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Clarkes Hotel Pvt. Ltd. Vs. Madan Lal Malhotra and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1981CriLJ1765
AppellantClarkes Hotel Pvt. Ltd.
RespondentMadan Lal Malhotra and anr.
Excerpt:
- .....is that he gave the undertaking in question to the court in good faith but his principal smt. santosh malhotra who had not been impleaded as a party in the suit, refused to stop the construction on the pretext that no injunction had been issued against her and she was not a party to the suit. according to the respondent, smt. santosh malhotra also cancelled the general power of attorney earlier issued by her in his favour. in these circumstances the respondent was not in a position to prevent smt. santosh malhotra from continuing the construction.8. it may at this stage be mentioned that smt. santosh malhotra is none else but the respondent's own wife.9. the petitioner filed a rejoinder to the reply of the respondent wherein it had been emphatically asserted that the pleas raised.....
Judgment:
ORDER

T.R. Handa, J.

1. In this petition made under Section 10 of the Contempt of Courts Act read with O. XXXIX, Rules 1 and 2 and Section 151 of the Code of Civil Procedure the petitioner has prayed for proceeding in contempt against Shri Tadan Lai Malhotra respondent No. 1 for, having committed a wilful disobedience and breach of the undertaking given to this Court on his behalf by his counsel on 23-3-1979.

2. The facts and circumstances leading to this petition may be briefly sketched as under:

The petitioner is a private limited company running a hotel on the Mall Simla under the name and style of Clarkes Hotel. Just opposite to the petitioner's hotel was a vacant plot forming part of the estate known as 'Talbot House'. Respondent No. 1 intended to construct a multi-storeyed shop-cum-hotel building on the said vacant plot and for that purpose he submitted a plan to the Municipal Corporation, Simla, respondent No. 2, for sanction. This plan was submitted to respondent No. 2 on 21-6-1977 and respondent No. 2 actually sanctioned the same on 29-6-1977. Respondent No. 1 then started construction in pursuance of the sanction. The petitioner preferred an appeal before the Deputy Commissioner, Simla against the order of sanction of the plan passed by the Municipal Corporation. Ultimately that appeal was accepted by the Additional Deputy Commissioner who remanded the case to the Municipal Corporation with the directions to get the plan modified in terms of the observations made in the remand order. The petitioner, however, continued with the construction in spite of the order of the Additional Deputy Commissioner and none of the authorities including the Municipal Corporation took any steps to stop the construction. The petitioner apprehended that in case such construction was permitted to be carried out, serious damage was likely to be caused to its property, that is, the building of the Clarkes Hotel. The petitioner-plaintiff accordingly filed a suit in this Court which was registered as Civil Suit No. 28 of 1978 wherein inter alia the following relief was claimed:Defendant No. 1 be restrained from making any construction of a four-storeyed building, shop-cum-hotel at Talbot House, The Mall, Simla, opposite to the plaintiff's building and defendant No. 2 directed to perform its statutory duties for stopping further construction and demolishing the illegal construction and enforcing the bye-laws and the Municipal Act.

Defendant No. 1 was the present respondent No. 1, Shri Madan Lai Malhotra and defendant No. 2 was the Municipal Corporation, Simla.

3. Along with the suit the plaintiff filed an application under O. XXXIX, Rules 1 & 2 read with Section 151 of the Civil P. C. which was registered as O.M.P. No. B8 of 1978 praying for issue of an ad interim injunction restraining respondent No. 1 from making any construction or completing further construction on the aforesaid plot either himself or- through his contractors or labourers or helpers and for issue of directions to this respondent to maintain status quo.

4. When the aforesaid O.M.P. No. 98 of 1978 came up for hearing before this Court in 23-3-1979, Shri Yoginder Paul Advocate appearing on behalf of respondent No. 1 made the following statement:

The defendant has so far constructed six shops on the ground floor consisting of two blocks each of three shops with a passage in the centre. On the right hand side block of three shops which adjoins the Panwari's shop, the construction on the ground, first and second floor is complete. On the third floor only two rooms have been constructed so far and the remaining portion is lying vacant. In the other block the construction of all the three shops on the ground and first floor only is complete. The defendant undertakes not to raise the height of the construction above the existing height as mentioned above and in addition undertakes not to raise any fresh construction on any adjoining land. The defendant, however, shall be entitled to enclose the walls of the portions on which the pillars have been raised and slabs have already been laid. The defendant shall also be entitled to carry on the internal work for completion of the aforesaid blocks already completed and roofed.

