IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

IN ITS COMMERCIAL DIVISION
CONTEMPT PETITION NO. OF 2019
IN
NOTICE OF MOTION NMCD (L) NO. 2023 OF 2018
ALONGWITH
NOTION OF MOTION. NMCD NO. 503 OF 2017
IN
COMMERCIAL SUIT NO. 597 OF 2017

In the matter of Article 215 of the

Constitution of India
And

In the matter of Contempt of Courts Act,

1971 and Contempt of Courts (Bombay
High Court) Rules, 1994.
And
In the matter of breach of the Consent
Minutes of the Order dated 5th October, 2018
in Notice of Motion No. NMCD (L) 2023
OF 2018 alongwith Notion of Motion No.
NMCD 503 OF 2017 in Commercial Suit
No. 597 OF 2017;

SUNDER NAGAR SIDDESH CO-OPERATIVE ]

SOCIETY LTD. ]

A Co-operative Society duly registered under the ]

Maharashtra Co-operative Society, 1960 having its ]

Registered office at Sunder Nagar, Siddesh Co-op ]

Housing Society, Opposite Hansbhupra High School ]

Kalina, Santacruz (East), Mumbai – 400 098. ]

Also having address at 2nd Floor, Arunoday Society ]

Flat No. A4 Behind Kalina Education School, ]

Sunder Nagar, Kalina Mumbai 400 098 ]…Petitioner/

Applicant
Versus
1. A.A.ESTATE PVT. LTD. ]

A Group Company of RNA Corp. Private Limited, ]

having its registered office at 3rd Floor, RNA House,]

50, Veer Nariman Road, Fort, Mumbai – 400 023. ]

Also, Administrative Office at 1, Rajkamal, ]

Opp. University Campus, CST Road, Kalina ]

Mumbai-400 098. ]

Also, at RNA CORPORATE PARK, ]

6/7 Floor, Next to Collector’s Office, ]

Kalanagar, Bandra (East), ]

Mumbai -400051. ]

2. ANUBHAV ANIL AGARWAL ]

Director of the A.A. ESTATE Pvt. Ltd. ]

having address at RNA Corporate Park, Kala Nagar, ]

Govt. Colony, Bandra (East), ]

Mumbai- 400 051 ]

Also, at RNA Royal Park, M.G. Road, ]

Ahead of Dahanukar Wadi, Near Maharasahtra Nagar, ]

Kandivali (West), Mumbai-400 067. ]

3. GOKUL ANILKUMAR AGARWAL ]

Director of the A.A. ESTATE Pvt. Ltd. ]

having address at RNA Corporate Park, Kala Nagar, ]

Govt. Colony, Bandra (East), ]

Mumbai- 400 051 ]

Also, at RNA Royal Park, M.G. Road, ]

Ahead of Dahanukar Wadi, Near Maharasahtra Nagar, ]

Kandivali (West), Mumbai-400 067. ]…Contemnors/

Respondents
TO,
THE HON’BLE CHIEF JUSTICE AND
OTHER PUISNE JUDGES OF THIS HON’BLE
HIGH COURT OF JUDICATURE AT BOMBAY

THE HUMBLE PETITION OF THE PETITIONER

ABOVENAMED

MOST RESPECTFUL SHOWETH

PARTIES

1. Petitioner is a Co-operative Housing Society having its office at the

address mentioned in the cause title above. Majority of the members of

the Plaintiff Society are senior citizens who are affected in this project

“RNA ADDRESS” due to various breaches of Respondent /

Contemnor Nos.1 to 3 in completion thereof;

2. Respondent / Contemnor No.1 is a Group Company of RNA Corp.

Private Limited, incorporated under the provisions of the Companies

Act, 1956 having its registered office at the address mentioned in the

cause title above. The Contemnor No.2 and 3 are the Directors of the

Contemnor No. 1 Company and are the key personnel and engaged in

taking major business decision of the Contemnor No.1 and involved in

day to day business affairs. The Contemnor Nos. 1 to 3 shall be

collectively referred to as 'the Respondent / Contemnors' jointly.

Respondent / Contemnor No. 2 and 3 have given various undertakings

on behalf of the Respondent / Contemnor No. 1 Company and have

committed contemptuous and contumacious act of willfully breaching

under this Hon’ble Court. Contemnor No.2 has executed the consent

terms on behalf of the Contemnor No.1 Company and hence liable for

contempt action for breaches of the undertakings given to this Court.

