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2008 DIGILAW 3747 (MAD)

Janakiraman v. G. P. Savithiri

2008-10-15

P.R.SHIVAKUMAR

body2008
Judgment :- Heard both sides and perused the records. 2. The petitioner herein/plaintiff in O.A.No.188 of 2003 in C.S.No.784 of 2002 has brought-forth the contempt petition No.711 of 2007 alleging commission of an act of contempt by respondent herein, who figured as the 3rd respondent in the above said original application and the third defendant in the civil suit. 3. Sub Application No.235 of 2008 has been filed to declare the sale deed dated 09.08.2006 executed by the respondent in favour of M/s.Gatraj Jain & Sons and registered as document No.938 of 2006 in the office of Sub Registrar, Sowcarpet, Chennai - 1 to be null and void. 4. The said suit C.S.No.784 of 2002 was filed by the petitioner herein for a decree declaring the sale deed dated 010. 2001 executed by Mrs.Kanagavalli, the first defendant in the suit in respect of the suit B schedule property, in favour of the respondent herein (third defendant) which was registered in the office of the Sub Registrar, Sowcarpet, Chennai -1 as document No.1003/2001 to be sham, nominal, void, illegal and inoperative, for cancellation of the said document, for a direction to the respondent herein to convey the suit property in favour of the petitioner on receipt of such sum as may be fixed by the court and for a permanent injunction restraining Mrs.Kanagavalli and Mr.Gerra Parthasarathy @ Murali, who figured as defendants 2 and 3 from in any manner interfering with the petitioners/plaintiffs peaceful possession and enjoyment of the suit A schedule property. 5. Pending disposal of the said suit, the petitioner herein/plaintiff in C.S.No.784 of 2002 filed O.A.No.188 of 2003 for interim injunction restraining the respondents therein from in any way encumbering or alienating the suit schedule properties pending final disposal of the suit. When the said application came up for hearing on 28.04.2003, the learned counsel appearing for the respondent herein made an undertaking on behalf of the respondent not to alienate or encumber the suit properties till the disposal of the suit. Hence, this court deemed it fit to record the said undertaking and close the said petition opining that no further order would be necessary in view of the fact that such an undertaking was given by the respondent herein. 6. Hence, this court deemed it fit to record the said undertaking and close the said petition opining that no further order would be necessary in view of the fact that such an undertaking was given by the respondent herein. 6. Complaining that the respondent, after making the court to close the injunction petition in the light of the undertaking given by her, in violation of the said undertaking and without any regard for the order of the court recording such undertaking, executed a sale deed dated 09.08.2006 in favour of M/s.Gatraj Jain & Sons alienating a part of the suit properties for a consideration of Rs.41,00,000/-and got the sale deed registered as document No.938 of 2006 in the office of the Sub Registrar (Registration), Sowcarpet, Chennai and that the said act being in gross violation of the undertaking would amount to clear act of contempt on the part of the respondent, the petitioner has filed the present contempt petition for punishing the respondent for the above said act of contempt. The Sub Application No.235 of 2008 has been filed for declaring the said sale deed allegedly executed in violation of the undertaking to be null and void. 7. The respondent contested both the contempt petition and the sub application by filing separate counter affidavits denying the allegations made in the affidavits filed in support of the contempt petition as well as the sub application and contending that the petitioner having created a situation in which an undertaking was to be given by the respondent not to alienate or encumber the suit property pending disposal of the suit, clandestinely induced the respondent to execute a sale deed in respect of the suit property to M/s.Gatraj Jain & Sons and there after has approached this court with an oblique motive to harass the respondent with the contempt petition as well as the sub application. 8. 8. It is the contention raised by the respondent that the petitioner entered into a Memorandum of Understanding with Ms.Pinky daughter of Gatraj Jain agreeing to vacate the portion of the suit in the occupation of the petitioner for a consideration of Rs.60,00,000/- and received a sum of Rs.20,00,000/-as advance; that in the said agreement itself, the petitioner had undertaken to withdraw all the suits including the suit filed by him for partition namely, C.S.No.965 of 2001 and that the said Pinky and her father Gatraj Jain showed the said Memorandum of Understanding to the respondent pursuant to which the respondent chose to execute the sale deed in respect of the suit property in favour of M/s.Gatraj Jain & Sons, a Hindu Undivided Family, on 09.08.2006. It is the further contention of the respondent that the petitioner having entered into a memorandum of agreement and understanding with Ms.Pinky and thereby making the respondent to believe that he was going to withdraw the suits filed by him and inducing the respondent to execute the sale deed in question, cannot be allowed to contend that the said sale deed was executed in violation of the undertaking given in this court and hence would amount to contempt of court. 