After the above statement was made by the counsel for respondent No. 1, the counsel for the petitioner did not press the aforesaid O.M.P. No. 98 of 1978 and he made the following statement:

In view of the above statement made by the learned Counsel for the defendant I do not press O.M.P. No. 98 of 1978. It will, however, not prejudice the rights of the Municipal Corporation, defendant No. 2.

5. The case of the petitioner is that after the above-mentioned undertaking had been given on behalf of respondent No. 1 on 23-3-1979, this respondent on 25-3-79 spread a net work of iron bars for putting up the concrete slab and then from 5-4-1979 he started regular construction in utter disregard of his undertaking. Respondent No. 1 had thus committed a wilful disobedience and breach of the undertaking given by him and thus committed a grave contempt of this Court.

6. On notice of this petition being issued, respondent No. I1 put in appearance through his Advocate on 17-5-1979 who took time for filing reply which he ultimately filed on 20-6-1979. In his reply the respondent concedes that an undertaking in the language reproduced above had been given to this Court on his behalf by his counsel on 23-3-1979. He also admits the allegations that the construction work on the plot in dispute was resumed and continued after the giving of and in breach of such undertaking.

7. The plea of the respondent, however, is that he had been impleaded as a party defendant in the suit on the plaintiff's assumption that he was constructing the building in question on his own plot and in his own right though as a matter of fact he was doing so not on his own. behalf but as general attorney of Smt, Santosh Malhofrra. The further plea of the respondent is that he gave the undertaking in question to the Court in good faith but his principal Smt. Santosh Malhotra who had not been impleaded as a party in the suit, refused to stop the construction on the pretext that no injunction had been issued against her and she was not a party to the suit. According to the respondent, Smt. Santosh Malhotra also cancelled the general power of attorney earlier issued by her in his favour. In these circumstances the respondent was not in a position to prevent Smt. Santosh Malhotra from continuing the construction.

8. It may at this stage be mentioned that Smt. Santosh Malhotra is none else but the respondent's own wife.

9. The petitioner filed a rejoinder to the reply of the respondent wherein it had been emphatically asserted that the pleas raised toy the respondent in his reply to the contempt petition were false and frivolous to his own knowledge and has been raised simply to mislead and hoodwink the Court. The position now taken by the respondent that he was not the owner of the plot and was raising construction thereon in his capacity of general attorney of Smt. Santosh Malhotra was quite contrary to his earlier stand consistently taken by him at various stages of the litigation between the parties before the Deputy Commissioner Simla, Secretary, Local Self Government, Additional Deputy Commissioner, Simla, in Civil Writ Petition No. 39 of 1978 as also in Civil Suit No. 28 of 1978 of this Court. The stand of the respondent throughout had been that he was the owner of the plot in question and was raising construction thereon in that capacity. Moreover the new theory set up by the respondent that he was raising such construction as general attorney of his wife Smt. Santosh Malhotra and that after the undertaking given on his behalf to this Court. Smt. Santosh Malhotra had cancelled that power of attorney, was absolutely vague inasmuch as no particulars of the alleged power of attorney or its cancellation had been given.

10. Now in order to clear the way for taking up the main questions arising in these proceedings, namely, (i) whether the respondent has committed a contempt of this Court and (ii) if so how to deal with him, it is necessary to resolve the controversy between the parties on the point whether the respondent was the owner of the site in question and had been raising construction thereon in his own right or whether this site belonged to his wife Smt. Santosh Malhotra and he had been raising the construction as her attorney.

11. The parties were afforded all opportunity to produce their evidence in support of their respective contentions on the above factual controversy. The respondent, Shri Madan Lai Malhotra while appearing as his own witness admitted that the initial application for sanction of the plan of the building in dispute was submitted by him to the Municipal Corporation in his own name and that the plan was actually sanctioned by the Corporation in his name. The petitioner raised certain objections against the sane- tion of the plan before the Deputy Commissioner and the Secretary, Local Self Government as a sequence to which the respondent had to file a writ petition in this Court. That writ petition was registered as C.W.P. No. 39 of 1978 in this Court and a certified copy of the same is found at Ex. A-l. The first three paragraphs of this writ petition are relevant for the purposes of the present controversy and may be reproduced:

1. That the petitioner is the owner of a plot of land situated to the South of Talbot House Estate which is facing the Clarkes Hotel, The Mall, Simla.

