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Bombay High CourtIndian Cases

Kamlabai Lachmandas Dabrai vs Madhav Co-Op. Housing Society Ltd. And … on 9 September 1982

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Bombay High Court
Kamlabai Lachmandas Dabrai vs Madhav Co-Op. Housing Society Ltd. And … on 9 September, 1982
Equivalent citations: 1982(1)BOMCR857
Author: S.P. Bharucha
Bench: S.P. Bharucha

S.P. Bharucha, J.

1. This is a contempt notice issued suo motu by my brother Pratap, J.

2. The alleged contemnors are Popatlal, Galaben, Nirmala and Bawabhai. Bawabhai and Galaben are husband and wife. Popatlal is their son. Nirmala is their daughter-in-law, being the wife of their son Gordhandas. Popatlal, Galaben and Nirmala are partners of Messrs Globe Engineering. Gordhandas is the manager of the said firm.

3. In respect of flat No. 13 is a building called Peacock Palace, belonging to the Madhav Co-op. Housing Society Ltd., one Kamlabai Lachmandas Dabrai filed proceedings before the 1st Co-operative Court against the said society and the said firm. The judgment of this Court was taken in appeal to the Co-operative Appellate Court. In respect of the decision of the Appellate Court, a writ petition (being Miscellaneous Petition No. 106 of 1979) was filed by Kamlabai. Pratap, J., heard and allowed the petition. During the hearing, it was brought to his notice that in a suit (being OOCJ Suit No. 326 of 1970) an undertaking had been given by the said firm that possession of the said flat would be given over to the said society before 29th October, 1980 and that the said undertaking had not been complied with. It was also brought to his notice that Bawabhai has filed on 30th October, 1980 a suit in the Court of Small Causes at Bombay claiming rights in the said flat and that Galaben and Nirmala had filed a suit in this Court for setting aside the consent decree wherein the said undertaking was given. Pratap, J., felt that this was, therefore, a fit case for issuing notice sue motu to Popatlal, Nirmala, Galaben and Bawabhai to show cause why action should not be taken against them for contempt.

4. The said suit (being OOCJ Suit No. 326 of 1970) was filed by the said firm against the said society for the sum of Rs. 6,00,000/- and odd being the unpaid price of construction work done by the said firm for the said society, in respect of the said building. The said society filed a written statement and counterclaim. By the counterclaim it claimed from the said firm possession of the said flat. In its reply to the counterclaim the said firm contended that it had a lien on the said flat in respect of the unpaid price.

5. Evidence was led in the suit on behalf of the firm. Gordhandas, its Manager, deposed that, except for the said flat, the said firm had given to the said society possession of the said building in May or June, 1967. The said flat was retained by the said firm because Lalwani, the Chairman of the said society, had told him (Gordhandas) and Popatlal that the said firm should retain possession of the said flat until the moneys due were paid. The said flat was in the possession of the said firm. In cross-examination, Gordhandas deposed that it had been agreed, inter alia, with the said Lalwani that the said firm should retain possession of the said flat until payment of the final bill was made. The said firm had been asked to retain two flats, being the said flat and flat No. 31 but it had been unable to retain possession of flat No. 31. Gordhandas denied the suggestions made to him in cross-examination that Lalwani had not given the said firm a lien upon the said flat or that nobody on behalf of the said society had authorised the said firm to occupy the said flat, either as a security or otherwise.

6. After the suit had been heard for some 4 or 5 days, consent terms were arrived at between the said society and the said firm. The consent terms provided for a decree in favour of the said firm and against the said society in the sum of Rs. 2 lakhs. Under the consent terms the said firms was required to hand over to the said society possession of the said flat. Clauses (e) and (f) of the consent terms read thus :

“e) Defendants to the counter-claim Popatlal B. Patel and a partner thereof, undertake to this Honourable Court to hand over vacant, quiet and peaceful possession of the Flat No. 13 on the First Floor of the building ‘Peacock Palace’ situated at 69, Bhulabhai Desai Road, Bombay 400 026 to the plaintiffs to the counterclaim on or before the 29th October, 1980.
f) The defendants to the suit undertake to this Hon’ble Court to make payment of the sum of Rs. 2,00,000/- (Rs. Two lakhs only) to the plaintiffs to the suit against possession, being handed over to them in terms of Clause (e) above.”
The consent terms were signed by the Advocates for the said society and the said firm and by Popatlal as a partner of the said firm. The hand-written consent-terms originally tendered show that the consent terms had been interpreted to Popatlal. Counsel for the said firm stated to Court when the consent terms were tendered that the only person in occupation of the said flat was Popatlal with his family. The Court passed a decree in terms of the consent terms on 29th August, 1980. Counsel’s statement was recorded.