9. The petitioner has also filed a reply affidavit denying the averments made in the counter affidavit of the respondent to the effect that the petitioner himself induced the respondent to execute a sale deed in favour of M/s.Gatraj Jain & Sons and thereby has made an attempt to trap her for contempt. The petitioner in the reply affidavit has also contended that even assuming, without admitting, that such a memorandum of agreement and understanding was entered into between the petitioner and Ms.Pinky, the same will not be a justification for the respondent to give a goby to her undertaking made before the court and execute a sale deed in violation of such undertaking without even seeking necessary direction or permission from the court citing the circumstances under which she intended to sell the property to M/s.Gatraj Jain & Sons. 10. The points that arise for consideration in the contempt petition and the sub application are as follows:- "1. 10. The points that arise for consideration in the contempt petition and the sub application are as follows:- "1. Whether the execution of the sale deed dated 09.08.2006 by the respondent in favour of M/s.Gatraj Jain & Sons in respect of the suit property amounts to violation of the undertaking given by her in O.A.No.188 of 2003 and hence amounts to contempt of court? 2. Whether the respondent is liable to be punished for contempt? If so to what punishment? 3. Whether the sale deed dated 09.08.2006 executed by the respondent in favour of M/s.Gatraj Jain & Sons and registered as document No.938 of 2006 in the office of the Sub Registrar (Registration), Sowcarpet, Chennai is to be declared null and void? 11. This court heard the submissions made by Mr.V.Shanmugham, learned counsel for the petitioner and Mr.Mohanamurali, learned counsel for the respondent. The materials available on record were also perused. 12. The admitted facts are as follows:- a) The petitioner herein is the plaintiff in C.S.No.965/2001 which was filed against V.Kanagavalli, the vendor of the respondent herein and one Parthasarathy for partition and separate possession in respect of the house property bearing Door No.30, Narayana Muthali Street, George Town, Chennai 600 070 comprised in R.S.No.10851 and measuring about 2,820 sq.ft. The said Kanagavalli and Partasarathy, the defendants 1 and 2 in C.S.No.965 of 2001 are the sister and brother of the petitioner herein respectively. Even before the filing of the said civil suit, Kanagavalli, sister of the petitioner herein filed an original petition in O.P.No.603 of 1999 on the file of this court for grant of probate based on the alleged Will and last testament of the father of the above said persons and obtained a Probate of the Will dated 02.02.1970. As the grant of probate was made without taking note of the the caveat filed by the petitioner herein, the same was revoked and the said original petition was converted into a T.O.S.No.15 of 1995. Subsequently the same was dismissed after trial as against which an appeal in O.S.A.No.375 of 1997 was filed. The said appeal in O.S.A.No.375 of 1997 was allowed and probate was granted. The SLP preferred there from by the petitioner herein was also dismissed. Subsequently the same was dismissed after trial as against which an appeal in O.S.A.No.375 of 1997 was filed. The said appeal in O.S.A.No.375 of 1997 was allowed and probate was granted. The SLP preferred there from by the petitioner herein was also dismissed. Thereafter the petitioner filed C.S.No.965 of 2001 claiming 1/3rd share in the said property contending that the father of the plaintiff was not the absolute owner of the said property and that the petitioner had a 1/3rd share in it as a coparcener since according to him the said property was a joint family property. b) While the said suit C.S.No.965 of 2001 for partition was pending the first defendant, namely Kanagavalli had entered into an agreement with the respondent herein for the sale of the suit property and there after executed a sale deed in respect of the property shown as B schedule property in C.S.No.784 of 2002. Hence the petitioner filed the said suit for a declaration that the sale deed dated 010. 2001 executed in favour of the respondent herein and registered as Document No.10003/2001 in the office of the Sub Registrar (Registration), Sowcarpet, Chennai to be sham and nominal, void, illegal and inoperative, for cancellation of the said sale deed, for a direction to the petitioner herein to convey the said property to the petitioner and a permanent injunction not to interfere with the property described as A Schedule property in the said suit. c) In the said suit, the petitioner herein filed O.A.No.188 of 2003 in C.S.No.784 of 2002 for an interim injunction restraining Kanagavalli and Gerra Parthasarathy @ Murali being the respondents 1 and 2 in the said petition and the petitioner herein (3rd respondent in the said petition) from in any way encumbering or alienating the suit properties pending disposal of the suit C.S.No.784 of 2002. After appearance in the said application, the respondents therein, including the respondent herein, gave an undertaking through their counsel that they would not alienate or encumber the suit property pending disposal of the suit. Hence this court, by order dated 28.04.2003, recorded the said undertaking and closed the injunction petition. Subsequent thereto, the respondent herein executed a sale deed in favour of M/s.Gatraj Jain & Sons (HUF) in respect of the entire suit property described as Schedule A and Schedule B in C.S.No.784 of 2002 for a sale consideration of Rs.41,00,000/-. Hence this court, by order dated 28.04.2003, recorded the said undertaking and closed the injunction petition. Subsequent thereto, the respondent herein executed a sale deed in favour of M/s.Gatraj