2. That pursuant to the provisions of Section 199 of the Himachal Pradesh Municipal Act, 1968 the petitioner gave a notice in writing to the Municipal Corporation of his intention to construct shop-cum-hotel building on the aforesaid land. The aforesaid notice also contained the plan and other relevant documents as required under the Bye-laws. The Municipal Corporation after thoroughly scrutinising the aforesaid plan through its various officers, i.e., Engineer, Buildings and Roads, Health Department, Engineer, Water Works and Drainage, General Branch and other allied agencies including its Forest Department, sanctioned the above mentioned plan in its ordinary meeting dated 21st June, 1977 and gave permission to build the aforesaid building on the aforesaid land. The aforesaid sanction was communicated to the petitioner vide Executive Officer's Order No. 354 dated 29th of June, 1977.

3. That as the petitioner had known that the plan had already been sanctioned and only required communication of its sanction, the petitioner had already engaged labour and stacked other building material for construction of the aforesaid building on the land in dispute immediately after the receipt of the sanction on 29th June, 1977, the petitioner started construction of the aforesaid building....

Ex. A-2 is a certified copy of the affidavit sworn by the respondent on 4-4-1978 in support of the above writ petition. In this affidavit the respondent had solemnly declared that the contents of all the three paragraphs reproduced above were true to his knowledge. Along with this civil writ petition the respondent had filed a civil miscellaneous petition being C.M.P. No. 545 of 1978 praying for suspension of the operation of the order of the Additional Deputy Commissioner, Simla. Paragraphs 2 and 3 of this C.M.P. read as under:

2. That the petitioner's construction has been stopped although the petitioner has already constructed half portion of two storeys on the land in dispute and has opened the foundation of the hill side for the purposes of further construction.

3. That the petitioner has already spent a sum of about rupees one lakh to this construction and has stacked material i.e. cement and other building material on the site.

This civil miscellaneous petition was supported by the respondent's affidavit dated 4-4-1978 a certified copy of which is found at Ex. A-4. In this affidavit also the respondent had declared the contents of the above mentioned paragraphs as true to his knowledge. The respondent was duly confronted with his affidavits, referred to above and while admitting having sworn the same, he deposed that the same were incorrect. In view of these admissions earlier made by the respondent duly supported by his affidavits, a very heavy onus lies on him to show that these admissions of his were incorrect and that the pleas now raised by him reflect the true position. He deposed that the land in question was purchased by Smt. Santosh Malhotra by a registered deed but strange enough neither that deed nor any certified copy thereof has been brought on the record. Even no explanation has been furnished for the omission to bring on record the original sale deed or a certified copy thereof. Obviously such sale deed was the best evidence to prove the ownership of the land in question. In the circumstances of this case when this best evidence in the form of registered sale -deed has been withheld and no explanation has been furnished for doing so, no amount of evidence would suffice to prove the contention of the respondent that this land vested in Smt. Santosh Malhotra. In this connection I may observe that the respondent examined Shri Dhan Mitter (R.W. 4) Tax Inspector, Municipal Corporation, Simla who deposed from his record that the property known as 'Talbot House Annexe1 was assessed in the name of Mrs. Santosh Malhotra as per entries in the Assessment Register pertaining to the year 1978. The land on which Cosmos hotel building had been constructed, however, is known as 'Talbot House' and not as 'Talbot House Annexe'. This witness specifically deposed in his cross-examination that he had not brought the record pertaining to 'Talbot House' on which the building of Cosmos hotel (disputed building) has been constructed. The omission on the part of the respondent to produce the relevant municipal record pertaining to the land on which the building in dispute has been constructed would also suggest that such record if produced would not have supported him. From the evidence as produced on the record there can foe no escape from the conclusion that the land on which the building in dispute has been constructed belongs to the respondent and not to his wife.

