Can the court accept a compromise petition if the party has not given authority to his advocate to compromise the case through a special Vakalatnama?

 The third question that arises for our consideration in context with the legality and validity of the settlement is whether the learned advocate appearing for the cross-objector i.e., Defendant No. 2 could have signed the compromise petition without an express consent. It is an imperative duty of the Court to ascertain the genuineness and lawfulness of the compromise deed. Indisputably, in the case on hand, the First Appellate Court had neither recorded the statements of the parties in the Court nor had made any inquiry into the terms of the settlement. It is in such circumstances that the High Court in its impugned order has observed that the Compromise Petition was signed by the advocate without any express authority or without special vakalatnama executed in favour of the advocate. In fact, the authority was expressly curtailed in the compromise deed. {Para 100}

103. Almost six decades back, the Madras High Court speaking through Justice Ramaswami (as His Lordship then was) in the case of Govindammal v. Marimuthu Maistry and Ors. reported in MANU/TN/0103/1959 : AIR 1959 Mad 7 had sounded the note of caution observing as under:

5.... The decisions appear to be fairly clear that even in cases where there is no express authorization to enter into a compromise, under the inherent authority impliedly given to the Vakil he has power to enter into the compromise on behalf of his client. But in the present state of the clientele world and the position in which the Bar now finds itself and in the face of divided judicial authority and absence of statutory backing prudence dictates that unless express power is given in the vakalatnama itself to enter into compromise, in accordance with the general practice obtaining a special vakalatnama should be filed or the specific consent of the party to enter into the compromise should be obtained. If an endorsement is made on the plaint etc., it would be better to get the signature or the thumb impression of the party affixed thereto, making it evident that the party is aware of what is being done by the Vakil on his or her behalf.

104. Thus, in view of the aforesaid discussion, we hold that the High Court committed no error in holding that the settlement between the Defendant Nos. 1 and 2 was unlawful.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

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Can a court issue a partition decree with the consent of only some of the coparceners?

 

Indisputably, in the case on hand, the Plaintiff has not put her signature on the deed of settlement, which was produced before the High Court in first appeal. The Plaintiff has made herself very clear that she never joined in the settlement between her brother i.e., the Defendant No. 1 and her sister i.e., the Defendant No. 2. On this ground alone, the settlement could be said to be unlawful, being without any written consent of all the parties. In a suit for partition of joint property, a decree by consent amongst some only of the parties cannot be maintained.

{Para 94}

95. In Nityamoni Dasi v. Gokul Chandra Sen reported in MANU/WB/0534/1910 : (1911) 9 Ind Cas 210 (Cal), the Calcutta High Court observed:

... The decree of the Subordinate Judge must be set aside and the whole case retried, because as this is a suit for partition of joint property, a decree by consent amongst some only of the parties cannot possibly be maintain ed.....

96. In Vir Singh and Ors. v. Kharak Singh and Ors. reported in MANU/LA/0229/1924 : AIR 1925 Lah 280, all the proprietors had not assented to the compromise, Moti Sagar, J. observed:

...the alleged compromise not having been assented to by all the proprietors was clearly contrary to law and the Court was, therefore, fully justified in refusing to enforce it....

97. In Taraprasanna Sarkar and Anr. v. Kalikamohan Sarkar and Ors. reported in MANU/WB/0026/1923 : AIR 1924 Cal 80 Mookerjee and Rankin, JJ., held:

...There can be no compromise binding upon, all the parties to a partition suit until and unless all the parties have joined in the compromise:...

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

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Whether gift/renunciation/relinquishment or alienation by one coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners void?

 Moreover, under Hindu Law, the gift/renunciation/relinquishment or alienation by one coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners is void.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

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Can the court declare the compromise decree invalid if consideration for the alleged compromise was inadequate and there was variance between the agreement and compromise petition?

 

We shall now look into the circumstances, as highlighted by the learned Senior Counsel appearing for the Defendant No. 2, rendering the settlement agreement dated 28.03.1991 invalid and not binding Under Order XXIII Rule 3 of the Code of Civil Procedure:

First, the alleged compromise agreement has admittedly not been signed by the Plaintiff who concededly has a share in the property as a coparcener. A written consent of all parties is necessary.

Secondly, a coparcenary undivided property in specie (Plot No. 140) has been allotted to Defendant 2 by Defendant No. 1 over which the Plaintiff also has an interest.

