Sunday, 20 January 2019

Whether a party will forfeit right to prosecute suit or defence if he fails to pay costs imposed upon him?

A conspectus of the above provisions clearly demonstrates that under the scheme of CPC, a suit cannot be dismissed for non-payment of costs. Non-payment of costs results in forfeiture of the right to further prosecute the suit or defence as the case may be. Award of costs, is an alternative available to the court, instead of dispensing with the cross- examination and closing the evidence of the witness. If the costs levied for seeking an adjournment to cross-examine a witness are not paid, the appropriate course is to close the cross-examination of the witness and prohibit the further prosecution of the suit or the defence, as the case may be by the defaulting party.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7554-7555 of 2009 

Decided On: 13.11.2009

Manohar Singh Vs.  D.S. Sharma and Ors.

Hon'ble Judges/Coram:
R.V. Raveendran and G.S. Singhvi, JJ.

Citation: 2010(2) MHLJ 515
Print Page

Sunday, 13 January 2019

When court should strike off mediation report?

Going by Rule 23 of the Rules, a mediator is not entitled to communicate to the court except in respect of the matters mentioned in the Rule. Sub clauses (i) and (ii) of Clause (a) of Rule 23 do not cause any difficulty for interpretation. What is the meaning of the words "getting advice on procedural matters with the consent of the parties" occurring in Sub clause (iii) of Clause (a) of Rule 23 is the question which arises for decision. Sri Joby Jacob Pulickekudy, the learned counsel appearing for the fourth respondent, submitted that the mediator has only sought the advice on procedural matters and therefore, the mediation report is legal and proper. A mediator can get advice on procedural matters only with the consent of parties. If the parties do not give consent, the mediator has no right to get advice on procedural matters. In the present case, the petitioner was not present at all before the mediator. She expressed her view that she was not participating in the mediation. The mediator, therefore, could communicate to the court only in the manner provided under sub-clause (i) of Clause (a) of Rule 23 and submit a failure report. In the absence of parties, the mediator had no jurisdiction to seek the advice on procedural matters. One of the parties having expressed her reluctance to appear before the mediator, the mediator was not justified in arriving at "findings and conclusions" and thereafter seeking directions from the court. Even the directions sought for are not on procedural matters or to enable the mediator to carry on the mediation proceedings in a particular manner, but the directions are sought to be issued to the parties. The mediator was not justified in undertaking a video conferencing with some of the parties in the absence of commencement of mediation in accordance with law. No mediation at all took place. On the refusal of a party to appear before the mediator, there was no justification for the mediator to undertake an expedition with respect to the disputes between the parties. Conducting a video conferencing, in the absence of one of the parties, was also quite illegal. Smt. Rekha Vasudevan, the learned counsel appearing for the 5th respondent, submitted that the prayer made by the petitioner is not maintainable in view of Rule 22 of the Rules. Rule 22 provides that no mediator shall be held liable for anything bona fide done or omitted to be done by him during the mediation proceedings. The prayer made in the application is not to take any action against the mediator. No action is sought to be taken against the mediator. Immunity contemplated under Rule 22 does not take away the power of the court to say that the mediation report is not liable to be accepted or to strike off the mediation report or to hold that the mediator acted without jurisdiction. The very appointment of mediator by the court carries with it the power to cancel it also. If the mediator has misconducted himself or if the mediation report is otherwise illegal being contrary to the Rules, the court in which the proceedings are pending would have jurisdiction to pass appropriate orders with regard to the acceptability or otherwise of the mediation report. Immunity under Rule 22 does not deter the court from doing so.

We are satisfied that the mediator travelled beyond his powers and the mediation report is liable to be struck off, except to the extent of communication that the mediation failed. 

IN THE HIGH COURT OF KERALA

W.P. (Crl.) No. 278 of 2012

Decided On: 06.07.2012

 Prabhavathy, K. Vs. Director General of Police and Others

Hon'ble Judges/Coram:
Mr. Justice K.T. Sankaran and Mr. Justice M.L. Joseph Francis

Citation: ILR 2012(3) Kerala 922
Print Page

Whether a party can back out from mediation settlement after pocketing money under said settlement?

In this case, disputes involved in the suit had been referred to the Delhi High Court Mediation & Conciliation Centre vide order dated 5th May, 2011 within the meaning of Section 89(1)(d) and the settlement has been arrived at before the learned Mediator after comprehensive mediation sessions held as many as on eight occasions in the presence of the counsel for the parties and thereafter, parties had reached an amicable settlement, which has been reduced in writing by the learned Mediator and has been duly signed by not only the parties but their counsels as well on 5th August, 2011. Thereafter, Mediator has sent the 'Settlement Agreement' to the court. No such objection was raised either by Defendant No. 1 or her counsel immediately after the settlement was drawn and signed by the parties on 5th August, 2011. It is only when the matter has been taken up by the Court after about fifteen days the new counsel for Defendant No. 1 has tried to assail the settlement on flimsy grounds, even though Settlement Agreement had been acted upon, inasmuch as, Defendant No. 1 had accepted two post dated cheques bearing Nos. 520237 and 520238 from Defendant No. 2; Defendant No. 2 has also paid pay order for `15 lakhs to the Plaintiff in Court on 30th August, 2011.

12. In my view, if such pleas are sustained the very sanctity and purpose of an amicable settlement through the process of mediation, would stand totally eroded. In Double Dot Finance Limited v. Goyal MG Gases Ltd. 2005 (2) AD Del 534 though that case arose out of the arbitration proceedings, a Single Judge of this Court has observed as under:

If such pleas are sustained, the sanctity and purpose of 'amicable settlements' between the parties would stand totally eroded. Amicable resolution of disputes and negotiated settlements is 'public policy in India'. Section 89 of the Code of Civil Procedure, Arbitration and Conciliation Act, 1996 as well as Legal Services Authorities Act, 1995 call upon the Courts to encourage settlements of legal disputes through negotiations between the parties. If amicable settlements are discarded and rejected on flimsy pleas, the parties would be wary of entering into negotiated settlements and making payments thereunder as a shrewed party after entering into a negotiated settlement, may pocket the amount received under it and thereafter challenge the settlement and reagitate the dispute causing immeasurable loss and harassment to the party making payment thereunder. This tendency has to be checked and such litigants discouraged by the Courts. It would be in consonance with public policy of India.

IN THE HIGH COURT OF DELHI

CS (OS) No. 2248/2010

Decided On: 01.09.2011

 Naveen Kumar Vs.  Khilya Devi and Ors.

Hon'ble Judges/Coram:
A.K. Pathak, J.

Print Page

Whether court can extend time to deposit consideration in execution of award of Lok adalat?

In our opinion, the award of the Lok Adalat is fictionally deemed to be decrees of Court and therefore the courts have all the powers in relation thereto as it has in relation to a decree passed by itself. This, in our opinion, includes the powers to extend time in appropriate cases. In our opinion, the award passed by the Lok Adalat is the decision of the court itself though arrived at by the simpler method of conciliation instead of the process of arguments in court. The effect is the same.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4677 of 2005

Decided On: 04.08.2005

P.T. Thomas Vs. Thomas Job

Hon'ble Judges/Coram:
Ruma Pal and AR. Lakshmanan, JJ.
Citation:(2005)6 SCC478
Print Page