Bharti Kawatra vs Sudhir Kawatra

$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of decision: 14 OCTOBER, 2026
IN THE MATTER OF:
# CNR No. DLHC010975172024
+ MAT.APP.(F.C.) 442/2024, CM APPL. 76027/2024
BHARTI KAWATRA .....Appellant
Through: Mr. Prosenjeet Banerjee, Senior
Advocate with Ms. Anshika
Sharma, Ms. Shree, Ms.
Baishnavi Rathoer, Advs.

versus

SUDHIR KAWATRA .....Respondent
Through: Mr Rajnish Kumar Jha, Mr
Faiyazul Haque Advocates

CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
HON'BLE MS. JUSTICE RENU BHATNAGAR
JUDGMENT (ORAL)
1. The present Appeal has been filed by the Appellant/Wife
challenging the Order dated 23.11.2024, passed by the learned Family
Court-02, West District, Tis Hazari Courts, Delhi, in CS No. 31 of
2021, titled Sudhir Kawatra v. Bharti Kawatra, by which the learned
Family Court has allowed the Respondent’s application under Order
XXXIX Rules 1 and 2 CPC by directing the release and handover of
disputed machinery and goods to the Respondent/Husband before
final adjudication of the suit.
Signature Not Verified
HARIOM SINGH KIRMOLIYA
21.10.2026 15:51

2. Facts, in brief, leading to the present Appeal, are as under:
a. That the Appellant and the Respondent were married on
05.12.1993 in accordance with Hindu rites and
ceremonies, and two daughters were born out of the
wedlock. It is stated that both – the Appellant and the
Respondent, are entrepreneurs and are engaged in
garment-related businesses. It is stated that the
Appellant/Wife runs her business in the names and style
of Bharti International and the Respondent/Husband runs
his business in the name and style of Kay Enterprises.
b. It is stated that on 28.07.2011, a registered sale deed was
executed in favour of the Appellant in respect of the
premises bearing No. B-60, First Floor, DSIIDC Work
Space, Tilak Vihar, New Delhi–110018 ( hereinafter
referred to as the “Suit Premises” ). It is stated that
disputes arose between the parties and the
Respondent/Husband filed a Civil Suit before the District
and Sessions Judge, West District, Tis Hazari Courts, for
declaration of ownership and possession in respect of the
Suit Premises, the machinery and equipment, and the raw
materials lying therein, together with consequential
reliefs of permanent and mandatory injunction and
damages. The suit was initially registered as CS (DJ) No.
920 of 2019.
c. Since the matter pertained matrimonial dispute, vide order
dated 18.03.2021, the Plaint was returned for presentation
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HARIOM SINGH KIRMOLIYA
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before the Family Court. Thereafter, the Respondent filed
the Suit, being CS No. 31 of 2021, before the Family
Court, West District, Tis Hazari Courts, New Delhi, with
the following prayers:
“ a) Pass a decree for declaration in favour of
plaintiff against the defendant declaring the
plaintiff as lawful owner of the premises bearing
No. B-60, FF, DSIIDC Work Space, Tilak Vihar,
New Delhi-110018;

b) Pass a decree of possession in favour of
plaintiff and against the defendant directing the
defendant to handover the peaceful physical
possession of premises bearing no. B-60, FF,
DSIIDC Work Space, Tilak Vihar, New Delhi-
110018 to the plaintiff;

c) Pass a decree of mandatory injunction in
favour of Plaintiff and against the Defendant
directing defendant to unlock the said demised
premises and to allow the plaintiff to have access
to all the equipment/machineries lying therein
without any interference;

d) Pass a decree of permanent injunction in
favour of Plaintiff and against the Defendant
restraining defendant or her agents, assignees,
authorised representatives permanently from
creating any third party interest in the demised
premises bearing no. B-60, FF, DSIIDC Work
Space, Tilak Vihar, New Delhi-110018;

e) Pass an award for a sum of Rs. 28,50,000/-
payable by the defendant to the plaintiff towards
damages caused to the plaintiff by the
act/omissions of the defendants; AND/OR
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f) Pass any other order(s) as this Hon'ble Court
deems fit and appropriate in the facts and
circumstances of this case, may also be passed in
favour of the plaintiff and against the defendant,
in the interest of justice. ”

