Rashi Amit Mehra & Anr. vs Puneet Prakash Mehra & Ors.

This Interim Application has been filed by the Plaintiffs seeking the following reliefs:

The facts, as pleaded by the Plaintiffs in the Interim Application, are as follows:

a. On 18^th April 2019, after obtaining the Letters of Administration of Late Amit Prakash Mehra, the Plaintiffs have instituted the present suit for partition of the properties left behind by Late Prakash Mehra as well as Late Neera Prakash Mehra, by virtue of being the legal heirs of Late Amit Mehra (one of the sons of Prakash Mehra, who passed away), having 1/3rd share in the properties left behind by the parents.

b. By an Order dated 25^th April 2019, this Court was pleased to direct the parties to maintain status quo, and the counsel on behalf of the Defendants No.1 and 2 undertook that, in the meantime, they will maintain accounts of the transactions between Defendant nos.3 to 7 and Defendant No.8. This Court accepted the said statement. This Court directed that there would be an ad-interim order in terms of prayer a (vii) of the Notice of Motion No.2407 of 2019 and disclosure shall be made within two weeks to the Advocate for the Plaintiffs.

c. On 19^th March 2021, this Court passed a preliminary decree in the present Suit and thereby decreed that the Plaintiffs are the 1/3rd owners of all the properties left behind by the parents, and Defendant Nos.1 and 2 have 1/3rd share each in the said estate, and the case was referred to the Commissioner for Taking Accounts for assessment of all the assets comprised in the estates of Prakash and Neera Mehra, and, to carry out a valuation of those assets. By an Order dated 31^st March 2021, the Commissioner for Taking Accounts directed the parties to file Affidavits of Disclosure with respect to all the properties in the estate of the parents.

d. On 3^rd June 2021, the Plaintiffs filed various Affidavits of disclosure bringing on record details of all assets left behind by Late Prakash Mehra and Late Neera Prakash Mehra, along with available details of income generated by Defendant Nos.1 and 2, after the demise of the late parents.

e. On 21^st December 2021, the Plaintiff filed a Comprehensive Disclosure Affidavit along with all details of income from one of the properties in possession of the Plaintiff, being Room Nos.805 and 806 in Kings International Hotel, along with CA certificate with respect to certain suspense entries. The Plaintiffs have also provided the ledger from Keer Hotels from 1^st April 2014 to 31^st March 2021.

f. The Plaintiffs have filed the present Interim Application because, according to them, Defendant Nos.1 and 2 have failed to make the necessary disclosures and have committed violations of the status quo Order passed by this Court by its Order dated 25^th April 2019.

Mr.Shekhar Jagtap, the learned Advocate appearing on behalf of the Plaintiffs, submitted that Defendant Nos.1 and 2 had failed to disclose the details and bring on record documents, income and encumbrances on all properties, in view of the preliminary decree dated 19^th March 2021 and Order dated 31^st March 2021.

Mr.Jagtap submitted that the Plaintiffs have always been deprived access to all the properties as well as its records by Defendant No.1, save and except the Sumeet Bungalow, which is in joint possession of Plaintiffs and Defendant No.1, and the hotel rooms in possession of the Plaintiffs. Therefore, Defendants No. 1 and 2 were under an obligation to provide the details and documents.

Mr.Jagtap submitted that the Affidavits of Disclosures as well as the pleadings filed by Defendants are not in consonance with the Order of this Court dated 19^th March 2021 and the Order dated 31^st March 2021 as the direction was to file an Affidavit with all supporting documents in respect of all the assets comprised in the estate of the late parents.

Mr.Jagtap submitted that neither the Affidavits of Disclosures nor any of the pleadings filed by Defendants No.1 and 2 disclose true accounts especially as to the details of the income generated from the properties till date. Mr.Jagtap submitted that the Affidavits merely disclose certain amounts purportedly incurred in maintenance and/or upkeepment of the said properties, however the Defendants have failed to provide any details and/or justification of the same.

Mr.Jagtap submitted that Defendants No. 1 and 2 have in reply claimed that the original owner Late Prakash Mehra and the Late Amit Mehra had purportedly approved the exclusive occupation of Defendant No.1 of Premises No. 5 Kings International House, Juhu Tara Road, Juhu Church, Mumbai 400049, with Open Garden, Backside Car Park And 2500 Sq. Terrace (hereinafter referred to as “Kings International House Property"). Mr.Jagtap submitted that there is no record or evidence in support of this purported understanding. Defendant Nos.1 and 2 relied upon this purported arrangement to justify that the Plaintiffs are only entitled to the hotel rooms which are in their possession and have taken over the Kings International House Property, which is substantially valued more than the hotel rooms.

Mr.Jagtap submitted that this Court, by the said Order dated 25^th April 2019, granted ad-interim order in terms of prayer clause a (vii) of the Notice of Motion No. 2407 of 2019 and directed Defendants No. 1 to 7 and 8, to make disclosures on oath regarding the Leave and Licenses executed in respect of Kings International House Property.

