Delhi High Court
Charanjeet Kaur Khurana vs S Manmohan Singh Oberoi And Others on 21 November, 2022
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
NEUTRAL CITATION NO. 2022/DHC/004989
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 05th September, 2022
Decided on: 21st November, 2022
+ CS(OS) 2126/2013
CHARANJEET KAUR KHURANA .....Plaintiff
Represented by: Mr. Rajat Aneja & Ms.
Chandrika Gupta, Advocates.
versus
S MANMOHAN SINGH OBEROI AND OTHERS
..... Defendants
Represented by: Mr. A.K. Matta, Sr. Advocate
with Mr. Anirban Bhattacharya,
Mr. Karan Gaur & Mr. Rajeev
Chowdhary, Advocates for
D-1.
Mr. Mansimran Singh,
Advocate for D-4.
Ms. Manpreet Kaur, Advocate
for D-5.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G E M E N T
NEENA BANSAL KRISHNA, J.
I.A.4329/2019 (U/O XXXIX Rule 2A r/w Section 151of CPC, 1908)
1. The present application under Order XXXIX Rule 2A read with
Section 151of the Code of Civil Procedure, 1908 (hereinafter referred to as
"CPC, 1908") has been filed on behalf of the plaintiff for initiating
appropriate proceedings for willful and contumacious disobedience of the
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By:SAHIL SHARMA
Signing Date:21.11.2022
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Orders of Injunction dated 01st November, 2013 and 12th October, 2017
granted by this Court against the defendants.
2. It is submitted in the application that the present Suit has been filed by
the plaintiff against the defendant Nos. 1 to 6, all of whom are the surviving
siblings of the plaintiff or the legal representatives of the deceased siblings.
The matter was heard for the first time on 01st November, 2013 and after
hearing the plaintiff and going through the pleadings, an ex parte interim
injunction was granted in favour of the plaintiff and the parties were directed
to maintain the status quo in respect of the properties, namely, (i) B-11,
Jangpura Extension, New Delhi and (ii) C-46, Okhla Industrial Area,
Phase-II, New Delhi.
3. The defendant No. 1 contested the Suit by claiming that the deceased
father of the parties had left a Will dated 17th October, 1977. The
immoveable properties purchased after the demise of the deceased father
was with the exclusive income of the defendant No. 1, though he did not
dispute that his sole source of income was from the Partnership Firm, M/s.
Jupiter Radios. However, he claimed himself to be sole proprietor of the
said Partnership Firm in view of the other partners (3 brothers of the
deceased Shri Patwant Singh Oberoi) having retired from the Partnership
Firm from time to time.
4. On 12th October, 2017, the Court while hearing the pending
applications, including one Application under Order XXXIX Rules 1 and 2
of CPC, 1908 of the defendant No. 1 gave an Undertaking that he shall not
sell or transfer the title of immoveable property bearing No. C-45, Okhla
Industrial Area, Phase-II, New Delhi without prior permission of this Court.
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The Injunction Order with respect to three out of the four properties which
are the subject matter of the present Suit, was thus granted.
5. During the pendency of the present Suit, an Application bearing No.
I.A. 12554/2018 was filed on behalf of the defendant No. 1 under Order VIII
Rule 1A of CPC, 1908 seeking exemption from filing the originals of the
documents and for conducting the admissions/denial of the documents on
production of the original documents. During this application, the plaintiff
came to know that the defendant No. 1 has allegedly mortgaged two
properties bearing No. C-45 and C-46, Okhla Industrial Area, New Delhi
with a Financial Institution, namely, India Bulls Housing Finance Limited
i.e., the respondent No. 2 herein. It is claimed that from the averments made
by the defendant No. 1 himself in his application, it is clear that he has
played a fraud by mortgaging the original title deeds of the two properties
which are now with the financial institution, India Bulls Housing Finance
Limited. The defendant No. 1 has deliberately not mentioned the date,
month and year of the alleged mortgage of the properties and had failed to
disclose this fact for the last five years since when the Suit is pending.
6. The plaintiff in his Reply to the application of the defendant No. 1 had
sought the production of the mortgaged deeds. However, the defendant No.