d. It is stated that along with the Suit, the
Respondent/Husband also filed an application under
Order XXXIX Rules 1 and 2 read with Section 151 of the
Code of Civil Procedure, 1908, seeking the following
interim injunctive reliefs:
“a) Ex-parte ad-interim injunction in favour of the
Plaintiff/Applicant and against the defendant, her
agents, servants, successors, legal representatives,
assignees, associates, attorneys, administrators or
any other person on her behalf thereby restraining
them from creating any third party interest
regarding shed/space bearing no. B-60, FF, DSIIDC
Work Space, Tilak Vihar, New Delhi-110018 till the
final disposal of the suit.

b) Ex-parte ad-interim injunction in favour of the
Plaintiff and against the Defendant, her agents,
servants, successors, legal representatives,
assignees, associates, attorneys, administrators or
any other person on her behalf, thereby directing the
defendant to immediately unlock the shed/space
bearing no. B-60, FF, DSIIDC Work Space, Tilak
Vihar, New Delhi-110018 and grant access/taking
out the same from the said premises of all the
machineries/equipment and raw material lying
therein.”

e. It is the case of the Appellant/Wife that the Suit Premises
Signature Not Verified
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were purchased to expand her garment business, Bharti
International, and that the sale consideration was paid
from funds generated through her business. The
Respondent/Husband, on the other hand, claims that he
had purchased the Suit Premises from his own resources
in the name of the Appellant, who is his legally wedded
wife. Thus, the parties dispute their respective rights and
interests in the Suit Premises.

f. It is stated that on 16.03.2012, a Perfecta Schmid
Moulding Machine, along with other machinery and
equipment, was purchased/imported for use in the parties’
respective garment businesses. The
Respondent/Plaintiff/Husband claims that the machinery
was imported by him for Kay Enterprises. The
Appellant/Defendant/Wife disputes the Respondent’s
claim of exclusive ownership and asserts that the
machinery was purchased out of joint funds, including the
proceeds of her business, Bharti International, and was
intended for use in her business. According to the
Appellant/Wife, her business unit manufactured moulds
and brassier cups using the machine, which were
subsequently utilised by the Respondent in manufacturing
finished lingerie products.
g. It is the case of the Appellant/Wife that she was
managing the affairs of the Suit Premises and was paying
the electricity bills of the Suit Premises until May 2013.
Signature Not Verified
HARIOM SINGH KIRMOLIYA
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According to the Appellant, she and her two daughters
were compelled to leave the matrimonial home in April
2013, following which she began residing with her
parents at Mussoorie, Uttarakhand. The Appellant further
alleges that, upon visiting the Suit Premises in October–
November 2013, she discovered that the Respondent had
trespassed into the premises and that certain parts of the
machinery had been removed. She thereafter locked the
Suit Premises and also lodged a complaint with the Tilak
Vihar Police Station.
h. In the plaint, it is the case of the
Respondent/Plaintiff/Husband that the
Appellant/Defendant/Wife unlawfully locked the Suit
Premises thereby dispossessing him of the premises and
denying him access to the machinery, equipment and raw
materials lying therein. The Respondent claims that the
machinery was essential to the functioning of Kay
Enterprises and that its continued inaccessibility caused
him financial loss and business disruption. It is the case
of the Respondent/Plaintiff/Husband that he received
