Kekin Shamji Dedhia v. Yash Builders /Yash Group

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION COURT RECEIVER REPORT NO.71 OF 2024 IN EXECUTION APPLICATION (L) NO.27838 OF 2022 SUREKHA DILIP GAWAND & ORS.

)ORIGINAL PLAINTIFFS V/s.

PARAS SUNDERJI DEDHIA AND ANR.

)JUDGMENT DEBTORS WITH EXECUTION APPLICATION (L) NO.394 OF 2023 WITH INTERIM APPLICATION NO.374 OF 2023 IN EXECUTION APPLICATION (L) NO.394 OF 2023 WITH INTERIM APPLICATION NO.549 OF 2023 IN SUIT NO.48 OF 2023 WITH INTERIM APPLICATION (L) NO.3188 OF 2024 IN COMMERCIAL SUIT NO.242 OF 2021 WITH EXECUTION APPLICATION NO.1741 OF 2022 WITH CONTEMPT PETITION NO.106 OF 2019 IN SUIT NO.440 OF 2018 WITH CONTEMPT PETITION NO.61 OF 2019 IN NOTICE OF MOTION NO.693 OF 2018 WITH COUNTER CLAIM (L) NO.6422 OF 2022 by PRIYA RAJESH SOPARKAR Date:

2024.04.01 19:49:21 +0530 PRIYA RAJESH SOPARKAR IN SUIT NO.388 OF 2022

2 902 crr 71-24 and ors-os.doc WITH INTERIM APPLICATION (L) NO.7447 OF 2022 IN COUNTER CLAIM (L) NO.6422 OF 2022 WITH SUIT NO.388 OF 2022 WITH INTERIM APPLICATION NO.1804 OF 2023 IN SUIT NO.388 OF 2022 WITH INTERIM APPLICATION NO.3385 OF 2023 IN SUIT NO.388 OF 2022 WITH INTERIM APPLICATION (L) NO.24681 OF 2023 IN SUIT NO.388 OF 2022 WITH CONTEMPT PETITION (L) NO.26144 OF 2023 IN SUIT NO.388 OF 2022 WITH COUNTER CLAIM (L) NO.6422 OF 2022 IN SUIT NO.388 OF 2022 WITH INTERIM APPLICATION (L) NO.2041 OF 2024 IN SUIT NO.388 OF 2022 WITH INTERIM APPLICATION (L) NO.36089 OF 2023 IN SUIT NO.388 WITH INTERIM APPLICATION (L) NO.1684 OF 2021 IN SUIT NO.388 OF 2022 WITH

3 902 crr 71-24 and ors-os.doc INTERIM APPLICATION NO.1804 OF 2023 IN SUIT NO.388 OF 2022 WITH INTERIM APPLICATION (L) NO.3831 OF 2024 IN INTERIM APPLICATION NO.1804 OF 2023 WITH INTERIM APPLICATION NO.5049 OF 2022 IN SUIT NO.302 OF 2021 WITH INTERIM APPLICATION NO.209 OF 2022 IN SUIT NO.302 OF 2021 WITH INTERIM APPLICATION NO.3385 OF 2023 IN SUIT NO.388 OF 2022 WITH INTERIM APPLICATION NO.208 OF 2022 IN SUIT NO.302 OF 2021 WITH INTERIM APPLICATION NO.4710 OF 2022 IN COMMERCIAL SUIT NO.242 OF 2021 WITH INTERIM APPLICATION (L) NO.24681 OF 2023 IN SUIT NO.388 OF 2022 WITH APPEAL (L) NO.2121 OF 2024 IN INTERIM APPLICATION (L) NO.24681 OF 2023 WITH CONTEMPT PETITION (L) NO.26144 OF 2023 IN