12. The next question that falls for consideration is whether the building in dispute had been constructed and the construction work continued after the date of undertaking by the respondent or his wife Smt. Santosh Malhotra. On this point again the consistent stand of the respondent Shri Madan Lai Malholra right up to the filing of the reply to the contempt petition has been that he himself had been constructing this building. It was only in his reply to the contempt petition that he put forward the plea for the first time that he had been rawing this construction as general attorney of his wife Smt. Santosh Malhotra. While appearing as his own witness in these proceedings, however, the respondent resiled even from this stand and stated that he took no part in the construction of the disputed building. It is simply not possible to believe this statement of the respondent, In his writ petition, copy an-nexure A-l, and which was duly supported by his affidavit, the respondent had clearly stated that he in his capacity as owner of the plot in question gave notice in writing to the Municipal Corporation of his intention to construct shop-cum-hotel building on the said plot. In pursuance to that his plan was sanctioned on 21-6-1977 but in anticipation of that sanction he had already engaged labour and stacked other building material for construction of the building on the disputed site. Again in his C.M.P. No. 545 of 1978, certified copy Etc. A-3, this respondent had stated in unequivocal terms that he had constructed half portion of two storeys on the land in dispute and had opened the foundation of the1 hill side for the purposes of further construction. He then added that he had already spent a sum of about rupees one -lac on that construction and had stacked material, that is, cement and other building material on this site. In the face of such ear- Her averments made by the respondent duly supported by his affidavits it is difficult now to accept that he took no part in the construction of the disputed building. Smt. Santosh Malhotra who is alleged to be responsible for this construction appeared as R.W. 7. Her deposition is self-contradictory and full of confusions. She had not even know as to when the first application for sanction of the plan was submitted and by whom. At first she stated that she herself applied for such sanction in 1977 under her own signature's but immediately thereafter she contradicted herself and stated that such application was submitted by her husband, the respondent. She then changed her statement a third time and stated that she did not know as to who submitted the first application, she or her husband the respondent. At one stage she stated that her husband used to supervise the construction work till she cancelled his power of attorney but then contradicted herself by stating that the respondent never supervised the construction work on the site in dispute. Again as per Smt. Santosh Malhotra she had incurred no expense on the construction in question till 21-4-1978 when the revised plan was sanctioned in her name. On the other hand from the affidavits filed by the respondent in C.W.P. No. 39 of 1978 and C.M.P. No. 545 of 1978 it is clear that a good part of the construction work had been completed by the first week of April 1978 when such affidavits were filed and an expense of about one lac rupees had also been incurred for such construction. Smt. Santosh Malhotra next stated that the construction of the building in dispute was got effected by her and the funds requisite for this construction were collected by her by raising loans from the State Bank of Patiala and also taking securities and advance rents from the tenants. The loan in her favour was sanctioned by the State Bank of Patiala only after 28-3-1979 which is the date when her application was received by that Bank, The securities from the tenants were also received by her only in and after March, 1979 as is found from the security account maintained in her Ledger marked X-2 produced on the record and about the correctness of which she herself certifies. Similarly no advance rent was received by her prior to 16-3-1979. Thus in case Smt. Santosh Malhotra is believed that the construction was effected by her with the funds collected by her by raising loans from the State Bank of Patiala and also taking .securities and advance rents from the tenants, it would mean that the construction was started only in or after March 1979. The fact of the matter, however, is that the bulk of construction work had already been completed by this date and this fact is further supported from the statement dated 23-3-1979 made by the counsel for the respondent in this Court and which contains the undertaking in question. Again Smt. Santosh Mal-hotra was positive that she had incurred no expense on the construction work till 21st April 1978 when the revised plan was sanctioned in her name. A perusal of the entries in the Ledger marked X-2 produced by her would, however, show that an amount of Rs. 1,18,758-44 had been incurred on the construction of this building up to 21-4-1978 the details of which are as under:

Material ... Rs. 77,710-40Labour ... Rs. 26,263-04Debris ... Rs. 14,286-00Miscellaneous ... Rs. 499-00_______________Rs. 1,18,758-44_______________

The oral statement of Smt. Santosh Mal-hotra thus stands falsified by her own account books. The set of account books comprising of a Ledger and Cash Book which have been produced by Smt. Santosh Malhotra commence from May 1977 and continue up to date, suggesting thereby that the expenses for construction were being met by the same source. As already stated the plea of Smt. Santosh Malhotra is that she incurred expenses on this construction by raising loans from the State Bank of Patiala and also taking securities and advance rents from the tenants. These amounts she raised only in and after March, 1979. Thus she did not spend any amount on this construction before March 1979. In any case she was positive that she had not incurred a single penny on this construction up to 21-4-1978 when the plan was sanctioned in her name. Who else had then incurred that expense of over rupees one lac eighteen thousand on the construction of this building, if not the present respondent? Since there is only one account of the expenses incurred on the construction of the building in dispute, it has to be concluded that the person who started the construction continued it till the end and that person is none else than the respondent.

