Zeeny Jhelumi v. Inderpreet Singh Jhelumi

Delhi High Court · 13 Feb 2020 · 2020:DHC:1070-DB

G. S. Sistani; Jyoti Singh

CONT.CAS(C) 516/2018

2020:DHC:1070-DB

civil sentence_modified Significant

AI Summary

The Delhi High Court sentenced the respondent to six months civil imprisonment and fine for wilful disobedience of a maintenance order, rejecting his apology and delaying tactics, while allowing time to purge contempt.

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CONT.CAS(C)516/2018
HIGH COURT OF DELHI
Order on sentence: 13th February, 2020

CONT.CAS(C) 516/2018
ZEENY JHELUMI ..... Petitioner
Through Mr. P.S. Patwalia, Senior Advocate with Ms. Natasha Dalmia, Mr.Gauravjit Singh
Patwalia and Mr. Vanshdeep Dalmia, Advocates

VERSUS

INDERPREET SINGH JHELUMI ..... Respondent
Through Ms. Geeta Luthra, Senior Advocate with Mr. Jai Bansal, Mr.Prateek Yadav and Ms. Asmita Narula, Advocates for the respondent along with respondent in person.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH G.S. SISTANI, J.
(ORDER ON SENTENCE)

JUDGMENT

1. By a judgment dated 24.12.2019, this Court held the respondent guilty for civil contempt for having willfully disobeyed the order dated 31.05.2018 passed by this Court in FAO 260/2018. The matter was thereafter posted for arguments on sentence. On 24.01.2020, the matter was adjourned to 31.01.2020 and thereafter on 31.01.2020 to 05.02.2020, when arguments were 2020:DHC:1070-DB heard in part. Further arguments were heard on 06.02.2020 and 11.02.2020.

2. Mr. Patwalia, learned Senior Counsel appearing for the petitioner submits that having regard to the fact that the respondent has willfully disobeyed the order dated 31.05.2018 and has shown scant regard for the order dated 31.05.2018, the respondent should be sentenced to civil imprisonment for six months with fine of Rs.2,000/- and, further the properties of the respondent should be attached, a receiver be appointed so that the amounts due are recovered.

3. Mr. Patwalia submits that the petitioner has been single-handedly bringing up her two school-going children (daughter aged 16 years and son aged 12 years). It is submitted that despite the fact that the respondent is an extremely wealthy person with assets of more than Rs.200 crores, he has refused to pay the amounts as agreed upon. Mr. Patwalia contends that currently the petitioner has been living in a shelter provided by her parents and brother.

4. Additionally, Mr. Patwalia contends that the petitioner and her children reside in constant fear on account of the obnoxious and threatening messages sent by the respondent. Reliance is placed upon copies of e-mails received by the petitioner including emails dated December 25, 2019 received at 8:19 pm, December 29, 2019 received at 5:53 pm, January 7, 2020 received at 1:20 p.m., January 25, 2020 received at 7:17 p.m. Learned Senior Counsel submits that reports of earlier e-mails made to the concerned Police Station have resulted into registration of two FIRs but on account of the economic strength of the respondent, no action has been taken against the respondent by the police.

5. Mr. Patwalia submits that the stand of the respondent in an affidavit dated 10.02.2020 handed over in Court is false and misleading. In fact, during the period commencing from June, 2017 and ending on January, 2018, amounts were paid at an average of Rs.7,71,650/- per month, and which were in terms of the settlement arrived at between the parties which would show that the settlement was acted upon. It is also submitted that the submission of the learned Senior Counsel for the respondent that the respondent has been suffering from depression and the medical records so relied upon, is only to avoid the sentence. Reliance is placed on paragraphs 2.16, 2.17, 2.18, 2.21 of the written statement filed by the defendant/ respondent herein. Although, the respondent now seeks to amend the written statement but such an amendment has not been allowed till date. Mr. Patwalia contends that the stand of the respondent that the petitioner has already taken recourse to execution proceedings and thus, the present contempt petition would not be maintainable, is without any force as the matter already stands adjudicated upon by order dated 24.12.2019. Also, a Civil Appeal preferred before the Supreme Court of India being Civil Appeal No.759/2020 stands dismissed as withdrawn by an order dated 30.01.2020.

