04 Satyam Singla
04 Satyam Singla
04 Satyam Singla
MEDIATION SETTLEMENTS
SATYAM SINGLA*
*
Satyam Singlais a fifth-year student pursuing BBA LLB from Symbiosis Law School,
Noida and can be contacted at [email protected].
The GNLU Law Review - Volume 8 │ December 293
I. Introduction
The Law Commission in its 245th Report has observed that timely
justice is essential to strengthen the rule of law and to enforce the
right of access to justice which has been enshrined in Part III of the
Constitution of India, 1950.1 Justice Markandey Katju had expressed
his concerns over the arrears of cases in Indian judiciary including the
Supreme Court.2 The former Chief Justice of India (or ‘CJI’), Justice
S.A. Bobde had also emphasized on the importance of compulsory pre-
litigation mediation which prevents not only the wastage of precious
judicial time but also saves the time of litigating parties. He appreciated
how the Commercial Courts Act, 20153 requires compulsory pre-
litigation mediation and how other institutions should also follow
the same.4 Apprehending their contribution in this backlog, people
generally hesitate to approach the courts of law. A case, once filed,
is likely to go on for a long time, sometimes owing to the delaying
tactics adopted by either party. In this situation, Alternative Dispute
Resolution (hereinafter referred to as ‘ADR’) mechanism has come a
long way as a blessing in disguise. Despite having statutory recognition,
ADR has not become a common practice and has been looked down
by many. Multiple reasons could be associated with the same which
range from lack of knowledge of the parties to lack of experience of
the advocates, from disinterest of the parties to a lack of security and
trust amongst the parties. The Judiciary has acknowledged the same
and has worked a lot upon the efficient enforcement of this mechanism
in order to combat the problems faced by parties in litigation. Litigation
1
L aw Commission of India, R eport No. 245: R eport on A rrears and Backlog: Creating
A dditional Judicial (wo)manpower, 6 (2014) (hereinafter ‘Report’).
2
M arkandey K atju, Whither Indian Judiciary 204 (Bloomsbury Publ’g 2018).
3
Commercial Courts Act, 2015, § 12 (A), No. 4, Acts of Parliament, 2016 (India).
4
CJI Bobde Bats for Law Containing Compulsory ‘Pre-litigation Mediation’, The Week
(Feb. 8, 2020), https://www.theweek.in/news/india/2020/02/08/cji-bobde-bats-for-
law-containing-compulsory-pre-litigation-mediation.html (hereinafter ‘Pre-litigation
mediation’).
294 JUDICIAL INTERVENTION IN MEDIATION SETTLEMENTS
puts a burden on the pocket of the parties, often takes a long time and
causes mental agony as a result. Parties might cease to have a cordial
relation with each other. On the other hand, in ADR mechanism, owing
to confidentiality and the absence of a rigid process, parties can avoid
the disadvantages and limitations that they would otherwise face with
litigation. Through judicial pronouncements, we have a set of settled
principles which govern such processes and therefore, assist the parties
in reaching a settlement amicably. Needless to say, active judicial
intervention in such processes has encouraged the parties to approach
the courts in some cases, but the fact that these mechanisms help to
reduce arrears of cases cannot be ignored. The backlog of cases can
also be reduced by allowing judicial intervention only after a matter
has undergone any ADR process. The recommendations of the Report,5
therefore, contained one recommendation relating to improvement in
enforcement of such alternative dispute resolution mechanisms. These
mechanisms include mediation, conciliation, arbitration, and judicial
settlements. The present paper talks about mediation as a mechanism of
alternative dispute resolution. Instead of pondering upon mediation, the
paper focuses on the judicial intervention in mediation settlements. The
courts have, at times, taken an active role in modifying the settlement
arrived at between parties on the ground of it being contrary to law
or public policy. The various areas where the court would ordinarily
interfere with mediation settlements shall be discussed in the following
section. Next, the issue of enforcement of the mediation agreement has
been discussed in detail. The provision of contempt in respect of the
enforcement of such settlement/agreement has also been elucidated.
II. Mediation
A. Characteristics of Mediation
7
Code of Civil Procedure, 1908, No. 5, Acts of Parliament of 1908 (India).
8
L aw Commission of India, R eport No. 222: Need for Justice-dispensation through ADR
etc.31 (2009); L aw C ommission of India , R eport No. 238: A mendments on Section 89 of the
Code of Civil Procedure, 1908 and A llied Provisions 18 (2011).