Thirdly, there is variance between the agreement and the compromise petition producing the agreement.

The Variance noted is as follows-

(a) The compromise petition takes in consideration yet another property already purchased by Defendant No. 2 by her own income (Schedule B property) which was not a part of compromise agreement.

(b) The sketch map appended to the petition shows plot No. 1086 and 1085 which for part of plot No. 141 instead of plot No. 140 mentioned in Clause 3 of compromise agreement, and does not indicate any consensus ad idem, therefore, the execution of the compromise agreement becomes unenforceable.

(c) The species of suit property, which was given/provided to Defendant No. 2 in Clause 3 (page 141) of agreement was changed to will be allotted to her in final decree proceeding.

(d) The payment of Rs. 12000 which was to be deposited to court without any caveat in agreement (See para 4 @ 141) was made subject to further orders of the Court in the petition.

(e) There is no express mentioning about the mesne profits in agreement whereas a definite Clause was inserted in the compromise petition.

(f) The easement rights to property of Defendant No. 2 were recognised in agreement and later in petition was altered to that Defendant No. 2 along with others have to file and take steps to easement rights for which the Defendant 1 shall not object.

(h) The agreement provided that the Defendant No. 2 shall sign the compromise petition which was later altered to signing and swearing the affidavit in compromise petition.

Fourthly, the judgment dated 01.08.2000 of the first appellate court accepting the compromise does not make allotment of the property allotted in specie to the Defendant No. 2. The first appellate court has proceeded on the wrong premise that the Defendant No. 2 has surrendered her rights to the Defendant No. 1. The first appellate court was further wrong in specifically noting that the compromise agreement does not cause any prejudice to the rights of the Plaintiff and therefore can be given effect.

Fifthly, the compromise agreement was entered into by beckoning a smaller share to the Defendant No. 2, while she has a larger share in view of Vineeta Sharma (supra). The consideration for the alleged compromise/settlement was therefore inadequate and whole agreement has to fall to the ground due to changed and supervening circumstances effectuated by change in law. {Para 92}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

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Must the court entertaining a compromise petition examine whether the compromise was void or voidable under the Indian Contract Act?

 

When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, "the Court shall decide the question", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise "which is void or voidable under the Indian Contract Act..." shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even Rule 1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal Under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1-A of Order 43 of the Code.

 {Para 13}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

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What is the duty of the court before accepting a compromise petition?

 The present case depicts as to how on February 27, 1991 the court recorded the alleged agreement and compromise in a casual manner. It need not be impressed that Rule 3 of Order 23 does not require just a seal of approval from the Court to an alleged agreement or compromise said to have been entered into between the parties. The statute requires the Court to be first satisfied that the agreement or compromise which has been entered into between the parties is lawful, before accepting the same. Court is expected to apply its judicial mind while examining the terms of the settlement before the suit is disposed of in terms of the agreement arrived at between the parties. It need not be pointed out that once such a petition of compromise is accepted, it becomes the order of the Court and acquires the sanctity of a judicial order. {Para 11}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

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Whether the court should accept compromise petition if it is not signed by a party or his Advocate?

  The learned Counsel appearing for the Respondent took a stand that the High Court was justified in taking the view that the suit had been simply withdrawn by the Plaintiff-Appellant Under Rule 1 of Order 23 and it had not been compromised in terms of Rule 3 of the said Order 23; as such there was no occasion for the Appellant to file an application for recall of the said order and for restoration of the suit in question for being heard on merit. From the copy of the petition which was filed on February 27, 1991 it appears that the terms and conditions of settlement and agreement had been mentioned saying that both parties had entered into a compromise because of which the Plaintiff-Appellant had thereafter no connection with the disputed land and Defendant-Respondent shall be deemed to be in possession and the owner of the said disputed land. The prayer made in the said petition also says that the compromise may be ordered to be accepted. On basis of that petition, as already mentioned above, the court passed an order saying that the compromise had been accepted. In the order it has been mentioned that the suit of the Plaintiff be "dismissed as per compromise deed Ex. C". In view of the aforesaid facts and circumstances, it is difficult to hold that by order dated February 27, 1991 the Court allowed the suit to be withdrawn in terms of Rule 1 of Order 23. The order on face of it purported to dismiss the suit of the Plaintiff on basis of the terms and conditions mentioned in the petition of compromise. As such, the validity of that order has to be judged treating it to be an order deemed to have been passed in purported exercise of the power conferred on the Court by Rule 3 of Order 23 of the Code. The learned Subordinate Judge should not have accepted the said petition of compromise even if he had no knowledge of the fraud alleged to have been practised on the Appellant by his counsel, because admittedly the petition of compromise had not been signed either by the Respondent or his counsel. This fact should have been discovered by the Court. In the case of Gurpreet Singh v. Chatur Bhuj Goel [MANU/SC/0032/1987 : (1988) 1 SCC 270 : AIR 1988 SC 400] it has been said: (SCC p. 276, para 10)

