.

41. As regards the Show Cause Notice issued by this Court by order dated 10.01.2022, specific reference was made in the order to Rule 1035 of the Bombay High Court (Original Side) Rules, 1980, pertaining to regulation of proceedings for Contempt under Article 215 of the Constitution and the Contempt of Courts Act, 1971. A perusal of the order dated 10.01.2022, shows that this Court referred to an earlier order dated 15.01.2020, whereby the Respondent made a statement and undertook to submit application, complete in all respects, for grant of occupation certificate. It was found that no steps were taken on behalf of the Respondent within the period of 3 weeks from the order dated 15.01.2020 and even thereafter. On this basis, this Court recorded non-compliance on the part of the Respondent and in that light issued notice to the Respondent under Rule 1035 of the Bombay High Court (Original Side) Rules, 1980, to show cause as to why action for Contempt of Court should not be taken against him.

42. A perusal of the aforesaid Rule would show that it has to be read with Rule 1032 of the said Rules. Rule 1032 of the said Rules specifies the manner in which the Court is to act in cases other than cases where Contempt is committed in the presence or hearing of the Court. Various actions enumerated in Rule 1032, include suo motu action by the Court. The tenor of the order dated 10.01.2022 is clear, wherein this Court suo motu took cognizance of the blatant noncompliance on the part of the Respondent of the earlier order dated 15.01.2020. Hence, the said notice can, in no manner be said to be defective and therefore, the contention raised on behalf of the Respondent that the notice ought to be discharged or recalled, is without any substance. Hence, the said objection raised in respect of order dated 10.01.2022, issuing show cause notice to the Respondent bearing Show Cause Notice No. 1 of 2022, is rejected.

43. It is the specific case of the Petitioners that the Respondent violated undertakings given to this Court in the aforesaid Consent Terms dated 10.10.2014. It is relevant to note that in the order dated 10.10.2014, whereby the arbitration petition was disposed of as per the Consent Terms, this Court had specifically accepted the undertakings recorded in the Consent Terms. Thus, such undertakings were given by the Respondent to this Court, violation of which would amount to contempt of this Court.

44. It is to be noted that the Petitioners abided by all their obligations as per the Consent Terms and they deposited the necessary amounts within the stipulated period of time. Yet, the Respondent failed to adhere to his undertakings, as a consequence of which, the Petitioners were required to pursue the matter with the Court Receiver, who was also appointed as per the Consent Terms. Eventually, the Petitioners were constrained to file the present Contempt Petition. It would be necessary to peruse the orders passed from time to time by this Court in the Contempt Petition, as well as in Notice of Motion that the Petitioners were constrained to file in the Contempt Petition. A perusal of Court Receiver’s Report No. 217 of 2018 shows that in a meeting held with the Court Receiver, the parties did state that the construction work of the two flats was completed on the 6th floor, but occupation certificate was yet to be received. In that light, the Court Receiver sought appropriate direction to be issued to the Respondent and his proprietary concern, to obtain the occupation certificate as per clause 14 of the Consent Terms. It is in this backdrop that the Petitioners were constrained to file Notice of Motion (L) No. 2598 of 2018 in the pending Contempt Petition.

45. On 29.01.2019, this Court directed the Respondent to place on record the entire status of his application for occupation certificate along with copies of communications, if any, from the Municipal Corporation in that regard. In other words, while it was the duty and responsibility, as per undertakings given to this Court, of the Respondent to ensure that the occupation certificate was obtained so that the Petitioners could take possession of the flats in question, it was the Court that had to call upon the Respondent to place on record documents to show as to what efforts were made on his part in that regard.

46. In the order dated 06.03.2019, this Court took note of the genesis of the controversy, dating back to the two agreements for sale executed between the parties. It was noted that part occupation certificate was already granted to the building and flat owners had taken possession and moved into the flats up to the 5th floor and occupation certificate remained for 6th floor of the 2 flats, for which the Petitioners had already paid the entire amount. The Court in the said order specifically recorded that the occupation certificate was held up only for want of appropriate PR cards. In this backdrop, the Court thought it fit to call for response from the Collector of Mumbai Suburban District, as regards the issuance of PR Cards. Here again, it is to be noted that the Court was constrained to call upon the concerned authorities, while the Respondent appeared to take no earnest action, despite undertakings given to this Court.

