EVEREST ENTERPRISES Vs. N K CONSTRUCTIONS PRIVATE LIMITED

JUDGEMENT

(1.) THE present contempt petition has been filed for a breach of the order of this Court dated 28-4-1995 in Notice of Motion No. 1511 of 1995 taken out in Suit No. 1618 of 1995. The facts giving rise to the present contempt petition are as follows:

(2.) THE petitioner filed the Suit No. 1618 of 1995 for specific performance of two agreements dated 26-9-1981 entered into between itself and respondent no. 1. The suit property covered a luxurious mini city project on the suit property described in Exhibit B to the plaint. On 28-4-1995, in the motion filed by the plaintiff that is the petitioner herein, this Court restrained respondent No. 1 from disposing of, alienating, transferring, encumbering or parting with the possession of, or creating any third party rights in respect of the suit property. Soon thereafter on 5-5-1995, a lispendens notice was registered with the Sub-Registrar of Assurances at Bombay by the petitioner. On 21-7-1995, the petitioner learnt that respondent No. 1 in breach of the order of 20-4-1995 purported to transfer almost the entire portion of the suit property in favour of Dynamic Vacation Resorts Pvt. Ltd. On 25-6-1997, the ad interim, order of injunction was confirmed in the motion and Receiver was appointed by this Court in respect of the suit property. Being aggrieved by the order, respondent No. 1 preferred an appeal which was dismissed on 27-4-1998. The Apex Court in the special leave petition filed by respondent No. 1 modified the interim order so as to permit respondent No. 1 to start construction work on the suit property. A further direction was given to respondent no. 1 to file regular reports in every 6 months in this Court about the progress made in the construction on the suit property. On 28-10-1999, respondent no. 2 , the director of respondent No. 1 filed an affidavit stating that the work could not be commenced on account of the monsoon. When the matter appeared on 18-2-2000 to consider the progress, nobody appeared for respondent No. 1. On 22-2-2000 when the matter appeared, no report was filed as directed by the Apex Court in its order of 20-8-1999 nor was any affidavit filed explaining the delay. Therefore, the order 25-6-1997 revived and the Court receiver was to take possession of the suit property. On 11-4-2000, an application supported by the affidavit of respondent No. 3 and another director of respondent No. 1 was filed for condoning the delay in filing the report and to set aside the order of 22-2-2000 appointing the Court Receiver. This application was dismissed. The Court Receiver accordingly, fixed an appointment pursuant to the order of this Court for depositing the suit property and taking possession thereof. As the Court Receiver's representative was not permitted to enter the suit property, on enquiries made by him with the Tahsildar's office at Alibaug, 7 x12 extract in respect of the suit property was issued to him and the record of rights in Form No. 6 bearing an entry dated 22-7-1995 showing that the suit property was sold by the respondents by a sale deed of 21-7-1995 to one Dynamic Vacation Resorts Pvt. Ltd. for a consideration of rs. 2,49,51,000/ -.

(3.) IT is the case of the petitioner that the respondents all along misled the courts into believing that they were in possession of the suit property and had not transferred the same to anybody after the ad interim injunction dated 28-4-1995. According to the petitioner, the orders of this Court as well as the apex Court were based on the statement made by the respondents that they were still in possession of the suit property. Affidavit filed by the respondents in this Court and the Apex Court categorically stated that the respondents were in possession of the suit property. In fact, even in the affidavit filed opposing the contempt petition and in reply to show-cause notice issued, respondent No. 2, director of respondent No. 1 has sought to explain the actions of the respondents on the basis that they misunderstood the order of this Court. In the affidavit which was filed by them in the Special leave petition, a positive averment was made that the respondents had not sold or transferred or created any third party rights in respect of the suit property after 28-4-1995. Respondent No. 5 instead stated in the affidavit that the agreement to transfer the suit property to Dynamic Vacation Resorts Pvt. Ltd. was arrived at prior to 28-4-1995 and, accordingly, consideration was received by the respondents for the suit property. According to the respondents, only a portion of the suit property was covered by the ad interim order of 28-4-1995 that is a Bungalow situate on the suit property and not the rest of the land. It is in these circumstances that the present contempt petition has been filed.