Under Rule 3 as it now stands, when a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them. To constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a decree. When the parties enter into a compromise during the hearing of a suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties should be dispensed with. The court must therefore insist upon the parties to reduce the terms into writing.

The requirement of the petition of compromise being signed by the parties concerned has been considered also in the case of Byram Pestonji Gariwala v. Union Bank of India [MANU/SC/0485/1991 : (1992) 1 SCC 31 : AIR 1991 SC 2234]. It appears the attention of learned Judges was not drawn to the aforesaid case of this Court in Gurpreet Singh v. Chatur Bhuj Goel [MANU/SC/0032/1987 : (1988) 1 SCC 270 : AIR 1988 SC 400]. {Para 10}

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

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Can the court refuse to vary a preliminary decree of partition in final decree proceedings if there is a change in law during those proceedings?

The decision of Vineeta Sharma (supra) also highlights that a change in law during the pendency of an appeal must be considered and appropriately applied. This Court relied upon United Bank of India, Calcutta v. Abhijit Tea Company Private Limited and Ors. reported in MANU/SC/0551/2000 : (2000) 7 SCC 357, wherein, it was held that:

20. Now, it is well settled that it is the duty of a court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. (See G.P. Singh: Interpretation of Statutes, 7th Edn., p. 406.) If, while a suit is pending, a law like the 1993 Act that the civil court shall not decide the suit, is passed, the civil court is bound to take judicial notice of the statute and hold that the suit -- even after its remand -- cannot be disposed of by it. {Para 77}

78. This Court in Vineeta Sharma (supra) clarified the entire position as follows:

107. Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition. The shares will have to be determined in changed scenario. The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of partition is far short of actual partition, it does not bring about the disruption of the joint family or that of coparcenary is a settled proposition of law. For the reasons mentioned above, we are also of the opinion that mere severance of status by way of filing a suit does not bring about the partition and till the date of the final decree, change in law, and changes due to the subsequent event can be taken into consideration.

Xxx xxx xxx

114. In the instant case, the question is different. What has been recognised as partition by the legislation Under Section 6, accordingly, rights are to be worked out. This Court consistently held in various decisions mentioned above that when the rights are subsequently conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of the proviso to Section 6 as discussed in Prakash v. Phulavati [MANU/SC/1241/2015 : (2016) 2 SCC 36: (2016) 1 SCC (Civ) 549] and Danamma [Danamma v. Amar, MANU/SC/0064/2018 : (2018) 3 SCC 343: (2018) 2 SCC (Civ) 385]. If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time.

APPLICATION OF THE AFORESAID PRINCIPLES OF LAW TO THE FACTS OF THE PRESENT CASE

79. Let us assume for the moment that the Trial Court would have decreed the suit in favour of the Plaintiff i.e., the daughter giving her 1/3rd share uniformly in all the properties including the ancestral properties. It could have been argued that the Trial Court could not have done so, having regard to the position of law, prevailing at the relevant point of time. However, after the decision of this Court in the case of Vineeta Sharma (supra) such allotment of share would be in accordance with law. 

80. It is in the aforesaid background that daughters are entitled to 1/3rd share in all the properties as scheduled in the plaint. The same would be in accordance with the dictum as laid in Vineeta Sharma (supra), while passing the final decree. At the cost of repetition, we state that by virtue of the preliminary decree passed by the Trial Court, which was confirmed by the Division Bench of the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. As the law governing the parties has been amended before the conclusion of the final decree proceedings, the party benefitted by such amendment (like the two daughters in the case on hand) can make a request to the Trial Court to take cognizance of the Amendment and give effect to the same.

