BHAUPENDRA GOVINDJI DHABLIA Vs. CHANDRAKANT GOKULDAS LOTIA

JUDGEMENT

(1.) HEARD. The grievance of the petitioner is that the respondent No. 1 in violation of the Clause Nos. 3 and 7 of the consent terms which included the undertaking on behalf of the respondent No. 1 and in the Suit No. 1334 of 2002 has been deliberately violated and committed breach thereof and therefore the respondents are liable to be punished for contempt of Court. The violation is stated in the nature of execution of the agreement of sale dated 27-12-2002 in favour of the third party in relation to the subject-matter of the Clause No. 7 of the consent decree. It is the contention of the petitioner that even though the petitioner was assured specific performance in relation to the Flat Nos. 6 and 9 in case of failure on the part of the respondent No. 1 to secure ownership of the Flat No. 9 free from encumbrances as has been provided under the Clause Nos. 3 and 4 of the consent terms, in violation of the said assurance under the Clause No. 7, the respondents have conveyed the Flat No. 6 in favour of the third party. Bare perusal of the Clause No. 7 of the consent terms discloses that the defendant/respondent No. 1 herein had agreed that the petitioner would be secured with the ownership of the Flat No. 9 free from encumbrances as has been stipulated under the clauses preceding the Clause No. 7 of the consent decree. It is also further agreed under the said Clause No. 7 that in case the defendant fails to secure the Flat No. 9 free from the encumbrances in favour of the petitioner within four weeks from the date of the said consent terms as has been stipulated in the Clause No. 1 thereof, the petitioner's claim for specific performance of the Flat Nos. 6 and 9 shall be decreed with costs and the plaintiff shall be entitled to conveyance in respect of both the flats. The clause thereby nowhere declared that failure on the part of the respondent no. 1 to comply with the Clause Nos, 1 to 6 of the consent terms itself would result in the claim for specific performance in relation to the Flat Nos. 6 and 9 in favour of the petitioner. However, it only created a right in favour of the petitioner to get a decree in that regard in favour of the petitioner. Admittedly, pursuant to the failure on the part of the respondent No. 1 to execute the conveyance within four weeks from the date of the consent decree, the petitioner did not move for the decree in accordance with the Clause No. 7 of the consent decree. Without inviting such decree, the petitioner proceeded to file the present contempt petition accusing the respondents of having breached the said term of the consent decree. It is also a matter of record that the respondent No. 1 had already complied with the Clause No. 4 of the consent terms though beyond the period assured under the consent decree, in relation to the Flat No. 9. It is also a matter of record that even though within four weeks the respondent No. 1 did not execute the conveyance in accordance with the first part of the Clause No. 3 of the consent terms, the petitioner did not move the Court for appointment of Court Officer for execution of the decree/deed in relation to the Flat No. 9. Undisputedly, there was no clause in the consent decree restraining the respondents from dealing with the Flat no. 6 till the expiry of the period of limitation for execution of the consent decree. It is also not the case of the petitioner that the respondent No. 1 had entered into an agreement for sale in relation to the Flat No. 6 prior to or on the day on execution of the consent terms. Admittedly, such dealings regarding the Flat No. 6 have been done subsequent to the execution of the consent terms and after a period of about seven months from the date of execution of the consent terms. In these circumstances, it cannot be said that there has been any wilful violation of the Clause No. 7 by the respondents on account of conveyance of the Flat No. 6 in favour of a third party. Undoubtedly, nothing prohibits the petitioner from seeking execution of the consent terms and as rightly contended by the respondents in their reply, various issues could be raised in relation to the Clause No. 7 of the consent terms and it would be in that case open for the parties to invite an appropriate order on such issues in the execution proceedings. Being so, at this stage it cannot be said that there is any case for proceeding against the respondents for contempt of court on the ground of alleged violation of the Clause No. 7 of the consent decree. In this view of the matter, therefore, the petition fails and is hereby dismissed. The notice issued against the respondents is discharged with no order as to costs. Petition dismissed.