Deepak Sehgal vs Kiran Sethi & Ors.
2012 Latest Caselaw 4245 Del

*                 THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM (M) 340/2011

                                           Date of Decision:18.07.2012

DEEPAK SEHGAL                                         ...... Petitioner
                          Through:    Petitioner  in    person   with
                                      Mr.Brijesh Oberoi, Ms. Lakshana
                                      Oberoi, Advs.

                                 Versus

KIRAN SETHI & ORS.                                  ...... Respondents
                          Through:    Counsel for the respondent.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition assails the order dated 27.11.2010 of ADJ whereby the application under Section 152 CPC filed by the petitioner herein was dismissed.

2. The petitioner herein is the plaintiff in Suit No. 65/2010 which was pending before the ADJ and wherein the impugned order came to be passed. The suit was under Order 37 CPC for recovery of Rs. 9,94,000/- against the respondents. In addition to the said suit, there were as many as three complaints filed by the petitioner against the respondents under Section 138, N.I.Act which were also pending in the courts of Metropolitan Magistrates. During the pendency of all these cases, the parties arrived at a settlement on 3.12.2008 at Tis Hazari

District Courts Mediation Centre. In the said settlement, a total of Rs.22 lakhs was agreed to be paid by the respondents in full and final towards the aforesaid three complaints and the civil suit under Order 37. These payments were to be made in installments starting from 15.11.2008 to 15.4.2010 as per the details given in the 'Annexure-A' forming part of the settlement agreement of 3.12.2008. As per the settlement, the delay beyond two days was to entitle the petitioner to charge interest @ 2 % per month from the respondents on the balance amount from the date of default till the date of payment. Further, as per the settlement, the consent decree was to be drawn in the civil suit under Order 37 whereas, the petitioner was to withdraw the three complaints under Section 138, N.I.Act after the payment of the entire amount by 15.4.2010.

3. In pursuance to the said settlement, the petitioner, who was the plaintiff in the aforesaid suit No. 210/2008 made a statement in the court stating that he has compromised the matter with the defendants/respondents in the mediation centre. Based on this, he withdrew the suit. It is admitted case that thereafter, Rs. 4,35,000/- was paid by respondent Kiran Sethi to the petitioner. Since the balance of the amount was not paid by the respondents, the petitioner filed an application under Section 152 CPC for recalling of the order of 17.1.2009 whereby the aforesaid suit was dismissed as withdrawn. This application was dismissed by the ADJ observing that the suit was withdrawn on the statement of the plaintiff/petitioner and his counsel and not because of any accidental slip or omission as was averred in the application. It is however, seen that in the statement of the petitioner and

of the counsel of the defendants which were recorded on 17.1.2009, the suit was withdrawn on account of the settlement that was arrived at in the mediation centre. Though, the mention of accidental slip or omission in applications was not correct, but the fact remains that the suit came to be withdrawn on account of the settlement that was arrived at between the parties in the mediation centre.

4. The said order has been assailed alleging that the respondents have not complied with their part of terms of the settlement. So the petitioner's suit under Order 37 needs to be revived.

5. I have heard learned counsel for the petitioner as also the respondent Kiran Sethi in person and her counsel.

6. The by respondent Kiran Sethi and her counsel submit that the liability to pay Rs. 22 lakhs was joint of all the respondents and she is prepared to pay her part of share of liability which is about Rs. 7,33,000/- and out of which, she has already paid Rs. 4,35,000/- lakhs. She further states that she is prepared to pay her liability of Rs. 3 lakhs in installments, being a widow. The same is not agreeable to the petitioner who maintains that the settlement was arrived on 03.12.2008 and consequently a consent decree was to be passed, but, based on their representations and good faith, he had withdrawn the aforesaid suit under Order 37 CPC.

7. In view of the fact that in the settlement recorded by the Mediator, it was not specifically mentioned as to the proportionate liability of the respondents, the liability of all the respondents would remain joint and several. Since the respondents have failed to honour their part of settlement for about three and a half years now, the settlement has virtually failed. The withdrawal of the suit was unwarranted and the same needs to be revived. Consequently, the petition is allowed. The impugned order dated 27.11.2010 is set aside and the suit under Order 37 CPC of the plaintiff/petitioner stands revived. Since the aforesaid suit (Suit No. 210/2008) has delayed for considerable time on account of inaction on the part of the respondents, the Trial Court is directed to expedite the case.

8. With the above direction, the petition stands disposed of.

M.L. MEHTA, J.

JULY 18, 2012 akb