47. In this backdrop on 20.03.2019, when the facts were brought to the notice of this Court by the office of the Collector, it came to light that the Respondent had not even applied for PR cards and that the application was for amalgamation and sub division. In this backdrop, in the said order, this Court recorded that the Respondent had misrepresented before this Court and he had not come clean and forthright before the Court on the question of obtaining occupation certificate. Having taken note of such conduct of the Respondent, this Court by the order dated 20.03.2019, issued contempt notice under the relevant Rules of the Bombay High Court (Original Side) Rules, 1980, returnable on 10.04.2019.

48. Thereafter, on subsequent dates, the Respondent sought time to file reply to the Contempt notice. Subsequently, on 26.04.2019, this Court found that there was some issue regarding sub divisions pertaining to the original land and in that light, this Court issued direction to the Divisional Commissioner for taking appropriate decision on a requisition made by the Collector. The matter remained pending. On 08.01.2020, this Court passed an order directing the Collector to issue necessary property cards and the same having been issued and handed over to the Respondent in Court, on 15.01.2020, this Court recorded a statement made on behalf of the Respondent that he shall submit an application, complete in all respects for issuance of occupation certificate. Accordingly, the Respondent was expected to submit such an application within the stipulated period of time of 3 weeks from order dated 15.01.2020.

49. It is an admitted position that the Respondent did not do so. Thereafter, the Covid-19 pandemic struck and the Contempt Petition along with Notice of Motion came to be listed before this Court on 10.01.2022. On this date, the Counsel appearing for the Municipal Corporation informed this Court that even till the said date the Respondent had not moved any application for issuance of occupation certificate. This Court took note of the aforesaid order dated 15.01.2020 and found non-compliance on the part of the Respondent. In that light, this Court issued notice under Rule 1035 of the Bombay High Court (Original Side) Rules, 1980, to the Respondent as to why action for Contempt should not be taken against him. This resulted in the aforesaid proceedings bearing Show Cause Notice No. 1 of 2022, thereby indicating that the Respondent was blatantly violating the undertakings given to this Court and directions issued by this Court from time to time.

50. On 28.02.2022, this Court passed an order recording that the said show cause notice for contempt issued by order dated 10.01.2022 was not served and in that light the Counsel for the Respondent gave the latest address of the Respondent, due to which the returnable date was extended. This further demonstrates the approach and attitude of the Respondent. The returnable date was extended to 21.03.2022, when the Respondent was present in Court. Subsequently, affidavit-in-reply was tendered to the said show cause notice. It is pertinent to note that even at this stage the Respondent had not moved the online application for issuance of occupation certificate, despite the fact that this Court had recorded his statement in the order passed, as far back as on 15.01.2020 that such an application, complete in all respects would be moved on behalf of the Respondent. In the order dated 11.04.2022, this Court recorded a statement made on behalf of the Respondent that he would make an online application for occupation certificate before the Municipal Corporation.

51. It appears that thereafter, attempts were made for settlement, but in the order dated 02.05.2022, this Court recorded that the settlement had not worked out.