6. Mr. Patwalia places reliance upon a decision rendered by the Bombay High Court in the matter of Amita B. Devnani v. Bhagwan H. Devnani, reported in 2006 SCC OnLine Bom 263. Paragraphs 11, 15, 16 (a), (b), (c), (d), (f) and (g), are reproduced below:

“11. The counsel for the petitioner has rightly relied upon the decision of this court in Sarladevi Bharatkumar Ruingta v. Bharatkumar Shivprasad Rungta in support of his argument that even if the remedy of execution was available to the petitioner that does not preclude this court from exercising the power under the provisions of the Contempt of Courts Act. Reliance has been placed on para 8 of the said decision. Suffice it to observe that in the fact situation of the present case, the respondent No.1 will have to be proceeded with for having committed contempt of court due to his wilful disobedience of the order dated 30.l0.2001. … 15. There is absolutely no denial by the respondent No.1 to any of the above assertions made in the contempt petition; for respondent No. l has not bothered to file parawise reply affidavit which was expected from him to this contempt petition. The assertions made in this part of the contempt petition have remained uncontroverted. From the said averments it is more than certain that it is not as if the respondent No.1 is not in a position to pay "any amount at all" to the petitioner as was required to be paid towards maintenance under the order dated 30.l0.2001. On the other hand, respondent No.1 has accepted the fact that he has some income. In passing it needs to be noted that respondent No.1 has seriously contested all the proceedings right upto this court and engaged a battery of advocates including senior counsel. All this is not without any burden of expenses. Be that as it may, the fact that respondent No.1 has the means and will be obliged to pay Rs.20,000 per month towards maintenance has been adjudicated in the proceedings before the family court and that finding has become final.

Suffice it to observe that respondent No.1 has not disclosed any material fact so as to persuade me to take the view that he had sincere desire or intention to honour the commitment arising under the order dated 30.10.2001 but could not discharge the said commitment due to the reasons beyond his control. If that was the case, perhaps, respondent No.1 would be justified in requesting the court not to invoke the remedy under the Contempt of Courts Act. On the other hand, from the averments made in the contempt petition it is more than clear that respondent No.1 had the means to comply with the order of maintenance. If it is so, the inevitable conclusion is that respondent No.1 is guilty of wilful disobedience of the order passed by the family court on 30.10.2001. On this finding I shall now proceed to examine the quantum of sentence to be imposed on the respondent No.1.