Mr.Jagtap submitted that Defendants No. 1 and 2 have failed to make discovery on oath under Order XXI Rule 41, of agreements, title deeds, books of accounts entered with respect to Kings International House Property, more particularly as the Defendant No.1 is in possession of the records. Only one agreement, being Agreement dated 13^th August 2018, is brought on record. However, the Defendants have not brought on record Agreements with respect to the period between 2009 to 13^th August 2018 as well as after the expiry of the lease in 2023.

Mr.Jagtap submitted that the Kings International House Property has been in possession of Defendants No. 3 to 8, since the year 2009, without any details and/or particulars.

Mr.Jagtap submitted that Defendant No.1 had, without the consent and knowledge of the Plaintiffs, given the Kings International House Property to various parties on rent and leave and license basis to run a restaurant and had appropriated rent amounts to the exclusion of the Plaintiffs.

Mr.Jagtap further submitted that, as per the Agreement dated 13^th August 2018, Defendant No. 8 was given the permission to operate "a restaurant" from Kings International House Property. However, it has come to the knowledge of the Plaintiffs from invoices dated 30^th August 2022, 9^th September 2022 and 12^th September 2022 obtained by the Plaintiffs that the Defendant No. 8 is running 2 separate restaurant brands i.e. "Vice- Global Tapas Bar" by an entity, viz., Emerald Dreams LLP, and "Terrace Café and Bar" by an entity, viz., Hermes Food and Beverages Pvt. Ltd. from the said premises, which is not permitted as per the Agreement dated 13^th August 2018.

Mr.Jagtap submitted that, on 14^th August 2019, Defendant Nos. 3 to 8 executed an Amendment of Limited Liability Partnership Agreement of Hermes Entertainment & Hospitality LLP Agreement i.e. Defendant No. 4, wherein Defendant No.8 is purportedly a partner, and inducted one Mr. Varun Panam Maloo and Mr. Punit Bharat Gandhi to the Limited Liability Partnership of Defendant No. 4. Mr.Jagtap submitted that Mr. Varun Panam Maloo and Mr. Punit Bharat Gandhi are the partners of the entity viz. Emerald Dreams LLP which runs "Vice- Global Tapas Bar". Further, Emerald Dreams LLP was incorporated on 8^th August 2019 i.e. almost 4 months after the status quo Order dated 25^th April 2019 was passed by this Court.

Mr.Jagtap submitted that the Agreement dated 13^th August 2018 specifically prohibits creation of sub licences despite which separate entities and persons have been running the establishments at the said premises under the garb of the Agreement dated 14^th August 2019.

Mr.Jagtap submitted that the Agreement dated 14^th August 2019 is an unregistered document and therefore has no legal sanctity. Further, Mr.Jagtap submitted that the purported amendment Agreement dated 14^th August 2019, wherein new parties are added to the association of the Defendant No.8, has been created to justify the entry of various entities and/establishments at the Kings International House Property, including Vice- Global Tapas Bar”, “Terrace Café and Bar", Emerald Dreams LLP and Hermes Food and Beverages Pvt. Ltd.

Mr.Jagtap submitted that Defendants No.1 and 2, through Defendants No. 3 to 8, have created various encumbrances in breach of the status quo order, which are not disclosed on the properties and are detrimental to the family assets. Mr. Jagtap submitted that Defendants No. 1 and 2 have breached the status quo order and their licensees have carried out unauthorized construction, resulting in action by the BMC. Mr.Jagtap submitted that, despite the order of this Court to maintain the status quo, Defendants No. 1 and 2, in absolute defiance to the Order dated 25^th April 2019, and without the consent of the Plaintiffs, have illegally continued to let out the said premises and are carrying out extensive repairs, and renovations, along with additions and alterations, without the consent of the Plaintiffs.

Mr.Jagtap submitted that Defendants Nos. 3 to 8, who are in in possession of the said premises, have made unauthorized construction around the passage of the said premises, around the boundary, which Defendant No. 8 was utilizing as space for additional tables.

On 13^th June 2022, the authorized officer of the Municipal Corporation of Greater Mumbai issued a show cause notice to the Owner and Occupier of Vice Global Tapas Bar in pursuance of his powers and functions under Sections 351, 352, 352A and 354A of the Mumbai Municipal Corporation Act, 1888 in respect of the unauthorized erection of a building and execution of work carried out in the said premises.

Mr.Jagtap submitted that, on 4th July 2022, in pursuance of the show cause notice dated 13^th June 2022, since the Defendants failed to produce any authenticated documents to prove the authorization of the structure, the Designated Officer Ward K/West of the Municipal Corporation of Greater Mumbai passed an Order thereby directing the Owner and Occupier of the Vice Global Tapas Bar to remove the said unauthorized structure work within a period of 15 days, failing which the notice structure would be demolished.

Mr.Jagtap submitted that the aforesaid demonstrates that there is a clear breach of the purported Agreement dated 13th August 2018, by Defendant No. 3 to 8, despite which Defendants No. 1 and 2 have not taken any steps against these entities, which indicates that Defendants No. 1 and 2 were aware of the various entities, and had failed to make disclosures before this Court.

Further, Mr.Jagtap submitted that the Leave and Licence Agreement between the Defendant No.1 and the Defendant No.8 had expired in the year 2023, and there is no reference made to the present status and/or under whose control the property is presently, however it appears that the restaurant of the Defendant No.8 is still in existence, which itself is in absolute defiance of the Order of this Court dated 25^th April 2019.

