Connaught Plaza Resturants Pvt. Ltd. vs Capital Boot House

C. Hari Shankar, J

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)

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.

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 partyâ€​, and the petitioner was the “second partyâ€​, 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.â€​

(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.

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.

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.

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 Enterprises India Pvt. Ltd. vs. Beant Singh (2021) 3 SCC 702, in this regard.

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 circumstancesâ€. The same paragraph requires the petitioner to

remove all installations, fittings and fixtures on or before 30th June, 2021.

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.

The plea, of the petitioner, that it would need further time to 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.

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.

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.

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  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.

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. (1996) 11 SCC 678; Suvaran Rajaram Bandekar v. Narayan R. Bandekar

(1996) 10 SCC 255]

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 (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.â€​

(Emphasis supplied)

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.

Both applications are, therefore, dismissed.