Conclusion :-
15. The Mediation Act, 2023 does not provide for any mandatory
mediation nor does it confer any power on the court to order
mediation without consent of all parties. The procedure prescribed
under the Act is for a mediation agreement to be executed in writing to submit to mediation. Thus, the mediation contemplated by the Mediation Act is not compulsory but a consensual mediation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 5241 OF 2025
IN
SUIT NO. 250 OF 2023
Babasaheb Neelkanth Kalyani Vs Sugandha Hiremath
CORAM : RAJESH S. PATIL, J.
PRONOUNCED ON : 04 May, 2026
Citation: 2026:BHC-OS:11441
are closely related should be referred to mediation, when one of them
is not willing to go for mediation.”
1. The present Suit is filed for specific performance of a family
arrangement of 1994. Plaintiff No. 1 is the sister of Defendant Nos.
1 and 5. In the Suit, an Interim Application has been preferred by
Defendant No. 1 under the provisions of Order VII, Rule 11 of the Code
of Civil Procedure, 1908 (for short “CPC”). Plaintiffs have filed their
reply to the said Interim Application. Defendant No. 1 further filed his
Affidavit in re-joinder. Hence, the pleadings in the Interim Application are complete.
2. On 27 March, 2026, when the Interim Application was listed for
hearing, after the Counsel for Defendant No. 1 initially narrated the
facts, this Court suggested the parties to consider the option of
mediation as the parties are closely related to each other. On the said
suggestion, Dr. Tulzapurkar, learned Senior Counsel for Defendant
No. 1 submitted that, he will take instructions from his client on the
suggestion which has fallen from the Court. Hence, the matter was
adjourned to 15 April, 2026.
3. When the matter was called out on 15 April, 2026,
Mr. Dwarkadas, Ld. Sr. Counsel appeared for the Plaintiffs and made
his submissions on the issue of dispute between the parties to be
referred to mediation as Dr. Tulzapurkar was not available.
Mr. Dwarkadas submitted that he would talk to Dr. Tulzapurkar on the
issue about the parties opting for mediation. Hence, the matter was
adjourned to 16 April, 2026.
4. On the next day, when the matter was called out, after hearing
the parties following Order was passed :-
“1. Heard Mr. Dwarkadas, learned Senior Counsel for some time.
By consent, stand over to 28.04.2026. The matter to come up under
the caption “For Directions”.
2. Post lunch, Mr. Purohit, learned Senior Counsel for
Defendant No. 1 orally submitted that a news item is published
online, which supports the concern raised by him in the morning
session. He tendered a photocopy of the news item. He submitted
that it is the Plaintiff who only can publish this news. On
instructions, he submits that he would like to go on with the matter
on merits. He further submits that if the Plaintiffs genuinely want to
give an offer for settlement, they can do so and his client will
immediately respond to the same.
3. Mr. Janak Dwarkadas, learned Senior Counsel for the
Plaintiffs that the news item which has been tendered by Defendant
No. 1 is not published by his client and they have no role in the
publishing the same. If Defendant No. 1 is not interested to settle
the dispute amicably, he will proceed with his arguments on the next
date of hearing.
4. Let this matter to come up on board on 28.04.2026 at 1.00
p. m., in the meanwhile, parties are free, without prejudice to their
rights and contentions to exchange their settlement proposal.”
[Emphasis Supplied]
5. Thus, the parties were at liberty without prejudice, to exchange
their settlement proposals. Dr. Tulzapurkar, Ld. Sr. Counsel for
Defendant No.1, submitted that on the previous hearing i. e. 16 April,
2026, the Plaintiffs were directed to give their offer without prejudice
to the rights and contentions of both the parties. However, there was
no offer given and only a communication in the form of an email was
sent by the Plaintiffs on 28 April, 2026 around 12.00 noon. He
submitted that it is not Defendant No. 1, who has come to Court, but it
is the Plaintiff who has instituted the present Suit, against Defendant
No.1, who has to defend himself in this Hon’ble Court. Similarly,
though the Plaintiffs mention about amicably settling the matter,
however, before the District Court, Pune, after 16 April, 2026, the
Plaintiffs have proceeded with the hearing. He submitted that if the
Plaintiffs were genuinely desirous for settlement of this matter, they
would not have proceeded with the hearing before the District Court,
Pune. In any case, they would not have filed the present Suit before
this Court, and the occasion would not have arisen for Defendant
No. 1 to file an Interim Application under Order VII, Rule 11 of the
CPC. The Plaintiffs are now speaking of settlement; however, if they
were genuinely desirous of settlement, after 16 April, 2026, they could
have in a sealed packet without prejudice to the rights and contentions
of both the parties given their offer for settlement to Defendant No.1.
