Yashwant Singh v. Ashutosh Verma

1. This application has been filed by the applicant/plaintiff under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (‘CPC’) alleging that the respondent/defendant has violated the order of this court dated 21st December, 2012.

2. Mr. Mohit Chaudhary, learned counsel for the applicant/plaintiff has submitted that by the order dated 21st December, 2012, this court had disposed of certain applications filed by both the parties with the following directions: “(a) The plaintiff is directed not to sell, alienate, transfer or part with possession of the aforesaid floors i.e. basement, 2021:DHC:4211 ground and second floors of the suit property without the permission of the Court. (b) The defendant is restrained from interfering or causing hindrances in usage of the portions being basement, ground and second floors of the suit property.

(c) The plaintiff in the Supplementary Memorandum of

Agreement dated 20th January, 2011 in Clause 1 has admitted that the defendant has extended financial assistance of Rs.2,78,70,000/- to the plaintiff for the payment of bank dues and receipt of which was also acknowledged by the plaintiff and in clause 2. The plaintiff has also admitted that the defendant has subsequently extended some more financial assistance to him and now the total comes to Rs.3.18 crores, the receipt of the same was also acknowledged and agreed to repay the consolidated amount of Rs.3.18 crores as per clause 3 of the agreement, on or before 30th June, 2011. Admittedly, the said amount was not paid by the plaintiff, though the plaintiff has specifically admitted to receive Rs.1.48 crores from the defendant. The said Supplementary Memorandum of Agreement is signed by the plaintiff. Without prejudice to the rights of the plaintiff to contest his plea as mentioned in his pleadings, he is directed to deposit a sum of Rs.3.18 crores with the weeks from today.

(d) The plaintiff is also directed to deposit a sum of

Rs.34,10,000/- admittedly received by him in cash through his peon, with the Registrar General of this Court within the same period. The Registrar General shall keep the aforesaid amounts in FDRs initially for a period of one year.”

3. The learned counsel for the applicant/plaintiff submits that despite the directions of this court restraining the respondent/defendant from interfering or causing hindrances in the usage of the basement, ground and second floors of the property being A-24, Kailash Colony, New Delhi (‘suit property’ for short), the respondent/defendant had actually prevented the applicant/plaintiff from accessing these areas. Specifically, it is alleged in the application that when the applicant/plaintiff had come from Patna to Delhi on 27th August, 2021 at about 9:45 PM, the applicant/plaintiff was beaten badly by the respondent/defendant and his goons when he wanted to enter his own premises. On 24th August, 2021 at about 9:00 AM, the respondent/defendant had also disconnected the electricity connection to the ground floor of the suit premises and tried to make four CCTV cameras installed at the ground floor non-functional, and when the domestic help and Chokidar of the applicant/plaintiff had objected to it, they were beaten badly and thrown out of the compound. It is submitted, that thereafter, the respondent / defendant had removed the marble name plate of the applicant/plaintiff and had fixed a name plate in which he had only mentioned his name. The car of the applicant/plaintiff standing in the compound was also removed out of the suit premises. The CCTV cameras on the second and third floors were also removed on 18th August, 2021 at about 8:00 PM by the respondent/defendant and thereafter the locks on the second unit of the second floor and the entrance of the third floor were broken. On that night, the Chokidar and his wife and the domestic help of the applicant/plaintiff were manhandled as well. These people were also prevented from going up to the second floor. On all these occasions, the Police were alerted, yet the respondent/defendant continued with his acts of interference. Thus, the application was necessitated.

4. In the reply filed by the respondent/defendant, it is stated that he is an Advocate and therefore a law abiding citizen and has great respect for the process of law and the court. He has stated that he had not disobeyed any direction of the court in any manner whatsoever, whereas it was the applicant/plaintiff who has been guilty of wilful disobedience of the order passed on 21st December, 2012, as till date he has not deposited the amount of Rs.3.18 crores and Rs.31,10,000/- in terms of the said order. Such contumacious behaviour had been noted by this court in its previous orders, despite which the applicant/plaintiff has not made the deposits. As such the applicant/plaintiff was previously not found entitled to any discretionary relief and none should be granted even now.

5. Mr. Arun K. Srivastva, learned counsel for the respondent/defendant submitted that the applicant/plaintiff owed money to several creditors who used to visit the suit premises at odd hours and as such there was a security issue. That was why the respondent/defendant, residing on the first floor kept the main gate locked during the night. The access of the applicant/plaintiff was never prevented, as there was a side gate which has always remained open. It was further submitted that the car of the respondent/defendant was parked inside the premises for security reasons temporarily, as the respondent/defendant frequently went out of station and it was the applicant/plaintiff who had himself parked his car outside.