81. We do not find any merit in the submissions canvassed by Mr. Basant, learned Senior Counsel appearing for the Appellants that in a partition suit, the preliminary decree cannot be varied in the final decree proceedings, despite the amendment of the law governing the parties.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023

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Whether Litigant is Entitled To Refund Of Court Fees If Matter is Settled Outside Court Without Invocation Of S.89 CPC?

 In view of the aforesaid, I am of the considered opinion that even if the matter is settled by the parties outside the Court without invoking the provisions of section 89 CPC, the appellant while withdrawing his first appeal, is entitled to the refund of full Court fees as provided under section 16 of the Court Fees. {Para 7} Act, 1870. 

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

FIRST APPEAL No. 222 of 2015

DAYARAM  BALARAM PATEL,  Vs SMT. LAXMI AGRAWAL 

BEFORE

HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

ON THE 20th OF SEPTEMBER, 2022.

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Can the court enforce a settlement done in mediation if one party contends that he was compelled to sign a mediation agreement?

  For all these reasons, I hold that the Magistrate exercising jurisdiction under the DV Act has the power to refer thematter before it to mediation applying the principles of Section 89 of CPC, record the compromise and pass an order in terms of the settlement applying the principles of Order XXIII Rule 3 of CPC.

11. When the parties settle the dispute at mediation by

signing an agreement detailing the procedure to be followed to

work out the settlement, certainly that agreement is having all

the characteristics of Order XXIII Rule 3 of CPC. The scheme of

Order XXIII Rule 3 is to avoid multiplicity of litigation to enable the parties to settle their dispute once and for all. When the parties agreed to settle the dispute in terms of compromise under Order XXIII Rule 3 of CPC, one of the parties cannot unilaterally withdraw from the compromise. The Explanation to Order XXIII Rule 3 makes it clear that only an agreement or compromise which is void or voidable under the Indian Contract Act could be considered as not lawful agreement for the purpose of the Rule. Chapter II of the Indian Contract Act contains provisions relating to voidable contracts and void agreements. The petitioner has absolutely no case that the compromise is vitiated by any one of the grounds enumerated in Chapter II of the Indian Contract Act.

The only contention taken by the petitioner is that he was

compelled to sign the mediation settlement agreement without

understanding the consequences of its terms. So long as there is

no contention that the compromise is vitiated by one of the

grounds enumerated in Chapter II of the Indian Contract Act, the parties of the compromise are bound to honour the compromise and the court has the duty to enforce it.The Apex Court in Salkia Businessmens' Association and Others v. Howrah Municipal Corporation and Others [(2001) 6 SCC 688] has held that the terms of the compromise which become part of the order of the court should be strictly enforced. It was observed that if the courts are not to honour and implement their own orders, and encourage party litigants - be they public authorities, to invent methods of their own to short circuit and give a go-by to the obligations and liabilities incurred by them under orders of the court - the rule of law will certainly become a casualty in the process - a costly consequence to be zealously averted by all and at any rate by the highest Courts in the States in the country. {Para 10}

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(CRL.) NO. 390 OF 2020

MATHEW DANIEL Vs  LEENA MATHEW, 

PRESENT

 DR. JUSTICE KAUSER EDAPPAGATH

Dated: 16th day of August, 2022.

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Whether domestic violence case can be settled in mediation?

The learned counsel for the petitioner next contended

that the default clause in Ext.P2 does not contemplate the

recovery of `25,00,000/- promised to be paid, but instead

contemplates the continuance of the proceedings. The counsel

further submitted that since the petitioner herein has expressed

his inability to comply with the settlement, the default clause

would come into operation and in such a case, the court cannot

make an order based on the settlement and can make an order

only after sufficient enquiry is carried out. Without conducting

any enquiry, the court below went wrong in ordering the

petitioner to pay a sum of `25,00,000/-, argued the counsel. I

cannot subscribe to the said argument. Once a settlement has

been arrived at between the parties in a lis, that concludes the

dispute resolved in the settlement and the parties are bound by

it. Based on the settlement arrived at the mediation, the parties

cannot be directed to invoke the original jurisdiction of the court

to ensure that the compromise is worked out. Such a procedure

would be against the spirit of the mediation process itself. In

Salkia Businessmens' Association (supra), the Apex Court has

held that viewing breach of the terms of the compromise as a

matter of mere contract between the parties and disregarding it

has a disastrous effect on rule of law. As stated already, the

Magistrate exercising jurisdiction under the DV Act has the power to refer the matter before it to mediation, record the compromise and pass an order in terms of the settlement. The order so passed in respect of the matters that fall within Sections 18 to 22 of the DV Act can be enforced in accordance with the law. As far as the settlement that falls outside the ambit of Sections 18 to 22 is concerned, the parties are bound to follow the terms of the settlement. {Para 13}

