AI Structured Summary
Not yet generated for this judgment
Judgment
N. Ananda
The appellant (I-defendant before court below hereinafter referred to as I-defendant) has filed this appeal against the order passed by the trial court under Order XXXIX Rule 2A CPC, reading as hereunder:-
The respondent (defendant No. 1) is hereby directed to deposit balance amount of Rs. 4 Crores 10 lakhs within 4 weeks from today, if the respondent (defendant No. 1) fails to deposit Rs. 4 Crores 10 Lakhs within 4 weeks from today he will be detained in civil prison for a period of 2 months for violation of the Hon''ble High Court order in Writ Petition No. 1881.3-14/2011 dated 15.07.2011 and Hon''ble Supreme Court order dated 08.11.2011 in SLP Nos. 25564-25565/2011.
I have heard Sri S. Shaker Shetty, Learned Counsel for appellant and Sri C. Hanumantha Rao, Learned Counsel for respondents 1 to 8.
The brief facts and proceedings leading to impugned order are as follows:-
Respondents 1 to 8 herein (hereinafter referred to as defendants 11 to 18) are the petitioners 1 to 8 before court below. Respondents 1 to 8 along with other plaintiffs 1 to 10 have filed O.S. No. 8230/2007 for partition against I-defendant and defendants 2 to 18. The I-defendant filed written statement, admitting that suit schedule properties are Hindu joint family properties. The I-defendant had entered into a Joint Development Agreement dated 28.05.2007 with defendants 17 & 18 and received a sum of Rs. 6 crores from defendant No. 17 namely M/s. Bagmane Constructions Pvt. Ltd. This Joint Development Agreement ''was entered into between defendant No. 1 and defendants 17 & 18, in respect of land situate in survey Nos. 100, 101, 108 and 109 of Mahadevapura Village, K.R. Pura Hobli, Bangalore East Taluk, Bangalore and also in respect of Survey Nos. 42/4, 57 and 64 of Doddanekundi Village, Varthur Hobli, Bangalore East Taluk., Bangalore, in all measuring 27 acres.
At this juncture, it is necessary to state that land bearing survey No. 42/4 measuring 2 acres 12 guntas is described as suit item No. 1, land bearing survey No. 57 in an extent of 1 acre 8 guntas is described as suit item No. 5, land bearing survey No. 64 in an extent of 9 acres 34 guntas is described as suit item No. 6, land bearing survey No. 100 in an extent of 6 acres 32 guntas is described as suit item No. 10, land bearing survey No. 101/1-2-3 in an extent of 3 acres is described as suit item No. 11, land bearing survey No. 108 in an extent of 4 acres 11 guntas is described as suit item No. 12 and land bearing survey No. 109 in an extent of 1 acre 15 guntas is described as suit item No. 13.
In the Joint Development Agreement entered into between defendant No. 1 and defendants 17 & 18, I defendant has described himself as representative and authorised signatory of members of joint family, including plaintiffs and other defendants. The I-defendant has described himself as "kartha" of the family, which according to plaintiffs is apparently false.
Plaintiffs 11 to 18 had filed an application u/s 151 CPC (IA-12) for a direction to I-defendant to deposit a sum of Rs. 6 crores before the trial court. The trial court rejected the application. Therefore, plaintiffs 11 to 18 had filed W.P. Nos. 18813-14/2011. this Court directed I-defendant to deposit the shares of plaintiffs, out of the amount of Rs. 6 crores received by him under joint development agreement dated 28.05.2007 with the trial court within a period of four weeks from 15.07.2011. The I-defendant did not deposit the amount. Therefore, plaintiffs 11 to 18 filed C.C.C. Nos. 1741/2011 & 1892-98/2011 before this Court. this Court dismissed C.C.C. Nos. 1741/2011 & 1892-98/2011 with an observation that plaintiffs 11 to 18 to move the trial court for violation of the order by invoking the provisions of Order XXXIX Rule 2A CPC. Therefore, plaintiffs 11 to 18 filed an application before the trial court to direct I-defendant to deposit the amount or to send I-defendant to civil prison for non-compliance of the order passed by this Court in W.P. Nos. 18813-14/2011 dated 15.07.2011. This application was initially numbered as IA-18, subsequently it was numbered as Misc. No. 707/2011.
