Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NOS. 22242225 OF 2021
(Arising out of SLP(C) Diary No. 38441 of 2019)
COMPACK ENTERPRISES INDIA (P) LTD. …PETITIONER
VERSUS
BEANT SINGH …RESPONDENT
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J. :
1.
These petitions arise out of judgments of the High Court of
Delhi (hereinafter ‘High Court’) dated 14.02.2019 and 25.07.2019.
By the first impugned judgment dated 14.02.2019, the High Court
disposed of the regular first appeal RFA No. 253/2018 filed by the
Petitioner against judgment and order of the Ld. Additional District
Signature Not Verified
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2021.02.17
16:13:40 IST
Reason:
Judge, Rohini (‘Trial Court’) dated 23.09.2017 in Suit No.
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58395/2016 filed by the Respondent. Whereas by the second
impugned judgment dated 25.7.2019, the High Court disposed of
Review Petition No. 177/2019 filed by the Petitioner against the
judgment in RFA No. 253/2018.
I. Background Facts
2.
These cases concern a suit for possession and mesne profits
filed by the Respondent/plaintiff against the Petitioner/defendant,
with respect to the ground floor of the property bearing No. B60,
Ground Floor, G.T. Karnal Road, Industrial Area, Delhi110033,
admeasuring 608 sq. yards (or, 5,472 sq. ft.) (hereinafter ‘suit
property’).
3. The Respondent, Beant Singh, is the owner of the suit
property. He, through M/s Channa Auto Agencies (P) Ltd. (of which
he is a Director), executed a license agreement dated 1.11.2000 in
respect of a portion of the suit property in favour of M/s Compack
Enterprises (the Petitioner’s predecessor), for a period of 30 months
in consideration for a monthly license fee of Rs. 28,000/
(hereinafter, ‘2000 Agreement’). On 1.04.2003, Compack
Enterprises merged with Compack Enterprises India (P) Ltd. (i.e.,
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the Petitioner herein), and the 2000 Agreement continued with
mutual consent of parties. The license arrangement was renewed on
1.07.2003 for another 30 months, with a 10% increase in monthly
license fee to Rs.30,800/ (hereinafter, ‘2003 Agreement’). The 2003
Agreement was renewed for the last time effective from 1.04.2006
and expiring on 30.09.2008, with a further 10% increase in
monthly license fee to Rs.33,900/ (hereinafter, ‘2006 Agreement’).
4. However, even after the expiry of the 2006 Agreement on
30.9.2008, and nonrenewal of the same, the Petitioner continued
to occupy the suit property. Consequently, the Respondent brought
O.S. No. 58395/2016 against the Petitioner on 13.02.2009 for
recovering possession of the entire suit property and mesne profits
thereon from 1.10.2008 till the vacation of the suit property.
Petitioner/Defendant’s Arguments in Original Suit No. 58395 /2016
5. On the question of vacating possession , the Petitioner
admitted to having been in possession of only a portion of the suit
property measuring 2,200 sq. ft., averring that it was only this
portion, not the entire suit property admeasuring 5,427 sq. ft., that
was licensed to them by the Respondent.
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6. Petitioner further contended that its continued possession of
this portion of the suit property was lawful, since the Respondent
had concealed the material fact of having entered into an agreement
dated 11.6.2008 to sell the suit property to one Mr. Ajay Gosain for
a sum of Rs. 4 crores, of which the Respondent had already
received a sum of Rs. 65 lakhs. The suit property was agreed to be
sold to, and was thus in lawful possession of, Mr. Gosain before the
expiry of the 2006 Agreement on 30.09.2008. Mr. Gosain is the
husband of one of the Petitioner’s Directors, and also the brother of
another Director.
7. Petitioner contended that
On the question of mesne profits,
it had been in possession of only 2,200 sq. ft. of the suit property
and had been paying license fee for it till July, 2015 as per the
interim order passed by the Trial Court; and that they vacated the
premises in July, 2015 and handed over possession to Mr. Gosain,
to whom the Respondent had allegedly transferred possession of the
suit property pursuant to the agreement to sell. Thus, the Petitioner
claims that it is not liable to pay any further sum to the
Respondent.
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Trial Court’s Judgment dated 23.09.2017
8. On the question of vacating possession, the Trial Court held
that the issue had already been decided by the High Court in C.M.
(M) No. 193/2013 by judgment dated 12.11.2014, and could not be
reopened.