OBJECT OF THE PETITION

3. By the present Petition, the Petitioners are, inter alia, seeking the

following reliefs:
a) a declaration that the Respondents have rendered themselves liable for

punishment for having committed contempt of this Hon’ble Court by

willful violation of the Consent Minutes of the Order, dated 5th

October, 2018 passed by this Hon’ble Court (S. J. Kathawalla, J).

b) an order of arrest and detention of the Respondents/Contemnors in

civil prison for such terms as this Hon’ble Court deems fit in view of

the willful and/or intentional disobedience violation and non-

compliance of the Consent Minutes of the Order, dated 5 th October,

2018 passed by this Hon’ble Court (S. J. Kathawalla, J).

c) Appropriate orders and/or directions directing the Respondents/

Contemnors to purge the violation and non-compliance of the Consent

Minutes of the Order dated, 5th October, 2018 passed by this Hon’ble

Court (S.J.Kathawalla, J).

d) appropriate order for attachment of the properties (moveable and

immovable) of the Contemnors/Respondents No.1 Company and

attachment of the personal properties (moveable and immovable) of

the Contemnors/Respondent Nos. 2 and 3;

SUBJECT MATTER OF PRESENT PETITION

4. The present Contempt Petition is filed in respect of non-compliance

and/or willful and/or deliberate and/or contumacious breach of an

undertaking given to this Hon’ble Court by the Contemnors as

recorded in the Order, dated 5th October, 2018 read with the Consent

Minutes of the Order, dated 5th October, 2018 passed by this Hon’ble

Court (S.J. Kathawalla, J) in Notice of Motion No. NMCD (L) 2023

of 2018 along with Notice of Motion No. NMCD 503 of 2017 in

Commercial Suit No. 597 of 2017. Hereto, annexed and marked as

Exhibit 'A' is the Copy of the Order dated 5 th October, 2018 passed

by His Lordship Hon’ble Mr. Justice S.J. Kathawalla. Also, annexed

and marked as Exhibit – ‘B’ is the Copy of the Consent Minutes of

Order, dated 05th October, 2018 taken on record by this Hon’ble Court

and annexed and marked as Exhibit – ‘C’ is the Copy of the Micro
 Bar Chart, dated 10th October, 2018 taken on record by this Hon’ble

Court as an undertaking to this Court.

5. The Consent minutes of the order, dated 5 th October, 2018 recorded

the undertaking by Contemnor Nos. 2 on behalf of the Contemnor

No.1 in respect of completion of the project known as ‘RNA

ADDRESS’ being constructed by the Contemnors, and handing over

the possession of the flats to the members of the Petitioner Society

and also to pay the rent with increase of 10% p.a. from January, 2020

onwards till handing over of possession of the flats to the members of

the Petitioners Society.

6. The Order, dated 5th October, 2018 expressly records that ‘All

undertakings given in the Consent Minutes of the Order are accepted

and so ordered’. Thus, the Consent Minutes of the Order read with

the Order, dated 5th October, 2018 read with the Micro Bar Chart

dated 10th October, 2018 are the subject matter of these contempt

proceedings which according to the Petitioners have been breached.

These Consent Minutes of the Order are taken on record including

undertakings and obligations of the Contemnors/ Respondent No. 2 on

behalf of the Contemnor / Respondent Nos. 1 are recorded in the

Consent Minutes of the Order.

7. Petitioner submits that the Contemnors have by deliberate and willful

breach of various undertakings, rendered themselves liable for highest

punishment under Section 12 of the Contempt of Courts Act, 1971.

The undertakings are inter alia in respect of completion of the project,

etc. The Respondent/ Contemnor and its group firms/ partners are

willful defaulters and have various other orders of this Hon’ble Court

and this Court has already issued contempt notice to the Proprietor/

partner/ Directors of this group in other projects facing similar facts.

Crave leave to refer to and rely upon the compilation of the orders as

and when produced.

8. It is submitted that the Contemnor/Respondent Nos. 2 has signed on

behalf of the Respondent No.1 Company and Respondent No. 3 and

has executed the Consent Minutes of the Order, dated 5th October,

2018 knowing very well the consequences of breach thereof. Despite

of being aware of the consequences, the Contemnors/ Respondents

have portrayed an utter disregard and disrespect for the orders of this

Hon’ble Court and have contumaciously breached the Consent

Minutes of the Order, dated 5th October, 2018 read with the Micro Bar

Chart, dated 10th October, 2018.

9. Petitioners submit that the present case falls within the ambit of

‘deliberate’ and ‘willful’ contempt which this Hon’ble Court ought to

exercise its discretionary jurisdiction in punishing the Contemnors for

their deliberate and continuous breach. In view of the Contemnors,

willful and brazen disregard to the undertakings of this Hon’ble

Court, this Hon’ble Court has powers to attach the personal properties

of the Respondents to enforce the undertaking given to this Hon’ble

Court in addition to maximum detention in civil prison after

adjudication.

10. BRIEF FACTS NECISSITATING THE FILING OF THE

PRESENT CONTEMPT PETITION ARE AS UNDER:

a) Petitioner Society was constructed in 1989 and required heavy

expensive repairs and hence in the year 2006, the Petitioner

Society decided to go for redevelopment of the old building by

demolishing the same.

b) Petitioners had appointed another developer who defaulted in the

obligations and thereafter the Contemnor No.1 Company agreed to

take over the entire project redevelop the existing building of the

society and hand over possession of new flats in a time bound

manner.
c) Subsequent thereto vide Development Agreement, dated 22nd

February, 2010, the Petitioner society granted development rights

to the Respondent on terms and conditions mentioned.

d) Some of the obligations of the Respondent No.1 under the

Development Agreement are summarized hereunder:

 Clause (1) (xv) – States that the Developer has demolished

all the existing structures on the suit property save and

except Building No. 8.