Jain & Sons (HUF) in respect of the entire suit property described as Schedule A and Schedule B in C.S.No.784 of 2002 for a sale consideration of Rs.41,00,000/-. The said act of alienation by execution of sale deed is cited as an action of contempt in the contempt petition. Point No.1 and 2: 13. It is not in dispute that the respondent gave an undertaking before this court in O.A.No.188 of 2003 in C.S.No.784 of 2002 that she would not alienate or encumber the suit property pending disposal of the suit. It is also an admitted fact that during the pendency of the said suit itself, the respondent has chosen to alienate the suit property by executing a sale deed in favour of M/s.Gatraj Jain & Sons (HUF) on 09.08.2006 and register the same as document No.938 of 2006 in the office of the Sub Registrar (Registration), Sowcarpet, Chennai. Therefore, prima facie the said act amounts to violation of the abovesaid undertaking. 14. On the other hand, the respondent, without disputing the said fact of alienation, would try to justify her action by stating that subsequent to the order passed by this court in O.A.No.188 of 2003 closing the same after recording the undertaking given by the respondents therein including the respondent herein, the petitioner herein entered into a Memorandum of agreement and understanding with Ms.Pinky, daughter of Gatraj Jain agreeing to give up all his claim in respect of the suit property, to hand over possession of a portion of the suit property which he was keeping in his possession and to withdraw the partition suit filed by him namely C.S.No.965 of 2001; that the said Pinky and her father Gatraj Jain showed the said agreement and undertaking to the respondent herein, pursuant to which the respondent decided to execute the sale deed in favour of M/s.Gatraj Jain & Sons (HUF) and that the said act would not amount to a deliberate or willful violation of the undertaking in which case alone the act would amount to contempt of court. The learned counsel for the respondent advanced an argument on the above said lines contending that though the execution of the sale deed dated 09.08.2006 would amount to violation of the undertaking, given by the respondent in the court in O.A.No.188 of 2003, the same was not a deliberate violation and hence would not amount to contempt of court. 15. Per contra, the learned counsel for the petitioner would point out the fact that neither the original nor a copy of the alleged agreement between Ms.Pinky and the petitioner has been produced by the respondent; that even as per the contention of the respondent, the understanding between the petitioner and the said Pinky was that he would give up his claim in respect of the suit property and withdraw the suit for partition for a consideration of Rs.60,00,000/-, out of which Rs.20,00,000/-alone was paid for the right alleged to have accrued to Ms.Pinky under the said agreement of understanding; that the said right cannot be enforced against the petitioner unless the entire amount agreed as consideration was paid and that in any event, the respondent a third party to the agreement allegedly made by the petitioner with Ms.Pinky, could not seek to enforce it against the petitioner. 16. Learned counsel for the petitioner contended further that even if it is assumed, without admitting, that the petitioner entered into such an agreement with Ms.Pinky, the respondent, after having come to know that such an understanding has been arrived at between the petitioner and the said Pinky and making up her mind to sell the property to the H.U.F. headed by the father of Ms.Pinky, should have obtained the permission of the court to execute the sale deed in the light of the above said developments alleged by the respondent and that the fact that the respondent has chosen to execute the sale deed without obtaining such a permission, knowing fully well that the execution of the sale deed will be in violation of the undertaking given by the respondent in the court, would definitely amount to contempt of court. 17. In support of the above said contentions, the learned counsel for the petitioner has cited a number of authorities which this court considers unnecessary to enumerate excepting two judgments of the Honble Supreme Court. 17. In support of the above said contentions, the learned counsel for the petitioner has cited a number of authorities which this court considers unnecessary to enumerate excepting two judgments of the Honble Supreme Court. They are; i) judgment of the Apex court pronounced in Rama Narang Versus Ramesh Narang and Another reported in (2006) 11 Supreme Court Cases 114 and ii) judgment of the Apex court pronounced in Bank of Baroda Versus Sadruddin Hasan Daya and Another reported in (2004) 1 Supreme Court Cases 360. In both the judgments, the Honble Apex court has made clear observations to the effect if a party gets an order in a particular manner by giving an undertaking, thereafter violation of such undertaking, if deliberate or willful shall definitely amount to contempt of court. Applying the said ratio to the facts of the case on hand, this court does not have any hesitation to hold that the act on the respondent in executing the sale deed dated 09.08.2006 registered as document No.938 of 2006 on the file of the Sub Registrar (Registration), Sowcarpet, Chennai in favour of M/s.Gatraj Jain & Sons (HUF), amounts to a willful violation of the undertaking given by her in O.A.No.188 of 2003 and hence amounts to an act of contempt punishable under Section 12 of the Contempt of Courts Act, 1971. .18. After arriving at the conclusion that the respondent was guilty of an act of contempt, an