Further, Mr.Jagtap submitted that this Court, while passing a preliminary decree, as well as the Order dated 31^st March 2021 passed by the Commissioner for Taking Accounts, had clarified that substantial rights in respect of the movies, including intellectual property rights, royalties, licenses are there and the same have to be disclosed. Mr.Jagtap submitted that Defendant No.1, who has had constant access to the same, ought to bring the same on record.

Mr.Jagtap submitted that the original negatives of the films are kept with one Romnard Labs, which is in exclusive control of Defendants No.1 and 2, however neither the details and status of the same are brought on record nor access of the same was given during the valuation process.

Mr.Jagtap submitted that neither the Affidavits of Disclosures nor any of the pleadings filed by Defendants No.1 and 2 disclose details and status of rights, royalties, licenses, etc. with respect to the films, including details of whether copyright in any film has been assigned in perpetuity, whether partial rights have been assigned or whether assignments have come to an end.

Mr.Jagtap submitted that it has also come to the knowledge of the Plaintiffs that the films are generating royalties from entities including Saregama, however no details are provided till date.

Mr.Jagtap submitted that Defendants No. 1 and 2 have repeatedly breached the Orders of this Court dated 25^th April 2019, 19^th March 2021 and the Order passed by the Commissioner for Taking Accounts dated 31^st March 2021 by failing to disclose the details as called upon by this Court as well as violating the status quo order.

Mr.Jagtap submitted that considering the wilful breach and disobedience by Defendants No. 1 and 2 of the Orders dated 25^th April 2019, 19^th March 2021 and 31^st March 2021, it is necessary to issue directions under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”) to attach the properties of Defendants Nos. 1 and 2 out of their 2/3rd share in the Suit properties and detain Defendants Nos. 1 and 2 in civil prison to prevent further disobedience, along with consequential reliefs sought by the Plaintiffs.

Mr.Jagtap submitted that, for these reasons, the consequences under Order XXXIX Rule 11 would follow and it is necessary to strike out the pleadings of Defendant Nos. 1 and 2.

Mr.Jagtap submitted that, considering the repeated disobediences and the encumbrances created by the Defendants No. 1 and 2 vis-à-vis the Defendants No. 3 to 8, this Court should issue necessary directions under Order XXI Rule 54 of the CPC and thereby attach the Kings International House Property. Further, Mr. Jagtap submitted that considering the repeated non-compliance by Defendants No. 1 and 2, the Plaintiffs are seeking directions for Defendant Nos.1 and 2 to make discovery on oath under Order XXI Rule 41, of Agreements, title deeds, books of accounts entered into with respect to suit properties, including the Kings International House Property, as well as the details and status of rights, royalties, licenses, etc. with respect to the films.

Mr.Jagtap also submitted that this Court ought to direct Defendant Nos. 1 and 2 to pay 1/3rd share of the rent amount received in respect of the Kings International House Property, as per the Agreement dated 4^th May 2009, executed with Joebelle Homes and Hospitality for the duration of 2009-2013, with Spare Kitchen for the duration of 2013-2018, with respect to the Agreement dated 13th December 2018 executed with Defendant No.8 Mouthwatering Pvt. Ltd. running "Vice" and "Terrace" for the duration of 2018- 2023, as well as 1/3rd share of all income generated as per the Agreements and instruments and deposit the 1/3rd share of the Plaintiffs.

In support of his submissions, Mr.Jagtap has relied upon the following judgements:

Sanjay Thakkar Versus Bhojja Shantu Shetty and Another 2023 SCC OnLine Bom 287

Shantilal Chimanlal Sheth Versus Mak Estate and Property Pvt. Ltd. and Another First Appeal No. 2 of 1997 (Bombay High Court)

Pralhad s/o Nagorao Bodkhe Versus Sulochana Ramchandra Kawarkhe & Others 2021 SCC OnLine Bom 211

Keshrevial Jivji Shah and Another Versus Bank of Maharashtra and Ors. 2004 SCC OnLine Bom 368

Ashok Dashrath Rana Versus Edit II Production Binaifer Sanjay Kohli and Others 2019 SCC OnLine Bom 905

Bhandari Engineers & Builders Pvt. Ltd. Versus Maharia Raj Joint Venture and Others 2021 SCC OnLine Del 3595

Mr.Zubin Behramkamdin, the learned Senior Counsel appearing on behalf of Defendant Nos.1 and 2, submitted that the Plaintiffs are not entitled to any of the reliefs sought by them in the present Interim Application.

As far as prayers (B) and (C) are concerned, Mr.Behramkamdin submitted that the Plaintiffs have sought issuance of directions under Order XXI Rule 41 and Order XXI Rule 54 of the CPC. Mr.Behramkamdin submitted that a reading of these provisions show that these are Orders which a judgement-creditor can apply for against a judgement-debtor, once a final decree for payment of money has been made. In the present case, there is no final decree, let alone for payment of money. It is settled law that the aforesaid provisions of the CPC do not apply at this stage of the proceedings and can only be sought at the time of execution. Thus, these reliefs cannot be granted.