The I-defendant resisted the application, inter alia contending; the application is not maintainable either in law or on facts; the order made by this Court in W.P. Nos. 18813-14/2011, directing I-defendant to deposit the amount is not an order made on the application filed under Order XXXIX Rule 2A CPC, therefore, the application filed under Order XXXIX Rule 2A CPC is not maintainable; plaintiffs 11 to 18 are guilty of suppression of facts; I-defendant is aged about 75 years, he is a law abiding citizen, he has utmost respect for orders passed by this Court; as per the directions of this Court in W.P. Nos. 18813-14/2011, the trial court has to quantify the shares of plaintiffs 11 to 18 in the afore stated sum of Rs. 6 crores; plaintiffs 11 to 18, without stating their shares filed an application to abuse the process of court. The I-defendant has deposited a sum of Rs. 90 lakhs towards tentative shares of defendants 11 to 18, without prejudice to his rights on merits of the case.
The learned trial Judge has quantified the amount to be deposited by I-defendant as a sum of Rs. 5 crores.
During pendency of W.P. Nos. 18813-14/2011 before this Court, I-defendant had filed an affidavit on 05.07.2011, wherein he has stated that pursuant to Joint Development Agreement dated 28.05.2007 entered into between defendant No. 1 and defendants 17 & 18, he had received a sum of Rs. 6 crores and further contended that he has to return a sum of Rs. 6 crores to defendants 17 & 18 as he has failed to fulfill the agreement as per Joint Development Agreement dated 28.05.2007.
this Court has rejected this affidavit by recording following reasons:-
This affidavit does not conform to the submission made stating that the petitioners herein had not incurred any obligation under the said agreement and that respondent no. 1 was prepared to pay back the entire amount to respondent Nos. 2 & 3. It only states that the amount would be paid once the cancellation deed was executed. It is not known when the said cancellation deed is going to be executed and until then, how the amount of rupees six crores which is received by defendant no. 1 from respondent nos. 2 & 3 allegedly for and on behalf of the family is going to be utilised is not forthcoming from the affidavit.
In paragraph 12 of W.P. Nos. 18813-14/2011, this Court has passed the following order:-
In the light of the above, these writ petitions are allowed in part. The impugned order is set aside. Defendant no. 1 is directed to deposit the share of the plaintiffs out of the amount of rupees six crores received by him, before the Court below within a period of four weeks from today. Whereupon, the said amount shall be invested in Fixed Deposit in any Nationalised Bank initially for a period of one year. Further, this deposit will be subject to the further orders to be passed by the Court below, keeping in mind the changed circumstances that may present in future including the cancellation of the joint venture. Parties will be at liberty to seek appropriate further orders from the Court below with regard to this amount. All other contentions are kept open.
At this juncture, it is necessary to state that the order passed by this Court in W.P. Nos. 18813-14/2011 is confirmed by the Supreme Court in SLP (Civil) Nos. 25564-25565/2011 dated 08.11.2011.
The Learned Counsel for appellant would submit in W.P. Nos. 18813-14/2011, this Court has directed I-defendant to deposit the shares of plaintiffs, out of amount of Rs. 6 crores received by him. Therefore, the trial court should have quantified the share of plaintiffs 11 to 18 and directed I-'' defendant to deposit the amount. The learned trial Judge, without assigning any reasons has directed I-defendant to deposit a sum of Rs. 4 crores 10 lakhs.
The Learned Counsel for appellant would submit that trial court had no justification to direct I-defendant to deposit a sum of Rs. 4 crores 10 lakhs, in addition to Rs. 90 lakhs already deposited by him.
The Learned Counsel for appellant would submit that plaintiffs 11 to 18 represent the branch of Ratanlal Sakhala. Therefore, they are entitled to 1/6th share, which would be around a sum of Rs. 1 crore. Therefore, I-defendant was justified in depositing a sum of Rs. 90 lakhs. The Learned Counsel for appellant would further submit that I-defendant is prepared to deposit another sum of Rs. 10 lakhs.
This submission is contrary to the order passed by this Court in W.P. Nos. 18813-14/2011 dated 15.07.2011, reading as hereunder:-
Defendant no. 1 is directed to deposit the share of the plaintiffs out of the amount of rupees six crores received by him, before the Court below within a period of four weeks from today. Whereupon, the said amount shall be invested in Fixed Deposit in any Nationalised Bank initially for a period of one year.
(underlining supported by me)
this Court has directed I-defendant to deposit the shares of plaintiffs. The order made by this Court in W.P. Nos. 18813-14/2011 is confirmed by the Supreme Court in SLP (Civil) Nos. 25564-25565/2011.
Before the trial court, the son of I-defendant is examined as RW1. RW1 has admitted that his father (I-defendant) is the son of late Anraj through his second wife. Late Anraj has sons namely Dharmraj, Sohan Raj, Thej Raj and daughter by name Suraj Kaur. Late Anraj had three sons through his first wife namely Kesarilal, Lalchand and Ratanlal Shankla. Amongst them, Kasarilal died without issues. It is seen from the cause title of the plaint that plaintiffs No. 11, 12, 14 and 15 are the sons of Late. Ratanlal Shankla. Plaintiff No. 13 is the son of plaintiff No. 14. Plaintiffs No. 16 to 18 are the descendants of Late. Anraj.