6. It is further the case of the respondent/defendant that he has been a victim of fraud played by the applicant/plaintiff and was still being subjected to harassment by the applicant/plaintiff who has been making incorrect and false statements throughout the proceedings. The respondent/defendant has accused the domestic help of the applicant/plaintiff alleging that she herself had removed the CCTV cameras which had been installed in the suit premises by the respondent/defendant himself. He has further submitted that he has the greatest respect for the court and has always obeyed the directions of the court and undertakes to do so for ever.

7. It may be mentioned at this juncture that in the light of the allegations and counter allegations levelled by the two sides, vide order dated 6th October, 2021, this court appointed Mr. Nikhil Pahwa, Advocate as a Local Commissioner to visit the suit property i.e. A-24, Kailash Colony, New Delhi and to inspect and report on the status of the suit premises and to ensure that access was facilitated to the applicant/plaintiff through the main gate. The entire proceeding was to be videographed. The Status Report has been filed by the Local Commissioner along with photographs.

8. According to the Report of the Local Commissioner, on 7th October, 2021, when he had inspected the premises, he had found that an engraved stone sign with the applicant/plaintiff’s name had been broken and the broken pieces of the stone were lying right below the sign. Next to this stone engraved name plate, a metal name plate was put, sprayed over with black spray paint and the words ‘A-24’ sprayed on it in white paint. He found that both the gates were locked with the keys being with Mr. Yusuf who worked for the respondent/defendant, who also revealed that he had only one key each for both the gates. He also stated that the side gate remained open during the day whereas the main gate was kept locked always for safety reasons. The Local Commissioner also noted that on the ground floor there were two separate doors leading to two different residential units. The unit on the left had two locks on it, the original lock on the door and an additional padlock which had been installed recently, as informed by the applicant/plaintiff and which could not be opened with his keys in the presence of the Local Commissioner. A CCTV camera on the ground floor was found and the other unit on the ground floor had only one padlock whereas the original lock on the door had been removed. The representative of the respondent/defendant, Mr. Nathi stated that he did not have any of the keys for these units. In the basement, two locks were found but with no handle and was empty except for some metal rods and eight empty bathtubs. Mr. Nathi also informed that he could not open the locked portion of the basement area. Three CCTV cameras were found in the driveway. The car of the respondent/defendant bearing No.DL7CG9837 was found parked in the driveway which Mr. Nathi Singh informed was lying there for the last ten days. In the back porch, the Local Commissioner found only four cemented squares where according to the applicant/plaintiff there were dog houses and also a servant quarter. The servant quarters had only two walls standing and the remaining structure was found demolished with debris everywhere. The toilets adjacent to these servant quarters were also in a dilapidated condition filled with debris. There was a shoe rack in the driveway full of shoes. On the second floor, both the units were locked. No CCTV camera was found and only wire holders remained. At the terrace, the keys being with the respondent/defendant, his representative Mr. Nathi did not open the door. The employees of the respondent/defendant had stated to the Local Commissioner that the Korean Embassy was in possession of the keys for the ground and second floors. The Local Commissioner also recorded that when he spoke to the respondent/defendant on Mr. Nathi’s phone, he refused to allow the applicant/plaintiff to park his car inside the gate but stated that he would allow the applicant/plaintiff to enter through the main gate. When asked whether he would allow a set of duplicate keys to the main gate to be supplied to the applicant/plaintiff, the respondent/defendant stated that since the gate was locked from inside, even if the keys were provided to the applicant/plaintiff, he would not be able to access the property without prior permission of the respondent/defendant and that whenever the applicant/plaintiff came, he could either call Mr. Yusuf or Mr. Nathi or Mr. Verma and he would be allowed access into the premises through the main gate at any time, day or night.

9. The learned counsel for the applicant/plaintiff placed reliance on the Local Commissioner’s Report to contend that there was clear disobedience of the court orders and the strictest action be taken against him.

10. Learned counsel for the respondent / defendant / contemnor however submitted that the respondent/defendant had no intention to prevent access but that the main gate would be opened only on the request of the applicant/plaintiff and with the consent of the respondent/defendant. The alternate arrangement could be that the applicant/plaintiff engaged a security personnel at the suit property, in which case, even the main gates would not be locked.

11. The present application is one under Order XXXIX Rule 2A of the CPC. The power of the court under the said provision is punitive in nature, as punishment has been prescribed for disobedience or breach of an injunction order passed by the civil court. No doubt the court would be circumspect in using its power under Order XXXIX Rule 2A of the CPC but the caution exercised cannot tantamount to a reluctance to exercise the powers vested in the court in appropriate cases. In the present case, the respondent/defendant admittedly is a lawyer. If not he, who else would understand the need for obedience of court’s directions. While the learned counsel for the respondent / defendant continued to emphasize on direction