M/s Clark Constructions Pvt Ltd v. Nikesh Jain & Ors.

1. The petitioner, M/s Clark Construction Pvt. Ltd (which was defendant no.1 in the Civil Suit) has filed a contempt petition under Article 215 of the Constitution of India read with Sections 11 and 12 of the Contempt of Courts Act, 1971 and Order 39 Rule 2A of the Code of Civil Procedure, 1908 for willful and deliberate disobedience of the Order dated 12.04.2022 of this Court.

2. The Civil Suit was filed by the plaintiffs namely, Ms. Sharda Jain and Mr. Rajiv Kumar Jain, wife and son of Mr. Indra Chand Jain respectively in respect of property bearing Plot no. 1, Kasturba Gandhi Marg admeasuring 2250 sq. yards, (hereinafter referred to as suit property) seeking declaration that they are the legal representatives and successors of late Indra Chand Jain, owner of the suit property and that the plaintiff no. 2, Mr. Rajiv Kumar Jain is the owner of the said property on the basis of a Will dated 09.11.2020 executed in his favour by his father, late Mr. Indra Chand Jain and also claimed other reliefs of injunction for restraining defendants from dispossessing or interfering with his possession.

3. M/s Clark Construction Private Limited, defendant no. 1 and Mr. Satinder Singh Chhabra, defendant no. 2, as its Director (who are the petitioners in the present Contempt Application), in their Written Statement set up a plea that late Mr. Indra Chand Jain, during his lifetime, had transferred the ownership of the suit property in favour of the answering defendants. The sale consideration was given to Mr. Indra Chand Jain in the form of Rs. 2,500 shares of defendant no. 1, Company having a value of Rs.

3 Crores 50 lakhs and Sh. Indra Chand Jain was also made the Director in defendant no. 1, Company. Further the legal possession of the property was handed over to defendant nos. 1, 2 and 3 though Mr. Indra Chand Jain was permitted to continue to live in the premises during his lifetime. This transaction was recorded by the deceased Late Mr. Indra Chand Jain in his letter dated 01.10.2021.

4. Late Mr. Indra Chand Jain died on 13.11.2021 and thereafter the answering defendants came in possession of the suit property. They employed Mr. Jaith Ram, Chawkidar, who had been earlier looking after the property for and on behalf of Mr. Indra Chand Jain, as their employee to continue as the caretaker of the property.

5. Respondents No. 2 & 3 namely Mr. Hem Chand Jain and Mr. Ramesh Chand Jain, (Defendants Nos. 4 and 5 in the main Suit) in the interim, filed Writ Petition bearing no. W.P. (C) 14269/2021 through Mr. Nikesh Jain as the Power of Attorney Holder, in this Court claiming that late Mr. Indra Chand Jain had executed a Will dated 21.09.2018 in their favour and they be declared as owners of the suit property. However, the applicants herein contested the Writ Petition and claimed that the Will projected by defendant nos. 4 and 5 was forged and fabricated by them and they have no right, title and interest in the suit property which already stood transferred in favour of defendant nos. 1, 2 and 3. It was claimed that Mr. Nikesh Jain had sought to illegally dispossess defendant no. 1, the Company from the suit property.

6. When the present suit was filed, on the first date vide order dated 12.04.2022, this Court while directing the summons to be issued to the defendants, directed that the parties shall maintain status quo with respect to the title and possession of the suit property and to ascertain as to who was in possession of the suit property. The Local Commissioner was appointed with the directions that the parties shall grant access to the Local Commissioner who shall call upon the parties to furnish the proof thereof of their possession.

7. The Local Commissioner visited the suit property on 12.04.2022 itself at about 4.40 pm and submitted a Report on 24.04.2022 whereby she reported as under:

6. That subsequently, the Local Commissioner along with the Advocates of the Defendant reached the Suit Property bearing no. 1, Kasturba Gandhi Marg, New Delhi - 110001, admeasuring 2250 Sq. Yds. owned by the Late Shri lndra Chand Jain (hereinafter referred to as "Suit Property") at 4:30P.M. On my arrival, MrJaithram opened the door and Mr. Nikesh Jain was also present.