1 has continued to be reticent and has deliberately failed to give the details
by way of rejoinder. However, the Application bearing No. I.A. 12554/2018
of the defendant No. 1 seeking exemption from producing the original
documents was allowed by the Joint Registrar vide Order dated 05th
December, 2018, subject to costs of Rs. 15,000/- which has not been paid till
date. The defendant No. 1, therefore, cannot claim any concession from
placing the original documents, since he has failed to deposit the costs.
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7. A fresh application has been filed by the plaintiff under Order XI
Rules 12 and 14 of CPC, 1908 seeking directions to the defendant No. 1 to
produce the mortgaged documents and the Statement of Account pertaining
to both the mortgaged transactions. Apparently, after being served with the
copy of the application, the defendant No. 1 filed the Application under
Section 151 of CPC, 1908 vide Diary No. 123319 purportedly on the same
date and opposed the application of the plaintiff and sought to voluntarily
disclose the particulars of the two mortgaged transactions. Certain
documents were annexed along with the application. The defendant No. 1
disclosed that the mortgage in respect of the properties had been created in
the year 2016 and loan for the purpose of business in the sum of Rs.
7,61,50,000/- was taken against the said two properties vide Loan Letter
dated 14th June, 2016. It is claimed that the loan has been taken by the
defendant No. 1 as well as his wife despite being aware of the existence of
the Injunction Orders granted by this Court. The defendant No. 1 has further
disclosed through his Application bearing No. I.A. 2486/2019 that on 31 st
October, 2018 negotiated with the Federal Bank and transferred his earlier
loan with India Bulls Housing Finance Limited to Federal Bank by availing
an enhanced sanction from the Federal Bank vide Letter dated 31st October,
2018, whereby the loan to the tune of Rs. 8,30,00,000/- was granted by the
Federal Bank against the said two properties.
8. It is submitted that despite Injunction Orders, the defendant No. 1 has
mortgaged the two properties and has flouted the Injunction Orders with
impunity and such conduct is willful and contumacious disobedience calling
for strict punitive action against the defendant No. 1 for not only defrauding
but also breach of Injunction Orders for a period of three years since 2016
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and also depriving the plaintiff as well as other defendants of the two
precious immoveable properties by subjecting them to the stringent
provisions of the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (hereinafter referred to as
"SARFAESI Act, 2002") which entitles the Banks/Financial Institutions to
sell the mortgaged properties without the intervention of the court.
9. It is asserted that the Officials of the India Bulls Housing Finance
Limited as well as the Federal Bank Limited are also in collusion and
connivance with the defendant No. 1 in squandering public money by
mortgaging the said two properties despite the Injunction Orders granted by
this Court. The Bank Manager, including other senior officials who
sanctioned the loan are also liable for disobedience of the Injunction Orders
dated 01st November, 2013 and 12th October, 2017. They have also been
impleaded as a necessary party to the present application.
10. Therefore, a prayer has been made that appropriate proceedings be
initiated against the defendant Nos. 1 and 4 for willful and contumacious
disobedience of the Injunction Orders dated 01st November, 2013 and 12th
October, 2017 granted by this Court.
11. Learned counsel on behalf of the plaintiff has relied upon the
judgements, namely, Shyam Sahni vs. Arjun Prakash & Ors. (2020) 16 SCC
788, N. Srinivas and Ors. Vs. Naresh Kumar and Ors.
MANU/TN/0004/2011, & Krishna Gupta vs. Narendra Nath & Ors.
MANU/DE/3135/2017.
12. The defendant No. 1 in his Reply has asserted that by way of a
reasonable interpretation of the Order dated 01st November, 2013, it is
evident that it does not create any fetter from mortgaging the suit property.
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Likewise, no Injunction Order creating any fetter had been passed vide
Order dated 12th October, 2017, but only a limited Undertakinghad been
given. In the absence of an Injunction Order, the question of disobedience
and resultant contempt under Order XXXIX Rule 2A of CPC, 1908 does not
arise.
13. It is claimed that the mortgage involves transfer of an interest in land
as security for a Loan or other obligation. It is the most common method of
financing real estate transactions. The Mortgagor is the party transferring
the interest in land while a Mortgagee, usually a Financial Institution, is the
provider of the loan or other interest in exchange for the security interest in
land. Failure to make payments results in the foreclosure which allows the
Mortgagee to declare the entire mortgage debt as due and to be paid
immediately. On failure to pay the mortgage debt after foreclosure, leads to
seizure of security interest in land and its sale to pay the remaining mortgage
debt. The foreclosure process depends on the State law and the terms of
mortgage.
