Case: COMPACK ENTERPRISES INDIA (P) LTD Vs. BEANT SINGH

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 Judge, Rohini (Trial Court) dated 23.09.2017 in Suit No. 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. B-60, Ground Floor, G.T. Karnal Road, Industrial Area, Delhi-110033, 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 Petitioners 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., 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 non-renewal 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/Defendants 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. 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 Petitioners Directors, and also the brother of another Director. 7. On the question of mesne profits, Petitioner contended that 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. Trial Courts 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 re-opened. 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 Courts 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 Courts dismissal, and held that the admissions made by the parties justify decreeing the Respondents 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. 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 Courts 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 Courts order dated 12.11.2014 had settled the dispute qua the area that was in possession of the Petitioner, decreeing the Respondents 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 10%. For the period of unlawful possession between 28.04.2009 till vacation of possession, Petitioner shall pay mesne profits @ Rs.60,000/- p.m. with 10% increase on the 1st 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 cross-appeals 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 cross-appeals 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. 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 Petitioners 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 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 vehemently opposed by Shri Basava Prabhu S. Patil, learned senior counsel for respondent. III. This Courts 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 well-settled 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 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 above-stated 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 Courts 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. 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. Rohatgis 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 Respondents 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 wherein the Petitioner was stated to be in possession of the entire suit property. The Petitioners 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 Petitioners efforts to re-agitate this question in the present proceedings is a waste of this Courts 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 Courts judgment dated 12.11.2014 decreeing the suit for possession in favour of the Respondent. Mr. Gosains right in the suit property is 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. Gosains 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 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 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 Judges 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.

Decision:
0[ds]It is well-settled 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 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 above-stated 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 Courts 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.21. Having undertaken a close perusal of the License Agreements executed between the Petitioner and Respondent, we reject learned senior counsel Mr. Rohatgis 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 Respondents 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 wherein the Petitioner was stated to be in possession of the entire suit property. The Petitioners 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 Petitioners efforts to re-agitate this question in the present proceedings is a waste of this Courts 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 Courts judgment dated 12.11.2014 decreeing the suit for possession in favour of the Respondent. Mr. Gosains right in the suit property is 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. Gosains 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.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 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 Judges 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.30. At this stage, this Bench would like to register its displeasure at the Petitioners repeated and persistent efforts to re-agitate the question of delivery of possession to the Respondent, in an attempt 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 Petitioners conduct. This is an instance of blatant disregard for the Courts orders, and an abuse of judicial process.