TMI Blog2010 (4) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest of the present appellants. Budhiya Vesta Patel was appointed as a watchman by one R.K. Tiwari, who was cultivating grass on the suit property since 1954-55, to take care of the suit property and for this a Kachcha shed on the suit property was provided to him. In due course of time, Budhiya Vesta Patel extended the shed to construct a chawl known as Budhiya Patel Chawl consisting of 38 rooms, which were let-out by him. 4. After the death of the real owner of the suit property, Mr. Anant Mahadeo Tambe, husband of Leela Anant Tambe, respondent no. 7 herein, the suit property stood recorded in the name of respondent no. 7. By means of a consent decree passed in Suit No. 1230 of 1992 between respondent no. 7 and M/s. Hitesh Enterprises, respondent no. 8 herein, the latter became the owner of the suit property. 5. In the year 1999, Budhiya Vesta Patel filed a suit against respondent no. 7 and said R.K. Tiwari, the predecessor-in-title of Respondent nos. 1 to 6 herein, before the Bombay City Civil Court, Bombay being Suit No. 5163 of 1999 seeking a declaration that he is the owner of the suit property by adverse possession. Since said R.K. Tiwari also claimed title to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. On this, the appellants further allege that they were threatened with dire consequences by the aforesaid respondents. Consequently, the appellants got filed three complaints dated 01.05.2006, 17.05.2006 and 23.05.2006 with the police against respondent nos. 8 and 9. However, it is alleged that despite this, respondent no. 9 for himself and for and on behalf of the appellants as their Power of Attorney holder entered into consent terms with respondent nos. 7 and 8 in F.A. No. 1389 of 2003 and thereby submitted to the decree of eviction. The High Court, by its order dated 13.06.2006, allowed the aforesaid applications filed by respondent no. 9 and also disposed of the said appeals after taking on record the consent terms entered into between respondent nos. 7 and 8 on one hand and respondent no. 9 on the other. Subsequent to filing of the consent terms, the names of the tenants were deleted from the array of the parties. No appeal was, however, filed by any tenant. 11. The appellants filed, before the High Court, three civil applications being Civil Applications Nos. 3628 of 2006, 3629 of 2006 and 3630 of 2009 praying for recall of aforesaid order dated 13.06.2006 alleging that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the three complaints filed by the appellants with the police against harassment and threats given to them by respondent nos. 8 and 9. Dr. Dhawan pointed out before us that coercion and goon tactics, in addition to fraud, had been employed by respondent nos. 8 and 9 to force the appellants to sign the consent terms. 16. It was further submitted that the High Court erred in dismissing the applications filed by the appellants seeking recall of its earlier order. The High Court failed to see through the monstrous designs of respondent no. 9 even though ample material was placed on record and allegations of fraud were clearly made before the High Court. 17. On the other hand, Mr. Ashok H. Desai, Mr. Dushyant Dave and Mr. Jaydeep Gupta, learned senior counsel appearing for the respondent Nos. 7 and 8 as also respondent No. 9 strongly refuted the aforesaid submissions while bringing to the notice of the Court that, in fact, Budhiya Vesta Patel had himself entered into a Development Agreement dated 12.01.1994 with respondent no. 9 whereby the former transferred his rights, title and interest in the suit property to the latter for a consideration of ₹ 2,00,000/- which was ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such terms and conditions as to be or he may deem fit and proper without any further consultation or consent of the Owner in that behalf 4. The consideration payable by the developer to the Owner for his share right, title, interest has been fixed at ₹ 2,00,000/- (Rupees two lakhs only) and the said consideration has been paid by the Developer to the Owner on or before the execution of these presents (the receipt and payment whereof the Owner doth hereby admit and acknowledge and of and from the same do hereby forever discharge the Developer 21. Further, a Deed of Confirmation dated 15.12.1995 duly registered on the same date was executed between Budhiya Vesta Patel and respondent no. 9 by which Budhiya Vesta Patel confirmed that the aforesaid Development Agreement was subsisting, valid and in full force and would be binding on the heirs, executors, administrators and assigns of the parties to the said Development Agreement. This was followed by a Declaration dated 23.08.2001 by Budhiya Vesta Patel wherein he acknowledged the rights, title and interest of the respondent no. 9 over the suit property, the receipt of consideration of ₹ 2,00,000/- and extended the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in connection with the management and superintendence of my said lands for any purpose whatsoever necessary. 7. To compromise, compound and/or negotiate and settle any dispute or disputes and refer the same to Arbitration. 25. It is thus crystal clear that the appellants had not only confirmed and ratified the deeds and documents entered into between their predecessor-in-interest and respondent no. 9 but also constituted respondent no. 9 as their lawful attorney authorizing him, inter alia, to sign petitions, appear before the Courts and also to compromise or compound disputes. In fact, the appellants are estopped from questioning the acts done by respondent no. 9. 26. The learned counsel appearing for respondent No. 7 placed reliance on a decision of this Court in Jineshwardas (D) by LRs. And Ors. Vs. Jagrani (Smt.) and Another reported in (2003) 11 SCC 372 to argue that the party executing the Power of Attorney is bound by the acts of the Power of Attorney holder and that the Court could accept a compromise terms entered into by the Power of Attorney holder on behalf of the parties and that such a compromise would be a valid compromise. 27. We are of the considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Attorney holder. Counsel for the respondents referred to and relied upon the judgment of this Court in Byram Pestonji Gariwala Vs. Union Bank of India and Others (1992) 1 SCC 31 where it was held thus: 39. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of nonresident persons. It has always been universally understood that a party can always act by his duly authorised representative. If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client. Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated. 31. It is settled position of law that the burden to prove that a compromise arrived at under Order 23 Rule 3 of the Code of Civil Procedure was tainted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court in the case of Shankar Sitaram Sontakke v. Balkrishna Sitaram Sontakke reported in AIR 1954 SC 352 wherein this Court while dealing with the nature of a consent decree held in para 9 as under: 9. The obvious effect of this finding is that the plaintiff is barred by the principle of res judicata from reagitating the question in the present suit. It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of res judicata. 35. We may also refer to the decision of this Court in Loonkaran v. State Bank, Jaipur reported in (1969) 1 SCR 122 where interpreting Section 202 of the Indian Contract Act, this Court held thus: Section 202 of the Contract Act provides that where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such agent. It is settled law that where the agency is created for valuable consideration and authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the High Court at any time between 26.04.2006 and 13.06.2006. The appellants had considerable amount of time available with them. As noted earlier, with regard to the complaints filed, the appellants did not take any follow up action to bring them their logical end. 39. It is crystal clear that the appellants chose not to avail an opportunity which was available to them. In such circumstances, it will not be appropriate to say that the deeds and documents as well as the Powers of Attorney executed in favour of respondent no. 9 stood revoked merely by filing complaints with the police. We cannot lose sight of the fact that a registered document has a lot of sanctity attached to it and this sanctity cannot be allowed to be lost without following the proper procedure. 40. In any event, if we direct our attention to the contents of the Power of Attorney executed by the appellants in favour of said Narender M. Patel, we find that the stand taken by the appellants throughout that they had, by executing a Power of Attorney in favour of Narender M. Patel, revoked the Powers of Attorney executed in favour of respondent no. 9 to be baseless. In fact, a look at the terms of the Power ..... X X X X Extracts X X X X X X X X Extracts X X X X
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