Delhi High Court
Naresh Chand Jain & Anr vs Km Tayal on 23 February, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 23.02.2012
+ CM(M) 1405/2009 & CM No. 17389/2009
NARESH CHAND JAIN & ANR ..... Petitioners
Through Ms. Shalini Kapoor, Adv.
versus
KM TAYAL ..... Respondent
Through None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 Order impugned before this Court is the order dated 07.11.2009
which has dismissed the review petition filed by the defendant seeking a
review of the order dated 29.08.2008. Vide order dated 29.08.2008 on
the application filed by the petitioner seeking a reconsideration of the
mediation settlement arrived at between the parties, the Court had
allowed the prayer and had noted that parties again be referred for
mediation and the parties had been directed to go back for mediation for
04.09.2008; relevant would it be to state that on 04.09.2008, the Court
was of the view that no clarification is required of the mediation
proceedings and since after the date of mediation, written statement has
also been filed, the Court shall proceed to deal with the case on its
merits. The impugned order had in fact noted that the mediation talks
have failed between the parties.
2 This is the grievance of the present petitioner. Respondent is also
present in person. Record shows that on 07.06.2008, a mediation
settlement had been arrived at between the parties; the attorney of the
plaintiff Krishan Mohan Tyal had signed this settlement; there is no
dispute to this factum; defendant No. 1 had also signed this settlement;
their respective counsel were also signatories to this settlement. In view
of this aforenoted settlement which was arrived at before the Mediator
Mr. Sudhir Kumar Jain, the parties in terms of para 2 of the settlement
had agreed to withdraw certain cases and to get other compounded;
details of the aforenoted cases have been noted in this settlement
effected on 07.06.2008. As a part of the aforenoted settlement, it had
also been agreed that defendant No. 1 shall pay a total sum of `15 lacs
to Krishan Mohan Tyal in full and final settlement of all their disputes.
Admittedly this mediation settlement arrived at before the Mediation
Mr. Sudhir Kumar Jain, was signed by the attorney of the plaintiff and
defendant No. 1, as also by their counsel. The matter had been referred
back to the referral Court on 02.07.2008; matter was taken up on
11.08.2008 where counsel for both the parties were present; the Court
had recorded a specific finding that the settlement between the parties
has been effected; matter was posted for 25.08.2008. On 29.08.2008, an
application had been filed by the plaintiff seeking reconsideration of the
mediation proceedings; contention was that the clarifications were
required; on 29.08.2008, the Court was of the view that the matter again
be referred to mediation but on 04.09.2008 (as noted supra) the Judge
In-charge of the Mediation Cell was of the view that there would be no
useful purpose in sending the matter again for mediation and the matter
again be remanded back to the trial Court for disposal on its merit.
3 Learned counsel for the petitioner submits that the very purpose
of provision of Section 89 of the Code of Civil Procedure (hereinafter
referred to as the 'Code') would be frustrated if settlements arrived at
between the parties are allowed to be given a go-bye and the parties are
allowed to wriggle out of a settlement which has admittedly been
arrived at in their presence and duly signed by both the parties. To
support this submission, reliance has been placed upon the judgment
passed in CS(OS) No. 656/2003 Smt. Surinder Kaur & Others Vs. Sh.
Pritam Singh & Others delivered on 20.12.2005; submission being that
this settlement was in fact binding upon the parties and neither of the
parties could wriggle out of it.
4 Section 89 was introduced into the Code by the amendment of
2002; the legislative intent was to encourage settlement of disputes
through the mechanism of Alternate Dispute Resolution (ADR); Section
89 (2) provides that where the dispute has been referred for mediation,
the Court shall effect a compromise between the parties and shall follow
such procedure as may be prescribed. Rules 24 & 25 of the Mediation
and Conciliation Rules, 2004 also stipulates the manner in which the
settlement has to be recorded and after the settlement has been recorded
i.e. on the receipt of settlement, the Court, if satisfied that the parties
have settled their disputes, shall pass a decree in accordance thereof. In
this case there is not dispute that on 07.06.2008, a settlement had been
arrived between the parties i.e. between the attorney of the plaintiff and
defendant No. 1; they had signed the settlement; it is not the contention
of the respondent before this Court that this settlement was obtained
from him under some kind of pressure or coercion or that he was not a
party or a signatory to this settlement. In fact this settlement arrived at
between the parties had been duly signed by the parties; on 07.06.2008
the matter had been referred by the referral Court; the matter had again
taken up for hearing on 11.08.2008. Even on 11.08.2008, the parties had
been represented through their respective counsel and the Court had
recorded a positive fact finding that the parties had settled their disputes.
5 In fact a Bench of this Court in Sh. Abdul Saliq Khan Vs. Shri
Nahid Khan & Others delivered on 25.02.2011 in RSA No. 30/2011
while dealing with the Mediation and Conciliation Rules, 2004 in this
context had noted as under:-
"A cojoint reading of Rule 24 (b) and 25 (a) shows that where an agreement
has been reached between the parties with regard to all the issues in the suit or
proceeding of some of the issues, the same shall be reduced to writing and signed by
the parties or their constituted attorney; the agreement so signed shall be submitted
to the Mediator/Conciliation who shall, with a covering letter signed by him,
forward the same to the Court in which the suit or proceeding is pending. There is
then a mandate upon the court to pass a decree after the afore-noted settlement has
been arrived at."
6 In the instant case as well, the parties having arrived at settlement
duly signed by them which settlement was again reiterated on a
subsequent date, by both the parties as also through their counsel and
there being no dispute about this settlement right up to 29.08.2008 there
was a mandate upon the Court to pass a decree on the aforenoted
settlement arrived at between the parties.
7 The whole purpose and import of Section 89 of the Code would
become frustrated if such like settlements arrived at by the will and
consent of the parties are thereafter permitted to be withdrawn;
moreover it was also not the contention of the petitioner before the
Court below that this settlement was not arrived at between the parties;
he had only sought a clarification on which application, the impugned
order had relegated the parties to a regular trial. The parties are clearly
bound by their settlement arrived at between them on 07.06.2008.
8 Decree is passed in terms of the aforenoted compromise. Petition
is allowed and disposed of in the above terms.
INDERMEET KAUR, J
FEBRUARY 23, 2012
A
