M/S Onkar Investments Pvt. Ltd. vs Sh. J.P. Rawat
2009 Latest Caselaw 5108 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CM No.1439/2009

%                                          Date of decision:9th December, 2009

M/s Onkar Investments Pvt. Ltd.                                     ....Petitioner

                              Through: Mr. Randhir Jain, Advocate.

                                         Versus
Sh. J.P. Rawat                                                      ... Respondents

                              Through: None.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.  Whether reporters of Local papers may
    be allowed to see the judgment?       No

2.     To be referred to the reporter or not?                No

3.     Whether the judgment should be reported               No
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner instituted a suit under Order 37 of the CPC against the

respondent/defendant for recovery of Rs.2,45,804. It is the case of the petitioner,

that summons for judgment were issued to the respondent/defendant; leave to

defend application was filed by the respondent/defendant before the trial court; that

during the hearing of the said application for leave to defend the parties were

referred to the Lok Adalat; that a joint statement of compromise was filed by the

parties before the Mega Lok Adalat; that as per the said compromise the

respondent/defendant agreed to pay Rs.1,40,782/- to the petitioner/plaintiff together with interest at 18% per annum on reducing balance and in 16 monthly

insalments details whereof were given in annexure "A" to the said joint statement;

16 post dated cheques were handed over by the respondent/defendant to the

petitioner/plaintiff.

2. The aforesaid joint statement of compromise, in the prayer paragraph

thereof requested that the decree in terms of the compromise be passed. It appears

that the statement of the authorized representative of the petitioner/plaintiff was

also recorded before the Lok Adalat on 8th November, 2008 where the joint

statement of compromise was exhibited as exhibit C-1 and it was furher recorded

that the petitioner/plaintiff did not wish to pursue the case any more and the same

may be disposed of as such. The Judge, Lok Adalat vide order of 8th November,

2008 recorded that the matter had been compromised and ordered that nothing

survived in the case and the same was dismissed as compromised.

3. It is the case of the petitioner/plaintiff that the post dated cheques given by

the respondent/defendant in terms of the compromise were dishonoured. The

petitioner/plaintiff states that it approached the Civil Judge before whom the suit

was pending but the Civil Judge refused to entertain any application of the

petitioner/[plaintiff on the ground that no decree had been passed in the suit and

hence the petitioner/plaintiff could not approach the court. I must, however, record

that there is nothing filed by the petitioner/plaintiff to show that the Civil Court

was approached. The counsel for the petitioner/plaintiff however states that since the Civil Judge before whom the suit was filed refused to entertain the application,

no order came to be made thereon.

4. The contention of the counsel for the petitioner/plaintiff is that owing to the

procedure adopted, the petitioner/plaintiff inspite of having instituted the suit has

been left with no remedy whatsoever.

5. There is merit in the contention of the counsel for the petitioner. Ordinarily

on reference of the suit to Lok Adalat, the same ought to come back before the

court for disposal in terms of the settlement arrived at before the Lok Adalat, even

though this court has held that the compromise signed on reference to mediation

has the same trapping as an application under Order 23 Rule 3 of the CPC and no

separate application is required to be filed before the court. From the documents

filed by the petitioner/plaintiff before this court it does not appear that the suit,

after settlement/compromise before the Lok Adalat came back to the court from

which it was referred to Lok Adalat. In fact, the judge, Lok Adalat has vide order

dated 8th November, 2008 consigned the suit file to record room. Even if the said

procedure is to be accepted, the fact remains that the suit as per the joint statement

of compromise was to be decreed as compromised and was not to be dismissed.

Though, in the statement of authorized representative of the petitioner/plaintiff

recorded before the Lok Adalat it was stated that the petitioner/plaintiff did not

wish to pursue the case but it cannot be lost sight of that the said statement was

made without the assistance of the advocate and the essence of the statement was

the compromise. The Judge, Lok Adalat did not consider that it was not the case of a compromise where nothing further remained to be done by the parties. The

compromise arrived at was of payments to be made by the respondent/defendant to

the petitioner/plaintiff extending beyond the date of the compromise. The suit

ought not to have been disposed of in a manner leaving the petitioner/plaintiff with

no remedy in the event of the respondent/defendant not abiding by the

compromise.

6. Need has not been felt in the aforesaid facts and circumstances to issue

notice of this petition to the respondent/defendant or to hear the

respondent/defendant before disposing of this petition, inasmuch as the error in the

proceedings before the trial court sought to be corrected by this petition is of the

court /judge Lok Adalat and not at the instance of the respondent/defendant.

Neither the petitioner/plaintiff nor the respondent/defendant had any say in the

procedure followed by the court below and as such upon the error in the procedure

being brought to the attention of this court, this court is entitled to correct the same

without issuing notice to the respondent/defendant.

7. The petition therefore succeeds. The petitioner/plaintiff is directed to

approach the trial court where the suit was pending with appropriate application for

drawing up a decree in terms of the compromise arrived at before the Lok Adalat.

The trial court, if satisfied on the basis of the documents received from the Lok

Adalat that the suit has been compromised, will proceed to draw up a decree. The

trial court shall be entitled to, if so deem appropriate, to, before drawing up the

decree, issue notice to the respondent/defendant. Upon the decree being drawn up, the petitioner shall be entitled to take further steps for failure, if any, of the

respondent/defendant to abide by the compromise as the petitioner/plaintiff may be

entitled to in law.

8. With the aforesaid directions, this petition is disposed of.

CM.No. 17875/2009 (u/S 151 CPC for exemption) Allowed subject to just exceptions.

RAJIV SAHAI ENDLAW (JUDGE)

December 09 , 2009 M