 Clause (1) (xviii) – States that there is no impediment legal

or otherwise in the way of the Defendant No.1 for

executing the work of development on the said property in

pursuance of the IOD and CC issued by the MCGM for the

purposes of construction.

 Clause (1) (xx) – States that the Defendant No.1 has

already commenced construction of basement plus podium

plus 15 floors building on the suit property for construction

of flats and premises which the Defendant intends to sell to

prospective purchasers under the provisions of Maharashtra

Ownership of Flats Act, 1963;

 Clause (1) (xxi) –The Defendant No.1 will allot 14 flats to

the members of the Society with 250 sq.ft carpet in addition

to the existing area of the members;

 Clause (1) (xxii) –The Defendant No.1 will enter into and

execute 14 individual agreements with the respective 14

members of the society showing the flat currently occupied

and the carpet area to be allotted as per Form V of MOFA;

 Clause (1) (xxiii)- States that the Defendant No.1 will

provide free cost of reserved car parking in the stilt of the

building at the ground level or on covered podium (but not

on basement) to the 14 members in pursuance of the

Individual agreement under MOFA;

 Clause (1) (xxiv)- States that the 14 flats agreed to be

provided in pursuance of the Individual Agreement

between Member and Developer shall be duly completed

within 24 months from the date of execution of the

Individual Agreement;

 Clause (1) (xxv) states that the 14 flats so allotted to the

members would be in the Sale building to be constructed by

the Developer on the amalgamation of the property and that

the tentative floor plan as annexed as Annexure ‘D’;

 Clause (1) (xxviii) states that the developer without

changing the location of the flat shall modify and amend

the building plan wherein the 14 flats are agreed to be

allotted and that in case of any amendment, the same shall

be done within a period of 90 days from the date of

execution of the Development agreement and that within 7

days a supplementary agreement would be executed after

the date of amendment of plans and that these

supplementary agreements would be executed and

registered, time being the essence of the agreement;

 Clause (1) (xxxiv) states that the developer shall hand over

possession of 14 flats and 14 car parking spaces in

pursuance of the Individual agreements after obtaining

Occupation Certificate as per the amenities within 24

months from the date of execution of the Development

agreement;

 Clause (1) (xxxv) –The Defendant shall pay to each

member the compensation towards arranging temporary

alternate accommodation for a period of 24 months –

compensation for the 18 months commencing from

February, 2010 shall be paid in advance and the remaining

compensation for 6 months shall be paid by way of post-

 dated cheques and post-dated cheques of 6 months (grace

period) shall be deposited with Escrow agent/Society’s

advocate .

 Clause (1) (xxxvi) – States that the Defendant will also pay

a sum of Rs. 5,00,000/- as and by of Corpus Fund /

hardship money per member.

 Clause 1 (xxxxii)- Developer shall provide Bank Guarantee

of Rs.2,00,00,000/- to the society, till handing over of the

14 flats to each one of the societies 14 members.

 Clause 10(ii)- the Developer agreed to complete the

development without creating any liability, charge and

encumbrance against the society;

 Clause 10 (vi) – Complete the re-development within 24

months from the date of handing over the vacant possession

of existing building after execution of the individual 14

Agreement.

 Clause (14) – that incase of any default, delay and/ or

breach or non-performance of any obligations by the

Defendant, the Plaintiff Society shall be at the liberty to

encash the Bank Guarantee.

 Clause 16 – the Developer can suitably amend or modify

the plans provided that the area and location of the 14 flats

so reserved and allotted in the Development agreement

remains unchanged and having taken the members in

confidence maintaining transparency at all times ;

 Clause 22 – The Developer shall continue to pay each of

the 14 member’s amount of compensation towards rent till

the possession of the said 14 flats to the members of the

society.

 Clause 23 – It is specifically agreed by and between the

parties that besides the other obligations, the Developer has

 guaranteed by the Performance Guarantee and the

payments of compensation of rent after the period of 18

months till handing over of the newly constructed flats to

the 14 members, as and by way of a Bank Guarantee

which is furnished by the Developer to the Society.

 Clause 27 – All the dispute arising from this Agreement

shall be referred to competent courts of law having

appropriate jurisdiction.

e) Petitioners state that upon execution of the Development

Agreement, the members handed over their original flats to the

Contemnor/Respondent No.1 in February, 2010. Petitioners state

that the Contemnors were under an obligation to complete the

construction within 24 months and hand over possession latest by

January, 2012. Despite of agreeing to this arrangement under the

Development Agreement, the Contemnors abandoned the site in

2013. It is submitted that from 2013 till the present date, there has

been no construction at site. The Contemnors also started

defaulting in payment of arrears of rent and failed to execute and

register Permanent Alternate Accommodation Agreements with

each member of the Petitioners society. The Respondent also

started defaulting in paying the monthly rent from October, 2015

onwards amounting to Rs.69,35,116/-. It is submitted that due to

these breaches of the Contemnors, the members of the Petitioner

Society have been paying the monthly compensation from their

own pockets and have been subjected to financial crisis on account

of the default of the Contemnors in paying the monthly

compensation.