14. It is claimed that three theories exist regarding who has the legal title
to the mortgaged property. Under the Title Theory, title to the security
interest rests with the Mortgagee. As per the Lien Theory, the legal title
remains with the Mortgagor unless there is a foreclosure. The Intermediate
Theory applies the Lien Theory unless there is a default on the mortgage
whereupon the Title Theory applies. In India, it is the lien theory which is
followed and the legal title remains with the Mortgagor unless there is a
foreclosure. There is no legal transfer of title between the two parties, but
only the Mortgagor surrenders the Title deeds to the custody of Mortgagee
at the time of mortgaging the property. Such transaction by itself is not
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subject to registration or stamp duty. Resultantly, although the Mortgagor
might hold the legal title, the Mortgagee keeps the title documents.
15. While the defendant No. 1, on the reasonable interpretation of the
directions contained in the Order dated 01st November, 2013, believed it was
only an alienation of title which had been restrained and, therefore, being
confronted with certain financial crisis requiring money, for which reason,
he mortgaged the property.
16. In so far as the Injunction Order dated 12th October, 2017 is
concerned, it is asserted that there was no Injunction Order operating in
respect of the property bearing No. C-45, Okhla Industrial Area, Phase-II
New Delhi and in the absence of any Injunction Order, the question of
disobedience under Order XXXIX Rule 2A does not arise.
17. The Undertaking given by the defendant No. 1 to the Court on 12 th
October, 2017 not to sell or transfer the title of the property bearing No.
C-45, Okhla Industrial Area, Phase-II, New Delhi without permission of the
Court was only till the next date of hearing i.e., 15th January, 2018 on which
date, it was not continued further.
18. Section 2(b) of the Contempt of Courts Act, 1971 provides for two
categories of cases, namely, (i) willful disobedience of the process of Court
and (ii) willful breach of an Undertaking given to the Court. First category
is separate from the second category and the legislative intention was to
clearly draw the distinction between the two and thus created two distinct
classes of contumacious behaviour. Order XXXIX Rule 2A of CPC, 1908
on the other hand confines itself to disobedience of an Injunction Order
alone and not breach of any Undertaking.
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Digitally Signed
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19. It is thus asserted that there is no contempt committed by the
defendant No. 1. However, if the Court comes to the conclusion that the
contempt has been committed, then the defendant No. 1 offers his
unconditional apology and assures that he had no intent of willful
disobedience of the Injunction Orders granted by this Court. It is also
submitted that the requisite information has been divulged by the defendant
No. 1 himself and has not shied away from placing the mortgage documents
on record.
20. On merits, all the averments made are denied.
21. It is submitted that the present application is mala fide and may be
dismissed.
22. The defendant No. 4-Federal Bank in its Reply has asserted that the
role of the Federal Bank is limited and it is not a necessary and proper party
to the present contempt proceedings. It had no knowledge nor had any
communication of the Injunction Order dated 01 st November, 2013 at the
time of sanctioning the Loan on 31st October, 2018. Therefore, the Federal
Bank unnecessarily is being dragged into this controversy and the
proceedings vis-à-vis, the defendant No. 4 is liable to be dismissed.
23. The plaintiff by way of his separate Rejoinder to reply has
reaffirmed his averments as contained in the present application.
24. Submissions heard.
25. The plaintiff had filed the Suit for Partition, Possession, Rendition of
Accounts and Permanent Injunction for Declaration that the plaintiff was
entitled to 1/7th share in all the properties which were the subject matter of
the Suit and also for Permanent Injunction to restrain the defendants from
transferring, alienating, parting with the possession or creating any
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third-party interest in the subject properties.
26. On the first date of appearance, the Court made the Order dated 01 st
November, 2013 which reads as under:
""O R D E R
01.11.2013
IA No.17646/2013
Exemption allowed, subject to just exceptions.
Application is allowed.
CS(OS) 2126/2013
Plaint be registered as Suit.
Issue Summons to the defendant by Ordinary Process and
Speed Post, returnable on 21st January, 2014.
IA No.17644-17645/2013
Issue notice to the defendant by Ordinary Process and Speed
Post, returnable on the date fixed above.