16. At this stage respondent No.1 was asked to step into the witness box. He was told that I have already recorded a finding of guilt against him and I intend to proceed to punish him under the provisions of the Contempt of Courts Act, l971, for which he may offer his say on the point of sentence. As respondent No.1 said that he knows English but will not be able to converse in English and that he was found to be comfortable talking in Hindi, I conversed with him in the language known to him i.e. Hindi. The respondent No.1 in the first place requested me to show mercy and to excuse him. During the conversation it was suggested to him that even now there is possibility of excusing him provided he would purge the breach committed by him by paying the amount. To that, respondent No.1 was anxious to know as to what is expected from him so as to purge the breach. He was given option for the time being to pay the amount accrued under the order dated 30.l0.2001 and if he does that the court may take a lenient view of the matter. In response, respondent No.1 after giving some thought has volunteered to pay the entire amount which is payable under the order dated 30.l0.2001 provided some time is given to him to make the payment. He was told that he would be given time to which initially he stated that he would require one month's time and then increased to 2 months period to discharge the entire liability. Eventually, respondent No.1 has agreed and has given undertaking to this court that he will pay the entire amount within two months. While I am dictating this judgment, now, the respondent No.1 said that he needs 2 and half months’ time to deposit the entire amount. Here I may note the submission of the petitioner that the petitioner has also claimed interest for the default period in this petition. However, I am keeping the said remedy of the petitioner open. As respondent No.1 has now shown willingness to pay the entire amount in question arising under the order dated 30.10.2001, I propose to pass the following order: a) Insofar as the quantum of sentence is concerned, I have no hesitation in taking a view that the conduct of respondent No. l is so gross and reprehensible that the same deserves imposition of maximum punishment provided by law. There can be no two opinions on that count. If respondent No.1 had the ability to pay even portion of the stated maintenance amount, there was no reason for respondent No.1 to drag the proceedings for so long without offering even a single rupee till now. Obviously, the design of respondent No.1 was to create a situation that the petitioner will not be able to reap the benefits accruing under the order of maintenance dated 30.10.2001. In other words, the attitude of respondent No.1 was that, no matter the order of maintenance in favour of the petitioner, he shall not pay any amount to the petitioner even if it is in utter disregard of the order of the court. The acts of commission and omission of respondent No.1 constitute wilful disobedience and replicates utter disregard for the order of court amounting to civil contempt. Thus understood, this is a gross case and the facts being so telling, I have no hesitation in imposing maximum punishment of six months of civil imprisonment and fine of Rs. 2000/-. b) However, as respondent No.1 has shown willingness to purge the contempt and has personally given assurance to the court today to respect the order of maintenance in future regularly, I proceed to pas the following order: c) Respondent No.1 is held guilty of having committed civil contempt and is ordered to suffer imprisonment in terms of section 12 of the Contempt of Courts Act, for a period of six months and to forthwith pay a fine of Rs. 2000/-. d) This order shall however, not be acted upon and the unconditional apology tendered by the respondent No.1 be deemed to have been accepted, in the event the respondent No.1 purges the contempt by depositing the entire outstanding amount as of today arising out of the order dated 30.10.2001. The said amount shall be paid within two and half months from today as per the oral request made and undertaking given by respondent No.1, failing which the warrant of arrest be issued against respondent No.1 to be executed on 22.5.2006 so as to give effect to the order of punishment indicated earlier. In other words, respondent No.1 shall pay the entire outstanding amount of Rs.4,97,500/- (Rs[4],90,000/towards amount of arrears of maintenance and Rs.7500/towards order of costs imposed vide order dated 13.7.2004 in Writ Petition No. 5116 of 2004) on or before l[9].5.2006. … f) Notices issued to respondent Nos.[2] to 6 stand discharged with liberty to petitioner to take recourse to such other remedy as may be permissible by law. If such proceedings are initiated, all questions on merits are left open to be decided before the appropriate forum. It is made clear that no observation made in this judgment be construed as expression of opinion on any of the contentions arising for consideration in such proposed proceedings. g) At this stage the counsel for the petitioner points out that in order to ensure that respondent No.1 does not remove himself from the jurisdiction of this court or from India, respondent No.1 may be directed to deposit his passport in this court till the entire amount is not deposited by him on terms referred to earlier. I find substance in this submission. Respondent No.1 is directed to deposit his passport in the Registry of this court, through his counsel not later than 10.3.2006. Respondent. No.1 assures to comply with this requirement as well, being one of the condition for deferring the order of sentence and to enable the respondent No.1 to purge the contempt. In other words, if respondent No. l fails to deposit his passport by 10.3.2006, the warrant of arrest be issued forthwith so as to give effect to the order of sentence and respondent No.1 will be taken into custody to suffer the punishment.”

7. Mr. Patwalia also submits that this is a fit case where a receiver should be appointed to ensure that the amounts due are recovered from the respondent. Reliance is placed on a judgment in the case of Delhi Development Authority v. Skipper Construction Co.(P) Ltd. & Anr., reported in (1996) 4 SCC 622, more particularly, paras 17 to 21. Reliance is also placed on a judgment in the case of David Jude v. Hannah Grace Jude and Ors., reported in 2003 (10) SCC 760, more particularly paras 16, 17 and 19, which are reproduced below:

“16. From the facts stated above it is apparent that the attitude of the contemnors is without any doubt defiant and contemptuous. They were given custody of the minor child on the condition of filing undertakings before this Court to bring the child back to India when so ordered by the Family Court. Respondent nos.1 and 2 have played with the Court, by giving unconditional undertakings for securing the custody of the child. It is true that respondent no.2, the mother of respondent no.1 has stated before this court that respondent no.1 is now not abiding by the instructions given by her to produce the child before this Court and the Family Court. 17. Further, it is also clear from the conduct of respondent no.1 that she has no regard for the notices issued by this Court. If the notice issued by Apex Court of this land is willfully disobeyed, it would send a wrong signal to everybody in the country. It is a sad experience that due regard is not shown even to the undertakings/order/notice issued. xxx 19. For respondent no.1 considering the fact that she is well educated, serving in a prestigious institution, namely, the World Bank and her totally defiant attitude, we do not think that this would be a fit case for taking a lenient view and not imposing sentence of imprisonment. Even though she does not deserve mercy because of her motivated behaviour yet we impose only three months simple imprisonment and a fine of Rs.50,000/- and in default of payment of fine, she shall further undergo simple imprisonment for one month. Fine to be paid within one month.”

