NARESH CHAND JAIN Vs. KM TAYAL

JUDGEMENT

(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. 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 Rs. 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.

(2.) 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.

(3.) 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:-