9
Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344; Civil Procedure ADR
and Mediation Rules, 2003, Rule 4 (India).
10
WIPO, Mediation: Frequently A sked Questions, https://www.wipo.int/amc/en/
mediation/guide.
11
Roger Fisher & William Ury, Getting to yes, 109 (Bruce Patton ed., 3rd ed., Random
House UK 2012).
12
Varda Bondy & M argaret Doyle, Mediation in Judicial R eview: A Practical H andbook for
L awyers, 19 (The Pub. L. Project 2011).
13
Dhananjaya Y. Chandrachud, Mediation – Realizing the Potential and Designing
Implementation Strategies, L aw Commission of India, http://lawcommissionofindia.nic.in/
adr_conf/chandrachud3.pdf.
296 JUDICIAL INTERVENTION IN MEDIATION SETTLEMENTS
B. Schools of Mediation
20
Legal Services Authority Act, 1987, § 19, No. 39, Acts of Parliament, 1987 (India);
Arbitration and Conciliation Act, 1996, § 30, No. 26, Acts of Parliament, 1996 (India);
Hindu Marriage Act, 1955, § 23, No. 25, Acts of Parliament, 1955(India); Family Courts
Act, 1984, § 9, No. 66, Acts of Parliament, 1984(India); Industrial Disputes Act, 1947, §
10, No. 14, Acts of Parliament, 1947(India).
21
Salem Advocate Bar Assn. v. Union of India, (2003) 1 SCC 49.
22
Arbitration and Conciliation Act, 1996, No. 26, Acts of Parliament, 1996 (India).
23
Afcons infrastructure Ltd. v. Cherian Verkay Construction Co. (P) Ltd., (2010) 8 SCC
24.
24
Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344.
25
Salem Advocate Bar Assn. v. Union of India, (2003) 1 SCC 49 (appointing S. Jagannadh
Rao Committee).
26
Code of Civil Procedure, 1908, § 89, No. 5, Acts of Parliament of 1908 (India).
27
Code of Criminal Procedure, 1973, No. 2, 1973, Acts of Parliament, 1973 (India).
298 JUDICIAL INTERVENTION IN MEDIATION SETTLEMENTS
its direct nexus with ‘liberty’ under Article 21 of the Constitution, the
answer to this question, prima facie appears to be in the negative.28
It is argued here that the issue before the Supreme Court29 was not
related to the nature of matters or disputes which can referred to
mediation or other ADR processes. Therefore, the observation of the
court was not an authority and was merely an obiter.30 Obiter are not
authoritative, unlike ratio decidendi.31 This contention of the author also
finds its support from a subsequent judicial pronouncement.32
28
Afcons Infrastructure Ltd. v. Cherian Verkay Construction Co. (P) Ltd., (2010) 8 SCC
24.
29
Id.
30
Directors of Settlements v. M.R. Apparao, (2002) 4 SCC 638.
31
MCD v. Gurnam Kaur, (1989) 1 SCC 101 : AIR 1989 SC 38.
32
Dayawati v. Yogesh Kumar Gosain, 2017 SCC OnLine Del 11032 : (2017) 243 DLT 117.
33
Code of Criminal Procedure, 1973, § 320, No. 2, 1973, Acts of Parliament, 1973 (India).
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There are two ways through which a mediation center takes up cases.
One is the court-annexed or court-referred mediation and the other is
pre-litigation mediation which is a voluntary exercise by the parties to a
dispute. The law on reference to mediation has undergone a substantial
change especially after the Afcon case.35
Prima facie, if one keeps the cases of civil nature aside, it seems
that only those cases which are compoundable36 under the criminal
law can be referred to mediation for settlement.37 One may argue that
the offences, on the basis of severity and the impact on society, have
been classified as compoundable or non-compoundable. This distinction
between compoundable and non-compoundable offences has been
respected earlier while applying the principles of ADR as the cases
belonging to the latter class were not referred to mediation or any other
kind of ADR for settlement.38 There have been judicial pronouncements
34
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.
35
Afcons Infrastructure Ltd. v. Cherian Verkay Construction Co. (P) Ltd., (2010) 8 SCC
24.
36
Code of Criminal Procedure, 1973, § 320, No. 2, 1973, Acts of Parliament, 1973 (India).