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(CRL.) NO. 390 OF 2020

MATHEW DANIEL Vs  LEENA MATHEW, 

PRESENT

 DR. JUSTICE KAUSER EDAPPAGATH

Dated: 16th day of August, 2022

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Can the claimant in MACT claim enhanced compensation after accepting the awarded amount in the execution proceedings as a whole settlement?

  Now so far as the submission on behalf of the Union of India that as in the execution proceedings the claimants accepted the amount due and payable under the impugned judgment and order and accepted the same as full and final settlement, thereafter the claimants ought not to have preferred appeal for enhancement of the compensation is concerned, the aforesaid cannot be accepted. The claimants are entitled to just compensation. Merely because in the execution proceedings they might have accepted the amount as awarded by the High Court, may be as full and final settlement, it shall not take away the right of the claimants to claim just compensation and shall not preclude them from claiming the enhanced amount of compensation which they as such are held to be entitled to. As such, the Motor Vehicles Act is a benevolent Act and as observed hereinabove the claimants are entitled to just compensation. As such, the Union of India ought not to have taken such a plea/defence. {Para 13}

Supreme Court

JUSTICE M. R. SHAH JUSTICE SANJIV KHANNA

Smt. Meena Pawaia & Ors. Vs. Ashraf Ali & Ors.

CIVIL APPEAL NO. 6724 OF 2021

18th November 2021

Author: M. R. Shah, J.

Citation: 2021 ALL SCR (ONLINE) 660

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Whether New Municipal Commissioner can resile from concluded compromise agreement on the ground that the court did not approve it?

 It was thereafter argued that the Standing Committee's resolution was subject to approval of this Court and therefore, till such approval was not granted, the Consent Minutes could not be treated as a concluded contract and resultantly, the new Municipal Commissioner is now free to resile therefrom. When this argument was first canvassed before us, as stated hereinabove, the Respondent opposed such submission stating that this argument was never raised before the learned Single Judge. In order to prevent any ambiguity and in order to save another round of litigation, we thought it fit to direct the parties to approach the learned Single Judge to 4 2015 (4) Mh.LJ 905 5 (2015) 5 SCC 747 6 (1973) 3 SCC 889 7 (1969) 3 SCC 150 to clarify the position in this regard viz. whether or not the said argument was canvassed before the learned Single Judge. As reproduced hereinabove, the learned Single Judge has categorically clarified the position and remarked that the said submission was never made before him. This by itself would be a sufficient ground for us not to even entertain this submission. Be that as it may, even if we were to, the said submission is also misconceived. The conduct of the parties and the Standing Committee resolution are explicit. It cannot be reasonably construed that in the absence of the approval of the learned Single Judge thereon, there was no concluded contract between the parties. The parties had admittedly entered into a concluded contract prior in time. The Consent Minutes were only thereafter, required to be placed before the learned Single Judge so as to enable him to dispose of the Commercial Arbitration Petitions in terms of the said concluded contract. The independent, concluded, anterior and binding legal contract was not conditional and/or contingent upon the approval of the learned Single Judge. It is ridiculous for the Appellant to now contend that the learned Single Judge ought to have considered the merits or otherwise of the Consent Minutes. As stated hereinabove, the reasoning provided by the learned Single Judge whilst construing Order XXIII Rules 1 and 3 is sound and acceptable to us. We therefore, reject this submission of the Appellant. {Para 8.2}

Bombay High Court

Bhiwandi-Nizampur City ... vs Antony Waste Handling Cell Ltd. ... on 5 March, 2021

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Whether court can refer the dispute to arbitration if there is a settlement before the conciliator?