IA No.17643/2013 (O.39 R.1 and 2 CPC)
Issue notice to the defendant by Ordinary Process and Speed
Post, returnable on the date fixed above.
This is an application under Order 39 Rule 1 and 2 CPC
seeking ex parte ad interim injunction. It is the contention of
the plaintiff in the accompanying plaint that late Shri S.Patwant
Singh Oberoi was the father of the plaintiff and defendants
No.1 to 5 and grand father of defendants No.6(i) to (iv). Late
Shri S.Patwant Singh Oberoi owned moveable and immovable
properties and that he expired on 22.01.1978. It is further
averred that the plaintiff and defendant No.1 to 6 each are
entitled to 1/7th share of the assets of late Shri S.Patwant Singh
Oberoi. The details of the assets allegedly left behind by late
Shri S.Patwant Singh Oberoi are stated in schedule A and B
filed with the plaint.
It is further averred that grandfather of the parties late S.Mela
Singh Oberoi died in 2003 and that prior to his death under his
guidance the family members were living in harmony. It is
further averred that now after the death of S.Mela Singh the
grandfather, defendant No.1 is trying to usurp the assets of the
father late Shri S.Patwant Singh Oberoi.
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Though a claim is made on various movable and immovable
properties the plaintiff has placed on record photocopy of a
registered sale deed dated 11.2.1970 pertaining to property
No.B/11, Jungpura Extension, New Delhi in the name of Shri
S.Patwant Singh Oberoi and a photocopy of the Registered
lease dated 20.1.1975 executed in favour of Jupiter Radios
regarding plot No.C-46, Okhla Industrial Area, Phase II, New
Delhi.
Reliance is placed on partnership deed dated 1.4.1968 a
photocopy of which is placed on record to show that late Shri
S.Patwant Singh Oberoi was one of the partners of the firm
Jupiter Radios. It is submitted that assets of the firm have now
been usurped by defendant No.1.
In my view, the plaintiff has made out a prima facie case in her
favour. Balance of convenience is also in favour of the plaintiff.
In case an ad interim ex parte injunction is not granted in
favour of the plaintiff it will cause irreparable harm and injury
to the plaintiff.
The parties to the suit are directed to maintain status quo
regarding title of the property B/11, Jungpura Extension, New
Delhi and C-46, Okhla Industrial Area, New Delhi till further
orders.
On account of Court holidays plaintiff to comply with
provisions of Order XXXIX Rule 3 CPC within a period of five
days from today."
27. By way of Order dated 01st November, 2013, the Court directed the
parties to maintain the status quo regarding the title of the property bearing
Nos. B/11, Jungpura Extension, New Delhi and C-46, Okhla Industrial Area,
Phase-II, New Delhi till further orders.
28. The plaintiff claimed in his application that the blatant violation of the
Injunction Order granted against the defendant No. 1 vide Order dated 01st
November, 2013.
29. It is not in dispute that the defendant No. 1-Sardar Manmohan Singh
Oberoi executed a Mortgage Deed in respect of the Property No. C-46,
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Okhla Industrial Area, New Delhi with India Bulls Housing Limited.
30. The defendant No.1 has mortgaged the property to the India Bulls
Housing Limited for getting a loan for the business purposes in the sum of
Rs. 7,61,50,000/- vide Loan Application bearing No. HLAPLAJ00277299
dated 14th June, 2016 in the name of M/s. Jupiter Radios. The Sanction
Letter pertaining to this loan is vide Application bearing No.
HLAPLAJ00380467 in the sum of Rs. 7,50,00,000/- dated 30th October,
2017 which was the actual loan amount that was disbursed vide this sanction
letter. The property bearing No. C-45, Okhla Industrial Area, Phase-II, New
Delhi was given in lien.
31. The question which comes for consideration is whether the mortgage
of the property for securing a loan by the defendant No. 1 would amount to
breach of injunction granted by this Court vide Order dated 01st November,
2013.
32. Section 58 of the Transfer of Property Act defines "mortgage",
"mortgagor", "mortgage-money" and "mortgage-deed". Clause (f) of
Section 58 provides for creation of mortgage by deposit of title deeds. The
requisites of an equitable are, namely, (i) debt; (ii) deposit of title deed; and
(iii) an intention that the deed shall be security for the debt.