37
Dayawati v. Yogesh Kumar Gosain, 2017 SCC OnLine Del 11032 : (2017) 243 DLT 117.
38
Code of Criminal Procedure, 1973, § 320(9), No. 2, 1973, Acts of Parliament,
1973(India).
300 JUDICIAL INTERVENTION IN MEDIATION SETTLEMENTS
39
Ram Lal v. State of J&K, (1999) 2 SCC 213; Ishwar Singh v. State of M.P., (2008) 15 SCC
667.
40
Code of Criminal Procedure, 1973, § 320, No. 2, 1973, Acts of Parliament, 1973 (India).
41
Shiji v. Radhika, (2011) 10 SCC 705; Jayrajsinh Digvijaysinh Rana v. State of Gujarat,
(2012) 12 SCC 401 : (2012) 6 SCR 534.
42
Code of Criminal Procedure, 1973, § 320(9), No. 2, 1973, Acts of Parliament, 1973 (“No
offence shall be compounded except as provided by this section.”).
43
Gian Singh v. State of Punjab, (2012) 10 SCC 303.
44
State of M.P. v. Madanlal, (2015) 7 SCC 681.
45
Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641.
46
Gian Singh v. State of Punjab, (2012) 10 SCC 303.
47
Id.
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48
Afcons Infrastructure Ltd. v. Cherian Verkay Construction Co. (P) Ltd., (2010) 8 SCC
24.
49
Dayawati v. Yogesh Kumar Gosain, 2017 SCC OnLine Del 11032 : (2017) 243 DLT 117.
50
Code of Civil Procedure, 1908, or. 10 (1)(a), No. 5, Acts of Parliament of 1908 (India).
51
Legal Services Authority Act, 1987, § 19(5), No. 39, Acts of Parliament, 1987 (India).
52
Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344.
53
Indian Penal Code, 1860, § 498-A, No. 45, Acts of Parliament, 1860 (India).
54
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 : AIR 2013 SC 2176.
55
Jitendra Raghuvanshi v. Babita Raghuvanshi, (2013) 4 SCC 58.
302 JUDICIAL INTERVENTION IN MEDIATION SETTLEMENTS
56
State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688 : AIR 2019 SC 1296.
57
Yashpal Chaudhrani v. State (Govt. of NCT of Delhi), 2019 SCC OnLine Del 8179.
58
Negotiable Instrument Act, 1881, § 138, No. 26, Acts of Parliament, 1881 (India).
59
Yashpal Chaudhrani v. State (Govt. of NCT of Delhi), 2019 SCC OnLine Del 8179.
60
M.C. Subramaniam v. Sakthi Finance Ltd., (2020) 3 CTC 807.
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The court will not ordinarily set-aside or interfere with the mediation
settlement merely on a bald allegation of fraud or undue influence as
there is a presumption of genuineness attached with the settlement. It
will frustrate the purpose of the mediation and therefore, the party has
to prove that any kind of fraud has been played on it for arriving at a
settlement.71
It is true that the court’s concern has always been whether the parties
had entered into the agreement on their own will after acknowledging
and understanding each and every clause of the agreement, and without
the presence of any kind of duress, undue influence, misrepresentation,
fraud, coercion or unequal bargaining positions.72 If the court finds
its answer in the affirmative, the court will not hesitate in passing a
decree. The way to determine or answer the same is to look at whether
the agreement concluded after extensive negotiations is closest to an
acceptable, just and equitable resolution.73
Had he not entered into the agreement, the other party would still have
a duty to perform the act, which has now been colored as consideration.
Consent given under duress is not a valid consent. The party might
have had to compromise his/her claim not out of his/her own will but
owing to facts and especially the duress under which the said agreement
has been arrived at between those concerned parties. The law cannot
allow one party to take the benefit of the duress of another party. The
court had set-aside the settlement for dissolution of marriage as the
same was consented by one party just to save her life.78 The court had
discussed the provisions of Hindu law79 and Contract Law and therefore
had hinted that the settlements arrived must satisfy the principle of free
consent.80
The court will also not honor any condition in any settlement where
the rights of a person, not a party to the mediation are affected unless
and until the parties have a separable right in respect of the dispute and
the rights of such a person has not been affected and any condition of
the settlement has not caused any kind of prejudice to that person.82
It is based on the principle of Audi Alterm Partem i.e., hear the other
side. One cannot decide the rights of any other person especially to
the prejudice of that concerned person without giving a reasonable
opportunity to him. The Courts are duty bound to make ensure that the
principles of natural justice are not violated and any such agreement
which tends to prejudice the rights of a party whose interest has not
78
Id.