f) There after the members of the Petitioner society addressed a

complaint letter, dated 4th March, 2016 to MHADA stating that the

Respondent is not paying rent since October, 2015 and the work at

site has stalled for more than three years, thereafter the MHADA
 followed up with the Respondent for the compliance of his

obligation towards completion of the project.

g) Petitioners state that despite several rounds of meetings and

consistent follow ups with the Contemnors, the Contemnors failed

to start the construction of the project as well as failed to pay the

monthly compensation to the members of the Society. The

Petitioner Society was left with no option but to initiate legal

proceedings against the Contemnor No.1 Company. Crave leave to

produce the entire correspondences and documents exchanged

between the parties as and when called upon by this Court.

h) Petitioners thereafter filed a Commercial Suit being No. 597 of

2017 seeking Specific Performance of the Development

Agreement, dated 22nd February, 2010, in respect of Completion of

the project as well as payment of arrears of rent. Crave leave to

produce the copy of the Plaint as and when called upon.

i) A Notice of Motion No. 503 of 2017 in the said Commercial Suit

No. 597 of 2017 for interim reliefs was also filed inter alia seeking

injunction on the allotted flats, clearance of double sale of the

members flat, payment of monthly compensation and for

completion of the project as well as execution of PAAA in respect

of 2 members of the Petitioner Society. Crave leave to refer and

rely upon the copy of the Notice of Motion.

j) Vide order, dated 26th October, 2016, the Contemnor No.1 gave an

undertaking to this Hon’ble Court to pay the monthly rent to the

members of the Society on or before 10th of each month. Hereto,

annexed and marked as Exhibit – ‘D’ is the Copy of the Order

dated, 26th October, 2016.

k) Petitioners state that the Contemnors were required to pay certain

amounts towards premium to the Corporation and MHADA

towards procuring the IOD and NOC from MHADA. Several

Orders were passed by this Hon’ble Court in order to facilitate the

 procurement of the IOD as well as NOC from MHADA to

commence the construction of the said project. Crave leave to refer

and rely upon the said orders.

l) It is pertinent to note that the Contemnors had also failed to

provide a Bank Guarantee in favour of the Petitioner Society. At

various hearings it was represented by the Contemnor that it shall

provide Flat Nos. B-903 and B-1103 in lieu of the Bank Guarantee.

Vide order, dated 6th December, 2017, this Hon’ble Court was

pleased to restrain the Contemnors by way of an order of

injunction from creating third party rights in respect of the said

flats. Hereto, annexed and marked as Exhibit – ‘E’ is the Copy of

the Order dated, 6th December, 2017.

m) Petitioner’s state that the Contemnors in various hearings held

before this Hon’ble Court had contended that a Writ Petition was

pending before this Hon’ble Court against the Corporation for not

sanctioning the plans of the Contemnors. Vide order, dated 14th

December, 2017, this Hon’ble Court had observed that as there

was no stay on the proposed construction, this defense of the

developer does not survive. In furtherance of the same, the

Contemnors gave an undertaking to this Hon’ble Court that they

shall make payments to the Corporation and MHADA and that

they shall commence the construction. This undertaking was

accepted by the Hon’ble Court.

n) Petitioners state that thereafter the Contemnors approached the

Petitioner Society to amicably settle the matter and once again

assured that the project will be completed in a time bound manner

and that the monthly compensation shall be paid time to time.

o) Subsequently, Vide order dated, 21st December, 2017, the

Petitioner Society and the Contemnor No.1 through its erstwhile

Director, Mr. Yogesh Gupta entered into consent Minutes of the

Order, dated 21st December, 2017. The following were the

 obligations of the Contemnor No. 1 under the said consent

Minutes:

 The Contemnor No. 1 undertook to pay a sum of Rs.

5,41,00,000/- towards Development charges and shall deposit

50% of the said amount within a period of 3 working days from

the date of the order.

 After payments were made to MCGM, it shall issue the CC

within 1 week from the date of the receipt of the payment by

the Contemnor.

 The Contemnor shall commence construction at site within a

period of 1 week from the date of the order. The Contemnor

No.1 shall place a detailed Bar Chart on record stipulating the

schedule of construction on or before 4.1.2018.

 Incase, of any impediments in respect of the approvals and

sanctions from the MCGM, the Contemnor No. 1 was at liberty

to approach the Hon’ble Court for further directions.

 It was also undertaken by the Contemnor No. 1 that it shall

continue to pay the monthly rent in lieu of temporary alternate

accommodation in advance for 15 months from March, 2018.

 Contemnor was discharged from furnishing the Bank

Guarantee.

Hereto, annexed and marked as Exhibit – ‘F’ is the Copy of the

Order, dated 21st December, 2017 along with the Consent Minutes

of the Order, dated 21st December, 2017. Vide order, dated 4th

January, 2018 a micro Bar Chart was taken on record stipulating

the schedule of construction of the project and its completion date.