As far as prayers (D), (E), (F), (G) and (I) are concerned, Mr.Behramkamdin submitted that the Plaintiffs have sought various disclosures, in respect of the Kings International House Property from the year 2009 till during the life time of Plaintiff No.1’s deceased husband, as also a 1/3rd share of the rent amounts received from the year 2009. Furthermore, Plaintiffs had sought similar ad-interim reliefs in Notice of Motion No. 2407 of 2019, whereby injunction was also sought in respect of Kings International House Property, which was not granted to the Plaintiffs.

Mr.Behramkamdin submitted that the reliefs under prayer clauses (D) and (E) have been sought for by the Plaintiffs without furnishing any basis in the Plaint, without any such relief sought for in the Plaint pertaining to disclosures of accounts/rendering of accounts of rent received during the lifetime of Amit, who during his lifetime never raised any claim whatsoever nor demanded any such amounts.

Further, Mr.Behramkamdin submitted that all the reliefs sought in respect of Kings International House Property cannot and should not be granted because they are contrary to the family arrangement between the family members and which family arrangement has been acted upon since the date of demise of Late Mr. Prakash Mehra in 2009 and continues to be acted upon.

Mr.Behramkamdin submitted that, as far as Kings International House Property is concerned, Defendant No.1 had been in possession of the same since the year 2004, during the lifetime of his father, Late Prakash Mehra. This had been allowed to the Defendant No.1 by his father, Late Prakash Mehra and none of the family members had any grievance about this or objected to it.

Mr.Behramkamdin submitted that, thereafter, in the year 2009, pursuant to the sad demise of Late Prakash Mehra, the 3 brothers, being Defendant No.1, Defendant No.2 and Amit entered into an oral family arrangement whereby it was agreed upon that Defendant No.1/Defendant No.2 would continue using the Kings International House Property and earn therefrom. Amit would continue to be in possession of the Kings International Rooms (“KIRs”) and earn therefrom. Mr.Behramkamdin submitted that these averments in respect of the family arrangement have not been denied and the Plaintiffs have not filed any rejoinder to the present Interim Application.

Mr.Behramkamdin submitted that, furthermore, it was during 2009, pursuant to a fire in one of the recording studios, that Amit, after discussing with Defendant Nos.1 and 2 that he wished to earn some form of rental income from the KIRs, decided to have them converted from recording studios into hotel rooms. It was a clear unambiguous understanding that whilst Amit would earn income from those KIRs, Defendant No.1 and Defendant No.2 would earn income from the Kings International House Property.

Mr.Behramkamdin submitted that, since 2009, these are the undisputed facts about the family arrangement that has been acted upon since 2009 and continues as on date. Even in the years leading up to Amit's death, there was never any objection to this family arrangement. Furthermore, there has been no correspondence raising any objection to this family arrangement by the Plaintiffs. Plaintiffs had, nearly for the last 20 years, earned income from the KIRs. Likewise, Defendant Nos.1 and 2 have used the Kings International House Property for income in consonance with the family arrangement between the brothers.

Mr.Behramkamdin submitted that the Plaintiffs have failed to produce any evidence, correspondence, etc., that would evidence that any objection by any family member (including Amit) had been raised since the year 2004 or even 2009 to dispute the family arrangement. Mr.Behramkamdin submitted that, in any event and without prejudice to the above, any monetary claims on the said income for the past years would be grossly barred by the law of limitation.

Mr.Behramkamdin submitted that all the huge expenses for upkeep, maintenance, security, property tax, etc. in relation to Sumeet Bungalow had since the year 2009, and even as of date, continue to be borne by Defendant No.1 alone. Further, whilst Plaintiff No.1 claims to have ownership of Sumeet Bungalow and enjoys the same, neither Plaintiff No.1 nor Amit ever came forward to contribute and/or share any of the expenses for the general maintenance, upkeep and safety of Sumeet Bungalow. Mr.Behramkamdin pointed out that Electricity expenses up to 24^th May, 2021, were approximately Rs. 57,50,707/-, BMC Water Bills up to 8^th March, 2021, were approximately Rs. 2,26,990/-, Property Tax up to 31^st March, 2019, was approximately Rs. 3,42,092/- and the Security charges up to May 2021, were approximately Rs. 44,82,545/-.

Mr.Behramkamdin submitted that, until 2017, Defendant No.1 was bearing all maintenance costs as also monthly society charges of the Ramesh Mahal Property, and the Plaintiffs had never come forward or even offered to pay their share of the utility/maintenance bills that accrued or continue to accrue.

Mr.Behramkamdin submitted that with regard to the Kings Apartment Garage Car Parking Space No. 13, all maintenance and monthly society charges have been borne by Defendant No.1 and continue to be paid for by Defendant No.1.

Mr.Behramkamdin submitted that Defendant No.1 has been bearing all expenses to protect the film rights even at present, due to the illegal broadcast of the films forming part of the family estate, but also during the years 2011-2012, when Defendant Nos.1 and 2 were left with no choice but to adopt legal proceedings to protect the rights and interests in the film "Zanjeer", the litigation cost of which amounted to approximately Rs. 2,41,28,270/-

Mr.Behramkamdin submitted that Defendant No.1 has, over the years, and continues to bear, expenses in relation to the laboratory, cold storage and general maintenance of all the films and sound negatives of the films forming part of the family estate.