8. Ms. Luthra, learned Senior Counsel appearing for the respondent has laboured hard to contend that civil contempt is not made out as the respondent has been dutifully paying the maintenance to the petitioner and his children. Learned Senior Counsel submits that the respondent has been paying the EMIs of a car, school fees of both the children along with certain other amounts. She also submits that the respondent is willing to clear the unpaid amount of maintenance as per the calculation made by the respondent within a period of six months. It is also contended that the petitioner has failed to place her statement of accounts which would show that she is making a handsome sum of money by virtue of her profession of storytelling. It is contended that order dated 31.05.2018 merges with the order dated 12.11.2018 by which this Court disposed of MAT. APP (F.C.) No.195/2018. Various judgments have been relied upon to canvass the doctrine of merger. Learned Senior Counsel also contends that the respondent does not have a free mind on account of his medical condition. It is being further contended that a sentence of simple imprisonment in contempt matters is an exception and acceptance of an apology is a rule. Reliance is placed on a judgment in the case of R.N. Dey and Ors. v. Bhagyabati Pramanik & Ors., reported in (2000) 4 SCC 400, more particularly, paragraph 7, which is reproduced below:

“7. We may reiterate that weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the Court is to be exercised for maintenance of Courts dignity and majesty of law. Further, an aggrieved party

has no right to insist that Court should exercise such jurisdiction as contempt is between a contemnor and the Court. It is true that in the present case, the High Court has kept the matter pending and has ordered that it should be heard along with the First Appeal. But, at the same time, it is to be noticed that under the coercion of contempt proceeding, appellants cannot be directed to pay the compensation amount which they are disputing by asserting that claimants were not the owners of the property in question and that decree was obtained by suppressing the material fact and by fraud. Even presuming that claimants are entitled to recover the amount of compensation as awarded by the trial court as no stay order is granted by the High Court, at the most they are entitled to recover the same by executing the said award wherein the State can or may contend that the award is a nullity. In such a situation, as there was no willful or deliberate disobedience of the order, the initiation of contempt proceedings was wholly unjustified.”

9. Ms. Luthra has also placed reliance on a judgment in the case of Smt. Pushpaben & Anr v. Narandas V. Badiani & Anr., reported in (1979) 2 SCC 394, more particularly, paragraphs 3, 5, 6 and 7.

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10. We have heard the learned Senior Counsel for the parties and considered their rival submissions.

11. Since this Court has already held the respondent guilty of contempt of the order dated 31.05.2018, accordingly the submission made by Ms. Luthra, on the merits of the matter can be of no help while deciding the quantum of the sentence to be awarded. As far as the submission of Ms.Luthra that the respondent had tendered an unqualified apology is concerned, we find the same also to be without any force as the aim, objective and purpose of an unqualified apology is to show remorse and it cannot be treated as a weapon or a shield to avoid punishment. In the case of Ranveer Yadav v. State of Bihar, (2010) 11 SCC 493, it was held as under: “29. Even if it is not belated where apology is without real contrition and remorse and was merely tendered as a weapon of defence, the Court may refuse to accept it. (See Chandra Shashi v. Anil Kumar Verma [(1995) 1 SCC 421: 1995 SCC (Cri) 239].)”

12. We find force in the submission of Mr. Patwalia that even during the pendency of the matter, the conduct of the respondent does not show any element of remorse but instead displays a conduct of aggression. The emails dated 25.12.2019, 29.12.2019, 07.01.2019 and 25.01.2019 are reproduced below: “Dec 25, 2019 at 8.19 PM … Hi guys as expected I have been held in contempt maybe I could go to jail. If that happens, there will be mayhem. I had already made a plan to hold all of you accountable remember you are fighting a super intelligent and street smart person I’ve successfully handled 150 workers, what are both of you duffers compared to me. You are cheats using influence ? I’ve also got 150 crores backing me There are ways to transfer property without being in contempt. You have used your contacts to the maximum. I have t even one. Do you know what street fighting is. There are no rules and I’m an expert (in this somebody sent me her call records (also somebody send me her movement and photos). There are around 10 ways I’ve come up for this attack plan with a lot of money to pay.

1. I want the Audi which belongs to the company. If don’t get I’ll back, I’ll have to initiate police action from Mehrauli ps where I know mostly everyone.