79
Hindu Marriage Act, 1955, § 23 (1) (bb), No. 25, Acts of Parliament, 1955 (India).
80
Rashika Narain & Abhinav Sankaranarayanan, Formulating a Model Legislative
Framework for Mediation in India, 11 NUJS L. R ev. 2, 75 (2018).
81
Mohanan P.K. v. Sudakshina Ramakrishnan, 2017 SCC OnLine Ker 4735 : (2017) 3 KHC
155.
82
Sukna Mahato v. Sadhana Debnath, 2017 SCC OnLine Cal 18565 : (2018) 2 ICC 286.
306 JUDICIAL INTERVENTION IN MEDIATION SETTLEMENTS
If the statute bars the waiving of any right conferred by it, then any
condition contrary to the same would go against the public policy.83
The same seems to be justified when read with the Lockean theory of
social contract. Action of one person should not go against the right of
any other person and therefore, larger societal interest supersedes the
individual interest. The judiciary has always stepped in the picture when
the need of the same was felt by it, in order to save the larger public
interest. Therefore, any compromise or settlement arrived at between
the parties, if contains any condition which is against the public policy,84
would to that extent be set-aside by the court.85
83
Rajat Gupta v. Rupali Gupta, 2018 SCC OnLine Del 9005 : (2018) 249 DLT 289; Lachoo
Mal v. Radhey Shyam, (1971) 1 SCC 619.
84
Indian Contract Act, 1872, § 25, No. 9, Acts of Parliament of 1872 (India).
85
Nagendrappa Natikar v. Neelamma, (2014) 14 SCC 452.
86
Leif Wenar, Rights, The Stan. Encyclopedia of Phil. (Apr. 23, 2020, 4:15 PM), https://
plato.stanford.edu/archives/spr2020/entries/rights (“Rights are entitlements (not) to
perform certain actions, or (not) to be in certain states; or entitlements that others (not)
perform certain actions or (not) be in certain states.”).
87
Basheshar Nath v. CIT, AIR 1959 SC 149.
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The general principle is that a person has the right to waive the
benefit he could have availed through any law or rule. The law or rule
might have been framed for the benefit of the said individual only, but
the law confers upon him the power to waive the same till the time any
public right90 is not infringed due to such action and the same must not
88
Lalita Kumari v. State of U.P., (2012) 4 SCC 1 : AIR 2012 SC 1515.
89
Gian Singh v. State of Punjab, (2012) 10 SCC 303; Afcons Infrastructure Ltd. v. Cherian
Verkay Construction Co. (P) Ltd., (2010) 8 SCC 24; Code of Criminal Procedure, 1973, No.
2, 1973, Acts of Parliament, 1973 (India).
90
Indira Bai v. Nand Kishore, (1990) 4 SCC 668 (determining the nature of the right
waived i.e., whether private or public, it is to be seen that whether the right was of the
party alone or of the public also in the sense that the general welfare of the society is
involved).
308 JUDICIAL INTERVENTION IN MEDIATION SETTLEMENTS
be against public policy.91 The law regarding waiver has been discussed
by the Apex Court many times. Waiver92 is nothing but an agreement
not to assert a right or to release a right.93 A right can be waived by a
party in whose favor the law vests the right. A waiver is a question of
fact and must be an intentional act evident by act or conduct of the
parties.94 Waiver can be, therefore, only constituted by voluntary and
intentional relinquishment of a right.95 Waiver puts an estoppel96 and it
is settled that where there is no estoppel, there is no waiver.97 However,
both estoppel and waiver are different.98
91
Lachoo Mal v. Radhey Shyam, (1971) 1 SCC 619.
92
Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd., (1971) AC 850
(defining ‘waiver’).
93
Supt. of Taxes v. Onkarmal Nathmal Trust, (1976) 1 SCC 766.
94
Krishna Bahadur v. Purna Theatre, (2004) 8 SCC 229.
95
All India Power Engineer Federation v. Sasan Power Ltd., (2017) 1 SCC 487 (“Waiver
must be spelled out with crystal clarity i.e., with a clear intention to give up a right
known to the person”).
96
Supt. of Taxes v. Onkarmal Nathmal Trust, (1976) 1 SCC 766.
