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PETITIONER: GUPTA STEEL INDUSTRIES

       Vs.

RESPONDENT: M/S. JOLLY STEEL INDUSTRIESPVT. LTD. & ANR.

DATE OF JUDGMENT:       23/09/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                C. A. Nos . 13001-13005/-96 @               With/S.L.P.(C)No.18933-18937/96                          O R D E R      Leave granted      We have heard learned counsel on both sides.      These appeals  by special leave arise from the order of the Division Bench of the High Court of Bombay made July 18, 1996 in Civil Application Nos. 89/91 in FA No.1 & 2/90.      The admitted  position is that pursuant to a compromise entered into  between the  parties, pending the first appeal in the  High Court,  a compromise  decree came to be made by the  Division   Bench  on   12.4.1991.  Clause  (2)  of  the Compromise Decree reads as under;      "2,(a) The parties agree that Jolly      Steel  Industries   Pvt.  Ltd.  and      Jolly Torsteel  Pvt .  Ltd  .,  the      respondents herein and the Original      plainltiffs in  Suit No.446 of 1987      and   Suit    No.447    of    1987,      respectively, shall  between them s      deposit in the Trial Court a sum of      Rs,  15,00,000/-   (Rupees  Fifteen      Lakhs only)  in the aggregate on or      before  31st   May,  1991    and  a      further   sum   of   Rs.10,40,000/-      (Rupees   Ten   Lakhs   and   forty      thousand only)  on or  before  29th      June, 1991;      (b)  These  amounts   are   to   be      deposited in Suit No.446 of 1987 in      the  Court   of  Additional   Civil      Judge,  Senior  Division  Pune,  on      account  of  over  payment  by  the      Appellants (Original    Defendants)      as the  Defendants were  not liable      to   pay    and   the   Respondents      (Original  Plaintiffs)   were   not      entitled to receive the same.      (c)    The   Appellants   (Original      Defendants)  are   at  liberty   to

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    withdraw the aforesaid amounts."      Admittedly, Rs.12  lakhs was  deposited after expiry of the last  date, namely, June 29,1991 after one month. In the meanwhile,  the   respondents  filed   an  application   for extension of  time in the trial Court. That was dismissed on the ground  that it  had no  jurisdiction Consequently,  the application  the  come  to  be  filed  in  the  High  Court. Similarly under  clause 5(a)  the appellants  also agreed to hand over  possession of the disputed land and the machinery to the  receiver on  or before  31st March, 1992. In view of the default committed by the respondent, the appellants come to file an application, on the basis of which the High Court passed an  order to  maintain the  status quo  on March  27, 1992. The  appellants have  taken out  contempt  proceedings against the  respondents in  which another Division Bench of the High Court passed an order on July 18, 1996 stating that the respondents  have prevented  the appellants  from taking possession due  to the  factory having  been locked  by  the respondent. Nonetheless, no action was taken on the contempt petition. In  the impugned  order, the Division Bench passed an order  accepting the  delayed payment  by the respondents and directed  the appellants  to pay  damages  for  use  and occupation as  may be  determined by  the civil Court. Thus, these appeals by special leave.      As principle  of law,  the  High  Court  was  obviously incorrect in  interfering with  and  modifying  the  consent decree unless  parties agree  for the  same.  Though  it  is contended by  Shri Bhimrao  Naik, learned senior counsel for the appellants,  that the  High Court has no power after the expiry of  the period  to extend the time for the compliance on the  facts and  circumstances, we  do not  think that  we would be  justified to  interfere With  this order  at  this distance of  time. However, as regards the direction to make payment of compensation, we do not think that it would be appropriate at  this stage to give any finding; however, the trial Court  is directed  to conduct  an enquiry whether the appellant was  prevented by  the acts  of the respondents to remain in  possession and work out the factory. In the event of  the  finding  being  recorded  that  the  appellant  was prevented by  the acts of the respondent for working out the factory, the  appellant will  not be  liable to  pay damages whatsoever.   On the  other hand,  if it  is found  that the appellant had  worked out  the factory  in view  of the fact that the  High Court had granted the order of status quo, we think that they are liable to Pay @ Rs,2,500/-P.m.      It is  stated by  Mr. Soil  J. Sorabjee, learned senior counsel for  the respondents,  that  Rs.12,00,000/-  (Rupees Twelve lakhs  only) deposited  by the respondents before the expiry of the period six month by way Of a demand draft, has been encashed  by the  appellant. The appellants are denying the same.  The trial Court is directed to verify whether the amount was  subsisting till  the date of the order passed by the High  Court and  whether the  amount stands deposited in any interest earning security, within a period of six months from the  date of  receipt of-this order. Tn case the amount was deposited  to the credit of the suit and it had not been invested in  interest earning  security then the respondents are directed to pay interest at the commercial rate from the date of  the deposit  till date  of the judgment of the High Court. In case the appellant was found to have withdrawn it, the need to pay interest does not arise.      Mr. Bhimrao  Naik further  requestes that the amount of Rs.20,00,000/- (Rupees  twenty lakhs  only) standing  to the credit of  the suit,  may be directed to be withdrawn by the appellant. We  are not inclined to give any direction. After

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the enquiry  into mesne   profits  is conducted by the trial Count and  if there  is any  amount due to either party, the same may worked out accordingly by of adjustment.      The appeals are accordingly disposed of, costs.