M/S. Pegasus Computers vs M/S. Kotal Mahindra Primus Ltd. & ...
2014 Latest Caselaw 3328 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+            CM(M) No.1026/2011 and Crl. M.A. No.15731/2012

%                                                            24th July, 2014

M/S. PEGASUS COMPUTERS                                      ......Petitioner
                  Through:               Mr. P.P. Khattar in person.



                          VERSUS


M/S. KOTAL MAHINDRA PRIMUS LTD. & ORS.      ...... Respondents
                 Through:  Mr. Sandeep Srivastava, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.           This petition under Article 227 of the Constitution of India

impugns the order of the court below dated 6.4.2011 by which the review

application filed by the petitioner/plaintiff for recalling of the consent order

dated 24.4.2001 by which the suit was disposed of as compromised was

sought to be recalled.     By the compromise order dated 24.4.2001, the

petitioner/plaintiff had undertaken to pay the defendants Rs.2.75 lacs in full

and final settlement, and on such payment, the respondents/defendants

C.M.(M) No.1026/2011                                                  Page 1 of 4
 undertook to deliver the vehicle which was repossessed from the

petitioner/plaintiff in the same condition in which it was when re-possessed

by the respondents.

2.            Firstly, I must note that once a consent order is passed, and the

same is alleged to be not complied with, review petition is not the remedy

and actually execution petition ought to have been filed. Review petition

was therefore not maintainable even right at the outset.


3.            Even assuming that the review application was maintainable

and court had the jurisdiction to decide, the impugned order shows that the

petitioner/plaintiff himself relied upon the list/inventory Ex.PW1/A prepared

at the time of taking possession of the car and which states that the vehicle

has many dents and scratches, front wind screen is broken, and front bonnet

and front bumper dented.


4.            The dispute is as to whether the petitioner/plaintiff had tendered

a sum of Rs.2.75 lacs in terms of the consent order dated 24.4.2001 and the

respondents/defendants have refused to tender possession of the car in the

same condition which it was at the time when possession was taken from the

petitioner/plaintiff.

5.            What was the condition of the car when the same was re-
C.M.(M) No.1026/2011                                                Page 2 of 4
 possessed      by   the   respondents/defendants      (on   account     of    the

petitioner/plaintiff failing to pay even a single instalment of loan) was upon

the petitioner/plaintiff to establish. In order to prove that condition of the

car is different as on the time when petitioner/plaintiff had to take possession

pursuant to the consent order and when earlier the car was re-possessed can

only be proved if there is sufficient documentary evidence in the form of

photographs as to know what was the condition of the car when possession

was taken by the respondents/defendants company and what was the

condition when pursuant to the consent order possession was sought to be

given to the petitioner/plaintiff.   Mere oral averment that the car is in

"showroom condition" made during the evidence of the petitioner/plaintiff

cannot automatically prove that the car is in "showroom condition" once in

the list of inventory the defects in the car such as the dents, scratches etc are

duly stated.

6.             Though petitioner sought to argue that the list/inventory was

never supplied to him, however, once that list/inventory is filed by the

petitioner/plaintiff himself, and there is no issue of malafides in preparing of

the list/inventory, the court below rightly has believed the said list/inventory

that too filed by the petitioner/plaintiff herself as Ex.PW1/A. I may note that

the present is a very surprising case where after taking the car on loan from
C.M.(M) No.1026/2011                                                  Page 3 of 4
 the respondents/defendants, the respondents/defendants contend that not

even a single instalment was paid by the petitioner/plaintiff and

consequently the car was repossessed.          Of course, petitioner/plaintiff

vehemently argues that actually the respondents/defendants did not present

any cheques, however, I find no credibility in this stand as to why a finance

company would not present cheques for payment when the car was financed

by the respondents/defendants.

7.           In view of the above, I do not find any merit in the petition, and

the same is therefore dismissed, leaving the parties to bear their own costs.




JULY 24, 2014                                 VALMIKI J. MEHTA, J.

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