caselaws
Delhi High Court
Connaught Plaza Restaurants Pvt … vs Capital Boot House on 1 July, 2021 $~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ OMP (I) (COMM) 129/2016 & I.A. 7647/2021, I.A. 7648/2021
CONNAUGHT PLAZA RESTURANTS PVT. LTD.
…. Petitioner
Through: Dr. N. Pradeep Sharma & Mr.
Abhinav S. Raghuvanshi, Advs.
versus
CAPITAL BOOT HOUSE …. Respondent
Through: Mr. Rajesh Yadav, Sr. Adv.
With Ms. Ruchira Yadav, Adv.
CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
JUDGEMENT
% 01.07.2021
(Video-Conferencing)
I.A. 7647/2021 (under Section 151 of CPC, 1908- seeking
extension/ enlargement of time) & I.A. 7648/2021 (under Order
XXXIX, Rules 1 and 2, read with Section 151 of CPC, 1908- for
restraining the respondent from interfering with peaceful possession
of the petitioner)
1. These are connected applications which essentially seek a
modification of the terms of settlement between the petitioner and the
respondent, on the basis where of OMP (I) (COMM) 129/2016 was
disposed of, by this Court, on 4th November, 2016.
2. It is not necessary to enter into the details of controversy
between the parties. Suffice it to state that the settlement deed dated
3rd November, 2016, in which the respondent was the “first party”, and
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the petitioner was the “second party”, specifically envisaged, inter
alia, thus:
“3. That the terms and conditions of the previous
agreements between the parties shall be binding on them as
also directed by the Hon’ble High Court of Delhi in orders
dated 20.07.2015 and 10.08.2015. It is however
clarified/agreed between the parties, that in view of changed
circumstances, the franchise agreement dated 11.10.2000,
shall expire with the efflux of time on 30.06.2021, when all
the agreements between the parties shall automatically come
to an end. There shall be no further extension/enlargement for
any reason whatsoever, of time beyond 30.06.2021. The
Second Party shall remove all its installations, fittings and
fixtures on or before 30.06.2021. The Second Party shall not
be entitled to seek any extension/enlargement, under any
circumstances.”
(Emphasis supplied)
Vide order dated 4th November, 2016, OMP (I) (COMM) 129/2016,
was disposed of by this Court on the basis of the afore-extracted
settlement deed which was directed to form part of the order and by
which the parties were explicitly made bound.
3. By the present application, the petitioner seeks extension of
time to vacate the premises of the respondent. The only ground urged
in the petition, and argued before the Court by Dr. Sharma, learned
Counsel for the petitioner, is the intervening COVID-19 pandemic and
the restrictions put in place by the lockdowns imposed by the
governmental authorities from time to time. Dr. Sharma submits that
these lockdowns have made it impossible for the petitioner to vacate
the premises before 30th June, 2021, as required by the afore-extracted
clause in the settlement deed between the parties.
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4. Dr. Sharma, learned Counsel for the petitioner/applicant,
submits that, at the time when the settlement deed was executed,
neither party could foresee the COVID-19 pandemic or the hardships
that would result as a consequence thereof. He submits that his client
has no intention of continuing in the premises in question, but would
take at least three months’ time to remove the fixtures and furniture as
well as the effluent treatment plant situated on the roof of the premises
to another location. In as much as the present situation was not within
the contemplation of the parties when they entered into the aforesaid
settlement agreement, Dr. Sharma submits that the interests of justice
would require that further time be granted to the petitioner to vacate
the premises, and that, in the interregnum, the respondent be restrained
from forcibly seeking to evict the petitioner therefrom.
5. Mr. Rajesh Yadav, learned Senior Counsel appearing for the
respondent, on the other hand, seriously questions the bona fides of
the present application. He submits that the respondent wrote not once
but twice to the petitioner, on 12th May, 2021 and 13th June, 2021,
making it clear that no time, beyond 30th June, 2021, would be granted
to the petitioner to retain the premises in question. He submits that,
despite these communications, the respondent has, at the nth hour and
a day before 30th June, 2021, sought to invoke the jurisdiction of this
Court to frustrate the agreement between the parties. He submits, on
instructions, that his client is unwilling to allow the petitioner to
continue in the premises in question any further. He also places
reliance on the recent judgment of the Supreme Court in Compack
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Enterprises India Pvt. Ltd. vs. Beant Singh 1, in this regard.