What has been tendered to the Defendant No.1 yesterday, is merely a
three lines letter referring to the properties in the present proceeding
and apart from that, no settlement proposal has been given. He
submitted that even earlier attempts were made for settlement before
the Supreme Court amongst the family members; however, nothing
concrete came up and after eight months, the parties were again
litigating in the Court. He further submitted that on the last two
occasions, when suggestions were made by this Court for mediation,
immediately news reports were published in the local new papers, at
behest of the Plaintiffs, thereby causing very embarrassing position for
Defendant No. 1 to respond to his investors. According to him, the
Plaintiffs’ intention is to merely prolong the whole litigation and
thereafter, capitalize on it by publishing the news on various media
platforms. Therefore, he has specific instructions from Defendant No. 1 that he should argue the matter on merits.
6. Mr. Dwarkadas, Ld. Sr. Counsel appearing for the Plaintiffs,
submitted that if the Court is of the view that the matter ought to be
referred to the mediation then consent of Defendant No. 1 would not
be necessary. He submitted that if the parties are referred to the
mediation, there is no harm to either of the parties, at the most, what
can happen in that, there will be failure report from the Mediator.
However, even if there exists only a 1% possibility of mediation being successful, this Court should refer the matter to mediation. He relied upon the following authorities in support of his submissions :-
(i) Afcons Infrastructure Ltd. vs. Cherian Varkey Constructions
Company Pvt. Ltd. - (2010) 8 SCC 24;
(ii) Mahendra Nath Soral & anr. vs. Ravindra Nath Soral & ors., -
2024 SCC OnLine SC 765;
(iii) R. Ravindranath vs. Greater Hyderabad Municipal Corporation &
ors. - 2026 SCC OnLine SC 150;
(iv) Maxwell Partnership Firm Regd. vs. National Insurance Co. Ltd.
and anr. - 2024 SCC OnLine Del 3340 – Delhi High Court;
(v) Smt. Amalapooh Mary and ors. vs. Sri. V. Ravindra – Writ Petition
No. 51491 of 2016 – Karnataka High Court.
6.1. He also referred to two news articles, wherein the Supreme
Court has opined that the Court should try to make an attempt and
parties should be referred to mediation, if the dispute is between the
family members.
7. I have heard the Ld. Sr. Counsel for both the sides. Generally, this
Court is of the view that in family disputes, parties should try to
amicably reach out to a settlement by themselves or if required,
through a trained mediator. However, to reach at that stage, the Court
must first be satisfied that there exists a possibility of settlement and
that mediation would serve a useful purpose.
Scope of Mediation :-
8. By an amendment of the year 1999 to the CPC, Rule 1-A was
inserted in Order X, which came into effect from 01.07.2002, it
directed the Court to choose for any mode of ADR. The said amended
Rule 1-A reads as under :-
“1-A. Direction of the court to opt for any one mode of alternative
dispute resolution.— After recording the admissions and denials,
the court shall direct the parties to the suit to opt either mode of
the settlement outside the court as specified in sub-section (1) of
section 89. On the option of the parties, the court shall fix the
date of appearance before such forum or authority as may be
opted by the parties.”
8.1 The Mediation Bill, 2021 was introduced in the Rajya Sabha on
20 December, 2021 and the Chairman of Rajya Sabha referred the said bill to the Department-related Parliamentary Standing Committee onpersonal, public grievances, law and justice for examination and report on 21 December, 2021. The Committee held extensive deliberation on the Bill with the stake holders. The Committee prepared it’s Report which was then presented to the Chairman, Rajya Sabha and forwarded to the Speaker, Lok Sabha. In the said Mediation Bill, Clause 6 reads as under :-
“Clause 6 - Pre-litigation mediation
(1) Subject to other provisions of this Act, whether any
mediation agreement exists or not, any party before filing any
suit or proceedings of civil or commercial nature in any court,
shall take steps to settle the disputes by pre-litigation
mediation in accordance with the provisions of this Act:”
8.2 The Standing Committee had also discussed on Clause 6
pre-litigation mediation and thereafter, Clause 6 which became Section
5 in the Mediation Act, 2023, the word “shall” was replaced with a
phrase “may voluntarily and with mutual consent”. The Mediation Act,
2023 was enacted by the parliament on 14.09.2023. However, by a
Notification dated 09.10.2023, the Central Government in exercise of
its powers conferred by sub-section (3) of Section 1 of the Mediation
Act, 2023 appointed 9 October, 2023 as date on which the provisions of
only certain sections of the Mediation Act, 2023 were brought into
force, namely Sections 1, 3, 23, 31 to 38, 45 to 47, 50 to 54, 56 & 57.