That, in turn, brings the IGRC order entirely within the meanings of Sections 73 and 74 of the Arbitration and Conciliation Act 1996. Those Section read thus:

“73.Settlement agreement.― (1) When it appears to the conciliator that there exist elements of a settlement which may be acceptable to the parties, he shall formulate the terms of a possible settlement and submit them to the parties for their observations. After receiving the observations of the parties, the conciliator may reformulate the terms of a possible settlement in the light of such observations.

(2)If the parties reach agreement on a settlement of the dispute, they may draw up and sign a written settlement. If requested by the parties, the conciliator may draw up, or assist the parties in drawing up, the settlement agreement.

(3)When the parties sign the settlement agreement, it shall be final and binding on the parties and persons claiming under them respectively.

(4)The conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of the parties.

74.Status and effect of settlement agreement. The― settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under section 30.”

(Emphasis added) {Para 17}

18.The IGRC order must, therefore, be construed as a settlement agreement within the meaning of Sections 73 and 74 of the Arbitration Act. No other view is possible, because if this is not to be seen as a settlement agreement that can be enforced, then any IGRC order in favour of the investor would remained on paper only. It would be entirely toothless. It would entirely defeat the purpose of having an IGRC at all. In fact, this is the reason why, if the Trading Member does not find the IGRC order palatable, a recourse is made available to him in the bye-laws itself to adopt what the bye-law call ‘the second level of dispute resolution, i.e. arbitration’. The tiered dispute resolution contemplated is, thus: (a) conciliation (and, as noted above, the bye-laws refer to the first step precisely as that); and (b) if conciliation fails, then arbitration (with its later in-house appeal provision).

19.The IGRC order can be said to have attained finality. The question is how is it to be made enforceable against the party that admitted liability? As I noted there is now no question of an arbitration. There is nothing to arbitrate. Karvy, which could have invoked arbitration, has not done so. On the contrary, it has accepted the claim. Titan does not need to go to arbitration or to have its claim adjudicated: it has got an admission of its claim before the IGRC. 

20.The upshot of this is that Titan now holds in its hands an order of the IGRC that is perfectly enforceable and has the same status and efect as an arbitral Award within the meaning of Sections 30 and 36 of the Arbitration Act. Section 74 puts a settlement agreement in conciliation on par with a settlement award under Section 30. Sub-section (4) of Section 30 makes any such settlement award on agreed terms enforceable as any other Award. Therefore, it logically follows that the IGRC order is fully enforceable under Section 36 of the Arbitration Act, as if it were a decree of the Court.

REPORTABLE

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

IN ITS COMMERCIAL DIVISION

COMM ARBITRATION PETITION (L) NO. 10013 OF 2020

Titan Co Ltd Vs  Karvy Comtrade Ltd & Ors

CORAM:

G.S. PATEL, J

DATED: 19th March 2021

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Whether the limitation period for issuing the notice of arbitration will extend if there is an exchange of letters or settlement discussions?

 In the notice invoking arbitration dated 29.04.2020, it has been averred that:

“ Various communications have been exchanged between the Petitioner and the Respondents ever since and a dispute has arisen between the Petitioner and the Respondents, regarding non payment of the amounts due under the Tender Document.”  The period of limitation for issuing notice of arbitration would not get extended by mere exchange of letters, or mere settlement discussions, where a final bill is rejected by making deductions or otherwise. Sections 5 to 20 of the Limitation Act do not exclude the time taken on account of settlement discussions. Section 9 of the Limitation Act makes it clear that : “where once the time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it.” There must be a clear notice invoking arbitration setting out the “particular dispute” 21 (including claims / amounts) which must be received by the other party within a period of 3 years from the rejection of a final bill, failing which, the time bar would prevail.

In the present case, the notice invoking arbitration was issued 5 ½ years after rejection of the claims on 04.08.2014. Consequently, the notice invoking arbitration is ex facie time barred, and the disputes between the parties cannot be referred to arbitration in the facts of this case.

REPORTABLE

Supreme Court of India

Bharat Sanchar Nigam Limited vs M/S Nortel Networks India Pvt. ... on 10 March, 2021

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Supreme Court: Disputes About Properties Which Are Not Subject Matter Of Litigation Can Be Settled In Mediation

 In the Mediation it is always open for the

parties to explore the possibility of an overall amicable settlement

including the disputes which are not the subject matter of the

proceedings before the Court. That is the benefit of the Mediation.