7. That after perusing the Hon'ble court dated 12.04.2022, in presence of the parties I along with the others entered into the Suit Property at around

4.40 P.M. After entering the suit property, Local Commissioner started inspecting the various parts of the property to ascertain the factum of the possession of the Suit Property. That, while entering the Suit Property one, Mr. Anubhav started recording the entire process which was obstructing the Local Commissioner from executing the Commission and for the same reason all the parties were asked to submit their mobile phones with the Constable present there till the commission is executed.

8. That Mr. Nikesh Jain entered the suit property forcefully after this Hon'ble court pronounced the order dated 12.04.2022 at around 4 P.M. A Kalandra under Section 145 of the Code of Criminal Procedure, 1908 was registered against him for the same vide General Diary No. 0003A at the Barakhamba Road Police Station. But at the time of inspection Mr. Nikesh Jain was not found in possession of the Suit Property. The true copy of the same is produced herewith and marked as

ANNEXURE- B.

9. That upon entering the Suit Property, the property was in a very distraught condition, the paint was peeling off every room and the walls. There was water leakage in every room. All the walls of the house had water seeping through them.

10. That upon inspection, the Suit Property did not have any belongings of either of the parties. The only belongings present in the property were that of the caretaker i.e., Mr. Jaithram. All the locks on the property were taken out and the remaining locks were accessed by the caretaker.

11. That when the Kitchen was inspected, by the Local Commissioner it had all the utensils, but the cupboards were locked and when opened there were no staples as well as groceries present in them. The Photographs of the same is produced herewith and marked as

12. That the caretaker, Mr. Jaithram was drawing his salary from Mr. Rajiv Kumar Jain, "'Plaintiff No. 1 after the ·death of his father, Late Mr. lnder Chand Jain. And, that Mr. Jaithram has been taking care of the suit property after the death of Late Mr. lndra Chand Jain on behalf of Mr. Rajiv Kumar Jain.

13. That the execution of the Commission spanned over approximately one and half hours (1.[5] Hours) as the entire property was inspected and all the portions of the property were individually examined.

14. That the written statements of all the parties was recorded by the Local Commissioner and the same has been produced herewith and marked as

ANNEXURE- D.

15. That the site plan of the suit property is produced herewith and marked as

ANNEXURE-E

16. That after the commission was executed, the Local Commissioner got a call from one, Mr. Anuj Jain (+91-92121965[9]) stating that the Local Commissioner has violated the Hon'ble Court's order by confiscating the mobile phones of everyone present on the Suit Property and that he has recorded all the telephonic conversation between them and would present the same in the court. He in doing so, obstructed the Commission executed by the Local Commissioner.

17. That the Commission was executed in presence of the following persons:

1. Mr. Harikat Singh, Advocate for the defendant.

2. Mr. Mayank Gupta, Intern for the defendant.

3. Mr. Rahul Kumar Singh, Advocate for the plaintiff.

4. Mr. Dhiraj Kumar, Advocate for the Plaintiff.

5. Mr. Siddharth Singh, Advocate for the plaintiff.

6. Mr. Prajwal M. R, Advocate for the Plaintiff

7. Mr. Satinder Singh Chabbra, Defendant

8. Mr. Rajiv Kumar Jain, Plaintiff

9. Mr. Devanshu Jain, son of the Plaintiff

10. Mr. Nikesh Jain, Defendant no. 4

11. Mrs. Nisha Jain, Defendant no. 5

12. Mr. Anubhav Jain

13. Mr. Jaithram, Caretaker of the suit property

14. Mr. Vijay Pal, Sub-Inspector of Police.

8. The defendant nos. 1 to 3 (of whom defendant no.1 is the applicant herein) claimed that defendant nos. 4 and 5, through their Power of Attorney Holder, Mr. Nikesh Jain sought to illegally dispossess defendant NO. 1/Company from the suit property pursuant to Order dated 12.04.2022.

