M/S. PEGASUS COMPUTERS v. M/S. KOTAL MAHINDRA PRIMUS LTD.

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 2014:DHC:3486 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 repossessed 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 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. Ne