Mr.Behramkamdin further submitted that Defendant No.1, as on date, continues to solely bear the expenses for the maintenance, protection and upkeep of the family estate and has spent crores of rupees in doing so, in all these years, whilst Plaintiff No.1 or Amit have not, on a single occasion, even offered to pay or bear these expenses. Mr.Behramkamdin submitted that the amounts mentioned in the Affidavit of Disclosure of Liabilities are until filing of the Affidavit, i.e., the year 2021.

Mr.Behramkamdin submitted that it is clear that the Plaintiffs have admitted that they have not borne any expenses and that the Defendant No.1 has borne all expenses for many years. Mr.Behramkamdin submitted that, in this context, it is relevant to note the statement made on behalf of Plaintiffs in the Order dated 17^th July, 2021, passed by the Commissioner for Taking Accounts. When the Advocates for Defendant Nos.1 and 2 submitted that all the liabilities and expenses are being solely borne and discharged by Defendant No.1, the Plaintiffs interalia submitted that, assuming Defendant No.1 has incurred liability in the maintenance of the assets, the same could be appropriated after the record of the income and actual value was brought on record and after which the 1/3^rd liability can be deducted.

Mr.Behramkamdin submitted that, for all the aforesaid reasons, the Plaintiffs are not entitled to any of the reliefs sought for by them in Prayers (D), (E), (F), (G) and (I) of the Interim Application.

In respect of Prayers (J) and (K), Mr.Behramkamdin submitted that the Plaintiffs have sought various directions under Order XXXIX, Rule 2A and Order XXXIX, Rule 11 of the CPC. Mr.Behramkamdin submitted that neither of these provisions apply in the present case. He submitted that even if it is presumed that both prayers relate to the Order dated 25^th April 2019, i.e. the status quo Order, and the Order dated 31^st March 2021, a bare perusal will show that there is no disobedience of either of these orders.

Mr.Behramkamdin submitted that there has been no violation by Defendant No.1 or Defendant No.2 of the status quo order passed by this Court interalia directing the parties to maintain status quo. On a bare perusal of the Plaint, it is evident that Plaintiffs were aware about the leave and license of the Kings International House Property. The Plaintiffs have never raised any prior objection and have failed to adduce any evidence whatsoever to prove the contrary.

Mr.Behramkamdin stated that the Plaintiffs, in the Plaint, have also stated that Plaintiff No.1 is in exclusive possession of the KIRs, hence, indirectly admitting and accepting the existence of the family arrangement between Defendant Nos.1 and 2 and Amit.

Mr.Behramkamdin submitted that Kings International House Property was licensed by way of a registered leave and license agreement dated 13^th August, 2018 and the same was annexed by Defendant No.1 in his Affidavit in Reply to the Notice of Motion dated 6^th June, 2019. Mr.Behramkamdin submitted that Defendant No.1 has never portrayed himself to be a sole owner of the Kings International House Property and accordingly the agreement refers to him as an owner. Mr.Behramkamdin submitted that Plaintiffs have not provided any evidence to show that Defendant No.1 has proclaimed himself to be the sole owner of the Kings International House Property.

Mr.Behramkamdin submitted that when the status quo order was passed, the Kings International House Property was already licensed to Defendant No.8 since 2018. This fact, as also the registered Leave and License Agreement, have been placed before and noted by this Court, and the fact is that this position has, at all times, continued during the pendency of the Suit, with Defendant No.8 remaining the licensee and no new party being inducted into the Kings International House Property. Defendant Nos.1 and 2 have maintained status quo as directed by this Court, namely that the said licensee continues in occupation, and has been maintained throughout the pendency of the present Suit.

Mr.Behramkamdin submitted that there has been no change of licensee, no transfer of possession and no creation of any fresh third party rights in respect of the Kings International House Property due to the status quo order. The different names and entities relied upon by the Plaintiffs as appearing on bills or invoices (like Hermes or Emerald) are only internal business and sales/billing vehicle operations and do not signify any change in the identity of the Licensee i.e. Defendant No.8.

The Plaintiffs’ allegation that Defendant No.1 has introduced other parties into the Kings International House Property by relying upon an internal agreement between the Licensee and bills/receipts evidencing different names, is wholly baseless and untenable. The Kings International House Property has only been licensed to Defendant No.8 and is well protected under the terms and conditions of the registered Leave and License Agreement.

Mr.Behramkamdin submitted that in the absence of any material showing a new licensee or induction of any other party into the premises post the status quo order, the allegations of breach of the status quo order are wholly unsupported and cannot meet the strict test of wilful and contemptuous disobedience required under Order XXXIX, Rule 2A of the CPC.

Mr.Behramkamdin further submitted that there has also been no violation by Defendant No.1 or Defendant No.2 of the Order of the Commissioner for Taking Accounts. The Order of the Commissioner for Taking Accounts directed the parties to file Affidavits of disclosure to enable identification and assessment of the assets of the estate for the purposes of the Commissioner for Taking Accounts. The same did not mandate a detailed disclosure of income or revenues from on-going businesses, as is now incorrectly suggested by the Plaintiffs.