2. I want all my health property papers back otherwise I’ll destroy your certificates, your I tax file if uk I’m going to use in addition to border force. Do you know what a reputation c manage company is They enhance your reputation I’m going to use them to destroy your reputation.” “Dec 29, 2019 at 5.53 PM … You were looking so pulled down in court, don’t worry I know someone (expensive) to give a nice facial which you’ll never forget. With the money/assets I have, I can easily destroy your family Which I will because my kids are kept away from me.” “Jan 7, 2020 at 1.20 PM … If I go to jail for contempt you cannot imagine what the repercussions will be for your entire family. I’ll use all my resources I will throw money, lacs, use all my contacts and make it the mission of my life to make sure your family is held accountable I am a very persistent person. You cannot imagine how I can work the system. You saw for yourself when you came with Mandira on 19th Jan night how and what I told the cops in the gypsy and they didn’t have the guts to touch me. There will be mayhem. Money talks bullishit walks. I will do nothing illegal. You start your prayers and chanting God bless you” “Jan 25, 2020 at 7.17 PM … If f go to jail, you cannot imagine what I will do when I’m out. I will legally pay anything to bring you to justice including cream. This is not a threat, just very very strict accountability. So if you do not want a very strict reaction for me, you will make sure your lawyers avoid this because I’m innocent.”

13. Reading of the afore-stated e-mails would show that the same are riddled with threats to the petitioner especially in view of e-mail dated 25.01.2020 which reads “If I go to jail, you cannot imagine what I will do when I’m out”. Examination of the e-mails in entirety shows that there is no element of remorse or repentance and the apology does not appear to be an unconditional apology, and therefore cannot be accepted. As far as the medical condition of the respondent is concerned, a perusal of the copies of prescription slips produced in Court shows that the stand of the respondent has been shifting with respect to his medical condition; at times he claims to be fit and vice versa. Therefore, the submission of Ms. Luthra that the petitioner is medically unfit also cannot be accepted.

14. The offer made by the respondent that he would clear the arrears @ Rs.2,50,000/- per month to the petitioner within a period of six months also does not appear to be genuine for the reasons that firstly, there is variation in the amount which was agreed to between the parties and, secondly if there was any intention on the part of the respondent to pay the amount fixed for maintenance, he would have paid the maintenance amounts during the pendency of the contempt petition for the current months, if not the arrears. While learned Senior Counsel for the respondent submits that the respondent does not have means to pay the amount for maintenance, it is not disputed before us that the respondent a) owns a residential house of 1 acre bearing No.12A, South Drive, DLF Chattarpur Farms, New Delhi receiving rental income of approximately Rs.1.35 lakhs per month; b) owns a two bed-room flat on the first floor bearing No. N-94, Panchsheel Park which is leased at Rs.35,000/- per month; the same amount is being received by the petitioner; c) owns a commercial area admeasuring 4 acres in Ghaziabad; d) owns a two-bed-room flat in London, bearing No.6-C, Grove End House, Grove End Road, St. John’s Wood, London; e) owns a plot in Kant Enclave, New Delhi; f) owns property bearing No.264, Patparganj Industrial Area leased out at Rs.3,10,000/- per month; g) owns land admeasuring 1 acre in Devli Village, Sainik Farms, New Delhi; and h) owns a plot in Kant Enclave which has been allegedly sold despite an order of injunction.

15. Keeping all the above factors in mind, we are of the view that the offer to pay maintenance at a particular rate which suits the respondent and that too within a period of six months, is only a ploy to delay the matter further and the offer does not appear to be genuine.

16. In view of the above reasons, we sentence the respondent to civil imprisonment in the form of simple imprisonment for a period of six months and a fine of Rs.2,000/-. However, the sentence shall remain in abeyance for a period of one month to allow the respondent an opportunity to clear the arrears of maintenance and comply with the order dated 31.05.2018.

17. Needless to say, in case there is no compliance, the SHO of the concerned area is directed to arrest the respondent and a compliance report shall be placed before this Court immediately.

18. We also make it clear that on such report being filed, the Court would consider appointing a receiver and/or attachment of the properties of the respondent in case the payments are not cleared.

19. The respondent is present in Court. He will not leave the country till the next date of hearing.

20. List for directions on 18.03.2020. REV.PET.62/2020 & CMs.APPL 5546-5549/2020

21. No grounds for review are made out. The review petition and all the pending applications stand dismissed. G.S. SISTANI, J. JYOTI SINGH, J FEBRUARY 13, 2020 pst

Zeeny Jhelumi v. Inderpreet Singh Jhelumi

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