9. The Respondent had earlier filed an application before the
Trial Court under Order XII, Rule 6, of the Code of Civil Procedure,
1908 (hereinafter, ‘CPC’), praying for a judgment on admission
decreeing the suit for possession in favour of the Respondent. Upon
the Trial Court’s dismissal of this application, the Respondent
approached the High Court under Article 227 of the Constitution in
C.M.(M) No. 193/2013 praying for the aforesaid relief. Therein, the
High Court by its judgment dated 12.11.2014 reversed the Trial
Court’s dismissal, and held that the admissions made by the
parties justify decreeing the Respondent’s suit for possession. It had
thus directed that the possession of the entire suit property
measuring 5,472 sq. ft. be handed over to the Respondent by the
Petitioner.
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10. On the question of mesne profits, the Trial Court noted that
it is an admitted fact between the parties that the possession of the
suit property has still not been handed over to the Respondent
despite the High Court’s order dated 12.11.2014. Instead, the
Petitioner claimed to have handed over possession to Mr. Gosain in
July, 2015. The following further observations of the Trial Court are
relevant for our purposes:
a. What is the area of the suit property for which Petitioner is
liable?
The High Court’s order dated 12.11.2014 had settled the dispute
qua the area that was in possession of the Petitioner, decreeing the
Respondent’s suit for possession for the entire suit property area of
5,472 sq. ft (and not only the 2,200 sq. ft. portion claimed to be
possessed by the Petitioner). The view taken by the aforesaid order
has attained finality as far back as on 12.11.2014 and is binding.
b. What is the quantum of compensation payable?
For the period between 1.10.2008 to 27.04.2009, the Respondent is
entitled to license fee @ Rs. 37,290/ p.m., i.e., the license fee
agreed upon in the 2006 Agreement (Rs. 33,900/) with a hike of
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10%. For the period of unlawful possession between 28.04.2009 till
vacation of possession, Petitioner shall pay mesne profits @
st
Rs.60,000/ p.m. with 10% increase on the 1 April of each
alternate year, till the suit property is handed over to Respondent.
11. Aggrieved by the decision on mesne profits, both the Petitioner
and Respondent filed crossappeals before the High Court against
the judgment of the Trial Court dated 23.09.2017, seeking,
respectively, reduction and enhancement in the quantum of mesne
profits.
First Impugned Judgment of the High Court dated 14.02.2019 in the
above crossappeals
12. The High Court passed a consent decree, directing that the
Petitioner shall pay to the Respondent, by way of mesne profits, an
enhanced sum of Rs.1,00,000/ p.m., with a 10% increase “ after
every 12 months, i.e. from 1.10.2009, 1.10.2011 etc etc ” w.e.f.
1.10.2008 (i.e., the date on which the 2006 Agreement expired) till
the date the Petitioner hands over actual possession of the suit
property measuring 5,472 sq. ft. to the Respondent.
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13. Aggrieved that the terms of the consent decree were recorded
incorrectly in the aforesaid order, the Petitioner filed Review Petition
No. 177/2019, which was dismissed by the High Court.
Second Impugned Judgment of the High Court in the above review
petition dated 25.07.2019
14. The Petitioner contended in its review petition that the High
Court in the first appeal had erred in recording the terms of the
consent decree agreed to by the Petitioner. First, the judgment
records that the mesne profits be increased by 10% every 12
months, instead of recording a 10% increase every 24 months.
Second, the judgment erroneously records that the Petitioner will
hand over possession of the entire suit property measuring 5,472
sq. ft., when the documents on record would show that the
Petitioner was only ever in possession of 2,200 sq. ft.
15. The High Court, rejecting the Petitioner’s contentions, held that
there was no error apparent on the face of the record to justify its
review jurisdiction, and that the Petitioner was dishonestly trying to
wriggle out of the consent decree by attempting to overreach the
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Court. The review petition was dismissed with exemplary costs of
Rs.1,00,000/ payable by the Petitioner to the Respondent.
II. Submissions made by the Petitioner in the present SLP
16. Shri Mukul Rohatgi, learned senior counsel for the Petitioner,
contends that the High Court ought to have, while recording the
terms of the consent decree, recorded a 10% increase in mesne
profits every 24 months, instead of 12 months. As per him, this
typographical error is borne out by the fact that a 10% increase
every 24 months closely mirrors the terms of the license agreements
where the license fee was increased by 10% every 30 months. The
reference to a 10% increase “ after every 12 months, i.e. from
1.10.2009, 1.10.2011 etc etc ” in the first impugned judgment of the
High Court dated 14.02.2019 (supra) also corroborates this.
