TaxTMI 
TaxTMI 
TaxTMI 
2023 (1) TMI 1440
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....teries Compound, Sarojini Nagar, New Delhi ('the suit premises') for his residence. 3.1 He states that facts evidencing the wilful breach of the undertakings by Respondent no. 1 has been set out in the order dated 02.03.2020 passed by this Court. He states that even after his conviction, the Respondent no.1 had exhibited complete disregard for the legal process and has obstructed the recovery of possession of the suit premises. 3.2 He states that Respondent no. 1 acted to the prejudice of the Petitioner and with a view to obstruct the execution of the judgment and decree dated 17.07.2017, wrote a letter dated 15.02.2019 to the Interim Resolution Professional ('IRP') M/S Noida Software Technology Private Ltd.('NSTPL') provoking him to take the possession of the suit premises so as to frustrate the warrants of possession issued by the executing court on 01.02.2019. The IRP in Dena Bank v. NSTPL, acted upon the letter of the Respondent no. 1 and took possession of the suit premises from Respondent no. 1 and his family on 16.02.2019. 3.3 He states that the Petitioner herein was thus, compelled to approach the National Company Law Tribunal ('NCLT') for seeking possession of the suit ....
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..... 2 in the civil suit of possession filed by the Petitioner in 2001. 4.2 He states that the bona fide of Respondent no. 1 is evident from the fact that after giving the undertakings on 18.07.2018 and 01.08.2018, a sum of Rs. 22,50,000/- was paid towards the mesne profits on 22.11.2018. He states that a total payment of Rs. 1,05,00,000 was made towards the judgment and decree dated 11.10.2017. 4.3 He states that Respondent no. 1 reasonably believed that he would be in a financial position to comply with the undertakings and make payments. He states that, however, Respondent no.1 was not aware about the precarious financial position of the companies of late Dr. J.K. Jain and he was therefore unable to meet the said liability despite his best efforts, which led to non-compliance. 4.4 He states that as on date, Respondent no.1 is facing personal bankruptcy proceedings initiated by his creditors. 4.5 He states that Respondent no.1 herein has not filed any objections in the executing court opposing the issuance of warrants of possession. He states that he is neither a shareholder nor a director in Dr. Jain Clinic Pvt. Ltd., the company which filed the objections before the executing ....
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....sion of time to comply with the order dated 23.11.2017. viii. The appellate court relying upon the averments made in the said application, extended the time vide order dated 05.02.2018 on the conditions recorded therein. ix. The original defendant, Dr. J.K Jain expired on 05.03.2018. x. Respondent no.1 herein impleaded himself in the aforesaid appeal as the legal heir of Dr. J.K Jain and the authorized representative of Jain Studio Limited, the other original defendant. xi. Respondent no.1 on 18.07.2018 sought continuation of the stay order dated 23.11.2017 by undertaking to comply with the obligation of deposit of 50% of the decretal amount and payment of current mesne profits. The appellate court accepted the undertaking (1st undertaking) of the Respondent no.1, extended the time to deposit the decretal amount and cautioned the said Respondent with respect to the consequences with the breach of the undertaking given to the Court. In the aforesaid terms, CM Application 4177/2018 was disposed of vide order dated 18.07.2018. In the said order, significantly it was noted by the appellate court that, if the Respondent no.1 contemnor fails to comply with the undertaking, the de....
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....07.2022; and after several legal battles in these four years. 6. The Petitioner has set out in detail in its affidavit dated 15.10.2022 the details of the multiple legal proceedings it had to prosecute and defend in order to secure the possession of the suit premises. The affidavit sets out in detail the list of proceedings initiated by companies owned and controlled by Respondent no.1 and his family members, wherein the possession of the premises was unjustly embroiled so as to obstruct the compliance of the said judgment and decree. The relevant portion of the affidavit reads as under: "11. I state that thereafter the Execution Proceedings were stayed on account of an Application dated 19th February 2019 moved by the IRP appointed by the Ld. NCLT in CP No. 1344 of 2018 titled "Deena Bank vs. Noida Software Technology Park Ltd. 12. In relation thereto that the CIRP against Noida Software Technology Park Ltd was fraudulently initiated which is abundantly clear from the fact that vide resolution dated 30th January, 2019 passed by M/s Noida Software Technology Park Ltd, it was resolved that the said Company would not oppose the appointment of Interim Resolution Professional. Th....
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....efit of doubt. However, a perusal of the list of proceedings initiated by the family members of the Respondent no.1 including the objections filed by Dr. Jain Clinic Pvt. Ltd. to obstruct the recovery of possession, mocks at the leniency shown by this Court to Respondent no.1's aged mother and the sister. It appears to this Court that the Respondents mistook the compassion shown by the Court as lack of its conviction to punish the Respondent no. 1 for his deliberate and wilful breach and disobedience. 8. After the judgment was reserved on 09.01.2023, an affidavit has been filed by Respondent no.1 on 12.01.2023, wherein the Respondent no.1 has criticized the RP of Jain Studio Limited for the order dated 18.07.2022 by the NCLT, which finally led to the Petitioner herein recovering the possession. The averments in the said affidavit belie any contrition on Respondent no.1's behalf for the breach of undertakings. The relevant part of the affidavit reads as under: "7. Additionally, in this context, I'd also like to state the following: a. With respect to the suit property, when the Claimant approached the Ld. NCLT, it directed the Petitioner herein to approach the CoC of NSTPL and....
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....upplied) 12. Even though in the affidavit dated 01.12.2022 filed by the Respondent no.1 contemnor had tendered apology to this Court for the non-compliance of the undertakings given to this Court, this Court does not find any sincerity in the said apology on behalf of Respondent no.1 contemnor. 13. The averments as set out in the said affidavit dated 01.12.2022 has already been considered and rejected by this Court while passing order dated 05.02.2020. Therefore, it is not be open for the Respondent no.1 contemnor to reargue the said submissions. In HSBC PI Holdings (Mauritius) Limited v. Pradeep Shantipershad Jain and Others, 2022 SCC OnLine SC 827, the Supreme Court has held as under: "66. Now so far as the submissions on behalf of the respondents that there is no wilful disobedience as they have no sufficient funds to deposit the shortfall amount and despite their best efforts, they are unable to get the requisite funds to comply with the order passed by this Court is concerned, at the outset it is required to be noted that all these submissions were made earlier in I.A. No. 68388/2021 seeking exemption from deposit of shortfall pursuant to order dated 06.05.2021 and the sam....