SMITA PANDURANG DALVI OF BOMBAY INDIAN INHABITANT RESIDING AT 25-29 Vs. RATNAKAR DATTATRAYA PATADE OF BOMBAY INDIAN INHABITANT RESIDING AT A/2

JUDGEMENT

(1.) THE present Letters Patent Appeal is instituted by the appellants against an Order passed by the learned Single Judge on November 9, 2001 in Civil Application No. 8475 of 2001 with Civil Applications 7265 of 1999 and 1101 of 2001 in First Appeals 386 and 387, both of 2001. By the said order, the learned Single Judge held that the appellants-contesting defendants, under common understanding and in furtherance of their intention, made illegal entry in the suit flats without the prior permission of the Court. They were, therefore, guilty of contempt of the Court. Mr. V. S. Sawant (defendant No. 5), over and above committing contempt of Court, along with other defendants, also made him liable by writing a letter, dated August 2, 2001, to the Receiver making allegations against him. He was, therefore, directed to withdraw the said letter. Considering the extenuating factors, however, particularly that the defendants parted with substantial amount as consideration, and forcible entry was made by them in an anxiety to occupy the flats, the learned Single Judge thought it fit to impose a nominal fine of Rs. 250 on each of them, to be paid within a period of three weeks from the date of the order. In default, they were directed to suffer simple imprisonment for a period of three days.

(2.) TO appreciate the controversy in the Letters Patent Appeal, few facts relevant to the question, as narrated in the order passed by the learned Single Judge, may now be stated: Respondent No. 1-original plaintiff filed a suit in the Bombay City Civil Court at Bombay for permanent injunction against defendants 1 to 38 (appellants 1 to 34 and respondents 2 to 5), inter alia, alleging that the plaintiff was in exclusive use, occupation, possession and enjoyment of land bearing Survey No. 15, Hissa No. 1 (P), C. T. S. No. 124, 124/1 to 124/3, 120/3 and 123/1 of Village Eksar Original Plot No. 178 of the Town Planning Scheme Borivli (Final) admeasuring about 2044 sq. yds. , situate at Gaothan Road, Babhai Naka, Thakurwadi, Borivli (West), Mumbai (hereinafter referred to as "the suit property" ). It was his case that Smt. Parvati Shankarrao Thakur and three others were the owners of the property. By an Agreement dated November 18, 1980, the owners agreed to sell the property to one M/s. Sainath Enterprises, a partnership firm (defendant No. 39) on the terms and conditions mentioned in the Agreement. In pursuance of the said Agreement, defendant No. 39 was put in actual and physical possession of the property in part performance of the Agreement. According to the plaintiff, the partners of defendant No. 39 were known to him and by a Memorandum of Understanding, dated October 14, 1983, the plaintiff was asked to develop the suit property and to carry out various acts, deeds and things relating to the suit property. The plaintiff did necessary acts for making construction over the suit property after obtaining approval from the Bombay Municipal Corporation and constructed three buildings consisting of 49 flats. The plaintiff also entered into individual agreements with defendants 1 to 38 to whom he had agreed to sell those flats. It was asserted by the plaintiff that he had completed about 90% of construction work. He, therefore, called upon the defendants to pay arrears of instalments, so that the construction work could be completed and possession be handed over to them. The defendants, however, failed to pay the remaining amounts, as also regular instalments, and the plaintiff had to spend some amount from his own pocket. A criminal complaint was filed by defendant No. 1 against the plaintiff alleging various illegal and unlawful acts.

(3.) ON summons of suit being served, the defendants appeared, and filed Written Statement, denying all the facts stated, averments made and allegations levelled against them. It was their case that they were the promoter-members of the Society, known as "ratna-Vijay Co-operative Housing Society (Proposed), Mumbai", formed in the year 1983. For various reasons, however, the Society could not be registered. Their case was that they acquired the suit property from their joint contribution. The plaintiff was also one of the employees of E. S. I. S. Hospital, Mumbai, where some of the defendants were serving. He was, therefore, elected as the Chief Promoter of the proposed Society only for the purpose of acquiring the suit property in his name and for the development as the Chief Promoter, and the plaintiff did not acquire the property in his individual or personal capacity. He was merely a trustee or representative of the contesting defendants. It was also the allegation of the defendants that a sizeable amount has been paid by them to the plaintiff. According to them, the original estimated cost of the whole project was about Rs. 28 lacs, and even though an amount of Rs. 46 lacs was paid to the plaintiff, an additional amount was claimed by the plaintiff from the defendants, which was illegal and unlawful. The defendants also demanded accounts from the plaintiff, but the plaintiff did not render accounts. On the contrary, the plaintiff had invested huge amount in other projects, though he had no authority to do so.