7. The undertaking given by the said firm has not been honoured upto date. It is not in dispute that the said society has at all relevant times been ready to honour the undertaking given by it.

8. In his affidavit made in reply to the contempt notice Popatlal does not dispute that the undertaking binds him. He contends that he has not done any act, wilfully or otherwise, which amounts to a breach thereof. He states that he has always been ready and willing to comply with its terms.

He says :

“As a matter of fact due to my difference with other partners and the members of the family on the subject of compliance of the terms of the decree, I have personally removed myself from the said flat and have started residing at my above mentioned address (at Andheri) for the last more than 2 years”.
He states that legal proceedings have been taken by the other partners of the said firm against him and execution proceedings for execution of the decree are pending and that, these matters being sub-judice, he is advised not to state anything further thereon. He states that “certain events have transpired after the consent decree……….but 1 have for myself honoured the undertaking given by me in the consent terms……..I submit that I have bona fide done everything possible to comply with the terms of the undertaking and the consent decree but due to circumstances beyond my control the same has not been complied with by the other partners of the said firm.”

9. In their affidavit in reply, Galaben and Nirmala state that they came to know about the consent terms long after the same were filed. They state that Popatlal had not expressed or implied authority to either compromise the suit or to sign the consent terms. They submit that the undertaking given in the consent terms is only a personal undertaking and binding and applicable only to Popatlal.

10. An affidavit in reply has also been made by Bawabhai in which he says that he was claiming in his individual legal capacity to be a licensee of the said society in respect of the said flat, and not through the said firm or any of its partners. He says that he was not aware of the suit or the consent terms when the said society’s office-bearers came to the said flat on 29th October, 1980; apprehending that he would be deprived of his legal rights, he filed a suit in the Court of Small Causes.

11. Mr. Chinai, learned Counsel for Popatlal, tendered at the very outset of his address an apology on behalf of his client. I rejected it saying that the only apology I understood was compliance with the terms of the undertaking. Such compliance is not offered by Popatlal or by the other alleged contemners.

12. Mr. Chinai then submitted that Popatlal was willing to assist the said society in every way in the execution of the consent decree. Mr. Chinai said that Popatlal had been living in the said flat with his wife, his major son and Bawabhai but they had refused to quit the flat. Consequently, Popatlal had removed himself from the said flat but his wife, son and Bawabhai remained in wrongful possession thereof. Mr. Chinai submitted that, in the circumstances, there had been no default on the part of Popatlal but it was “sheer helplessness” which had made it impossible for him to comply with the undertaking. It was also contended by Mr. Chinai that the contempt notice was barred by limitation since it was issued almost 2 years after the data on which the contempt was committed. He relied upon section 20 of the Contempt of Courts Act, 1971, which reads thus:

“20. No Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.”
13. It was contended by Mr. Bhatt, learned Advocate for Galaben and Nirmala, that they were not liable because they had never been in possession of the said flat but had always been staying in Andheri. In his submission, the undertaking given on behalf of the said firm was “inadvertently” given by its Counsel. Mr. Bhatt also submitted that the notice was barred having regard to section 20 of the Act.

14. Mr. Mandlik, learned Advocate for Bawabhai, submitted that Bawabhai was not a party to the undertaking and could not been held guilty of abetting the contempt.