17. The learned senior counsel for the Petitioner has also
contended that the first impugned judgment dated 14.02.2019
erred in recording that the Petitioner has consented to handing over
possession of the entire suit property area of 5,472 sq.ft., when the
Petitioner has consistently maintained that only 2,200 sq.ft. was
licensed to him and in his possession. Both these submissions are
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vehemently opposed by Shri Basava Prabhu S. Patil, learned senior
counsel for respondent.
III. This Court’s Analysis
18. Before adverting to the specific contentions raised by the
learned senior counsel for the Petitioner, it may be useful to briefly
summarise the law governing consent decrees that shall inform our
conclusions on the present matter. It is wellsettled that consent
decrees are intended to create estoppels by judgment against the
parties, thereby putting an end to further litigation between the
parties. Resultantly, this Court has held that it would be slow to
unilaterally interfere in, modify, substitute or modulate the terms of
a consent decree, unless it is done with the revised consent of all
the parties thereto. (
Gupta Steel Industries v. Jolly Steel
Industries Pvt. Ltd. & anr. , (1996) 11 SCC 678; Suvaran
Rajaram Bandekar & ors. v. Narayan R. Bandekar & ors. ,
(1996) 10 SCC 255).
19. However, this formulation is far from absolute and does not
apply as a blanket rule in all cases. This Court, in Byram Pestonji
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Gariwala v. Union Bank of India & ors ., (1992) 1 SCC 31, has
held that a consent decree would not serve as an estoppel, where
the compromise was vitiated by fraud, misrepresentation, or
mistake. Further, this Court in the exercise of its inherent powers
may also unilaterally rectify a consent decree suffering from clerical
or arithmetical errors, so as to make it conform with the terms of
the compromise.
20. The present Petitions thus must be answered in light of the
abovestated position of law. It is relevant at this juncture to note
that the first impugned judgment of the High Court dated
14.2.2019 recorded the terms of the compromise that the Petitioner
had agreed to; and that the same Court has subsequently upheld
the validity of that consent decree in the second impugned
judgment dated 25.07.2019. Thus, keeping in line with this Court’s
jurisprudence, we would be cautious in exercising our inherent
power to interfere in this consent decree, except where there is any
exceptional or glaring error apparent on the face of the record. We
now refer to and answer the specific contentions raised by the
parties.
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On the question of area of possession:
21. Having undertaken a close perusal of the License Agreements
executed between the Petitioner and Respondent, we reject learned
senior counsel Mr. Rohatgi’s contention that the Petitioner was only
in possession of and licensee to a 2,200 sq.ft. portion of the suit
property. It is evident that, unlike the 2000 Agreement and 2003
Agreement, the 2006 Agreement, which is the relevant agreement
for the present purposes, pertains to the entire suit property, and
does not delimit the licensed area to a 2,200 sq. ft. portion. Thus,
the 2006 Agreement effective from 1.04.2006 to 30.09.2008,
licensed the total area of 5,472 sq. ft. to Petitioner. Hence, the
material on record discloses that the Petitioner is presently in illegal
possession of the entire suit property admeasuring 5,472 sq. ft.
22. Further, this question has already been settled by the High
Court judgment dated 12.11.2014 (supra) in the earlier litigation
between the parties, decreeing the Respondent’s suit for possession
for the entire area of 5,472 sq. ft (and not only the 2,200 sq. ft.
portion claimed to be possessed by the Petitioner). In that order, the
High Court had taken note of an admitted document on the record
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wherein the Petitioner was stated to be in possession of the entire
suit property. The Petitioner’s challenge to this judgment dated
12.11.2014 before the Supreme Court has been dismissed in SLP(C)
No. 7531/2015, and R.P.(C) No. 1494/2015 in SLP(C) No.
7531/2015, by orders dated 16.03.2015 and 15.07.2015
respectively. Thus, this view has attained finality, and the
Petitioner’s efforts to reagitate this question in the present
proceedings is a waste of this Court’s time and an abuse of the
process of law. In any case, since the Petitioner claims no right or
interest in the remaining 3,272 sq. ft. of the suit property, there is
no prejudice caused to the Petitioner by the order to vacate the
entire suit property since he is not the owner of property to that
extent also.
23. It is further an admitted position, as recorded by the Trial
Court, that the Petitioner has not handed over possession to the
Respondent – having claimed to have handed over possession to Mr.
Gosain instead in July, 2015. This is despite the High Court’s
judgment dated 12.11.2014 decreeing the suit for possession in
favour of the Respondent. Mr. Gosain’s right in the suit property is
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a question pending in separate specific performance proceedings
filed by him. Thus, at this stage, the Respondent is entitled to get
possession of the suit property, pending adjudication of Mr.