6. In the opinion of this Court, no relief whatsoever can be granted
to the petitioner in either of these applications. The terms of settlement
between the petitioner and the respondent are clear and explicit. The
parties have taken care to clarify, in the afore-extracted Para 3 of the
terms of settlement, not once but twice, that “there shall be no further
extension/enlargement for any reason whatsoever of time beyond
30.06.2021” and that the petitioner would “not be entitled to seek any
extension/enlargement, under any circumstances”. The same
paragraph requires the petitioner to remove all installations, fittings
and fixtures on or before 30th June, 2021.
7. Once the parties have, consciously and between themselves,
agreed that no extension of time beyond 30th June, 2021, to vacate the
premises, would be available to the petitioner for any reason
whatsoever and under any circumstances, it is not open to the
petitioner to contend, before the Court that extension was justified as
the circumstances in which the petitioner finds itself were not
foreseeable when the settlement agreement was executed. That
would amount to requiring the Court to pass an order in violation of
the terms of settlement between the parties, on the basis of which,
OMP (I) (COMM) 129/2016 was disposed of. This, quite obviously, is
not permissible at all.
8. The plea, of the petitioner, that it would need further time to
1
(2021) 3 SCC 702
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remove the furniture, fixtures and effluent treatment plant located on
the premises, is also without merit, as the afore-extracted para 3 of the
terms of settlement expressly requires the petitioner to remove all
furniture, fixtures and other equipment on or before 30th June, 2021.
This settlement was executed almost five years back. It was for the
petitioner to take steps to ensure that the furniture, fixtures and other
equipment, including the effluent treatment plant were removed before
30th June, 2021. No extension of time can be granted, therefore, even
for the said purpose.
9. There is also, prima facie, substance in the contention of Mr.
Yadav, that the present application lacks bona fides. Though the
respondent was under no duty to do so, it nevertheless placed the
petitioner on notice regarding its responsibility to vacate the premises
on 30th June, 2021, vide its communications dated 12th May, 2021 and
13th June, 2021. There was no want of clarity, therefore, at all,
regarding the stand of the respondent.
10. It does, therefore, appear disquieting that, a day before the time
for vacating the premises was to expire, the petitioner has sought to
move this Court and obtain injunctive orders. The manner in which the
petitioner has invoked the Court’s jurisdiction also operates as a fetter
to grant of any relief to the petitioner in this case.
11. The reliance, by Mr. Yadav, on the decision in Compack
Enterprises1, is also well placed. The Supreme Court has also made it
absolutely clear that consent decrees are not to be lightly interfered
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with by Court, save and except by consent of the parties to the decree.
The only circumstances in which consent decrees can be modified by
a Court are (i) where there is revised consent of the parties to the
decree, (ii) the consent was obtained by fraud, misrepresentation or
mistake or (iii) clerical or arithmetical errors in the consent decree
were required to be corrected. Absent these exigencies, the Court
cannot modify the terms of a consent decree or a settlement on the
basis of which the petition was disposed of. At the unilateral request
of one of the parties to the settlement, it is obvious that the Court
cannot pass an order which is violative of the terms of settlement.
Were it to do so, the Court would be acting in flagrant excess of the
jurisdiction vested in it.
12. Paras 19 and 20 of the report in Compack Enterprises1, may,
for this purpose, be reproduced thus:
“19. 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 (P) Ltd. 2;
Suvaran Rajaram Bandekar v. Narayan R. Bandekar 3]
20. 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 4, has held that
2
(1996) 11 SCC 678
3
(1996) 10 SCC 255
4
(1992) 1 SCC 31
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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.”
(Emphasis supplied)
13. In view of this legal position, it is not possible for this Court to
come to the aid of the petitioner or accommodate any of the prayers
contained in either of these applications.
14. Both applications are, therefore, dismissed.
C. HARI SHANKAR, J.
(VACATION JUDGE)
JULY 01, 2021
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