9. In this factual matrix, present Contempt Petition No. CCP (O) 30/2022 has been filed on behalf of defendant no. 1/M/s Clark Construction Private Limited against defendant nos. 4 and 5 i.e. Mr. Hem Chand Jain and Mr. Ramesh Chand Jain and their Power of Attorney Holder, Mr. Nikesh Jain who all have been arrayed as respondents. It has been averred that Mr. Nikesh Jain as Power of Attorney Holder of respondent nos. 2 and 3 (defendant nos. 4 and 5 in the main suit) on 12.04.2022 at about 3:15 PM, after the order for appointment of Local Commissioner was made in the suit, forcibly entered the suit property and locked the gates with the assistance of Mr. Jaithram, the caretaker. Mr. Satinder Singh (defendant no. 2 in the original suit) noticed this activity in the CCTV cameras installed at his residence and immediately rushed to the suit property and also called the police at 4:15 PM. In the interim, Mr. Nikesh Jain along with his associates removed the locks, their name plate and the locks installed by the Company in the suit property which was all captured in the CCTV camera. Respondent no. 1, Mr. Nikesh Jain, therefore, with malafide intention tried to alter the status of the suit property before the same was inspected by the Local Commissioner. Police arrived on the spot and directed Mr. Nikesh Jain and his associates to open the gates which was resisted by him on the ground of interim Order dated 12.04.2022 directing the status quo to be maintained in respect of the suit property. They also insisted that access shall be given only to the authorized person appointed by the Court. It is claimed that respondents despite being aware of the status quo Order dated 12.04.2022, have acted contrary to the directions issued by this Court.

10. The Complaint dated 12.04.2022 was made to the police pursuant to which the police issued Kalandra dated 13.04.2022 under Section 145, Code of Criminal Procedure, 1973 against Mr. Nikesh Jain. All these facts have been recorded in the Report of the Local Commissioner dated 24.04.2022. Not only this, it is claimed that the respondents also caused obstruction in the execution of Commission by the Local Commissioner who visited the premises on 13.04.2022.

11. Upon entering the premises, the petitioner Company was shocked to learn that the locks installed by the petitioner Company had been removed, which was evident from the damage on the doors which is clearly reflected in the Report of the Local Commissioner. The CCTV footage also corroborates these facts. Without prejudice to the aforesaid, the petitioner Company has several objections to the Report submitted by the Local Commissioner which has been separately filed by the petitioner Company.

12. The respondent and his associates are therefore, guilty of criminal contempt under Section 2(c) (i) & (ii) of Contempt of Courts Act, 1971. Hence, a prayer is made for initiating action against the respondents for willful violation of the Order dated 12.04.2022 passed by this Court in this case.

13. Mr. Nikesh Jain, Power of Attorney Holder of respondent nos. 2 and 3 namely Mr. Hem Chand Jain and Mr. Ramesh Chand filed a reply wherein it is asserted that since the petitioners were neither in possession of the property as per their own admission nor have they got any right over the suit property, therefore the question of dispossession does not arise. Significantly, no Contempt application has been filed by the plaintiff in this suit. In fact, by way of this petition, defendant no. 1 (who is the petitioner in the present petition) has tried to harass and intimidate the respondents who are the legal representatives of late Mr. Indra Chand Jain. They are the sons of the brother of late Mr. Indra Chand Jain who have inherited the estate of Mr. Indra Chand Jain through a duly executed Will dated 21.09.2018 at Ontario, Canada by late Mr. Indra Chand Jain during his lifetime. They both have always been in possession of the suit property through their Power of Attorney Holder, Mr. Nikesh Jain, respondent no. 1.