From the evidence of RW1, it is clear that I-defendant is the son of late Anraj through his second wife. Late Anraj had three sons namely Kesarilal, Lalchand and Ratanlal Shankla through his first wife. Late Anraj was also having sons namely Dharmaraj, Sohan Raj, Thej Raj and daughter Suraj Kaur, through his second wife. It is dear that late Anraj had three sons namels Kesarilal, Lalchand and Ratanlal Shankla through his first wife, amongst them Kesarilal died without issues.
First defendant is the son of late Anraj through his second wife and he is one amongst 8 sons of late Anraj. However, one of the sons of late Anraj namely Kesarilal died without issues. Therefore, contention of Learned Counsel for appellant that shares of plaintiffs 11 to 18 would be a sum of Rs. 90 lakhs cannot be accepted.
In the Joint Development Agreement dated 28.05.2007 entered into between I-defendant and defendant 17 & 18, I-defendant has claimed himself as "kartha" representing following persons:-
Names
Mr. Tejbahadur, S/o late G. Anraj
Mr. Shantilal, S/o late Lalchand
Mr. Raju, S/o Mr. Shantilal
Mr. Pavan, S/o Mr. Shantilal
Mr. Sanju, S/o late Daulatraj
Mr. Rajiv, S/o late Hansraj
Mr. Sumati, S/o late Lalchand
Mr. Vikas, S/o Mr. Sumati
Mr. Suresh, S/o late Dharamraj
Mr. Nitesh, S/o Suresh
Mr. Gautam Chand S/o Mr. Sajjanraj
Mr. Vishai, S/o Mr. Gautamchand
Mr. Vedanth, S/o Mr. Gautamchand
Mr. Harish, S/o Mr. Sajjanraj
Mr. Karan, S/o Mr. Harish
Mr. Vinod, S/o late Sohanraj
Mr. Mohit, S/o late Sohanraj
Mr. Sunil Sankhla Jain, S/o Mr. Tejbahadur
Mr. Rajiv, S/o Mr. Sunil
Mr. Dilip, S/o Mr. Tejbahadur
Mr. Aditya, S/o Mr. Dilip
There are reasons to believe that this representation is apparently false. The I-defendant was neither the kartha nor he was the authorised signatory of afore stated persons. The defendant has suppressed that plaintiffs are descendants of Late. Anraj and he has acted detrimental to the interest of plaintiffs.
As per clause 23 of Joint Development Agreement, owners/transferees or successors in title are bound to reimburse their proportionate shares of deposits payable in respect of their shares of apartments/units to the Developers towards amount paid to Karnataka Power Transmission Corporation Limited/Bangalore Electricity Supply Company/Bangalore Water Supply and Sewerage Board, etc.
As per clause 31 of Joint Development Agreement, in the event of breach by either party to Joint Development Agreement, the other party (the aggrieved party) shall be entitled to specific performance of contract and also entitled to recover damages.
It is obvious from the contents of Joint Development Agreement if there were to breach of agreement, not only by I-defendant but also other persons mentioned therein including plaintiffs and other defendants other than defendants 17 & 18 are liable to return the advance sale consideration to defendants 17 & 18.
The learned trial Judge considering the number of persons who had succeeded to the estate of late Anraj has quantified the shares of plaintiffs at Rs. 5 crores. Above all, I-defendant had received a sum of Rs. 6 crores. On 25.08.2007. First defendant had the benefit of accrued interest. This fact is clear from the evidence of RW1. Thus, as on the date of impugned order, I-defendant had derived benefit from a sum of Rs. 6 crores. Therefore, I-defendant is liable to deposit not only amount proportionate to share of plaintiffs but also interest accrued on a sum of Rs. 6 crores from 25.08.2007 to 07.07.2012.
In view of the above discussion, I hold that direction of trial court to I-defendant to deposit a sum of Rs. 4 crores 10 lakhs cannot be termed as unreasonable or unjust. In a suit for partition, the court is bound to protect the interest of all the persons, who are entitled to their shares in the joint family property.
The Learned Counsel for appellant, relying on judgment reported in T. Sudhakar Prasad Vs. Govt. of A.P. and Others, would submit that the jurisdiction contemplated by Articles 129 and 215 is inalienable.
The Learned Counsel for appellant, relying on a decision reported in Mrityunjoy Das and Another Vs. Sayed Hasibur Rahaman and Others, would submit that proceedings under the Contempt of Courts Act is quasi criminal. The standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond reasonable doubt.