15. The evidence of Gordhandas given on behalf of the firm, establishes that the said flat was in the possession of the said firm. It was, therefore, in the possession of Popatlal, Galaben and Nirmala, the partners of the said firm. The statement made by Counsel for the said firm to Court at the time the consent decree was passed establishes that the said flat was in the physical occupation of Popatlal and his family. It is futile to say that Popatlal had no authority on behalf of the other partners of the said firm to compromise the suit, whether or not Popatlal had such authority, Counsel for the said firm certainly had. Counsel for the firm had also, patently, in the circumstances, the authority to give the undertaking on behalf of the said firm, which is to say, on behalf of its partners. Hence, the undertaking binds not only Popatlal but also Galaben and Nirmala.

16. It is also clear from this that no members of Popatlal’s family had any right, title or interest in the said flat. It is an untenable excuse that Popatlal was helpless and, therefore, he shifted out of the said flat. The undertaking was to deliver possession of the said flat to the said society. Popatlal’s quitting of the said flat does not satisfy the undertaking. How untenable the excuse of helplessness, it is clear from the fact that Popatlal made no attempt to evict his family from the said flat; that he did not inform the said society that he had shifted out of the said flat out of helplessness or ask it to forcibly execute the decree with his consent and help; that, most significant of all, he did not approach the Court and seek in the circumstances to be relieved of the undertaking. I have no doubt whatsoever, in the premises, that Popatlal has deliberately avoided handing over possession of the said flat to the said society and has set up the members of his family to that end. He is in flagrant breach of the undertaking given by him and his behaviour is grossly contumacious.

17. To those who so flout promises given to Court, no leniency can be shown. This is imperative if the orders passed by and undertakings given to the Court are to command respect.

18. In so far as the point of limitation is concerned, Mr. Gursahani drew my attention to the judgment in R.L. Kapur v. State of Tamil Nadu, A.I.R. 1972 S.C. 959, wherein it is stated that the jurisdiction conferred on a High Court under Article 218 to punish for contempt of itself is a special one, not arising or derived from the Contempt of Courts Act, 1952. Mr. Gursahani also referred to a judgment of a Division Bench of this Court in Contempt Petition No. 56 of 1977, delivered on 21st November, 1977. It was held that section 20 had to be read subject to section 20(2) of the Limitation Act and that, therefore, it could not have applied Mr. Chinai has, in answer submitted that the notice with which he had been served referred only to the Contempt of Courts Act and section 20 thereof did, therefore, apply.

19. I will assume that section 20 applies. The undertaking is not breached only by the failure to hand over possession of the said flat on the date mentioned therein. The breach continues and will continue from day to day until possession of the said flat is actually handed over to the said society. Therefore, there is no bar of limitation to these proceedings.

20. It is significant that in the affidavit of Galaben and Nirmala there is no statement as to when they came to know of the undertaking given. This renders their excuse of ignorance suspect. They were, as partners of the said firm in possession of the said flat, (though they may have been residing elsewhere) and as liable as Popatlal to hand over possession of it according to the undertaking. They have wilfully failed to do so.

21. Pursuant to my order passed day before yesterday, Galaben and Nirmala are present in Court. One has only to look at them to realise that they could have played no great role in controlling the affairs of the said firm. Having regard to this, the punishment that is to be awarded to them should be milder.

22. Any action taken against Bawabhai might affect the decision of the suit that he has filed in the Court of Small Causes. For that reason, I do not propose to get into his conduct.

23. Having regard to what I find, punishing Popatlal with a fine will not meet the ends of justice; a sentence of imprisonment is necessary. I find Popatlal guilty of civil contempt and sentence him to be detained in civil prison for a period of 4 months.

24. In so far as Nirmala and Galaben are concerned fines would be adequate punishment. I find them guilty of civil contempt and sentence them to pay fines of Rs. 500/- each; if they fail to pay the fines within 2 weeks they must undergo 10 days detention in a civil prison.


25. The notice against Bawabhai is discharged. There shall be no order as to costs.

On Mr. Chinai’s application, the order passed against Popatlal is stayed until 5 p.m. on Monday, 20th September, 1982. Mr. Chinai on behalf of Popatlal, who is present in Court and instructs Mr. Chinai so to do, gives an undertaking to Court to remain in Bombay upto 20th September, 1982, to present himself in Court, if and when an application in appeal is made, and to surrender himself to the Sheriff at 5 p.m. on 20th September, 1982 if no order to the contrary has been by then passed.