52. Subsequently, in the order dated 06.06.2022, this Court became aware about the issue regarding height restrictions and the stand of the Civil Aviation Department and Airports Authority of India in that regard. It was found that since the site elevation was not 8.500 meters, but it was actually 11.430 meters, 6th floor of the building exceeded the permissible height, which was an impediment for issuance of occupation certificate. Apart from this, this Court recorded that the Engineer of Municipal Corporation had already communicated to the Architect of the project, about various other pending compliances. In that light, this Court directed the concerned Officers of the Municipal Corporation to file affidavits. The Officers did file affidavits, inter alia, stating that the certificate dated 07.12.2007, recording site elevation as 8.500 meters and on the basis of which the Respondent proceeded to construct the said building, was never issued by the office of the Municipal Corporation. Copy of inward and outward register of the relevant date was also placed on record along with affidavit to show that no such certificate was ever issued. This aspect was noted in the order dated 29.06.2022, passed by this Court. Subsequently, in the order dated 06.12.2022, this Court further directed affidavits to be filed in respect of the question as to whether 6th floor of the building could have been constructed at all, considering the site elevation and the no objection certificate required from the Civil Aviation Department.

53. In this backdrop, when Contempt proceedings were taken up for consideration on 13.03.2023, this Court heard the learned Counsel for the parties and during the hearing the Respondent undertook to deposit an amount of Rs. 1 Crore in this Court, without prejudice to his rights and contentions. The proceedings were then taken up for hearing by this Court.

54. The aforementioned series of orders passed by this Court clearly indicate that despite giving specific undertakings to this Court, not only in the Consent Terms but subsequently in these proceedings, the Respondent did not take any steps to abide by the undertakings and to ensure that the Petitioners were put in possession along with occupation certificate in respect of the two flats. After much pushing and prodding, the Respondent appears to have completed the construction work in the year 2018, but the same could be of no utility to the Petitioners, who could not take possession or occupy the same in the absence of the occupation certificate. It was the responsibility of the Respondent to obtain such occupation certificate, not only as the developer of the project, but also in terms of the undertakings given to this Court. As noted hereinabove, in the Contempt proceedings, this Court pursued various aspects of the matter regarding occupation certificate with the concerned authorities, while the Respondent did not care to even apply for the occupation certificate.

55. Despite the PR cards being made available and a statement/undertaking given to this Court, as recorded in the order dated 15.01.2020, that application for occupation certificate shall be submitted within 3 weeks, the Respondent failed to do so. It is for this reason that on 10.01.2022, this Court issued a second show cause notice bearing Show Cause Notice No. 1 of 2022 under Rule 1035 of the Bombay High Court (Original Side) Rules, 1980. Thus, the Respondent repeatedly violated undertakings given to this Court, as also specific directions issued by this Court, showing scant regard for the majesty of this Court and the Rule of law. On the other hand, the Petitioners did deposit the entire amount as required under the Consent Terms within the stipulated period of time. It is to be noted that the Petitioners, who are now senior citizens, have been waiting for the said flats from the year 2004 when they entered into the agreements with the Respondent. It took 10 years before the Consent Terms were executed before this Court and it has been almost another decade and still the Petitioners are left high and dry. This Court cannot be a mute spectator to the said suffering of the Petitioners, due to the actions of the Respondent, who has clearly violated undertakings repeatedly given to this Court and various directions issued by this Court.

56. The Respondent cannot hide behind the excuse of impossibility of obtaining occupation certificate in the light of the site elevation being found to be 11.430 meters, instead of 8.500 meters. The Respondent knew full well, from and very beginning, that he was to obtain the occupation certificate after completion of all necessary compliances, including no objection certificate from the Civil Aviation Department / Airport Authority of India. Since the Respondent did not bother to pursue the matter in right earnest, the Petitioners now find themselves in this situation. It is significant to note that the concerned authorities had repeatedly informed the Respondent that no objection certificate from the Civil Aviation Department was required, as regards the height of the building, including in the letter dated 29.12.2015 sent by the Executive Engineer Building Proposals (Western Suburbs) K Ward of the Municipal Corporation to the Architect of the said project, which enlisted the required documents. This list specifically included requirement of obtaining no objection certificate from the Civil Aviation Department.