4 902 crr 71-24 and ors-os.doc SUIT NO.388 OF 2022 WITH SUIT NO.69 OF 2024 WITH INTERIM APPLICATION (L) NO.27924 OF 2023 IN SUIT NO.69 OF 2024 WITH INTERIM APPLICATION (L) NO.27960 OF 2022 IN EXECUTION APPLICATION (L) NO.27838 OF 2022 WITH CONTEMPT PETITION NO.7 OF 2020 IN SUIT NO.173 OF 2018 WITH INTERIM APPLICATION (L) NO.31598 OF 2022 IN EXECUTION APPLICATION (L) NO.4566 OF 2022 WITH INTERIM APPLICATION (L) NO.34202 OF 2023 IN EXECUTION APPLICATION (L) NO.34196 OF 2023 Mr. Malcolm Siganporia a/w Ms.Kinjal Kakkad i/b. Mr.Jayesh R. Vyas, Advocates for the Plaintiff in Suit No.388/2022 and for the Applicant in EXA(L)/394/2023, IA 374/2023 in EXAL 394/2023, EXA/1741/2022, CONP/61/2019, CCL/6422/2022, IA/1804/2023, IA/3385/2023, IAL 24681/2023 in S/388/2022, CONPL/26144/2023, CCL 6422/2022, IAL 2041/2024, IAL/36089/2023 in S/388/2022, IAL/1689/2021 in S/388/2022 IAL/1804/2023 in S/388/2022, IAL/3831/2024 in IA 1804/2023, IAL/3385/2023 in S/388/2022 and APPL 2121/2024 in IAL/ 24681/2023.

Ms. Neeta Jain a/w Mr. Dhrumil C. Shah i/b. Lex Services, Advocates for the Applicant/Plaintiff in IAL/3188/2024 a/w. IA/4710/2022 in COMS/242/2021.

5 902 crr 71-24 and ors-os.doc Mr. Paras Gosar i/b Ms. Swati N. Chheda, Advocates for the Applicant/Plaintiff in IAL/27924 in SL/27920/2023. Ms. Shweta Nisar i/by C.J. Doveson, Advocates for the Contemnor. Mr. Manoj Harit with Ms. Pooja Harit i/by M/s Manoj Harit & Co., Advocatea for the Intervenor in IA/3831/2024. Mr. Dhaval Visawadia i/b Harakchand & Co., Advocate for the Plaintiff in Suit No.48/2023 and Suit No.302/2021.

Mr. Aadil Parsuramporia i/b Mr. Mehul Rathod, Advocates for Applicants/ Decree Holders in IAL/27960/2022, IAL/31598/2022 and IAL/34202/2023.

Ms.Gunjan Shah with ms. Vidhi Jain i/by Mr. K. P. Shah, Advocates for the Defendants No.1 and 2 in all matters.

Mr. S.K. Dhekale, Court Receiver with Mr. Nitin Pawar, OSD, Court Receiver are present.

Mr. Amit A. Palkar, Addl. PP for the State.

Mr. Paras S. Dedhia, in-person is present.

Mr. Arvind Chandanshive, Sr. P.I. attached to N.M. Joshi Marg Police Station is present.

CORAM :

ABHAY AHUJA, J.

DATE :

01 APRIL, 2024.

P.C. :

1.

Pursuant to order dated 27th March, 2024, today this matter has been listed first on the supplementary board. When the matter is called

6 902 crr 71-24 and ors-os.doc out, after some confusion, Mr. Arvind Chandanshive, Senior Police Inspector of the N. M. Joshi Marg Police Station presents and identifies himself. Mr. Amit A. Palkar, learned Addl. PP also appears in the matter for the State and submits that till late last night Mr. Paras Sunderji Dedhia was evading arrest and look out circular had also been issued against him and that he had also switched off his mobile phone, although his mobile phone had been put on surveillance and he could not be arrested. 2.

However, the learned APP submits, that Mr. Paras S. Dedhia has just now, on his own presented himself in this Court. Mr. Shah, learned counsel for Mr. Paras Dedhia, who statedly is taking steps to take discharge in the matter, identifies the person as Mr. Paras S. Dedhia. 3.

This Court has in several previous orders recorded Mr. Paras Sunderji Dedhia's deliberate, willful and contumacious conduct which can be exemplified by the above narration of events as despite the police machinery of the State being put into action, he could not be arrested and in view of the standing warrant of arrest and look out circular has presented himself after the matter has been called out. The earlier orders of this Court are a testimony of his contumacious conduct, his breach

7 902 crr 71-24 and ors-os.doc of the undertakings given to this Court and remaining absent on several dates which deliberate and willful breaches have resulted in interference with the administration of justice. If this conduct is not dealt with firmly, that may result in lowering the dignity and the majesty of this institution in the eyes of the public and in erosion of the faith that the people in the country repose in the judiciary and the rule of law. Although he is present in Court, he has not even apologized nor has he furnished any explanation for his willful and deliberate disregard of the orders of this Court.