33. The Hon'ble Supreme Court in Bank of India vs. Abhay D. Narottam
and Others (2005) 11 SCC 520 was confronted with similar facts where a
mortgage had been created in a case wherein a Consent Decree was passed
for recovery of Rs. 12,44,59,207/- as principal together with interest thereon
and an Undertaking had been given by the respondent not to create a
mortgage in respect of his property. It was held that mortgage has been
defined under Section 58(a) of the Transfer of Property Act, 1882 as a
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transfer of an interest in specific immoveable property for the purpose of
securing the payment of money advanced or to be advanced by way of loan
etc. Without a "transfer of interest" there is no question of there being a
mortgage. The same principle would apply to a charge created under
Section 100 of the Transfer of Property Act, 1882, which provides that all
the provisions which apply to a simple mortgage shall, so far as may be,
apply to such charge. The definition of simple mortgage in Section 58(b) of
the Act merely speaks of the procedure and describes that species of
mortgage. The Apex Court further held that a mere Undertaking to create a
mortgage is not sufficient to create "any interest" in any immoveable
property.
34. In Sita Ram Prasad vs. Mahadeo Rai & Ors (1980) SCC OnLine Pat
29, the Patna High Court held that a mortgage created in terms of the Section
58 of the Transfer of Property Act does not amount to transfer of property
itself as "the title" in the mortgaged property certainly remains with the
mortgagors. It was further observed that there is no manner of doubt that the
parties (who have mortgaged the property) were competent in law to deal
with the mortgaged land at the time of oral partition like any other joint
family property and the allotment of the said land to the share of any
coparceners lawfully make the allottee entitled to redeem the mortgage as a
whole and, thereafter, to become absolute owner of the said property. It was
thus concluded that even though a mortgage is created, all right, title and
interest of the owners in the mortgaged land would be subject to the
encumbrances so created in the property.
35. In Syndicate Bank vs. Estate Officer & Manager, APIIC Ltd. (2007) 8
SCC 361, the Hon'ble Supreme Court observed that the principal question
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which arose for consideration was whether in absence of any execution and
registration of deed of sale, can any interest in the land be created. It was
held that Section 58 of the Transfer of Property Act provides for creation of
mortgage by depositing title deed, but it is not necessary that the mortgagor
would have forfeited is complete title over the property. Furthermore, the
complete title over a property can be acquired by a vendee only when the
Deed of Sale is executed and registered by the vendor in terms of Section 54
of the Transfer of Property Act.
36. In Syndicate Bank (supra), the Hon'ble Supreme Court further
observed that the essence of the whole transaction of equitable mortgage by
deposit of Title Deeds is the intention that the Title Deed shall be the
security for the debt. Mortgage by deposit of title is one of the forms of
mortgages, wherein there is a transfer of interest in specific immoveable
property for the purpose of securing payment. However, in the absence of
registered Deed of Sale, the title to the land does not pass and what would
not be conveyed is the Title of the estate, though the possession may be
transferred.
37. In the present case, it is undisputed that the stay which was granted
was a restraint against "creating a title" in the suit property i.e., C-46, Okhla
Industrial Area, Phase-II, New Delhi. The defendant No. 1 has admittedly
created a mortgage in respect of this property in the year 2016 by
mortgaging the documents of the property to India Bulls Housing Limited
for securing a loan. While securing the loan, the property documents of the
Property No. C-45, Okhla Industrial Area, Phase-II, New Delhi were also
deposited. As discussed above, mere creation of mortgage may encumber
the property, but it does not amount to transfer of title in the suit property.
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Therefore, by mere creation of mortgage in the year 2016, it cannot be said
that the defendant No. 1 has created a title in the property bearing No. C-46,
Okhla Industrial Area, Phase-II, New Delhi by mortgaging the same.
38. In so far as the Property No. C-45, Okhla Industrial Area, Phase-II,
New Delhi is concerned, there was no injunction granted vide Order dated
01st November, 2013 in respect of this property. Therefore, any deposit of
the title documents while creating a mortgage by depositing the title
documents of Property No. C-46, Okhla Industrial Area, Phase-II, New
Delhi, cannot be said to be in violation of Order of this Court dated 01st
November, 2013.