Hereto, annexed and marked as Exhibit – ‘G’ is the Copy of the

Bar Chart, dated 4th January, 2018.

p) Despite of executing the aforesaid consent minutes of the order as

well as giving an express undertaking to this Hon’ble Court vide

 order, dated 21st December, 2017, the Contemnor failed to comply

with its obligations under the said consent minutes of the order.

The Contemnors neither commenced construction at site nor did

they pay the monthly compensation to the members of the

Petitioner Society. The Contemnors failed to make payments

towards the monthly compensation from July, 2018 onwards. The

Contemnors were to complete the project by 31st December, 2019

as per the Bar Chart, dated 4th January, 2018. However, there was

no construction at site. The cheques given to the members of the

society were also dishonored.

q) Petitioners state that the Contemnor while registering the project

under the provisions of the Real Estate Regulatory Act, had

unilaterally changed the date of possession to August, 2022,

despite giving an undertaking to this Hon’ble Court that the project

will be completed by 31st December, 2019. It is submitted that this

was deliberate and willful breach on behalf of the Contemnors.

r) Petitioners state that vide letter, dated 20th July,2018, the advocates

for the Petitioners called upon the Respondents to purge the

contempt of the Consent Minutes of the Order, dated 21 st

December, 2017 and further called upon the Respondents to

comply with the said order failing which necessary legal action

would be initiated on behalf of the Petitioner Society. Hereto,

annexed and marked as Exhibit – ‘H’ is the Copy of the Letter

dated, 20th July, 2018. It is pertinent to note here that the

Respondents failed to reply to the said letter and further failed to

purge the contempt of the Consent Minutes of the Order, dated 21st

December, 2017. This was the first instance of blatant and willful

breach of the orders of this Hon’ble Court by the Respondents.

s) In furtherance of the same, the Petitioner Society filed a Notice of

Motion bearing No. (l) 2023 of 2018 in August, 2018 for reliefs

under Order 39 Rule 2A of the Civil Procedure Code, 1908 for

 imprisonment of the directors of the Respondent No.1 Company

and for appointment of Court Receiver under Order XL of the

Civil Procedure Code. Crave leave to refer and rely upon the Copy

of the same as and when produced.

t) Petitioners state that the Contemnors once again approached the

Petitioner Society and sought to resolve the issues amicably. It is

submitted that vide Order, dated 5th October, 2018, both parties

entered into Consent Minutes of the Order. A summary of the

obligations of the Contemnor/Respondents under the Consent

Minutes of the Order are as follows:

 Clause a) - Contemnor/ Respondent to hand over the 14

cheques to members of the Petitioner from July, 2018 to

December, 2019 towards monthly compensation/rent.

 Clause b) - Contemnor/ Respondent to pay the further monthly

compensation/rent with increase of 10% from January, 2020

onwards till handing over of the possession of the flats to the

members of the Petitioner Society.

 Clause c) - Contemnor/ Respondent to pay further

compensation @ 18 % in case of any dishonor of the cheques.

 Clause d) - Contemnor/ Respondent to furnish a Micro Bar

Chart within 15 days from the date of the order setting out a

detailed schedule of the construction for completion of the

project by December, 2019.

 Clause e) - On submission of the Micro Bar Chart M/s Shetgiri

& Associates were appointed to inspect the suit property within

a period of 1 week from the date of submission of the Micro

Bar Chart and submit a detailed report as to the current status

of the construction.

 Clause f) - M/s Shetgiri & Associates should also inspect the

suit property every two months and submit the detailed report

to the court for compliance of the Micro Bar Chart.

  Clause g) - In case of any breach of the Micro Bar Chart by the

Contemnor/ Respondent, the Petitioner shall be at the liberty to

apply for appointment of the Court Receiver along with any

other reliefs including the reliefs in the present motion which

shall be decided on merits in respect of the entire project ‘RNA

ADDRESS’.

11. Petitioners state that the Contemnors/Respondents submitted a Micro

Bar Chart on 10th October, 2018 showing the schedule of construction.

The Copy of the Bar Chart, dated 10th October, 2018 is already

annexed as Exhibit-C herein above and the Copy of the Order, dated

5th October, 2018 is already annexed at Exhibit – A above along with a

copy of the Consent Minutes of the order at Exhibit - B. The Notice of

Motion was disposed-off in terms of the consent minutes of the order

thereby accepting the undertakings by the Contemnors/Respondents

No. 2 on behalf of the Respondent No.1 being the authorized signatory

and director of the company. Petitioners state that despite of entering

into Consent minutes of the Order for the second time, the

Contemnors/Respondents continued to blatantly breach the

undertakings given to this Hon’ble Court.

12. Petitioners state that as the Contemnors/Respondents failed to comply

with the obligations under the Consent Minutes of the Order, the

Advocates for the Petitioners vide email, dated 22 nd November, 2018

addressed to the Contemnors/Respondents and their advocates placing

on record the following breaches of the Consent Minutes as on

22.11.2018:

a. Breach of Clause (c) – The cheques issued for monthly

compensation were dishonored on presentation and hence the

undertaking was breached.

b. Phase – I – as per Bar Chart, RCC Work was to be completed

by 13th June, 2019 but there was no activity at site hence, no

chance of completing the same.

