Ashok Commercial Enterprises And Another v. Kamla Shakti Developers And 3 ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO. 20 OF 2020 IN COMMERCIAL SUMMARY SUIT NO. 472 OF 2016 Ashok Commercial Enterprises & Anr.

...Petitioners

vs Kamla Shakti Developers & Ors.

...Respondents

.....

Mr Abhishek Samant & Ms Rupali Modi i/b Pradhan and Rao for the Petitioners Mr Aniket Khorate and Ms. Snehal Patil and Ms. Yamini Maheshwari i/b Maniar Srivastava Associates for Respondent Nos.1,3 and 4. Mr. P.B.Joshi i/b Mr. Bipin Joshi for Respondent No.2. .....

CORAM : B. P. COLABAWALLA, J.

13th MARCH 2020.

P.C. :

This Contempt Petition has been fled seeking to initiate, hold and declare respondent Nos.2 to 4 guilty of committing contempt by willfully and deliberately disobeying the order dated 16th January, 2019 passed by this Court. The order dated 16th January, 2019 was passed by this Court in Summons for Judgment No. 89 of 2018 in Commercial Summary Suit No. 472 of 2016. By this order the learned single Judge examined the defences raised by the defendants and then came to conclusion that the defences were entirely worthless and moonshine. In these circumstances, the Summons for Pg 1 of 3

Judgment was made absolute and the suit itself was decreed. Over and above passing a decree, the Court also awarded costs of Rs.13 Lacs. The learned Judge also gave leave to the plaintiffs to proceed in execution without awaiting sealing of the decree. Admittedly, a decree has been passed in favour of the plaintiffs including a decree for costs. Though leave is granted to proceed in execution without awaiting sealing of the decree, no Execution Application has been fled till date. In these circumstances, I do not fnd that this is a ft case to exercise contempt jurisdiction in order to ensure execution of the decree. In the view that I take, I am supported by a decision of the Supreme Court in the case of B.N.Dey and Ors. Vs Bhagyabati Pramanik and Ors. [ (2004) 4 Supreme Court Cases, 400].

In this decision the Supreme Court has clearly held that the weapon of contempt is not to be used in abundance and misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the court is to be exercised for maintenance of the court's dignity and majesty of law. Further, an aggrieved party has no right to insist that the court should exercise its contempt jurisdiction as this is a matter purely between a contemnor and the court.

initiated for non-compliance of a decree is fnally at the discretion of the Court. This has also been held by the Supreme Court in another decision in case of Rama Narang Vs. Ramesh Narang and Anr. [(2006) 11 Supreme Court Cases 114].

Looking to the ratio laid down by the Supreme Court in both these decisions, what becomes clear is that it is not as if, the moment a decree is not satisfed the plaintiffs would have a right to invoke the contempt jurisdiction of this Court for non-compliance of the decree. This is more so, in the facts of the present case, considering that leave was granted to the plaintiffs to proceed in execution without awaiting sealing of the decree and yet the plaintiffs have not chosen to put the decree in execution, but have sought to fle this Contempt Petition instead. In these circumstances and looking to the peculiar facts of the present case, I do not think that this Contempt Petition ought to be entertained. It is, accordingly, dismissed. No order as to costs. The plaintiffs are at liberty to fle its Execution Application for executing the decree dated 16th January, 2019.

(B. P. COLABAWALLA, J.) Pg 3 of 3