39. The other aspect is that an Undertaking was given on behalf of the
defendant No. 1 in the Court on 12th October, 2017 that no sale of Property
bearing No. C-45 Okhla Industrial Area, Phase-II, New Delhi shall be
undertaken till the next date i.e., 15th January, 2018.
40. In order to appreciate the contentions of the rival parties, it is
pertinent to reproduce the Order dated 12th October, 2017 which reads as
under:
ORDER
12.10.2017 Both the parties are directed to file short written submissions with regard to pending applications within two weeks.
List for hearing and disposal of the pending applications th on 15 January, 2018.
Mr. Dinesh Garg, learned counsel for the defendant no. 1 without prejudice to the rights and contentions of his client states that till the next date of hearing the defendant no. 1 shall not sell or transfer the title of the property no. C-45, Okhla Industrial Area, Phase-II, New Delhi without prior permission of this Court."
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41. Again, it was an Undertaking given by the defendant No. 1 against the sale of C-45 Okhla Industrial Area, Phase-II, New Delhi and that too till next date i.e., 15th January, 2018.
42. It is not in dispute that the defendant No. 1 had taken a top-up loan on 30th October, 2017 from India Bulls Housing Limited in the sum of Rs. 7,50,00,000/- against the Property No. C-46, Okhla Industrial Area, Phase- II, New Delhi and documents in respect of the Property No. C-45, Okhla Industrial Area, Phase-II, New Delhi were also submitted. This transaction took place after the Order dated 12th October, 2017.
43. The question is whether the deposit of title documents of C-45, Okhla Industrial Area, Phase-II, New Delhi would amount to breach of the Undertaking. Again, as already noted, the Undertaking was in respect of sale of property and mere deposit of title documents of Property No. C-45, Okhla Industrial Area, Phase-II, New Delhi would not be in violation of the Undertaking.
44. Thereafter, the defendant No. 1 had closed his account from India Bulls Housing Limited and transferred it to the Federal Bank of India on 31 st October, 2018, wherein a loan in the sum of Rs. 8,30,00,000/- was sanctioned with the Property No. C-46, Okhla Industrial Area, New Delhi having been given as a collateral security and the negative lien on Property No. C-45, Okhla Industrial Area, Phase-II, New Delhi was created.
45. Admittedly, there was no transfer of the title of any of the Properties, namely, C-45 and C-46, Okhla Industrial Area, Phase-II, New Delhi at any time by the defendant No. 1 in violation of the interim orders granted by this Court. As already mentioned above, creation of a negative lien in respect of Signature Not Verified CS(OS) 2126/2013 Page 15 of 19 Digitally Signed By:SAHIL SHARMA Signing Date:21.11.2022 14:39:42 NEUTRAL CITATION NO. 2022/DHC/004989 this property in the year 2018 would not tantamount to violation of the orders of any Court.
46. Learned counsel on behalf of the plaintiff has relied upon on the decision of High Court of Madras in N. Srinivas and Ors. Vs. Naresh Kumar and Ors. MANU/TN/0004/2011, wherein the suit had been filed by the plaintiffs for declaration that they were the owners of the property and for injuncting the defendants. The parties had been directed to maintain the status quo in respect of the properties in violation of which the respondents mortgaged the property by deposit of title deeds with the respondent Bank. It was held that such creation of interest by way of mortgage despite the status quo orders amounted to contempt. It was explained that the status quo was a blanket status quo injuncting the respondents which implies that the respondents had been restrained from changing the status of the properties in any manner.
47. In N. Srinivas (supra), the Court had found that the respondent had created equitable mortgage in respect of the suit property despite the injunction by the Court restraining the defendant from selling, alienating or creating any third-party rights in the property which was confirmed and the parties were directed to maintain status quo with respect to the suit property.
48. The facts involved in the case of N. Srinivas (supra) are totally distinguishable. The plaintiff therein was claiming to be absolute owners of the property by challenging the Sale Deeds executed in favour of the defendants and also a blanket status quo in respect of the suit property had been granted. However, in the present case, the suit is for partition and other reliefs, whereby the plaintiff has claimed 1/7 th share and asserting the defendant No. 1 to be having 1/7th share in the suit properties. It is a suit for Signature Not Verified CS(OS) 2126/2013 Page 16 of 19 Digitally Signed By:SAHIL SHARMA Signing Date:21.11.2022 14:39:42 NEUTRAL CITATION NO. 2022/DHC/004989 partition wherein according to the plaintiff himself, the defendant No. 1 is entitled to 1/7th share in the properties and the title of the defendant No. 1 to the extent of 1/7th share was, therefore, admitted. In this context, it can be understood that the status quo that was granted was only in respect of "creating the title in the suit properties" and not a blanket status quo as was granted in the case of N. Srinivas (supra). This judgement is, therefore, distinguishable and not applicable to the facts in hand.