 The email also called upon the Contemnors/Respondents to rectify

the breaches of the Consent Minutes and Micro Bar Chart but the

Contemnors/Respondents failed to comply as also failed to reply to

the aforesaid email. Hereto annexed and marked as Exhibit – ‘I’ is

the Copy of the email, dated 22nd November, 2018.

13. Petitioners state that following is the summary of the clauses of the

Consent Minutes of the Order, dated 5th October,2018 along with their

status of compliance;

Clause Summary of Clause Status of Completion

No.

a) Contemnor/ Respondent to hand over Cheques dated

the 14 cheques to members of the 18/11/2018 for Rs.
Petitioner from July, 2018 to 65,26,649/- were initially
December, 2019 towards monthly dishonoured. They were
compensation/rent. later replaced and
honoured.
b) Contemnor/ Respondent to pay the
further monthly compensation/rent
with increase of 10% from January,
2020 onwards till handing over of the
possession of the flats to the members
of the Petitioner Society.
c) Contemnor/ Respondent to pay further Not Complied despite
compensation @ 18 % in case of any dishonor of cheques
dishonor of the cheques.
d) Contemnor/ Respondent to furnish a Although Micro Bar
Micro Bar Chart within 15 days from Chart is submitted, there
the date of the order setting out a is no progress at site and
detailed schedule of the construction the site lays abandoned
for completion of the project by without any progress and
December, 2019. that all thresholds have
been breached making it
impossible to complete
the project by December
2019 as undertaken to
the court.
 e) On submission of the Micro Bar Chart Not Complied
M/s Shetgiri & Associates were
appointed to inspect the suit property
within a period of 1 week from the
date of submission of the Micro Bar
Chart and submit a detailed report as
to the current status of the
construction.
f) M/s Shetgiri & Associates should also No inspection is carried
inspect the suit property every two out.
months and submit the detailed report
to the court for compliance of the
Micro Bar Chart.
g) In case of any breach of the Micro Bar Phase – I – RCC Work
Chart by the Contemnor/ Respondent, was to be completed by
the Petitioner shall be at the liberty to 13th June, 2019 but there
apply for appointment of the Court was no activity seen at
Receiver along with any other reliefs site so there is no chance
including the reliefs in the present of completing the project
motion which shall be decided on by December 2019 and
merits in respect of the entire project hence the Petitioners
‘RNA ADDRESS’. would be making an
application for
appointment of the Court
Receiver

14. Petitioners state that thereafter the matter was listed before Hon’ble

Justice Sriram on 27th November, 2018 whereby the Court was

apprised of the breaches committed by the Contemnors. The

Advocates for the Contemnors were not in a position to convey to the

court, the reasons for dishonor of the cheques towards monthly

compensation. However, the Hon’ble Court as and by way of last

chance granted the Contemnors time upto 1.12.2018 to make the

payments to the Petitioner Society. Hereto, annexed and marked as

Exhibit –‘J’ is the Copy of the Order dated 27th November, 2018.
15. Petitioners state that in ancillary proceedings filed by 3 free sale flat

purchasers in the same project where the members of the Petitioners

were to be accommodated by way of permanent accommodation, the

Hon’ble Court vide order dated 1st March, 2019 had allowed the

Plaintiffs therein to withdraw the amounts deposited in court towards

flat sale consideration, if the construction at site did not start within 15

days from the date of the Order. Hereto, annexed and marked as

Exhibit – ‘K’ is the Copy of the Order dated 1 st March, 2019.

Petitioners state that as there was no progress at site and the

Contemnors failed to commence construction. The Plaintiffs in the

ancillary proceedings were allowed to withdraw the amounts so

deposited with the courts due to non-progress at site of the Contemnor

No.1.

16. Subsequently, the Petitioners time and again visited the construction

site, however, on each and every occasion it was found that there were

no workers and the site was visibly abandoned by the Contemnors

herein. Petitioners state that from the aforesaid facts and numerous

orders passed by this Hon’ble Court, it can be seen that time and again

the Contemnors have breached the orders of this Hon’ble Court as well

as various undertakings given to this Hon’ble Court.

17. The Petitioners state that the Contemnors have not only breached the

Consent Minutes of the Order once but twice. The Contemnors have

given undertakings to this Hon’ble Court on two occasions, being very

well aware of the consequences of breach thereof. Petitioners state that

this is not the only project wherein the Contemnors have entered into

consent minutes of the order and have blatantly breached the

undertakings given to this Hon’ble Court. It is submitted that there are

several orders of this Hon’ble Court holding the Contemnors in

contempt and taking stringent actions against the directors of the

Contemnor No.1 Company.

18. The Petitioners are filing this present petition on account of the Willful

breach of the Consent minutes of the order, dated 5 th October, 2018

executed between the Petitioners and the Contemnor/ Respondents

read with the Micro Bar Chart, dated 10th October, 2018.