information that the Appellant had received a sum of
Rs.75,000 as earnest money towards a proposed sale of
the Suit Premises, giving rise to his apprehension that
third-party interests might be created therein. He,
therefore, filed the Suit along with an Application under
Order XXXIX Rules 1 & 2 CPC.
Signature Not Verified
HARIOM SINGH KIRMOLIYA
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i. The Appellant contested the suit and the application for
interim relief by filing her written statement and reply
dated 25.05.2022, wherein she reiterated her claim to
ownership and possession of the Suit Premises and
disputed the Respondent’s claim of exclusive ownership
of the machinery, equipment and raw materials lying
therein.
j. Vide Order dated 30.05.2023, the Family Court directed
the Appellant/Wife not to create any third-party interest
in respect of the Suit Premises. However, the
Respondent’s request for unlocking the premises and
obtaining access to the machinery and other articles was
deferred pending a report from a Local Commissioner.
It is stated that vide order dated 07.03.2024, the learned
Family Court appointed a Local Commissioner to inspect
the Suit Premises and prepare an inventory of the
machinery, equipment and raw materials lying therein. It
is stated that the Local Commissioner visited the premises
on 23.03.2024 and thereafter submitted his report dated
27.05.2024 before the learned Family Court.
k. Vide order dated 23.11.2024, the Family Court partly
allowed the Respondent’s application under Order
XXXIX Rules 1 and 2 CPC by holding that the
Respondent’s documents, including the invoice in the
name of Kay Enterprises, and the Written Statement filed
by the Appellant supported the Respondent’s claim to the
Signature Not Verified
HARIOM SINGH KIRMOLIYA
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machinery. Accordingly, the Family Court directed that
the Perfecta Schmid Moulding Machine 2046/2, together
with the goods and raw materials in the name of Kay
Enterprises lying in the Suit Premises, be released to the
Respondent/Husband. The Respondent/Husband was
permitted to utilise the machine, goods and raw materials.
However, the Respondent was restrained from selling the
machine during the pendency of the Suit. It is stated that
for the purpose of implementing the aforesaid directions,
the learned Family Court appointed the Local
Commissioner. The Local Commissioner was authorised
to break open the locks of the Suit Premises and hand
over the specified machinery and raw materials to the
Respondent. Relevant portions of the impugned Order
reads as under:
“ 5. In reply of the said para, it is submitted by the
defendant in her Written Statement that the
defendant is not privy to import machinery. Thus, it
implies that there was no contract of the defendant
with any party to import the machinery. It is further
submitted by defendant that the plaintiff would have
imported the machinery for his business/ factory, but
import of machinery does not establish the fact that
it was imported/installed in the demised premises. It
is the contention of defendant that the imported
machinery was never been installed at the demised
premises. The further contention of defendant in
para no.9 that merely importing/ purchasing of the
machinery, as alleged by the plaintiff, would not
make him owner/ confer any right/ title over the
demised premises. The said contention implies that
Signature Not Verified
HARIOM SINGH KIRMOLIYA
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the plaintiff might have imported the machinery
under the name and style of 'Kay Enterprises' but by
that itself, the plaintiff cannot be said to be owner of
the premises in question.