97
Municipal Corpn of Greater Bombay v. Hakimwadi Tenants Assn., 1988 Supp SCC 55.
98
Dawsons Bank Ltd. v. Nippon Menkwa Kabushiki Kaisha, 1935 SCC OnLine PC 8 : AIR
1935 PC 79.
99
Lachoo Mal v. Radhey Shyam, (1971) 1 SCC 619.
100
Sukna Mahato v. Sadhana Debnath, 2017 SCC OnLine Cal 18565 : (2018) 2 ICC 286;
M anual , supra note 77at 16.
101
Nagendrappa Natikar v. Neelamma, (2014) 14 SCC 452.
102
Indira Bai v. Nand Kishore, (1990) 4 SCC 668.
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When one party has taken the advantage and benefit accrued to it
under the settlement, though it was argued that the act required to be
performed by the party in lieu of it, is against her statutory right, the
court held that the party cannot walk out of the said agreement and
undertaking given to the court without the consequences flowing from
the Contempt of Courts Act.103 Contempt of court vis-à-vis mediation
settlement has been discussed in the following section, in depth.
The parties are at liberty to waive the cooling off period, if agreed
and directly approach the court for a decree of mutual divorce.104 Where
one party has compromised its right to claim any further amount in
form of maintenance, the agreement will not be enforceable in the eyes
of law as the provisions of maintenance have been introduced in various
legislations in order to promote welfare, and the enforceability of the
agreement would puncture the object of those legislations.105
The court will not enforce the agreement when it contains a condition
which prevents any party from claiming damages which are otherwise
payable in law.106 The party claiming the waiver of right must show that
the agreement waiving the right came into being as a consideration
for any other compromise.107 This follows that where the mediation
agreement is not, prima facie, unreasonable, the court would warrant
the party claiming that the consent has been obtained on the basis of
some fraud or alike nature of act, to show and prove the same. This,
therefore, means that a presumption of good faith has been annexed
with the mediation agreement, especially in the cases of court-annexed
mediation as the mediator who is a third and neutral party has presided
over the meetings and has drawn the settlement agreement.
103
Avneesh Sood v. Tithi Sood, 2012 SCC OnLine Del 2445.
104
Rajat Gupta v. Rupali Gupta, 2018 SCC OnLine Del 9005 : (2018) 249 DLT 289.
105
Nagendrappa Natikar v. Neelamma, (2014) 14 SCC 452.
106
G. Ramachandra Reddy v. Union of India, (2009) 6 SCC 414.
107
Krishna Bahadur v. Purna Theatre, (2004) 8 SCC 229.
310 JUDICIAL INTERVENTION IN MEDIATION SETTLEMENTS
The fact of the matter is that the settlement arrived by the parties
in mediation in India are unenforceable. India, as stated above, has no
dedicated legislation for the enforcement of mediation settlement which
results in opening up of cases again in the court very often. It is merely
an agreement which is not enforceable under any law and therefore,
unless made vide a decree of the court, cannot bind the parties.
108
Pre-litigation mediation, supra note 4.
109
Afcons Infrastructure Ltd. v. Cherian Verkay Construction Co. (P) Ltd., (2010) 8 SCC
24.
110
Id.
111
Legal Services Authority Act, 1987, § 21, No. 39, Acts of Parliament, 1987 (India).
112
Code of Civil Procedure, 1908, No. 5, Acts of Parliament of 1908 (India).
113
Mohanan P.K. v. Sudakshina Ramakrishnan, 2017 SCC OnLine Ker 4735 : (2017) 3
KHC 155.
114
Hemanta Kumari Debi v. Midnapur Zamindari Co., 1919 SCC OnLine PC 41: AIR 1919
PC 79 (Buckmaster, J.).
