FEROZE HOMI DUGGAN Vs. BENZER INTERIORS PVT LTD

JUDGEMENT

(1.) Heard the learned counsel for the plaintiff and defendant Nos. 1 and 10. None present for the defendant Nos. 2 to 9.

(2.) This motion is taken out by the plaintiff with a prayer that the defence of the defendant Nos. 1 to 5 and 10 to the suit be struck off on the ground that they have committed persistent breaches of the orders of this Court mentioned in prayer clause (a) of the motion and in particular the order of the Division Bench of this Court dated 2nd April, 1997 passed in Appeal Lodging No. 270 of 1997 and of the undertaking given by the defendant No. 10 in the capacity as a director of the defendant No. 1, a copy of which is annexed at Exhibit-G to the affidavit in support of the motion. In addition, an order is also sought for detention of the defendant Nos. 1 and 10 in civil prison for wilfully disobeying the aforesaid orders and committing a breach of the undertaking mentioned above. The defendant Nos. 1 and 10 oppose the motion.

(3.) Since breach of the order dated 2nd April, 1997 is alleged it would be useful to quote below the order which reads thus :"1. Heard the learned Counsel for the parties. At their request the matter is taken up for final hearing. ""2. It is agreed by the Appellant as under :- i) That the appellant would pay royalty at the rate of Rs. 3. 00 lakhs to the court Receiver for the use and occupation of the suit premises. That the royalty of Rs. 3. 00 lakhs will be paid regularly every month on or before 10th of each month. ii) That the appellant would execute agency agreement with the Receiver within a period of 15 days from today. iii) The appellants would file an undertaking before this Court to the effect that the remaining royalty amount of Rs. 58. 00 lakhs for the period upto 31st March, 1997 would be paid on or before 20th May, 1997. However, it is clarified that this payment or royalty to the Receiver would be without prejudice to the rights and contentions of the appellant that the appellant is tenant of the disputed premises. iv) That the appellant would pay the Municipal taxes and other outgoings in respect of the disputed premises on the due dates. v) That the payment of future Municipal Taxes and other outgoings would be made through the Court Receiver. vi) That the Director of the appellant Company would file necessary undertaking before this Court on or before 5th April, 1997. vii) If there is any default in payment of the royalty amount for a period of two months then it would be open to the Receiver to take possession of the property in question. ""3. Affidavit filed by the Authorised Signatory of the appellant is kept on record. It is agreed that this Affidavit be treated as an undertaking. ""4. Order in terms of the aforesaid statements. The Appeal is partly allowed to the aforesaid extent. The Notice of Motion taken out before the learned Single Judge would not survive and accordingly it stands disposed of. " (Underlining supplied) in pursuance of this order the defendant No. 10, in the capacity as a Director of defendant No. 1, filed an undertaking in the Court which reads thus : i, Mrs. Sandhya P. Vakil, the Director of M/s Benzer Interiors Private limited, appellant abovenamed state on solemn affirmation as under :-"1. I hereby annex the uncertified copy of Order dated 2-4-1997 passed by hon'ble Appellate Bench presided by Hon'ble Chief Justice His lordship Justice Shri M. B. Shah and His Lordship Justice Shri Rebello and it is marked as "exhibit-A". " "2. Pursuant to the said order dated 2-4-1997, on behalf of the appellant company, I hereby give Undertaking as follows :- a) Appellant shall pay the sum of Rs. 58 lakhs on or before 20th May, 1997 to the Court Receiver High Court, Bombay. b) Appellant would pay Rs. 3,00,000/- per month to the Court receiver High Court Bombay, for use and occupation of suit premises on or before 10th day of each month regularly. c) Appellant would pay Municipal taxes and other outgoings in respect of the disputed premises through Court Receiver High court, Bombay. " "3. This Undertaking is given without prejudice to the rights and contentions of the appellant that the appellant is tenant of disputed premises. Solemnly affirmed at Bombay this day of April, 1997 for Benzer Interiors Pvt. Ltd. Sd/- mrs. Sandhya P. Vakil director. "