57. As noted hereinabove, despite undertakings given to this Court in the Consent Terms, executed way back on 10.10.2014, the Respondent did not bother to even apply for occupation certificate, misrepresenting before this Court that application for PR Cards had been submitted, when no such application was placed on record. It was after this Court facilitated issuance of PR Cards that a statement was made on behalf of the Respondent, as recorded in the order dated 15.01.2020, that application for occupation certificate would be made within 3 weeks. Even such an application was not made within the stipulated period of time and the matter kept languishing. In such an admitted position of facts, the Respondent cannot now turn around and say that since obtaining occupation certificate has become an impossibility, he cannot be hauled up for Contempt. This Court is of the opinion that accepting such a submission made on behalf of the Respondent would result in this Court being reduced to mute a spectator to the repeated violation of undertakings given to this Court and also violation of directions issued by this Court to the Respondent.

58. It is to be noted that the Petitioners, who are senior citizens, after being completely tired with the litigation that they have had to pursue and the dilatory tactics of the Respondent, even proposed that the Respondent should pay them sufficient money to buy flats of equivalent area in the vicinity of the project. The said offers were repudiated by the Respondent. Not only this, at the stage of final hearing of the Contempt proceedings, the Respondent had the temerity to contend that since nothing was now possible, insofar as handing over possession of the flats was concerned, this Court should take up his application bearing Interim Application (L) No. 18428 of 2023, to recall the order dated 10.10.2014, whereby the arbitration petition was disposed of as per Consent Terms and to direct constitution of an Arbitral Tribunal, sending the Petitioners and Respondent for arbitration.

59. This Court is of the opinion that the Respondent cannot be allowed to go scot free in the light of such blatant contumacious conduct. This Court finds the Respondent guilty of contempt of this Court, as he has repeatedly violated solemn undertakings given to this Court and he has also violated specific directions issued by this Court from time to time, as elaborated hereinabove. Hence, he is liable to be punished for Contempt of Court by exercise of power under Article 215 of the Constitution of India, read with the provisions of the Contempt of Courts Act, 1971.

60. At this stage, it would be appropriate to refer to the position of law regarding purging of Contempt, brought to the notice of this Court on behalf of the Petitioners. In the case of State Bank of India and Others Vs. Dr. Vijay Mallya (supra), the Hon’ble Supreme Court elaborately discussed as to the approach the Court should adopt in such cases, since the contemnor merely undergoing punishment is not enough and that the Court retains the power to issue appropriate directions to ensure that the contempt is purged by the contemnor. The relevant portion of the aforesaid judgment of the Hon’ble Supreme Court in the case of State Bank of India and Others Vs. Dr. Vijay Mallya (supra) reads as follows: “11. The actions on part of the Contemnor having been found to be contumacious and established in the Judgment and Order dated 09.05.2017, we are presently concerned with the issues as to what orders be passed regarding punishment and purging of contempt. The approach in such cases was succinctly stated by this Court in Pravin C. Shah v. K.A. Mohd. Ali[7] as under:

25. We are told that a learned Single Judge of the Allahabad High Court has expressed a view that purging process would be completed when the contemnor undergoes the penalty [vide Madan Gopal Gupta (Dr) v. Agra University [AIR 1974 All 39]]. This is what the learned Single Judge said about it: (AIR p. 43, para 13) “In my opinion a party in contempt purged its contempt by obeying the orders of the court or by undergoing the penalty imposed by the court.”

26. Obeying the orders of the court would be a mode by which one can make the purging process in a substantial manner when it is a civil contempt. Even for such a civil contempt the purging process would not be treated as completed merely by the contemnor undergoing the penalty imposed on him unless he has obeyed the order of the court or he has undone the wrong. If that is the position in regard to civil contempt the position regarding criminal contempt must be stronger. Section 2 of the Contempt of Courts Act categories contempt of court into two categories. The first category is “civil contempt” which is the willful disobedience of the order of the court including breach of an undertaking given to the court. But “criminal contempt” includes doing any act whatsoever, which tends to scandalise or lowers the authority of any court, or tends to interfere with the due course of a judicial proceeding or interferes with, or obstructs the administration of justice in any other manner.