13. A brief reference may now be made to the plea of the respondent that he had been acting as general attorney of Smt, Santosh Malhotra up to April, 1979 and that such power of attorney in his favour was cancelled by Smt. Santosh Malhotra after the undertaking had been given on his behalf by his counsel on 23-3-1979. The respondent deposed that Smt. Santosh Malhotra had executed a general power of attorney in his favour in January 1968. Now this general power of attorney must have been registered. Neither the original nor a certified copy thereof has been produced on the record. It was alleged that the original could not be traced but there is no explanation as to why its certified copy could not be produced. Again the respondent stated that this general power of attorney was cancelled by Smt. Santosh Malhotra vide letter dated 25-4-1979 and such cancellation was again registered with the Sub-Registrar, Simla. Again the letter dated 25-4-1979 vide which this power of attorney was cancelled has been withheld and no explanation for such withholding is forthcoming. It appears that the respondent had all along been representing himself as the owner of the site of the building in question and in order to give support to the plea which is admittedly raised by him for the first time in reply to the contempt petition that his wife and not he was the owner of such building, he invented this story of his being the general attorney of Smt. Santosh Malhotra. The failure on the part, of the respondent to prove the existence of such power of attorney and the cancellation thereof would lend additional support and force to the conclusion already drawn by me.

14. On an overall appraisal of the evidence discussed above I have no hesitation in coming to the conclusion that the plea now sought to be raised by the respondent that he was only a general attorney of Smt, Santosh Malhotra and that Smt. Santosh Malhotra was the real owner of the land and the building in question, is all a concoction and invented with the sole purpose of avoiding the consequences of committing breach of the undertaking given on his behalf to this Court.

15. Now so far as the law of contempt is concerned it admits of no doubt that when a party gives an unqualified and unambiguous undertaking to a Court in a pending matter, it amounts to a compelling order on it and the breach there- of would amount to a clear contempt of the Court. It is of course true that in order to entail committal for contempt the breach or disobedience of the undertaking must be wilful. The term 'wilful' means clear intention to flout.

16. In the instant case the undertaking given to this Court by the respondent on 23-3-1979 and which has been reproduced in an earlier part of this judgment is undoubtedly in very clear and plain terms. It would admit of no ambiguity and is totally unqualified. In fact it is not the case of the respondent either that he misunderstood or interpreted the language of this undertaking in any other sense. This undertaking in positive terms enjoined upon the respondent not to raise the then existing height of the construction which had been defined and not to make any fresh construction on any adjoining land.

17. Now it is an admitted position that the construction work over the disputed site was never stopped and it continued even after the respondent gave his undertaking to this Court. Obviously it was so continued openly and in complete violation of the respondent's undertaking. The respondent admits that his undertaking to this Court was not honoured. He has tried to place the blame for breach thereof on his wife Smt. Santosh Mal-hotra who was not a party to the proceedings. In view of my discussions and findings above, this plea of the respondent is patently false and the construction was effected and continued by none else but the respondent himself. There is thus no escape from the conclusion that the respondent has committed a wilful breach of his undertaking given to this Court and thereby rendered himself liable for contempt of this Court.

18. The only question that now survives for consideration is as to how to deal with a contemner of this type. The site of the construction work which the respondent continued in breach of his undertaking to this Court is just opposite to Clarkes Hotel on the Mall which is a very busy area of Simla town. The construction work in violation of the undertaking was obviously continued actively and openly by the respondent in such a busy area and under the very nose of the plaintiff-petitioner on whose application the undertaking was given. The flagrant manner in which the respondent has violated his own undertaking given lo this Court not only signifies utter disrespect to the Court but also reflects that the respondent was out to challenge the dignity and the majesty of this Court and to show that he could flout the undertaking given to this Court with impunity by having recourse to unscrupulous devices like the one adopted by him. Such like acts on the part of litigant public certainly deserve serious attention or else the confidence of the whole community in our system of administration of justice is bound to be undermined.

19. The contempt committed by the contemner in this case is thus obviously of a very heinous character and by sticking to his insistence on justification of his conduct on false pleas, the respondent has only aggravated his offence. Again till the very last moment the respondent has not shown even the slightest expression of regret leave alone apology and this conduct of the respondent would further add to the gravity of his offence.

20. Keeping in view all the facts and circumstances of this case I am of thej positive view that this is not a case where imposition of a simple fine would meet the ends of justice and that public interest demands that a deterrent punishment should be awarded to the respondent so that repetition of such like contumacious acts is not encouraged. I would, therefore, direct that the respondent be detained in civil prison for a period of four months and that in addition he shall pay a fine of Rs. 2,000.


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