Mr.Behramkamdin submitted that, in any event, Defendant No.1 has complied with the direction passed by the Commissioner for Taking Accounts by filing Affidavits of disclosure from time to time before this Court and the Commissioner for Taking Accounts, whereas it is the Plaintiffs who have not truthfully or fully disclosed their own dealings and exploitation of the assets of the family estate. This is expressly recorded by this Hon'ble Court in its Order dated 30^th September, 2021, which records the deficiencies in Plaintiffs’ disclosure and does not find or make mention of any contumacious non-compliance on the part of Defendant No.1 as alleged by the Plaintiffs.

In support of his submissions, Mr.Behramkamdin has relied upon the judgements of the Hon’ble Supreme Court in Kapildeo Prasad Sah & Ors. vs. State of Bihar & Ors. [(1999) 7 SCC 569] and Food Corporation of India vs. Sukh Deo Prasad [(2009) 5 SCC 665].

In conclusion, Mr.Behramkamdin submitted that the Plaintiffs are not entitled to any of the reliefs sought by them in the present Interim Application.

As a number of prayers are sought by the Plaintiffs in this Interim Application, in my view, it would be appropriate to deal with the case of the Plaintiffs prayer-wise.

Prayers (B) and (C), which have been set out hereinabove, seek directions under Order XXI Rule 41 of the CPC and Order XXI Rule 54 of the CPC respectively. On a reading of the provisions of Order XXI Rule 41 of the CPC and Order XXI Rule 54 of the CPC, it is clear that these are Orders which a judgement-creditor can apply for against a judgement-debtor, once a final decree for payment of money has been made. In the present case, there is no final decree, let alone for payment of money. The aforesaid provisions of the CPC do not apply at this stage of the proceedings and can only be sought at the time of execution. Thus, in my view, these reliefs cannot be granted.

Prayer (D) seeks a direction to Respondent No. 1 and 2 to render accounts of the total rent income received in respect of the Kings International House Property as per the various Agreements executed with various parties.

Prayer (E) seeks a direction to Respondent Nos.1 and 2 to render accounts of all income generated with respect to the other suit properties, including the Intellectual Property Rights, which form the estate of Late Prakash Mehra and Late Neera Mehra from the year May 2009 till passing of Decree and further from the date of filing execution till date;

Prayer (F) directs Respondent No. 1 and 2 to pay 1/3rd share of the rent amount received in respect of the said Kings International House Property, as per the Agreement entered into in respect thereof.

Prayer (G) seeks interest at the rate of 18% p.a. on the entire amount as disclosed pursuant to prayer (E) from the date of receipt of the said rent amounts till payment or realization thereof.

Prayer (H) seeks a direction against Defendant Nos.1 and 2 not to use and occupy the said Kings International House Property by Defendant Nos. 3 to 8 and any other person and/or entity claiming under Respondent Nos. 1 and 2 till the actual outstanding amounts and 1/6th share is paid to each of the Plaintiffs.

Prayer (I) is in the alternative to Prayer (G) and seeks a direction against the Respondents to make a disclosure on oath of the revenue paid to Defendant Nos. 1 and 2 and also seeks a direction that 1/6th share be deposited in the bank accounts of the Plaintiffs.

These reliefs have been sought for rendering of accounts in respect of the transactions in the Kings International House Property and also in respect of other properties including intellectual property rights and for payments therefrom to the Plaintiffs. In prayer (H), an injunction has also been sought seeking a direction that Defendant Nos.3 to 8 shall not use and occupy the premises till the Plaintiffs are paid the actual outstanding amounts and 1/6th share is paid to each of the Plaintiffs. In Prayer (I) relief is sought for deposit of amounts regarding the Kings International House Property.

As far as Kings International House Property is concerned, Defendant No.1 has been in possession of the same since the year 2004 i.e. during the lifetime of his father, Late Prakash Mehra. This had been allowed to the Defendant No.1 by his father Late Prakash Mehra and none of the family members had any grievance about this or objected to it.

Further, in the year 2009, pursuant to the demise of Late Prakash Mehra, the 3 brothers, being Defendant No.1, Defendant No.2 and Amit entered into an oral family arrangement whereby it was agreed upon that Defendant No.1/Defendant No.2 would continue using the Kings International House Property and earn therefrom and Amit would continue to be in possession of the KIRs and could earn therefrom.

Defendant Nos.1 and 2 have made averments regarding this family arrangement in the Affidavit in Reply to the present Interim Application but the same have not been denied by the Plaintiffs. Hence, since 2009, undisputably there is a family arrangement which has been acted upon since 2009 and continues to be acted upon as on date. Even in the years leading up to Amit's death, there was never any objection to this family arrangement. Furthermore, there has been no correspondence raising any objection to this family arrangement by the Plaintiffs. The Plaintiffs have nearly, for the last 16 years, earned income from the KIRs. Likewise, Defendant Nos.1 and 2 have used the Kings International House Property for earning income in consonance with the family arrangement between the brothers.