In the Mediation parties may try for amicable settlement, which is

reduced into writing and/or a Settlement Agreement and thereafter

it becomes the part of the Court’s Order and the Court disposes of

the matter in terms of the Settlement Agreement. Thereafter the

order in terms of the Settlement Agreement is executable

irrespective of the fact whether the Settlement Agreement is with

respect to the properties which was/were not the subject matter of

the proceedings before the Court. Thereafter the order passed by

the Court in terms of the Settlement is binding to the parties and

is required to be acted upon and/or complied with and as observed

above the same is executable.

NONREPORTABLE

IN THE SUPREME COURT OF INDIA

ORIGINAL CONTEMPT JURISDICTION

CONTEMPT PETITION NO. 1868 OF 2018

KAUSHALIYA Vs  JODHA RAM 

Dated:November 25, 2019

M. R. Shah, J.

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Whether executor of will can enter into contract contrary to terms of will?

A probate when granted binds the whole world. It is a judgment in rem. The Executor, therefore, has to administer the estate of the testator in terms of the Will and not on the basis of the settlement arrived at by and between the parties which would be inconsistent with the terms of the Will. In case of any conflict between the terms of the Will and the settlement, the former will prevail. The court, thus, in exercise of its jurisdiction under Section 302 of the Act can enforce only the terms of the Will and not the terms of the agreement.

18. The agreement although formed part of the terms of settlement, but it may only be held to be a collateral document. A purported agreement of family arrangement which in effect and substance is a development agreement cannot form the part of a decree granting probate.

 The effect of termination of such agreement entered into by and between the parties is required to be gone into in an independent suit and not in a proceeding under Section 302 of the Act. The testamentary court in exercise of its jurisdiction under Section 302 of the Act cannot enforce a contract qua contract; only because the Executor is a party thereto.

If the agreement was not a part of the Will, in our opinion, Section 302 will have no application.

23. It is not necessary for us also to go into the question in regard to the effect of delay in termination of the agreement. We must, however, make a distinction between the two functions of the respondent No. 1; one as an Executor of the Will and the other as a developer. Whereas his action as an Executor is subject to the direction of the testamentary court, his action as a developer is not. An Executor or a Trustee would not put him in such a position in which his personal interest and his duties under the Will come in conflict with each other. The testamentary court must give effect to the Will and not an agreement by and between the Executor and the third party, which would be contrary to the wishes of the testator.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6575 of 2008 (Arising out of SLP (Civil) No. 13488 of 2007)

Decided On: 07.11.2008

 Chandrabhai K. Bhoir  Vs  Krishna Arjun Bhoir and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and Cyriac Joseph, JJ.

Citation: (2009) 2 SCC 315.

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Whether court should quash prosecution for offence of outraging modesty of woman on basis of Crude settlement?

The allegations levelled against petitioner are of outraging the
modesty of a woman. The incident in question has not been explained.
Trial Court’s order of 9th February, 2018 simply records that settlement
has been arrived at between the parties. Such crude settlements are not
acceptable, as it will send a wrong signal to the society.
This court is of the considered opinion that it is not a fit case to
quash the F.I.R. in question on the basis of such crude settlement.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: January 15, 2019
 CRL.M.C. 174/2019

VINAY KUMAR Vs GOVT OF NCT OF DELHI

CORAM:
MR. JUSTICE SUNIL GAUR

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Whether video conferencing before family court can be adopted only after failure of settlement?

We have already discussed at length with regard to the complexity and the sensitive nature of the controversies. The statement of law made in Krishna Veni Nagam (supra) that if either of the parties gives consent, the case can be transferred, is absolutely unacceptable. However, an exception can be carved out to the same. We may repeat at the cost of repetition that though the principle does not flow from statutory silence, yet as we find from the scheme of the Act, the Family Court has been given ample power to modulate its procedure. The Evidence Act is not strictly applicable. Affidavits of formal witnesses are acceptable. It will be permissible for the other party to cross-examine the deponent. We are absolutely conscious that the enactment gives emphasis on speedy settlement. As has been held in Bhuwan Mohan Singh (supra), the concept of speedy settlement does not allow room for lingering the proceedings. A genuine endeavour has to be made by the Family Court Judge, but in the name of efforts to bring in a settlement or to arrive at a solution of the lis, the Family Court should not be chained by the tentacles by either parties. Perhaps, one of the parties may be interested in procrastinating the litigation. Therefore, we are disposed to think that once a settlement fails and if both the parties give consent that a witness can be examined in video conferencing, that can be allowed. That apart, when they give consent that it is necessary in a specific factual matrix having regard to the convenience of the parties, the Family Court may allow the prayer for videoconferencing. That much of discretion, we are inclined to think can be conferred on the Family Court. Such a limited discretion will not run counter to the legislative intention that permeates the 1984 Act. However, we would like to add a safeguard. A joint application should be filed before the Family Court Judge, who shall take a decision. However, we make it clear that in a transfer petition, no direction can be issued for video conferencing. We reiterate that the discretion has to rest with the Family Court to be exercised after the court arrives at a definite conclusion that the settlement is not possible and both parties file a joint application or each party filing his/her consent memorandum seeking hearing by videoconferencing.