49. In Shyam Sahni vs. Arjun Prakash & Ors. (2020) 16 SCC 788, the Civil Suit for Declaration, Permanent Injunction and Partition was filed by the appellant, Shyam Sahni against the defendants who were the family members. An Interim Injunction was granted vide Order dated 02nd June, 2008 restraining the defendants from selling, alienating or creating third-party rights in the suit property. The defendants took a plea that the equitable mortgage had been created in first week of October 2007 which was prior to the grant of ex parte order. However, the appellant claimed disobedience of the Injunction Order and moved an Application under Order XXXIX Rule 2A of CPC, 1908 read with the Contempt of Courts Act, 1971 for contempt of the orders of the Court. During the pendency of the Contempt Petition, the order of Interim Injunction was confirmed and the parties were directed to maintain the status quo with respect of the suit property. The defendant No. 1 was held guilty of breach and was directed to clear the charge within four months from his own funds and resources. Accordingly, an Undertaking was given by the defendants.
50. In Shyam Sahni (supra), the learned Single Judge of this Court directed the passport of the defendant No. 1 to be deposited in the Court to ensure the presence of the defendants. The Division Bench of this Court Signature Not Verified CS(OS) 2126/2013 Page 17 of 19 Digitally Signed By:SAHIL SHARMA Signing Date:21.11.2022 14:39:42 NEUTRAL CITATION NO. 2022/DHC/004989 upheld the Order which was taken to the Hon'ble Supreme Court, wherein the challenge was only in respect of the directions for deposit of the passport. The Hon'ble Apex Court observed that there was no direction for impounding of the passport, but only for deposit in order to ensure presence of the defendant No. 1.
51. Again in this case, it was during the pendency of the contempt petition, an Undertaking was given by the defendant No.1 to clear up all the dues after the final disposal of the Contempt Petition. However, despite repeated undertakings, the defendant No. 1 failed to do so. The defendant No. 1 also avoided his appearance in the Court in order to secure his presence. The issue involved was only to secure the presence of the Contemnors who had been avoiding appearance by directing them to deposit their passports. The issue in was not whether there was a breach of an Undertaking given in the Court but was essentially in respect of seeking appearance of the Contemnors who had been held guilty of Contempt of Courts Act, 1971.
52. The basic contention of the plaintiff was that by creating a third-party interest by way of mortgaging the property to a bank, the defendant No. 1 has made the property susceptible to action under the SARFAESI Act, 2002 which may prejudice the rights of the plaintiff. In so far as this argument is concerned, it may not be fully tenable since the defendant No. 1 may create an interest in respect of the property of which he is the owner. Once it is admitted that he has a share, the property can be encumbered to him only to the extent is 1/7th share. Moreover, it has been stated by the defendant No. 1 that till date there is no default in payment of loan which is being regularly paid. The plaintiff may be justified having an anxiety on account of Signature Not Verified CS(OS) 2126/2013 Page 18 of 19 Digitally Signed By:SAHIL SHARMA Signing Date:21.11.2022 14:39:42 NEUTRAL CITATION NO. 2022/DHC/004989 mortgage created in respect of the one of the properties and a negative lien in respect of another property but it cannot be said in the given facts and circumstances that there is any breach of direction/injunction granted by this Court.
53. Therefore, the present application for contempt under Order XXXIX Rule 2A of CPC, 1908 is hereby dismissed in the above terms. CS(OS) 2126/2013, I.As.17644/2013, 25231/2015, 4330/2019, 4081/2021 List before the Joint Registrar for completion of pleadings on 23rd January, 2023.
(NEENA BANSAL KRISHNA) JUDGE NOVEMBER 21, 2022 S.Sharma Signature Not Verified CS(OS) 2126/2013 Page 19 of 19 Digitally Signed By:SAHIL SHARMA Signing Date:21.11.2022 14:39:42