19. Petitioners state that the members of the Society have vacated their

flats in the year 2010 and have handed over possession to the

Contemnors/Respondents with the assurance that the project would be

completed in a time bound manner. The Contemnors/ Respondents

have breached their obligations under the Development Agreement,

dated 22nd February, 2010 by not handing over possession to the

members within 24 months. It is submitted that these 14 members of

the Petitioner Society belong to lower middle class families who are

shelling out monthly rent from their own pockets from October, 2015

till the present date. It is submitted that due to the default of the

Contemnors/Respondents, the members have suffered tremendous

financial constraints and have been virtually brought on the streets.

20. Petitioners state that although the Contemnors/ Respondents were in

breach of the earlier Consent Minutes of the Order, dated 21 st

December, 2017, on the express assurance of the Contemnor No. 2 that

the project would be completed in a time bound manner and in

accordance with the Micro Bar Chart so submitted, the Petitioners

agreed to give a second chance to the Contemnors/ Respondents

herein. However, the Contemnors/Respondents breached the trust of

the Petitioner Society and failed to comply with the consent minutes of

the order, dated 5th October, 2018 as well as the Micro Bar Chart dated

10th October, 2018 which was a personal undertaking of the

Contemnor/Respondent No. 2. Despite being at the receiving end of

the stringent orders, the Respondents have failed to honor their

commitments and undertakings given to this Hon’ble Court in blatant

breach of the orders of the Court. The Respondents have no regard

whatsoever for the order passed by this Hon’ble Court which evident
 from the aforesaid facts. They have deliberately and willfully breached

the orders of this Hon’ble Court in utter disregard and disrespect for

the court of law.

21. Petitioners state that the Respondents never had the intention of

honoring their undertakings and have usurped the property of the

Petitioner Society by making them part with their property, utilizing

the land benefits, creating third party rights and pocketing the profits

from such sales. Petitioner Society has now lost confidence and faith

in the developers and is at liberty to terminate the Development

Agreement, dated 22nd February, 2010 r/w the Consent Minutes of the

Order, dated 5th October, 2018 for consistent breaches by the

Contemnors herein

22. The conduct of the Respondents/ Contemnors was never beyond

reproach, and that, at all times, false representations were made by the

Respondents/Contemnors to the Petitioner, who continued to fight for

their rights and its legitimate claim.

23. This Contempt Petition is filed on account of willful, deliberate and

contumacious act of dis-obedience and contempt committed by the

Contemnors/Respondents by deliberately and will-fully disobeying

and violating the Consent Minutes of the Order dated, 5th October,

2018 read with the Micro Bar Chart dated 10th October, 2018, thus

making the Respondents/Contemnors liable for punishment and

proceedings under the Contempt of Courts Act.

GROUNDS

24. In these aforesaid circumstances, the Petitioner submits that the action

of the Contemnors is not in accordance with law and the Petitioners

raise the following grounds which are made without prejudice and/or

in the alternative of each other:

A. That the Contemnors/ Respondents have clearly with mala fide

motives, and deliberately, to cause harm and prejudice to the

Petitioner, gave false undertakings as recorded in the Order, dated

 5th October, 2018 along with Consent Minutes of the Order dated,

5th October, 2018 and Micro Bar Chart dated, 10 th October, 2018,

and then miserably failed to comply with the same.

B. That from the conduct of the Contemnors by knowingly giving

false undertakings to the court as recorded in the Order, dated 5 th

October, 2018 along with Consent Minutes of the Order dated, 5 th

October, 2018 and Micro Bar Chart, dated 10 th October, 2018, and

clear breach of not making payments clearly shows that the

Contemnors had no intentions of honoring its commitment as per

the consent terms.

C. That the Respondents/Contemnors are guilty of having committed

contempt and have to be dealt with accordingly by this Hon’ble

Court. The Petitioners submit that it is just, necessary and

convenient and in the interest of justice that, it be declared that the

Respondents have breached the Order, dated 5th October, 2018

along with Consent Minutes of the Order, dated 5 th October, 2018

and Micro Bar Chart, dated 10th October, 2018, thus making them

liable for punishment for the said undertaking oral and written

thereby sentencing the Respondent/Contemnors Nos. 1 to 4 to

simple imprisonment for a period of 6 months or for such other

period as this Hon’ble Court deems fit and proper.

D. That by the willful act of the Respondent /Contemnors in flouting

the undertakings given to this Hon'ble Court, the

Respondents/Contemnors be directed and ordered to pay

fine/compensation, in addition to maximum detention in prison, in

accordance with the provisions of the Act for having committed

civil contempt of this Hon’ble Court by willfully, deliberately and

contumaciously flouting and disobeying the undertaking as

recorded in the Order, dated 5th October, 2018 along with Consent

Minutes of the Order, dated 5th October, 2018 and Micro Bar

Chart, dated 10th October, 2018;

 E. In view of the conduct coupled with several incomplete projects at

the same stage by the Contemnors, the Petitioner apprehend that

the Contemnors Nos. 2 to 4 will abscond, thereby leaving the

Petitioners remedy-less. Thus in the interest of protecting the rights

of the Petitioners, the properties of the Contemnors must be

attached so also the passports of the Contemnors nos. 2 to 4 be

impounded so as to prevent them from travelling outside the

territory of India.