opportunity was given to the respondent who was present in the court to make her submissions regarding the punishment to be imposed. The submissions made by the respondent in this regard have also been taken into consideration. Pointing out a paragraph included in the counter affidavit incorporating an apology if the act of the respondent could be viewed as contempt, the respondent pleaded for pardon. While considering the said representation, this court should also consider the circumstances in which the sale deed in question was executed. The petitioner has disputed the alleged agreement between himself and Ms.Pinky. Pointing out a paragraph included in the counter affidavit incorporating an apology if the act of the respondent could be viewed as contempt, the respondent pleaded for pardon. While considering the said representation, this court should also consider the circumstances in which the sale deed in question was executed. The petitioner has disputed the alleged agreement between himself and Ms.Pinky. It is also brought to the notice of the court that the husband of the respondent who figures as 2nd defendant in the partition suit C.S.No.965 of 2001 filed Application No.1431 of 2006 to reject the plaint; that nothing was mentioned therein about the offer made by the petitioner to withdraw the suit; that the said application was dismissed on 13.07.2006 and that soon thereafter, on 09.08.2006 the respondent executed the sale deed in question. The act of the respondent seems to be a calculated one. Hence this court is not inclined to accept the apology tendered by the respondent. After considering representations made by the respondent in respect of the punishments to be imposed and the facts and circumstances leading to the commission of the act of contempt, this court is of the considered view that the interest of justice can be subserved by imposing fine alone without awarding any substantive sentence. Accordingly, this court is of the view that imposing a fine of Rs.1,000/- with default sentence will be enough. .Point No.3:- .19. So far as the sub application is concerned, the learned counsel for the petitioner has contended that whenever any alienation of property is made in violation of an order of court or in violation of an undertaking given to the court, the rights sought to be conferred by such alienation made in violation of the order of the court or undertaking, shall in the interest of justice, be held null and void. In support of his contention, the learned counsel for the petitioner has relied on the observations made by the Honble Supreme Court in Delhi Development Authority Versus Skipper Constructions Co. In support of his contention, the learned counsel for the petitioner has relied on the observations made by the Honble Supreme Court in Delhi Development Authority Versus Skipper Constructions Co. (P) Ltd. and Another reported in (1996) 4 Supreme Court Cases 622, wherein the Honble Supreme Court has made an observation to the effect that imposition of punishment for contempt would not denude the Court of its power to issue directions to remedy the wrong done by the contemner including those so as not to enable the contemner to retain the benefit derived by the contempt. The learned counsel for the petitioner also relied on the observations made by the Honble Supreme Court in Satyabrata Biswas and Others Versus Kalyan Kumar Kisku and others reported in (1994) 2 Supreme Court Cases 266. In the said judgment, the Honble Supreme court has observed that in a contempt proceedings, the court can order restoration of status quo ante so as to deny the benefit of act of contempt to the persons on which the benefit was sought to be conferred. In this regard in addition to the general defence made in the contempt petition, a weak attempt to contend that an order in the absence of the purchaser under the sale deed in question and without notice to him could not be passed. But the Honble Supreme Court rejected such a contention and opined that such acts which includes alienation in violation of the order of the court or in violation of the undertaking could be declared null and void so as to restore the status quo ante. It is a well settled principle that any alienation made in violation of the order of court or in violation of an undertaking given in the court which will amount to contempt of court, can be declared null and void by the court dealing with the contempt petition. All the objections raised in the sub application has been answered effectively in the foregoing discussions. Therefore, this court comes to the conclusion that the interest of justice requires the sale deed dated 09.08.2006 registered as document No.938 of 2006 on the file of the Sub Registrar (Registration), Sowcarpet, Chennai in favour of M/s.Gatraj Jain & Sons (HUF) to be declared null and void and ineffective. 20. For all the reasons stated above, the sub application also succeeds. 21. In the result, contempt petition is allowed. 20. For all the reasons stated above, the sub application also succeeds. 21. In the result, contempt petition is allowed. The respondent is awarded punishment of a fine of Rs.1,000/- (Rupees one thousand only) which amount shall be paid within two weeks from the date of this order. In case of default, the respondent shall undergo simple imprisonment for a period of one month. Sub application No.235 of 2008 is also allowed and the sale deed dated 09.08.2006 executed by the respondent in favour of M/s.Gatraj Jain & Sons, registered as document No.938 of 2006 in the office of Sub Registrar (Registration), Sowcarpet, Chennai is declared null and void and ineffective.