Hence, as of date Section 5 of the Mediation Act, 2023 is not into force.
The said Section 5 reads as under :-
“5. Pre-litigation mediation
(1) Subject to other provisions of this Act, whether any mediation
agreement exists or not, the parties before filing any suit or
proceedings of civil or commercial nature in any court, may
voluntarily and with mutual consent take steps to settle the
disputes by pre-litigation mediation in accordance with the
provisions of this Act:”
[Emphasis Supplied]
8.3 Even though Section 5 of Mediation Act, 2023 has not been
notified yet, I am referring to the said section, only to establish the
legislative intent behind it while passing the Mediation Act, 2023. After
considering the Draft Bill and the Standing Committee’s Report, it is
clear that legislature in its wisdom wanted mediation to be kept as an
voluntary act with consent of the parties and not something which is
mandatory in nature.
8.4 Section 89 of CPC was substituted by amended Section 89 of
CPC in the year 2023, which omitted group of words from earlier
Section 89 of CPC namely “shall formulate the terms of settlement and
give them to the parties for their observation and after receiving the
observations of the parties the Court may re-formulate the terms of a
possible settlement and referred the same for”. However, the words
“which may be acceptable to the parties” which stood in the earlier
Section 89 of CPC are retained.
8.5 The Section 89 of CPC earlier to its amendment in the year 2023,
and amended Section 89 of CPC are reproduced below :-
Old Section 89 New Section 89
“89. Settlement of disputes outside the
Court.—
(1) Where it appears to the Court that
there exist elements of a settlement
which may be acceptable to the
parties, the Court shall formulate the
terms of settlement and give them to
the parties for their observations and
after receiving the observations of the
parties, the Court may reformulate the
terms of a possible settlement and
refer the same for:—
(a) arbitration;
(b) conciliation;
(c) judicial settlement
including settlement
through Lok Adalat;
or
(d) mediation.
(2) ……”
“89. Settlement of disputes outside the
Court.-Where it appears to the court
that the dispute between the parties
may be settled and there exists
elements of settlement which may be
acceptable to the parties, the Court
may-
(a) refer the dispute to
arbitration, and thereafter, the
provisions of the Arbitration
and Conciliation Act, 1996(26
of 1996) shall apply as if the
proceedings for arbitration were
referred for settlement under
the provisions of that Act; or
(b) refer the parties to
mediation, to the courtannexed
mediation centre or
any other mediation service
provider or any mediator, as
per the option of the parties,
and thereafter the provisions of
the Mediation Act, 2023 shall
apply as if the proceedings for
mediation were referred for
settlement under the provisions
of that Act; or
(c) refer the dispute to Lok
Adalat, in accordance with the
provisions of sub-section (1)
of section 20 of Legal Services
Authorities Act, 1987(39 of
1987) and thereafter, all other
provisions of that Act shall
apply in respect of the
dispute;
(d) effect compromise
between the parties and shall
follow such procedure as
deemed fit for judicial
settlement.”
9. At the same time, in the year 2023, in the Commercial Courts Act
of 2015, a new chapter, namely Chapter III-A was introduced in which
Section 12-A was newly inserted. Said Section 12-A reads as under :-
“12-A. Pre-Institution Mediation and Settlement —
(1) A suit, which does not contemplate any urgent interim relief
under this Act, shall not be instituted unless the plaintiff
exhausts the remedy of preinstitution mediation in accordance
with such manner and procedure as may be prescribed by rules
made by the Central Government.
(2) The Central Government may, by notification, authorise the
Authorities constituted under the Legal Services Authorities Act,
1987 (39 of 1987), for the purposes of pre-institution mediation.
(3) Notwithstanding anything contained in the Legal Services
Authorities Act, 1987, the Authority authorised by the Central
Government under sub-section (2) shall complete the process of
mediation within a period of three months from the date of
application made by the plaintiff under sub-section (1):
Provided that the period of mediation may be extended for a
further period of two months with the consent of the parties:
Provided further that, the period during which the parties
remained occupied with the pre-institution mediation, such
period shall not be computed for the purpose of limitation under
the Limitation Act, 1963 (36 of 1963).
(4) If the parties to the commercial dispute arrive at a
settlement, the same shall be reduced into writing and shall be
signed by the parties to the dispute and the mediator.