14. It is further asserted that after the demise of Mr. Indra Chand Jain on 13.11.2021, the plaintiff, Mr. Rajiv Jain and his associates had tried to enter the suit property on the same day but the same was resisted by respondent no. 1, his family members and servant Jaithram and the attempt of Mr. Rajiv Jain was thwarted. It is claimed that without admitting that the petitioner Company was ever in possession, they are not in possession now of the suit property as per their own admissions. By way of this Contempt petition, they are seeking to establish their possession over a portion of the property which was in the occupation of late Mr. Indra Chand Jain. Such endeavour of the petitioner is malafide and there is no question of any willful violation of the Order by the answering respondents since they were neither privy nor was they served with the Status quo Orders of this Court. The answering respondents in their Writ Petition bearing no. W.P. (C) 14269/2020 have clearly asserted that they are in symbolic and actual possession of the property and have produced numerous documents thereof in the said petition.

15. It is claimed that the documents relied upon by the petitioner Company are forged and fabricated and merely seek to establish that father of defendant no. 2, Mr. Satinder Singh has been recorded as a tenant in respect of the specified portion i.e. the annexed portion, while late Indra Chand Jain has been recorded as a tenant in respect of front portion admeasuring 100 sq. Yrds in the suit property. Late Mr. Indra Chand Jain has been residing in the property since early 1968 and had sought to purchase 1/8th undivided share in the suit property from its erstwhile owners vide Agreement to Sell dated 17.07.1971. Upon failure to execute the Agreement, a suit for Specific Performance was filed by late Mr. Indra Chand Jain which was decreed on 29.04.1982. However, the first RFA bearing no. 188/1982 has been allowed and the decree dated 29.04.1982 of learned sub Judge has been set aside vide Judgment dated 21.08.2019 of this Court. Though a Review Petition bearing no. 459/2019 was filed by late Mr. Indra Chand Jain against the said Order allowing the first Appeal but no notice has been issued on the said Review Petition. Mr. Indra Chand Jain, therefore did not possess any ownership right in the suit property by virtue of judgment dated 21.08.2019 and the question of his entering into the Sale Agreement with the petitioner Company, does not arise.

16. It is therefore denied that there is any willful dispossession or noncompliance of any Order of this Court. It is asserted that the Contempt petition is therefore liable to be dismissed.

17. The petitioners in their rejoinder have re-affirmed their assertions made in the petition.

18. Submissions heard.

19. This Civil Suit after institution, was taken up by this Court for the first time on 12.04.2022 summons were directed to be issued to all the other defendants except defendant no. 1/ Petitioner herein, who had put appearance through Counsel and status quo was directed to be maintained by the parties. The present application has been filed under Contempt of Courts Act and Order 39 Rule 2A of the Code of Civil Procedure, 1908 in respect of the breach of the status quo Order dated 12.04.2022.

20. In order to comprehend the averments made in the contempt application, it would be pertinent to understand the factual background. The suit property which is Plot no. 1, Kasturba Gandhi Marg, New Delhi admeasuring 2250 sq. yards was in occupation of late Mr. Indra Chand Jain since 1968 in the capacity of an owner. He continued to be in possession till his demise on 13.11.2021. On his demise, the tussle commenced between the plaintiffs, Ms. Shardha Jain and Mr. Rajiv Jain, who are the wife and son of the deceased and the defendants on the other hand, who claimed to be the owners and in possession and resisted the claim of the plaintiffs.

21. There were two sets of defendants, one is defendant no. 1, Company of which defendant no. 2, Mr. Satinder Singh Chhabra is the Director and defendant no.3, Mr. Manmohan Singh was the prospective buyer with whom defendant nos. 1 and 2 had entered into an Agreement to Sell the suit property. The defendant no. 1/ petitioner in this Contempt application, had asserted that the Company had acquired the rights over the suit property from Mr. Indra Chand Jain by allotting 2500 shares having a value of Rs. 3.[5] Crores vide Board Resolution dated 28.09.2021 to Mr. Indra Chand Jain as the sale consideration for the suit property and had also made Mr. Indra Chand Jain as a Director in the Company. Though the plaintiffs have seriously refuted the claims of defendant nos. 1 and 2 of having acquired ownership by virtue of transfer of shares towards sale consideration, by asserting that there is no Sale Deed in favour of defendant nos. 1 and 2, in this contempt application, the question of ownership is not so relevant as is the factum of possession.