Gosain’s claims. This view attained finality as far back as on
12.11.2014, and it is high time that the Petitioner stops making
efforts to circumvent delivering possession of the suit property to
the Respondent.
24. Thus, the High Court was correct in upholding the terms of the
consent decree directing Petitioner to hand over possession of the
entire suit property of 5,472 sq. ft. to the Respondent, and we see
no reason to interfere with this part of the consent decree.
On the question of mesne profits:
25. As referred to supra, Shri Mukul Rohatgi, learned senior
counsel for the Petitioner has contended that the High Court ought
to have, while recording the terms of the consent decree, recorded a
10% increase in mesne profits every alternate year, instead of every
year.
26. On the contrary, Shri Basava Prabhu S. Patil, learned senior
counsel for the Respondent wants us to construe the observations
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of the late learned Single Judge appearing in para 1 of the first
impugned judgment dated 14.02.2019 to mean that the mesne
profits payable are to be increased by 10% every year.
27. The learned Single Judge, in noting that “ this figure of mesne
profits of Rs.1 lakh will be increased by 10% after every 12 months,
i.e from 1.10.2009, 1.10.2011 etc etc ” (emphasis supplied), has
confused not only himself, but also the parties to the litigation.
There is an inconsistency in so far there is a gap of every alternate
year, i.e. from 2009 to 2011, in the example used by the learned
Single Judge even though the decree notes an increase of 10% in
mesne profits after every 12 months. The aforementioned
inconsistency in the underlined extract of the consent decree is an
error apparent on the face of the record. Hence we find that this is a
fit case to exercise inherent the jurisdiction to correct the terms of
the consent decree, to bring it in conformity with the intended
compromise.
28. At this stage, it is relevant to note that even the judgment dated
23.09.2017 and the final decree dated 15.11.2017 passed by the
Trial Court also awards a 10% increase only on each alternative
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year, i.e. 01.04.2011, 01.04.2013, 01.04.2015 and so on. Further,
the original terms of the license agreement between the parties also
incorporated a 10% increase in license fee once every 30
months/2.5 years. Thus, the learned Single Judge’s order dated
14.02.2019 has given rise to a lot of confusion. Given this
background, and looking at the preponderance of probabilities, we
are inclined to give benefit of doubt to the Petitioner. Therefore, we
hold that the intention of the compromise between the parties was
that there should be a 10% increase in mesne profits every
alternate year. The recording of a 10% increase after every 12
months in the consent decree was an inadvertent error, which we
have now rectified.
29. To this limited extent, the second impugned judgment dated
25.07.2019 is overturned, and the consent decree recorded by the
learned Single Judge’s judgment dated 14.02.2019 stands modified.
III. Final Conclusions
30. At this stage, this Bench would like to register its displeasure
at the Petitioner’s repeated and persistent efforts to reagitate the
question of delivery of possession to the Respondent, in an attempt
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to circumvent complying with the view taken by the High Court in
the judgment dated 12.11.2014, which has now attained finality.
Despite the clear direction in that judgment to vacate possession in
favour of the Respondent, pending any adjudication on the separate
proceedings for possession and specific enforcement initiated by Mr.
Gosain, the Petitioner handed over possession to Mr. Gosain in
July, 2015. Possession has to this date not been handed over to the
Respondent, who has been dragged to the court time and again due
to the Petitioner’s conduct. This is an instance of blatant disregard
for the Court’s orders, and an abuse of judicial process.
31. Hence the present petitions are disposed of, with direction to
the Petitioner to take steps for handing over possession of the suit
property measuring 5,472 sq. ft. to the Respondent within eight
weeks from today, without fail. Further, the Registry is directed to
expeditiously release the arrears of mesne profits, if any, already
deposited by the Petitioner before this Court to the Respondent.
The Petitioner is further directed to pay to the Respondent all
arrears as directed in order dated 14.2.2019, with the limited
modification that the mesne profits are to be treated as increasing
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by 10% every alternate year, from 2009 till the date of handover of
possession.
32. The Petitioner is additionally directed to pay costs of Rs. 1 lakh
to the Respondent as stated in the impugned order dated
25.7.2019.
33. The Special Leave Petitions stand disposed of accordingly.
…..…………................................J.
(MOHAN M. SHANTANAGOUDAR)
.……………………………...............J.
(VINEET SARAN)
NEW DELHI,
FEBRUARY 17, 2021
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