The creation of a mortgage does not necessarily amount to a breach of injunction orders, and the court must consider the legal provisions and circumstances of the case to determine contempt.

JUDGMENT

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 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. 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.

7. A fresh app