4.

In this context the decision of this Court in the case of Cipla Limited Vs. Krishna Dushyant Rane, 2016 SCC Online Bom 5895 is relevant. Relevant portions of paragraphs No.20, 21 and 22 of the said decision are usefully quoted as under :

20. In the present case the conduct of the defendant clearly brings to light the fact that the defendant has no respect for this Court. It clearly shows that the defendant feels that making false statements including undertaking to the courts and thereafter breaching them or not complying with the directions given by the Court would have no consequences. The conduct of the defendant is willful, deliberate and contumacious. The Supreme Court in Leela David v. State of Maharashtra, in clear terms that the court is not precluded from taking recourse to summary proceeding when a deliberate contempt takes

8 902 crr 71-24 and ors-os.doc place and the punishment is given forthwith by the court on holding the contumacious guilt of contempt and sending them to prison.

21. In Jennison v. Baker it is stated the law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope. It is also settled that a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice needs a strict treatment.

22. The defendant has made a mockery of the judicial process..........."

5.

Ergo considering the willful, deliberate and contumacious conduct of Mr. Paras S. Dedhia as can be evidenced from various orders of this Court, this Court in accordance with the provisions of Section 58 read with Order XXI Rule 30 of the Code of Civil Procedure, 1908 (CPC) commits Mr. Paras S. Dedhia to civil prison for the maximum period, which is of three months. Let Mr. Paras Dedhia be arrested by Senior Police Inspector of N.M. Joshi Marg Police Station, present in Court and be taken to the civil prison from the Court Premises right now and be lodged in the Arthur Road Jail.

6.

Let the payment for the same be made equally by all the Execution

9 902 crr 71-24 and ors-os.doc Applicants.

7.

Let Mr. Paras Dedhia who deposit his passport right away with the Prothonotary and Senior Master and an appropriate receipt be given in this regard.

8.

Mr. Siganporia, learned counsel who appears for the Plaintiffs/Applicants and submits that the affidavit that was filed on 11th March, 2024 has been examined and it emerges that an amount over Rs.1 crore has been transferred by Mr. Dedhia to the account of his nephew-Mr. Gaurav Savla and seeks some time to file response to the said affidavit.

9.

Let the affidavit in reply to the affidavit of disclosure dated 11th March, 2024 be filed by 8th April, 2024.

10.

Mr. Dhekale, learned Court Receiver is present in Court and tenders Court Receiver's Report dated 27th March, 2024 submitting that he has complied with the order dated 20th March, 2024 and has in accordance with paragraph No.11 thereof taken the physical possession of the plot

10 902 crr 71-24 and ors-os.doc of land for construction of Wing "B" of the project "Yash Signature" situate at Arjun Gawand Estate, Opposite Telecom Factory, Sion Trombay Road, Mumbai 400 088 that has been demarcated by way of tin sheets and also taken symbolic possession of the project "Yash Heights" situate at Station Road, Govandi, Mumbai 400 088. Court Receiver's Report No.145 of 2024 is taken on record.

11.

Mr. Dekhale and the learned counsel present for Execution Applicants and the Plaintiffs submit that further in accordance with order dated 20th March, 2024, one security guard has also been appointed to guard the plot of land for construction of wing "B" of project "Yash Signature" of which the Court Receiver has taken the possession.

12.

Learned counsel therefore submit that the order dated 20th March, 2024 has been complied with. The parties/ learned counsel are at liberty to go through the Court Receiver's Report and file response, if any, by the next date.

13.

Let the injunction in paragraph No.17 of the order dated 20th March, 10 of

11 902 crr 71-24 and ors-os.doc 2024 continue until further orders.

14.

List on 10th April, 2024, on the supplementary board. (ABHAY AHUJA, J.) 11 of