(5) The settlement arrived at under this section shall have the
same status and effect as if it is an arbitral award on agreed
terms under sub-section (4) of section 30 of the Arbitration and
Conciliation Act, 1996 (26 of 1996).]”
[Emphasis Supplied]
10. Hence, as far as Commercial Suits are concerned, a specific
provision is introduced in the Commercial Courts Act, 2015, which
states that before institution of the Suit, pre-litigation mediation
becomes compulsory. However, no such compulsion is introduced in a Civil Suit which is not a Commercial Suit and even if the Government by it’s further Notification brings into force Section 5 of the Mediation Act, 2023, in the said Section, there will be no compulsion since the words used are “may voluntarily” and “with mutual consent”. Earlier Mediation Attempts :-
11. The Plaintiff No. 1 in the year 2023, filed present Suit against the
Defendant No. 1, and apart from filing the present Suit she has also
filed a Suit before the District Court, Pune in the year 2012 and in the
year 2025 has filed one more Suit for partition before the District
Court, Pune, wherein the Defendant No. 1 is a party. The children of
the Plaintiffs have also filed partition Suit in the District Court, Pune,
where Defendant No. 1 herein is added as a party.
11.1 Apart from these four Suits, Probate Petitions are pending before the District Court, Pune. So also father of Plaintiff No. 1 and Defendant No. 1 had filed Suit for recovery of immovable properties before Karad and Satara Courts against Gaurishankar (Original Defendant No. 5), who is brother of Plaintiff No. 1 and Defendant No. 1. The said Suits are pending for hearing.
12. The Supreme Court by it’s Order dated 19 February, 2018, in the
proceedings between Gaurishankar and his mother, directed parties to make an attempt to sort out their disputes outside Court and none
other than renowned mediator Mr. Shriram Panchu, Ld. Sr. Counsel
was appointed as a mediator to make an attempt to resolve the
disputes. By an order dated 07 May, 2018, pursuant to the report of the mediator, time of mediation was extended and it was made clear that it will be open to the mediator to make attempt for settlement of the entire family dispute. However, the mediation failed. By an order
dated 22 October, 2019, the Supreme Court recorded the said fact and
directed the matter to proceed on merits.
12.1 Similarly, mediation attempts were made by the District Court,
Pune in the Suit filed by children of the Plaintiffs. However, the
mediation failed.
12.2 Dr. Tulzapurkar, Ld. Sr. Counsel appearing for Defendant No. 1
showed me correspondences exchanged between the parties in the
year 2025, which shows that the Defendant No. 1 initiated discussions
to reconcile differences and offered to meet and resolve the pending
issues with the Plaintiffs. In response, Plaintiff No. 1 addressed an
Email to the Advocate of Defendant No. 1 which records that on
account of the past act of violence and/or aggression and/or physical
intimidation, Plaintiff No. 1 was reluctant to meet at Amit Bungalow.
13. The authorities on the issue of mediation referred by the parties :
(i) In the latest Judgment of the Supreme Court in the case of
Rupa and Co. Ltd. & anr. vs. Firhad Hakim & ors. , reported in 2025
SCC OnLine SC 355, the Court held that once the proposal of
mediation is opposed by one of the parties, mediation cannot be
thrusted upon such a party. Paragraphs 8.9 and 9 read as under :-
“ 8.9. An interesting turn takes place thereafter. When the very same
contempt petition was listed before the High Court on 9th February
2024, the High Court vide impugned order observed that, considering
the submission of the parties it would be appropriate that the matter is settled through mediation. It, accordingly, appointed a former Judge of the High Court as a Mediator. It will be relevant to note that the said proposal for mediation was specifically opposed by the learned counsel for the appellants. Aggrieved by the same, the appellants have filed the present appeals by way of special leave.
9. We find that the approach of the High Court in passing the
impugned order is totally untenable. When the High Court itself, on
more than one occasions in the contempt proceedings, had found that
the State was bound to comply with the writ of mandamus issued by it vide judgment and order dared 10thFebruary 2020 and had also issued notice to the Chief Secretary of the State for complying with the directions issued by it, it could not have referred the matter for
mediation. It is further to be noted that mediation has to be by the
consent of both the parties. Mediation cannot be thrusted upon either
of the parties. The learned Division Bench of the High Court in the
present case, in spite of the resistance of the learned counsel for the
appellants herein, only on the basis of the statement of the learned
Advocate General appearing in the matter whereby it was submitted
that the State was willing to offer the appellants an alternative piece of
land, has referred the matter to mediation.”