LIMITATION

25. The Petitioner has approached the Hon’ble Court with due

diligence and dispatch. The cause of action has arisen from 18 th

November 2018 being the first date for compliance of the Consent

Minutes of the Order, dated 5th October, 2018 and hence no part of

this Petition is barred by the law of limitation. The breach of the

undertaking given to this Hon’ble Court is in continuance and

hence not barred by the law of limitation. Hence, this Petition is in

time. In any event, the Contempt is filed within one year from the

date of the acts of contempt under Section 20 of the Contempt of

Court Act, 1971.

JURISDICTION

26. The Petitioner submits that contempt has been committed by the

Respondents/Contemnors by acting in contravention of the said

Order, dated 5th October, 2018 along with Consent Minutes of the

Order, dated 5th October, 2018 and Micro Bar Chart, dated 10th

October, 2018, which was passed by this Hon'ble High Court.

Therefore, this Hon’ble Court has jurisdiction to entertain, try and

dispose of this Petition.

AUTHORITY TO SIGN

27. The Petitioner through ___________________, the Authorized

Representative of the Petitioner is aware of and able to depose to

 the facts of the case on the basis of the Petitioners’ records, and has

signed and declared this Petition.

COURT FEES

28. The Petitioner has paid the requisite court fees of Rs.______/- on

this Petition.

AVERMENT AS TO NO OTHER PROCEEDINGS

29. The Petitioner has not filed any application or petition of similar

nature seeking similar reliefs either before this Hon’ble Court or

the Hon’ble Supreme Court of India.

LIST OF DOCUMENTS

30. The Petitioner will rely on documents, a list whereof is annexed

hereto including the papers and proceedings in the execution

application.

PRAYERS

31. Petitioners/Applicants therefore pray:

a) That this Hon’ble Court be pleased to declare that the Contemnor

Nos.2 and 3, the Directors, officers and key personnel of the

Contemnor No.1, have rendered themselves liable for maximum

punishment under the Contempt of Courts Act, 1971 for willfully

violating and/or contumaciously breaching the undertakings given

to this Hon’ble Court as recorded in the Order dated 5 th October,

2018 (Exhibit – A ) along with Consent Minutes of the Order dated

5th October, 2018 ( Exhibit – B) read with the Micro Bar Chart

dated 10th October, 2018;

b) That this Hon’ble Court be pleased to detain the Contemnor No.2

and 3, the Directors, officers and key personnel of the Contemnor

No.1 in civil prison for a period of 6 months or the term as ordered

by this Court for having committed contempt of this Hon’ble Court

and impose fine as prescribed upon the Contemnors under the

Contempt of Courts Act,1971 for willfully violating and/or

contumaciously breaching the undertakings given to this Hon’ble

 Court as recorded in the Order dated 5th October, 2018 ( Exhibit –

A) along with Consent Minutes of the Order dated 5th October,

2018 ( Exhibit – B) and Micro Bar Chart dated 10 th October, 2018

passed by this Hon’ble Court;

c) That pending the hearing and final disposal of the Petition, that this

Hon’ble Court be pleased to pass such orders as are necessary to

purge the contempt committed by the Respondents/Contemnors

and enforce the undertaking as recorded in the Order dated 5 th

October, 2018 along with Consent Minutes of the Order dated 5 th

October, 2018 and Micro Bar Chart dated 10th October, 2018,on

the terms and conditions as this Hon’ble Court deems fit;

d) That pending the hearing and final disposal of the Petition, this

Hon’ble Court be pleased to pass such appropriate orders for

attachment of the properties (moveable and immovable) of the

Contemnors/Respondents and attachment of the personal

properties (moveable and immovable) of the Contemnor No. 2 and

3 , Directors, officers and key personnel of the Contemnor No.1;

e) That pending the final hearing and disposal of this petition, this

Hon’ble Court be pleased to direct the Respondent Nos. 2 and 3,

Directors, officers and key personnel of the Contemnor No.1to

deposit their passports with the Prothonotary and Senior Master,

High Court;

f) For ad-interim reliefs in term of prayer clauses (a) to (e);

g) For costs of this petition and;

h) For such further and other relief as this Hon’ble Court may deem

fit and   proper in the nature and circumstances of the case.

Dated this day of June, 2019

Petition drawn by us:

For SOLICIS LEX Authorized Signatory

Advocates of the Petitioner of the Petitioner
 VERIFICATION

I, ____________, the Authorized Signatory of the Petitioners

abovenamed, aged ___, residing at

____________________________________________________ who

solemnly, affirm state and verify that whatever is stated in paragraph 1 to

15 of the Contempt petition is true to my knowledge and belief and based

on documentary evidence and what is stated in rest of the paragraphs 16 to

31 is based on legal advice which I believe the same to be true.

Solemnly affirmed at Mumbai ]

On this day of June, 2019 ]

Deponent

Advocate for the Petitioner