Further, the Plaintiffs have not produced any evidence that would suggest any objection was taken by any family member, including Amit, since 2009, disputing this family arrangement. Further, all huge expenses for upkeep, maintenance, security, property tax in relation to the Sumeet Bungalow have, since the year 2009, and even as of date, continued to be borne by Defendant No.1 alone. Plaintiff No.1, whilst claiming to have ownership and enjoying Sumeet Bungalow, neither Plaintiff No.1 nor Amit ever come forward to contribute and/or share any of these expenses for the general maintenance, upkeep and safety of Sumeet Bungalow. Further, until 2017, Defendant No.1 was bearing all maintenance costs as also monthly society charges of the Ramesh Mahal Property, where also, the Plaintiffs have never come forward or even offered to pay their share of the utility/maintenance bills. Further, Defendant No.1 has been bearing all expenses to protect the film rights even at present, especially due to the illegal broadcast of the films forming part of the family estate. Further, Defendant Nos.1 and 2 had no choice but to adopt legal proceedings to protect the rights and interests of the film “Zanjeer”, the litigation costs of which amounted to approximately Rs.2,41,28,270/-.

Defendant No.1 has, over the years, borne, and continues to bear expenses in relation to the laboratory, cold storage and general maintenance of all the films and sound negatives of films forming part of the family estate.

It is clear that the Plaintiffs have not been able to show that they have borne any expenses. It is also clear that Defendant No.1 has borne all expenses for many years. In fact, it is important to note the statement made on behalf of the Plaintiffs in the Order dated 17^th July 2021 passed by the Commissioner for Taking Accounts. When the Advocates for Defendant Nos.1 and 2 submitted that all liabilities and expenses were being solely borne and discharged by Defendant No.1, Plaintiffs inter alia submitted that, assuming Defendant No.1 has incurred liability in the maintenance of the assets, the same could be appropriated after the record of the income and actual value was brought on record and after which the 1/3rd liability can be deducted. This also shows that the Plaintiffs have not been bearing any expenses in respect of the family estate.

In my view, for all the aforesaid reasons, the Plaintiffs are not entitled to any of the reliefs as sought for in prayers (D) to (I).

In Prayer (J), the Plaintiffs have sought directions under Order XXXIX Rule 2A of the CPC to attach the properties of Defendant Nos. 1 and 2 out of their 2/3^rd share in the Suit properties and detain Defendant Nos. 1 and 2 in civil prison to prevent further disobedience, along with consequential reliefs.

In prayer (K), the Plaintiffs have sought directions under Order XXXIX Rule 11 of the Code of Civil Procedure, 1908 to strike out the pleadings of Defendant Nos. 1 and 2 for defying the Court's Order dated 25^th April 2019 as well as the Order dated 31^st March 2021 and for committing a breach of the undertaking.

In my view, there has been no violation by the Defendants of the Order passed by this Court interalia directing the parties to maintain status quo. On a perusal of the Plaint, it is evident that the Plaintiffs were aware about the Leave and License in respect of the Kings International House Property. The Plaintiffs have never raised any prior objection and have failed to adduce any evidence to show that they have raised any prior objection. It is important to note that the Plaintiffs have made the licensees as a party to the Suit i.e. as Defendant No.8.

The Plaintiffs, in the Plaint, have also stated that they are in exclusive possession of the KIRs. Hence, indirectly admitting and accepting the existence of the family arrangement between Defendant Nos.1, Defendant No.2 and Amit.

The Kings International House Property was licensed by way of a registered Leave and License Agreement dated 13^th August, 2018 and the same was annexed by Defendant No.1 in his Affidavit in Reply to the Notice of Motion dated 6^th June, 2019. Defendant No.1 has never portrayed himself to be a sole owner of the Kings International House Property and has proclaimed himself to be the owner of the Kings International House Property. Furthermore, when the status quo Order dated 25^th April 2019 was passed, the Kings International House Property was already licensed to Defendant No.8 since 2018. This fact, as also the registered Leave and License Agreement, has been placed before and noted by this Court. This position has, at all times, continued during the pendency of the present Suit, with Defendant No.8 remaining the licensee and no new party being inducted into the Kings International House Property. Thus, Defendant Nos.1 and 2 have maintained status quo as directed by this Court, namely that the licensee continues in occupation of the Kings International House Property. There has been no change of licensee, no transfer of possession and no creation of any fresh third party rights in respect of the Kings International House Property after the status quo Order, as alleged by the Plaintiffs. The different names and entities relied upon by the Plaintiffs, as appearing on the bills and invoices, are only internal business and sales/billing vehicle operations and do not signify any change in the identity of the licensee i.e. Defendant No.8. The Plaintiffs’ allegations that Defendant No.1 has introduced other parties into the Kings International House Property, by relying upon an internal agreement of the licensee and bills/receipts evidencing different names, does not show that the licensee, i.e. Defendant No.8, has changed. The Kings International House Property has been licensed to Defendant No.8 and continues to be licensed to Defendant No.8.