22. The defendant nos. 4 and 5, who are the nephews of Late Sh. Indra Chand Jain is the other set of defendants who are asserting ownership rights in the suit property by virtue of a Will dated 21.09.2018 which is claimed to have been executed by late Mr. Indra Chand Jain in their favour while he was residing in Canada.

23. The defendant no. 3 was the prospective buyer with whom defendant nos. 1 and 2 had entered into Agreement to Sell. However, the pleadings reflect that defendant nos. 1 and 2 entered into a settlement with defendant no. 3 and their dispute filed before the learned Arbitrator for Specific Performance of the alleged Agreement to Sell was withdrawn on 15.07.2022 thereby putting to rest the interse dispute between defendant nos. 1 and 2 on one hand and defendant no. 3 on the other hand.

24. The dispute of ownership thus remains between the three sets of parties namely the plaintiffs; defendant nos. 1 and 2 and defendant nos. 4 and 5. Defendant nos. 4 and 5 (Respondent Nos.2&3 herein) had filed a writ petition bearing no. W.P. (C) 14269/2021 before this Court claiming a direction for non-interference by the Respondents in their rights over the estate left by late Indra Chand Jain. Subsequently, when the plaintiffs filed the present suit claiming Declaration and Permanent and Mandatory Injunction, the Writ Petition was withdrawn on 07.12.2022 by defendant nos. 4 and 5. Thus, there remains only one litigation in respect the ownership/possession of the suit property which is the present suit.

25. Insofar as the claims and the counter claims of the parties in respect of ownership are concerned, they can be determined only after the evidence is led and is also not relevant for the purpose of deciding the present contempt application.

26. According to defendant no. 1, M/s Clark Construction Private Limited, they had come into the legal possession after having purchased the property from Mr. Indra Chand Jain though they had permitted Mr. Indra Chand Jain to continue in permissive use of the suit property. The petitioners have further asserted on the demise of Mr. Indra Chand Jain on 13.11.2021, they came in possession through his caretaker, Mr. Jaithram. They have claimed by virtue of this application that their possession has been disrupted and they have been forcibly dispossessed on 13.04.2022 despite the status quo orders dated 12.04.2022 made in this suit.

27. Interestingly, when the status quo orders was passed on 12.04.2022, the counsel for the defendant no. 1 was also present in the Court. According to them, at about 4:15 PM when they went back to the suit property they found the doors locked and their entry was resisted by Mr. Jaithram, their caretaker along with Mr. Nitesh Kumar. They called the police at about 4:15 PM and also gave a writing complaint dated 12.04.2022 to the police. A Kalandra under Section 145 Cr. P.C was registered on 13.04.2022 against Mr. Nikesh Jain, respondent no. 1/Attorney Holder of defendant nos. 4 and

5. In the Kalandra, it has been observed that during the course of the enquiry, it was ascertained that Mr. Nikesh Jain had entered into the property on 12.04.2022 at about 4:00 PM and he was given the entry by Mr. Jaithram, the caretaker. Prima facie, the documents show that Mr. Nikesh Jain was not in possession till the said date.

28. As per the submissions of defendant nos. 4 and 5 themselves, they were based in Canada and were being represented by their Power of Attorney Holder, Mr. Nikesh Jain. Prima facie, there is nothing on record to show that defendant nos. 4 and 5 were ever in possession or they continued to be in possession after 12.04.2022. Mr. Nikesh Jain may have made an entry on 12.04.2022 at 4:00 PM but prior to that defendant nos. 4 and 5/ Respondents No.2&3 through Mr. Nikesh/ Respondent no.1 were not in possession of the suit property. An attempt was apparently made by Mr. Nikesh to somehow establish his possession by trying to enter the premises soon after the local commissioner was appointed by this Court, though the attempt was thwarted.