55. Be it noted, sometimes, transfer petitions are filed seeking transfer of cases instituted under the Protection of Women from Domestic Violence Act, 2005 and cases registered under the IPC. As the cases under the said Act and the IPC have not been adverted to in Krishna Veni Nagam (supra) or in the order of reference in these cases, we do intend to advert to the same.

56. In view of the aforesaid analysis, we sum up our conclusion as follows :-

(i) In view of the scheme of the 1984 Act and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera.

(ii) After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through videoconferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer.

(iii) After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that videoconferencing will sub-serve the cause of justice, it may so direct.

(iv) In a transfer petition, video conferencing cannot be directed.

(v) Our directions shall apply prospectively.

(vi) The decision in Krishna Veni Nagam (supra) is overruled to the aforesaid extent

Reportable

Supreme Court of India

Santhini vs Vijaya Venketesh on 9 October, 2017

        CIVIL ORIGINAL JURISDICTION

      TRANSFER PETITION (CIVIL) NO.1278 OF 2016

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Guidelines of supreme court for quashing of prosecution on ground of settlement between parties

We are, therefore, of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 Indian Penal Code, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 Indian Penal Code were unnecessary included in the charge sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties.

29. At this juncture, we would like also to add that the timing of settlement would also play a crucial role. If the settlement is arrived at immediately after the alleged commission of offence when the matter is still under investigation, the High Court may be somewhat liberal in accepting the settlement and quashing the proceedings/investigation. of course, it would be after looking into the attendant circumstances as narrated in the previous para. Likewise, when challan is submitted but the charge has not been framed, the High Court may exercise its discretionary jurisdiction. However, at this stage, as mentioned above, since the report of the I.O. under Section 173, Code of Criminal Procedure is also placed before the Court it would become the bounding duty of the Court to go into the said report and the evidence collected, particularly the medical evidence relating to injury etc. sustained by the victim. This aspect, however, would be examined along with another important consideration, namely, in view of settlement between the parties, whether it would be unfair or contrary to interest of justice to continue with the criminal proceedings and whether possibility of conviction is remote and bleak. If the Court finds the answer to this question in affirmative, then also such a case would be a fit case for the High Court to give its stamp of approval to the compromise arrived at between the parties, inasmuch as in such cases no useful purpose would be served in carrying out the criminal proceedings which in all likelihood would end in acquittal, in any case.

30. We have found that in certain cases, the High Courts have accepted the compromise between the parties when the matter in appeal was pending before the High Court against the conviction recorded by the trial court. Obviously, such cases are those where the accused persons have been found guilty by the trial court, which means the serious charge of Section 307 Indian Penal Code has been proved beyond reasonable doubt at the level of the trial court. There would not be any question of accepting compromise and acquitting the accused persons simply because the private parties have buried the hatchet.

31. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

(I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

(II) When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

(III) Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

(IV) On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

(V) While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

(VI) Offences under Section 307 Indian Penal Code would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 Indian Penal Code in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 Indian Penal Code is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 Indian Penal Code. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

(VII) While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 Indian Penal Code is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 Indian Penal Code and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.
IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 686/2014 (Arising out of S.L.P. (Criminal) No. 9547 of 2013)

Decided On: 27.03.2014

 Narinder Singh and Ors.Vs. State of Punjab and Anr.

Hon'ble Judges/Coram:
K.S. Panicker Radhakrishnan and A.K. Sikri, JJ.

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