6. The two things imply from the said paragraph that
the imported machinery was not installed at the said
premises and further, the machinery being in the
name of plaintiff, automatically does not give the
ownership right to the plaintiff in the suit premises.
This Court is of the view that there is a candid
admission on the part of defendant qua the said
machinery that the said machinery belongs to the
plaintiff and not to the defendant. Although, it is
submitted in para no.13 of the Written Statement
that the Perfecta molding machine 2046/2+ moulds,
compressor, cutting machine, laminated fabric roll,
tool box are owned by the defendant, however, the
same is without any basis and documents and
further, the same is contrary to the reply given by
the defendant in reply to para no. 9 of the WS.

7. It is admitted on the part of defendant that she
was carrying the business under the name of 'Bharti
International' and not 'Kay Enterprises'. ”

l. Being aggrieved by the aforesaid order, particularly the
direction for release of the machinery, equipment and raw
materials to the Respondent at an interlocutory stage, the
Appellant has filed the present Appeal.

3. It is pertinent to mention that though prayer (c) of the Suit is
only to unlock the demised premises so that the Plaintiff can access all
the equipment/machineries lying therein without any interference, the
prayer in the Application under Order XXXIX Rules 1 & 2 goes
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HARIOM SINGH KIRMOLIYA
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beyond the prayer in the Suit by seeking access to the Suit Premises
for taking away the machinery.
4. Learned Counsel appearing for the Appellant/Wife states that
the direction passed by the Family Court could not have been passed
in an Application under Order XXXIX Rules 1 & 2 CPC as it is
beyond the scope of the Application under Order XXXIX Rules 1 & 2
CPC. Though the learned Counsel for the Appellant has also raised the
question of limitation, this Court is not going into the said question
because of the fact that the Family Court has not considered this
question in the impugned Order.
5. Per contra , learned Counsel appearing for the
Respondent/Husband supports the impugned Order by relying on the
admissions made by the Appellant/Defendant/Wife in the Written
Statement.
6. Heard the learned Counsels for the parties and perused the
material on record.
7. A reading of the impugned Order reveals that the Learned
Family Court has proceeded on conjecture and surmise by observing
that the stand taken by the Appellant/Defendant/Wife implies that the
Respondent/Plaintiff/Husband might have imported the machinery for
his business unit and, therefore, that the machinery belongs to the
Respondent. The Learned Family Court failed to appreciate that the
mere fact that the machinery may have been imported in the name of
Kay Enterprises, or that the Appellant denied being privy to its import,
does not, by itself, establish the Respondent’s exclusive ownership
thereof. The Learned Family Court thus drew an inference of
Signature Not Verified
HARIOM SINGH KIRMOLIYA
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ownership without adequately considering the Appellant’s specific
plea that the machinery had been acquired from joint funds, including
funds generated through Bharti International. The competing claims of
ownership required proper adjudication on the basis of evidence and
could not have been conclusively determined at the interim stage.
8. The present Suit is one for declaration and consequential reliefs,
including possession and injunctions. The Suit Premises stand in the
name of the Appellant/Wife under a registered sale deed dated
28.07.2011. The Respondent/Husband claims that he had provided the
consideration for the purchase of the Suit Premises; however, the said
claim is disputed by the Appellant and remains to be adjudicated.
Further, the question of ownership of the machinery and other articles
lying in the Suit Premises is distinct from the question of ownership of
the Suit Premises itself. Neither the Respondent’s claim to ownership
of the Suit Premises nor his claim to exclusive ownership of the
machinery could be treated as conclusively established merely for the
purpose of granting the interim relief sought.
9. This Court has also perused the Written Statement filed by the
Appellant/Defendant/Wife and finds that the same does not disclose
any unambiguous admission of the Respondent’s exclusive ownership
of the machinery. In these circumstances, the direction issued by the
Learned Family Court to the Local Commissioner to break open the
locks of the Suit Premises and hand over the machinery, goods and
raw materials lying therein to the Respondent/Husband, coupled with
permission to use the same during the pendency of the Suit, amounts
to granting substantive mandatory interim relief in respect of disputed
Signature Not Verified
HARIOM SINGH KIRMOLIYA
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property before the competing claims of the parties have been
adjudicated. The Learned Family Court could have considered
appropriate protective measures, including restraining the parties from
alienating or creating third-party interests in the disputed property or,
if warranted, directing that the machinery be kept in safe custody
pending adjudication. However, in the facts and circumstances of the
present case, the Family Court was not justified in directing the
release of the disputed machinery and other articles to the Respondent
and permitting their use before determining the parties’ respective
rights thereto.
10. It is well settled that interim relief under Order XXXIX Rules 1
and 2 CPC cannot ordinarily be granted in a manner that effectively
grants the substantive relief sought in the Suit before trial, particularly
where the relief would materially alter the existing position and affect
disputed rights of ownership. The impugned directions, insofar as they
direct the release of the machinery, goods and raw materials to the
Respondent and permit their use during the pendency of the Suit,
therefore, cannot be sustained.
11. Accordingly, the Appeal is allowed. The impugned Order dated
23.11.2024, insofar as it directs the release of the machinery, goods
and raw materials to the Respondent/Husband and permits him to use
the same during the pendency of the Suit, is set aside. Pending
applications, if any, are also disposed of.
12. In the interest of justice, the Appellant/Defendant/Wife is
restrained, during the pendency of the Suit, from selling, transferring,
alienating or creating any third-party interest in the disputed
Signature Not Verified
HARIOM SINGH KIRMOLIYA
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machinery. It shall, however, be open to the Respondent/Husband to
file an appropriate application before the Learned Family Court
seeking directions for the safe custody of the machinery during the
pendency of the Suit. In the event such an application is filed, the
Learned Family Court shall consider and decide the same on its own
merits, in accordance with law, without being influenced by any
observations made in this Order.


SUBRAMONIUM PRASAD, J

RENU BHATNAGAR, J
OCTOBER 14, 2026
Rahul



Signature Not Verified
HARIOM SINGH KIRMOLIYA
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