27. We cannot therefore approve the view that merely undergoing the penalty imposed on a contemnor is sufficient to complete the process of purging himself of the contempt, particularly in a case where the contemnor is convicted of criminal contempt. The danger in giving accord to the said view of the learned Single Judge in the aforecited decision is that if a contemnor is sentenced to a fine he can immediately pay it and continue to commit contempt in the same court, and then again pay the fine and persist with his contemptuous conduct. There must be something more to be done to get oneself purged of the contempt when it is a case of criminal contempt.”

12. Similarly, following observations were made and directions were issued by this Court in Noorali Babul Thanewala v. K.M.M. Shetty[8]:

13. The importance of passing appropriate directions, apart from imposing punishment upon the contemnor, was stressed by the Constitution Bench of this Court in Supreme Court Bar Association v. Union of India[9] as follows:

61. In view of the findings rendered hereinabove, wherein this Court has found the respondent to be guilty of the contempt of this Court, the learned counsel for the respondent was heard on the question of imposing punishment in terms of the Act of 1971. Learned counsel appearing for the respondent submitted that this Court may take into consideration the fact that an amount of Rs.[1] crore has been deposited with the Prothonotary and Senior Master of this Court, in compliance with the aforementioned order passed by this Court in the contempt proceedings. It is submitted that the respondent brought back the amounts received towards construction of the said flat. It is emphasized that the two flats were, in fact, constructed and it is reiterated that the entire process of construction of the flats stood frustrated because of the impossibility of obtaining occupation certificate, in the peculiar facts and circumstances of the present case. It is submitted that this Court may consider the aforementioned factors and show leniency towards the respondent.

62. This Court has already dealt with the aspect of alleged frustration of contract. This Court has also considered the apologies stated on behalf of the respondent in the reply affidavits filed in the contempt proceedings. The expression of apology on behalf of the respondent cannot be said to be sincere, in the light of the chronology of events recorded hereinabove. Merely because the respondent deposited the amount of Rs.[1] crore, it cannot be said that the same can be a ground for showing any leniency towards the respondent. The conduct of the respondent has been dealt with in sufficient detail hereinabove, while reaching the conclusion that the respondent is indeed guilty of having committed contempt of this Court.

63. In view of the above, the respondent is held guilty of having committed contempt of this Court and he is sentenced to suffer imprisonment for a period of three months and to pay fine of Rs.2,000/-, in default to suffer further imprisonment for two weeks.

64. This Court has specifically taken note of the position of law clarified by Supreme Court, in the case of State Bank of India and others v/s. Dr. Vijay Mallya (supra), wherein it is emphasized that mere imposition of punishment in such cases, is not enough and that appropriate directions have to be issued for purging of contempt by the contemnor. In the light of the facts that were brought to the notice of this Court and the specific amount that was claimed by the petitioners towards purchasing flats of similar dimensions in the concerned locality, it would be appropriate to direct the respondent to pay specific amounts to the petitioners to purge the contempt.

65. Accordingly, the respondent is directed to pay an amount of Rs.[4] crores to purge the contempt. The said amount shall be paid within a period of six weeks from today. The amount already deposited by the contemnor before the Prothonotary and Senior Master of this Court i.e. Rs.[1] crore shall be adjusted and accordingly, the respondent shall pay a further amount of Rs.[3] crores to the petitioners within the aforesaid period of six weeks from today. The amount of Rs.[1] crore deposited with the Prothonotary and Senior Master of this Court shall be disbursed forthwith in favour of the petitioners alongwith accrued interest.

66. The contempt petition stands disposed of in above terms.

67. The pending notices of motion and applications stand disposed of and the show cause notices are made absolute.

68. At this stage, the learned counsel for the contemnor prayed for grant of stay to the order passed by this Court. In the facts and circumstances of the present case, it would be appropriate to grant stay for specific period, so as to enable the contemnor to avail of the remedies provided by law.

69. Accordingly, the order passed today, pertaining only to the sentence of imprisonment, is stayed for a period of six weeks from today. (MANISH PITALE, J.)