The Learned Counsel for appellant has relied on a judgment of this Court, reported in ILR 2007 KAR 3534 (in the case of H. Govindaraju Vs. Shri Shankaralinge Gowda, Commissioner, Bangalore Development Authority & another) would submit that contempt act cannot be initiated for disobedience of interim order or statusquo.
The Learned Counsel for respondents 1 to 8 would justify the impugned order.
As could be seen from the order made by the trial court, at first instance, an application was filed before the trial court for a direction to I-defendant to deposit a sum of Rs. 6 crores, which he had received from defendants 17 & 18 under a Joint Development Agreement dated 28.05.2007. The application was rejected. Plaintiffs 11 to 18 were before this Court in WP. Nos. 18813-14/2011. this Court by order dated 15.07.2011, directed I-defendant to deposit the amount. The relevant portion of the order reads thus:-
Defendant no. 1 is directed to deposit the share of the plaintiffs out of the amount of rupees six crores received by him, before the Court below within a period of four weeks from today. Whereupon, the said amount shall be invested in Fixed Deposit in any Nationalised Bank initially for a period of one year.
This order was challenged by I-defendant in SLP (Civil) Nos. 25564-25565/2011 and the same was dismissed by the Supreme Court on 08.11.2011. Plaintiffs 11 to 18 had initiated C.C.C. Nos. 1741/2011 & 1892-98/2011 against I-defendant for non-compliance of order made by this Court in W.P. Nos. 18813-14/2011 dated 15.07.2011.
this Court on hearing Learned Counsel for parties has held:-
3.....It is an order passed in the proceedings arising out of a suit, on an inter-locutary application''. Therefore, if the order is not obeyed, the Court before whom the suit is pending is competent to give effect to the order passed by this Court under Order 39 Rule 2A of the Code of Civil Procedure.
The order passed by this Court in C.C.C. Nos. 1741/2011 & 1892-98/2011 has attained finality. The order made in W.P. Nos. 18813-14/2011 was consequent to the application filed by plaintiffs 11 to 18 for a direction to I-defendant to deposit a sum of Rs. 6 crores with the trial court. Therefore, the order made by this Court in W.P. Nos. 18813-14/2011 has originated from the application filed by plaintiffs 11 to 18 before the trial court. Therefore, submission of Learned Counsel for appellant that this Court in C.C.C. Nos. 1741/2011 & 1892-98/2011 has conferred contempt jurisdiction on the trial court cannot be accepted.
In W.P. Nos. 18813-14/2011 this Court has set aside the order made by the trial court and directed the first defendant to deposit a sum of Rs. 6 crores with the trial court. The order is in the nature of temporary mandatory injunction. Therefore, disobedience of the order will clearly attract the provisions of Order 39 Rule 2A CPC.
The learned trial Judge taking into consideration the order passed by this Court in W.P. Nos. 18813-14/2011 and C.C.C. Nos. 1741/2011& 1892-98/2011 and also having regard to the circumstances under which Joint Development Agreement dated 28.05.2007 was entered into by I-defendant with defendants 17 & 18 and placing reliance on the evidence of RW1 has directed I-defendant to deposit a sum of Rs. 4 crores 10 lakhs, in addition to Rs. 90 lakhs already deposited by I-defendant. As already stated, this order is tentative in nature and deposit is subject to final decision of the suit.
The I-defendant has been holding a sum of Rs. 6 crores with him since 25.08.2007. He must have derived substantial interest on a sum of Rs. 6 crores. Therefore, plaintiffs 11 to 18 have proved that I-defendant is liable to deposit a sum of Rs. 4 crores 10 lakhs.
The Learned Counsel for appellant would submit that the trial court should have quantified the amount and thereafter should have called upon I -defendant to deposit the amount.
The learned trial Judge has held an inquiry before passing the impugned order. The I-defendant was aware of the application-filed by plaintiffs 11 to 18, in fact he had filed objections to the application. The I-defendant was aware of the order passed by this Court in W.P. Nos. 18813-14/2011. The I-defendant was aware of the consequences of disobedience of the order passed by this Court in W.P. Nos. 18813-14/2011. The I-defendant was aware that he was holding a sum of Rs. 6 crores, which admittedly belonged to the sharers of joint family.
Therefore, the submission of Learned Counsel for appellant that the trial court should have quantified the amount at first instance; thereafter called upon I-defendant to deposit the amount; in case of disobedience, the trial court should have passed an order under Order XXXIX Rule 2A CPC cannot be accepted. In view of the above discussion, I do not find any reasons to interfere with the order passed by the trial court. The appeal is accordingly dismissed. However, time granted by the trial court to deposit the amount is extended by two weeks from today.