29. The Respondent No. 1, Mr. Nikesh Jain Power of Attorney Holder for respondent nos.[2] & 3 has claimed possession through Mr. Jaithram, the caretaker to whom the salary was allegedly being paid by them since the demise of Mr. Indra Chand Jain. However, Jaithram, the caretaker had given a statement to the Local Commissioner that since the demise of Sh. Indra Chand Jain, the salary was being paid to him by Mr. Rajiv Jain. Their entry was permitted into the suit premises by Mr. Jaithram and there is no evidence whatsoever to even prima facie show they were in continuous possession even through Jaithram. In any case they are not in physical possession and cannot be concluded that they had breached the status quo Order by making a forcible entry in violation of the status quo order of the Court.

30. It is only the presence of Mr. Jaithram, who was the caretaker of Mr. Indra Chand Jain, which is established and admitted by all the parties who all are claiming their possession in the suit property through him. Interestingly, the petitioners/defendant nos. 1 and 2 have asserted that on the demise of Mr. Indra Chand Jain, they had employed Mr. Jaithram as their caretaker. Similar is the claim of the respondents through Nikesh Jain. From these contradictory claims, all that can be established is the presence of Mr. Jaithram, the caretaker of Mr. Indra Chand Jain at the property.

31. The affidavit of Mr. Jaithram has been attached along with the reply wherein Mr. Jaithram has stated that since the demise of Mr. Indra Chand Jain, he has been paid salary by Mr. Nikesh Jain and his earlier affidavit filed along with the plaint that he was in the employment of Sh. Rajiv Jain was procured under inducement. There is no prima facie evidence to show that Mr. Jaithram, who was the caretaker of Late Sh. Indra Chand Jain during his lifetime, was either employed by the petitioners or by respondent nos. 1 to 3.

32. Furthermore, the petitioners has also admitted in their statement made before the Local Commissioner on 13.04.2022 that on 13.04.2022 when Defendant no.2/petitioner no.2 herein had reached the spot, he was denied entry by Mr. Jaithram and was able to gain entry only with the assistance of the police and no belongings of theirs were found in the suit premises. As per their own submission, they were not in possession at the time of inspection by the Local Commissioner. There is no prima facie evidence to show that the petitioners were ever in physical possession of the suit property on or before 12.04.2022.

33. The respondent no. 1 on behalf of respondent nos. 2 &3 (defendant nos. 4 and 5 in the suit) may have made an effort to enter the suit premises on 12.04.2022 at about 4:00PM but there is nothing to show that they were in continuous possession before the said date. Any endeavour to take possession was thwarted as Kalandra was also registered against them. A futile and failed attempt on 12.04.2022 may have been made by them but in the circumstances, it cannot be said that there is any violation of the status quo order.

34. From the entire discussion, it emerges that all the parties are claiming their right to property through Mr. Indra Chand Jain who was admittedly residing in the property and was having exclusive possession till the time of his death on 13.11.2021. The parties to the present litigation became active only after his demise and have been raising counter claims of having become the owner. Essentially, their possession is being claimed by virtue of being the owners. No physical possession of either the petitioners or respondent nos. 1 to 3 has been made out. In the light of the disputed documents, neither the petitioners nor respondent nos. 1 to 3 can claim any legal right till the same is determined after evidence.

35. The only factum which emerges is that the Plaintiffs, Ms. Shardha Jain and Mr. Rajiv Jain were the wife and son of Mr. Indra Chand Jain on whose demise these two being the legal heirs, inherited the property rights. All other factors viz. of existence of Will or a right being created in favour of the petitioners by virtue of purchase of suit property are confined to the ownership and do not establish physical possession of either the petitioners or respondent nos. 1 to 3.

36. Consequently, the petitioners have not been able to make out a case of violation of status quo order by respondent nos. 1 to 3. There is no merit in the present application which is hereby dismissed.

JUDGE JULY 04, 2023