Delhi High Court
Rajender Kumar vs Devender on 25 May, 2023
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 25.05.2023
+ CM(M) 1159/2018 & CM APPL. 39101/2018
RAJENDER KUMAR ..... Petitioner
versus
DEVENDER ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. C.M. Grover and Ms. Payal
Budhiraja, Advocates alongwith
petitioner
For the Respondent : None
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J. (ORAL)
[ The proceeding has been conducted through Hybrid mode ]
1. Despite number of efforts, the respondent has not appeared.
2. Learned counsel for the petitioner submits that despite the fact
that a Whatsapp message was sent to the learned counsel for respondent
and also personal information given to the respondent too, there is no
appearance either of the counsel or of the respondent.
3. In such peculiar circumstances, this Court is constrained to
proceed with the disposal of the petition. The same was also directed
Signature Not Verified
Digitally Signed
Signing Date:31.05.2023
16:45:21
vide para no.5 (wrongly entered as para no.4) in the order dated
30.01.2023.
4. The case of the petitioner is that after having filed the suit, by
virtue of the order dated 25.10.2017, the parties were referred to the
Mediation for the purposes of settlement, if any, of the dispute between
the parties.
5. It appears that with efforts of the Mediation Centre at
Karkardooma Court, a settlement agreement was reached between the
parties on 25.11.2017 which was reduced into writing. The said
settlement agreement appears at page no. 36 of the present petition. For
the purpose of convenience, the settlement agreement duly signed and
executed by the parties is extracted hereunder:-
25.11.2017
Present: Plaintiff Sh. Rajender Kumar in person
with his friend Sh. Sikandar & counsel-
Sh. Satish Verma.
Defendant Sh. Devender in person with
his son Sh. Gaurav.
The present suit has been filed by the plaintiff for
recovery of an amount of Rs. 10,00,000/- from the
defendant and same has been received for mediation from
the court of Sh. A.S. Jayanchandra, Ld. District & Sessions
Judge (Shahdara), Karkardooma Courts, Delhi.
Mediation process explained to the parties. Single &
joint session held with the parties. Now, the parties have
amicably and voluntarily settled all their disputes on the
following terms and conditions:-
1. It is agreed between the parties that defendant Sh.
Devender shall pay Rs. 10,00,000/- (Rs. Ten Lakh only) to
plaintiff Sh. Rajender Kumar towards full and fmal
Signature Not Verified
Digitally Signed
Signing Date:31.05.2023
16:45:21
settlement of all claims of the plaintiff arising out of the
present suit.
2. It is agreed between the parties that the payment of
the settled amount shall be made by the defendant to the
plaintiff by way of cash/DD/cheque in the court concerned
by 30.3.2018.
3. It is agreed between the parties that on receipt of the
settled amount, as agreed herein above, the plaintiff shall
withdraw the present suit from the court concerned.
4. It is agreed between the parties that thereafter
plaintiff shall not be left with any claim whatsoever against
the defendant qua the present subject matter &shall not
raise any such in future.
5. It is agreed between the parties that the settlement
has been arrived at between the parties out of their own
freewill, without any pressure or coercion, without any
threat from any comer & on taking legal advice.
6. It is agreed betwee the parties that the the contents
of the settlement have been read over to the parties in
vernacular & they are signing the same after fully
understanding the same.
7. It is agreed between the parties that they shall be
bound by the settlement.
RO&AC
-sd/- -sd/-
(Rajender Kumar) (Devender)
Plaintiff Defendant
-sd/- -sd/-
(Sikandar) (Gaurav)
Friend Son
Signature Not Verified
Digitally Signed
Signing Date:31.05.2023
16:45:21
-sd/-
(Satish Verma)
Counsel
-sd/-
(Kiran Bhardwaj)
Mediator/25.11.2017
The said agreement has been arrived between the
parties voluntarily in the mediation.
The plaintiff shall be entitled to refund of court fees
as per section 16 of Court Fees Act.
Copy of the settlement be handed over to the parties
free of cost. The settlement be sent to the court concerned.
Parties to appear before the court concerned on
15.12.2017, the date already fixed.
-sd/-
(Kiran Bhardwaj)
Mediator/25.11.2017
6. From a perusal of the agreement, it is clear that the parties have
arrived at a settlement which was recorded in writing and the parties, in
acknowledgment thereto, have appended their signatures. The said
signatures have been countersigned by the Mediator.
7. By the order dated 02.05.2018, the learned Trial Court had
recorded that statement of both the parties who had also signed the said
ordersheet containing their solemn statements.
8. On 17.04.2018, for some unknown reason, the
respondent/defendant had resiled/retracted from the terms of the
settlement which was recorded in the order dated 17.04.20218 of the
learned Trial Court.
9. Subsequently, vide order dated 04.05.2018, the learned Trial
Court, on further deliberation, deemed fit to direct the parties to appear
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Digitally Signed
Signing Date:31.05.2023
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before the Mediation Centre for further deliberations.
10. Mr. C.M. Grover, learned counsel appearing for the petitioner
submits that once the parties have entered into a voluntary agreement
before the Mediation Centre and which has been reduced into writing
and the statements whereto have also been recorded by the learned Trial
Court affirming the settlement agreement, none of the parties could have
neither resiled or retracted from their solemn affirmation made before
the Court nor the terms of the settlement agreement.
11. Learned counsel for the petitioner, brings to the attention of this
Court, the provisions of Section 89 of CPC, 1908 as also relies upon the
judgment of the Coordinate Bench of this Court in Khalik Ahmed vs.
Mohd. Naved Ansari, CM(M) No. 291/2011 delivered on 30.07.2012
and Naresh Chand Jain & Anr. vs. K.M. Tayal, rendered on
23.12.2012 reported in ILR 2012 (III) Del 133 to submit that this Court,
on the basis of the provisions of Section 89 of CPC, 1908 have declared
that no party to the settlement agreement can be permitted to frustrate
the terms of the agreement, specifically, once having signed them
voluntarily and also supported by the statement made before the Court.
12. The sound and cogent reasons as to why a party has resiled from
his/her own statement, is a sine qua non for any such retraction to stand
the scrutiny of law.
13. Since the judgment of the learned Coordinate Bench of this Court
was not before the learned Trial Court, this Court deems it fit to direct
the learned Trial Court to take up the said issue raised in the present
petition with all earnest and decide the same, keeping in view the
aforesaid observations and including the judgments passed by the
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Digitally Signed
Signing Date:31.05.2023
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Coordinate Bench of this Court.
14. It has been informed that the suit is now pending disposal before
the learned Trial Court on 17.07.2023.
15. The learned Trial Court is directed to take up the aforesaid issue
on 17.07.2023 or soon thereafter and dispose of the same in accordance
with law keeping in view the aforesaid judgments.
16. The petition is disposed of with no order as to costs. Pending
application also stands disposed of.
TUSHAR RAO GEDELA, J.
MAY 25, 2023
Aj
Signature Not Verified
Digitally Signed
Signing Date:31.05.2023
16:45:21