Further, in my view, there has been no violation of the Order of the Commissioner for Taking Accounts by Defendant No.1 and 2. The Order of the Commissioner for Taking Accounts directed the parties to file Affidavits of Disclosure to enable identification and assessment of the assets of the estate for the purposes of the Commissioner for Taking Accounts’ reference. The same did not mandate a detailed disclosure of income or revenues from on-going businesses, as the Plaintiffs now incorrectly suggest. Further, Defendant No.1 has complied with the directions passed by the Commissioner for Taking Accounts by filing Affidavits of Disclosure from time to time before this Court and the Commissioner for Taking Accounts. In any case, it is the settled law that Order XXXIX, Rule 2A and Order XXXIX, Rule 11 of the CPC are attracted only in cases of clear, deliberate and proved disobedience of a subsisting injunction. It is settled law that there ought to be a clear case of wilful contumacious disobedience of an Order of a Court and no order can be passed for casual, accidental, bona fide or unintentional non-compliance. This is because the consequences are very serious like attachment and/or civil imprisonment. In my view, in the present case, the Plaintiffs have failed to show any deliberate breach or disobedience of the Order of this Court or of the Commissioner for Taking Accounts. For all these reasons, the Plaintiffs are not entitled to the reliefs sought for in prayers (J) and (K).

In my view, there are other reasons as to why the Plaintiffs are not entitled to the reliefs sought for in the Interim Application.

It is undisputed that, during Amit's lifetime, nearly 6 years after the demise of the parents, Amit never raised any allegation similar to those now advanced by the Plaintiffs regarding misappropriation of rent, breach of trust or any illegality in Defendant No.1's possession of the Kings International House Property . This itself shows that the present allegations by the Plaintiffs are incorrect and merely by way of an after thought.

Further, Defendant No.1 has solely and consistently borne all liabilities associated with the family estate, including maintenance, utilities, taxes, security, laboratory and cold storage expenses for film negatives, etc., as evidenced in their series of Affidavits of disclosure. The Plaintiffs, on the other hand, have neither disclosed nor contributed any amount towards these liabilities.

The Plaintiffs have made an allegation that the films are generating royalty from Saregama. Although the Plaintiffs have made these allegations of Defendants receiving revenue from Saregama in respect of the films, the Plaintiffs have not produced any material to substantiate the same. In these circumstances, these contentions are liable to be rejected by this Court. Further, the present Interim Application seems to be an attempt on the part of the Plaintiffs to deprive Defendant No.1 of his only legitimate source of income whilst the Plaintiffs continue to enjoy the benefits of the KIRs and other benefits of the family estate assets without bearing any corresponding liabilities.

Further, it is important to note that, even after the filing of the present Suit and the passing of the preliminary decree dated 19^th March 2021, the Plaintiffs never sought possession or revenue from Kings International House Property. This prolonged silence is wholly inconsistent with the Plaintiffs’ case in the present Interim Application. The same correctly shows an attempt by the Plaintiffs to interfere with the one property, namely Kings International House Property, from which Defendant Nos.1 and 2 are deriving their income. Further, the record of this case clearly demonstrates that the balance of convenience lies in favour of preserving a long standing family arrangement which had sustained since 2009, rather than granting the reliefs sought by the Plaintiffs. Granting such reliefs would, in effect, dispossess and or finally suffocate two out of three legal heirs who are currently bearing the entire burden of the family estate’s liabilities, and unjustly and perversely reward the Plaintiffs. Thus granting of the reliefs sought by the Plaintiffs would amount to harassment to Defendant Nos.1 and 2.

However, since the Kings International House Property forms part of the estate of the deceased and needs to be protected till the final hearing of the Suit, which is a partition Suit, Defendant Nos.1 and 2 are restrained by an injunction of this Court from alienating or transferring or creating any third party rights in respect of the Kings International House Property. However, the aforesaid injunction would not affect the present Leave and License granted to Defendant No.8 in respect of the Kings International House Property, and would also not prevent the Plaintiffs from giving the said Kings International House Property on leave and license basis. Further, in order to protect the estate of the deceased, the Plaintiffs are directed to maintain accounts in respect of the income received by them from the Kings International House Property till the final hearing of the Suit.

Further, since the rights in respect of the movies, also form a part of the estate of the deceased parents, Defendant Nos.1 and 2 are restrained by an injunction of this Court from dealing with or transferring or alienating or creating third party rights in respect of the movies forming part of the estate of Late Prakash Mehra as well as Late Neera Prakash Mehra without the permission of this Court.

In the light of the aforesaid findings on facts, it is not necessary to deal with the judgments cited by the parties.

In the light of the aforesaid discussions, and for the aforesaid reasons, the following Orders are passed:

a. Defendant Nos.1 and 2 are restrained by an injunction of this Court from alienating or transferring or creating any third party rights in respect of the Kings International House Property.

b. However, the aforesaid injunction would not affect the license given to Defendant No.8 nor would it prevent the Defendant Nos.1 and 2 from giving out the Kings International House Property on leave and license basis.

c. Defendant Nos.1 and 2 are directed to maintain accounts in respect of the income received by them from Kings International House Property till the final hearing of this Suit.

d. Defendants Nos.1 and 2 are restrained by an injunction of this Court from transferring or alienating or creating third party rights in respect of the movies forming part of the estate of Late Prakash Mehra as well as Late Neera Prakash Mehra without the permission of this Court.

e. Rest of the reliefs sought in the Interim Application are rejected.

f. In the facts of the case, there will be no order as to costs.

g. Interim Application is disposed of in the aforesaid terms.