[Emphasis Supplied]
(ii) In Afcons Infrastructure Ltd. (supra), the Supreme Court was
considering the scope of old Section 89 of CPC and the question
whether the said Section empowers the Court to refer the parties to a
Suit to arbitration without the consent of both the parties. Para 44(v)
reads as under :-
“44. The Court should also bear in mind the following
consequential aspects, while giving effect to Section 89 of the Code:
(i) ….
(ii) ….
(iii) ….
(iv) ….
(v) If the court refers the matter to an ADR process (other than
arbitration), it should keep track of the matter by fixing a hearing
date for the ADR report. The period allotted for the ADR process can
normally vary from a week to two months (which may be extended
in exceptional cases, depending upon the availability of the
alternative forum, the nature of case, etc.). Under no circumstances
the court should allow the ADR process to become a tool in the
hands of an unscrupulous litigant intent upon dragging on the
proceedings.”
[Emphasis Supplied]
Considering the fact that Afcons Infrastructure Ltd. (supra) was
delivered in the year 2010, after which date Section 89 of CPC was
amended and the Mediation Act, 2023 has come into force partly and
amendment was also to the Commercial Courts Act in the year 2023
and also considering the contents of para 44(v) of the Afcons
Infrastructure Ltd. (supra), I have no doubt that where one of the
parties is opposing to go to mediation, the Court has to first form an
opinion that even though one of the parties is opposing mediation, the
matter needs to be sent to the mediation.
(iii) Supreme Court in the Judgment of R. Ravindranath (supra),
reported in 2026 SCC OnLine 150 held that they are still of the firm
view that the party should sit, talk and reach to an equitable
settlement. Otherwise, this is going to be long drawn legal proceeding.
Hence, the Court appointed a Mediator.
(iv) In the Judgment of Mahendranath Soral vs. Ravindranath
Soral, reported 2024 SCC OnLine SC 765, from the bare reading of
the Judgment, it seems that the parties were referred to mediation for
the first time and the Court on the facts of that case was of the view
that there existed some kind of an element for settlement.
(v) A Single Judge of the Delhi High Court in the case of Maxwell
Partnership Firm Regd. (supra) was dealing with the commercial
court suit hence, any finding recorded in the Commercial Court suit
as far as mediation is concerned would not be applicable to a Civil
Suit which is not a Commercial Suit, like the present proceeding. In
the Judgment referred by the Plaintiffs of a Single Judge of the
Karnataka High Court in Smt. Amalapooh Mary and ors. (supra) the
Court was dealing with the Order dated 18.08.2016 passed by the
City Civil Judge. The date of the Judgment itself suggests it was prior
to the Mediation Act, 2023 came into force partly, so also Section 89
of CPC was not amended. Neither the Commercial Courts Act, 2015
was amended by inserting Section 12-A. Therefore, as the facts of
these two cases are completely different, the ratio laid down cannot
be considered in the present proceeding.
Illustration :-
14. Considering the entire law of mediation, if by way of
illustration, it is to be explained, in a given case if one party in a
proceedings has given an offer and other party has not accepted it in
full but is very close to the offer given by the first party, in such a
case, just to bridge the gap the Court can come to an opinion that
this is a matter where there is an element of settlement and refer the
parties to mediation. In the present proceeding, this situation has not
arisen.
Conclusion :-
15. The Mediation Act, 2023 does not provide for any mandatory
mediation nor does it confer any power on the court to order
mediation without consent of all parties. The procedure prescribed
under the Act is for a mediation agreement to be executed in writing to submit to mediation. Thus, the mediation contemplated by the Mediation Act is not compulsory but a consensual mediation.
16. As far as the present proceeding is concerned, earlier two
attempts of settlement made by the Apex Court and the District Court, Pune have failed. Even then in the present proceeding, on the first date of hearing before this Court, I suggested that the parties can opt for mediation. However, thereafter, on two dates of hearing, Defendant No.1’s Counsel has come with a case that certain news articles were published which has made his client uncomfortable, as they started receiving calls from their investors.
16.1 Even then on 26 April, 2026 as the matter was adjourned, I
granted parties one more chance without prejudice to their rights and
contentions, to exchange their settlement proposal. However, on the
next date of hearing, after 12 days, no such proposal was exchanged
between the parties.
17. In the light of the above analysis, in my view, I have no doubt
that their does not exist any possibility of settlement through
mediation between the parties. Hence, request made by the Plaintiffs
to refer the matter to the mediation stands rejected.
(RAJESH S. PATIL, J.)
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