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For pre-litigation mediation, the parties can file a suit and make an
application to the court of competent jurisdiction to pass a decree. They
can also get it enforced by virtue of the principles of contract law.115
It is worth noting that even though the Supreme Court has held116
that conciliation and mediation are synonyms, it is still unclear as to
whether settlements arrived through mediation will be enforceable in
the same manner as that arrived through conciliation are. However,
the answer to this question as of now seems to be in negative. The
reasons are two-fold. The conciliation settlements are enforceable by
the virtue of section 74 of the Arbitration and Conciliation Act. The act
doesn’t talk about mediation at all and therefore, stretching the same
and subjecting it to the provisions of the Arbitration and Conciliation
Act based upon the judicial precedent would amount to an uncalled
purposive interpretation. Also, if mediation settlements are deemed to
be covered by the act, the Mediation Model Rules, 2003 would become
infructuous. The other reason is the recent judicial trend. The courts
on various occasions have questioned the genesis of the settlement in
question. The courts have denied relief to litigants on account of the
settlement in question being a result of mediation and not conciliation117
and therefore, denied enforcing the settlement as per the Arbitration and
Conciliation Act.118
A. Criminal Cases
Where the parties have not complied with the mediation agreement
arrived between them earlier, the appropriate course of action would be
to reopen the original case and the court will then decide the matter on
merits.132
128
Deep Parikh v. State, 2017 SCC OnLine Del 7955; Shikha Bhatia v. Gaurav Bhatia, 2011
SCC OnLine Del 1014 : (2011) 178 DLT 144.
129
S. Balasubamaniyam v. P. Janakaraju, 2004 SCC OnLine Kar 226 : (2004) 5 Kant LJ
338.
130
Biman Chatterjee v. Sanchita Chatterjee, (2004) 3 SCC 388.
131
Sajan K. Varghese v. State of Kerala, (1989) 2 SCC 208 : 1989 SCC (Cri) 339.
132
Dinesh Gulati v. Ranjana Gulati, MAT APP (FC) 70 of 2016, decided on 2-8-2016 (Del).
133
Sivarajan v. Subash, 2020 SCC OnLine Ker 337 : (2020) 1 KLT 717.
314 JUDICIAL INTERVENTION IN MEDIATION SETTLEMENTS
for contempt action is that the parties were at liberty to negotiate and
come to a conclusion thereon at that time and the present settlement
has been arrived at with their consent. Because of the estoppel by
prior consent and conduct, the parties cannot deny honoring the
undertakings given by them at the time of mediation settlement which
ensures that the settlement is not violated at any point of time. It is
important here to note that the disobedience should be willful and
should not be one which has arisen due to inevitable circumstances or
circumstances that are not in the hands of either party. The court145
has rightly concluded that in order to prevent the undermining of the
majesty and the authority of the court, parties should not be allowed
to resile from an undertaking given to the court without any penal
consequences following the same. Otherwise, the sanctity attached
to such undertakings would be completely destroyed and blown to
the winds. If the courts take this action of the parties for granted,
dishonesty and disrespect towards the judicial process will expand
its horizon. Therefore, the position is that if the party has tendered
an undertaking to abide by the terms of the agreement which stands
accepted by the court; in the event of breach of the undertaking, action
and consequences under the Contempt of Courts Act would follow.146
The action under Contempt of Courts Act cannot be used to get the
decree i.e., settlement in civil cases, executed.147 The party, in order to
get the settlement decree executed in addition to initiate contempt
proceedings, has to seek recourse of Order 21 Rule 32 CPC.148 The
contempt jurisdiction is not an alternative for execution proceedings
and hence, both can be initiated simultaneously and the most effective
remedy is to execute the decree under CPC.149 This is because of the fact
that both proceedings are different in nature and the court in execution
145
Avneesh Sood v. Tithi Sood, 2012 SCC OnLine Del 2445.
146
Dayawati v. Yogesh Kumar Gosain, 2017 SCC OnLine Del 11032 : (2017) 243 DLT 117.
147
R.N. Dey v. Bhagyabti Pramanik, (2000) 4 SCC 400.
148
Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307.
149
Itwar Singh v. Ganeshram, 2015 SCC OnLine Chh 12 : 2015 CriLJ 1604.
316 JUDICIAL INTERVENTION IN MEDIATION SETTLEMENTS
The fact remains that the mediation settlement arrived at between the
parties is out of their own will and no one has compelled them to agree
150
Niaz Mohammad v. State of Haryana, (1994) 6 SCC 332.
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to the terms and conditions. As such, the parties should not be allowed
to move out or withdraw from the settlement unilaterally without there
being any sort of remedy for the other party. Enforcement of settlements
in criminal cases must be taken care of especially and a provision must
be added which accordingly ensures that the breaching party does not
benefit from the performance of the other party after failing to perform
its obligations under the agreement. The case must be automatically
revived and restored in the court of law, upon the complaint of any
breach in the settlement and a presumption should be drawn against the
breaching party, which can be extended to the merits of the case.