TMI Blog2021 (10) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the concerned court has passed any order as required under Rule 25 of the Mediation Rules. Therefore, in view of the Rule 25 of the Mediation Rules, unless an order has been passed by the concerned court, the settlement arrived in between the parties before the Mediator cannot be treated as a decree. And in view of Rule 20 of the Mediation Rules, views expressed by a party in the course of the mediation/conciliation proceedings or the proposals made or views expressed by the mediator/conciliator and admission made by a party in the course of mediation/conciliation proceeding shall not rely on or introduce the said information in other proceedings. Application dismissed. - IA-854/ND/2021 and IA-2242/ND/2020 in IB-630/ND/2020 - - - Dated:- 24-9-2021 - Abni Ranjan Kumar Sinha, Member (J) And Kapal Kumar Vohra, Member (T) For the Appellant : Arun Agarwal, Vipin Garg and Krishna Goel, Advs. For the Respondents : Jia Lal Kishori, Adv. ORDER Abni Ranjan Kumar Sinha, Member (J) 1. Since the facts and averments of both the applications i.e. IA/854/2021, IA/2242/2020 are common and the prayers made therein are similar, therefore we would like to dispose off b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt in terms of Sec. 25(3) of the Indian Contract Act, 1872. v. However, the period of four cheques of ₹ 11,00,000/- agreed as above was further extended by one month and the details of actual four cheques delivered, drawn on State Bank of India, is as per table below, all of which were dishonoured and in lieu thereof only an amount of ₹ 3,00,000/- was realised through Demand Drafts given by the Corporate Debtor. On default of settlement mediation the original outstanding of ₹ 17,01,320/- after realisation of above Demand Drafts of ₹ 3,00,000/- comes at ₹ 14,01,3201/-. vi. That the Applicant reported the Non-compliance of Mediation Order to the court of CMM, Karkardooma, Delhi and the Court issued Non-Bailable Warrants (NBW) on 18/01/2017 fixing the date appearance on 02/03/2017. Thereafter the case was transferred from the Court of CMM, Delhi to the Court of Ghaziabad. The Ghaziabad Court issued NBW on 09/11/2017, 09/01/2018, 23/03/2018, 04/05/2018, 27/06/2018, 18/09/2018, 16/11/2018, 08/12/2018, 05/03/2019, 25/05/2019, 19/08/2019, 14/10/2019. The Corporate Debtor never appeared before the Court. vii. That the copy of Mediati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting the aforesaid records/documents from that counsel, the Applicant immediately compiled the Application (Form-5) and filed the same on 26/02/2020. vii. That the grounds for Condonation of Delay in terms of sec. 5 of Limitation Act, 1963 are as follows: a. The Return Memo of dishonour of cheque No. 491305 was issued on 31/12/2016 and there from the period of three years expired on 31/12/2019 whereas the Application (Form-5) u/s. 9 of the Code was filed on 26/02/2020. So computed, the delay in filing present Application u/s. 9 of the Code amounts to 56 days, which the Applicant/Operational Creditor pray to be condoned u/s. 5 of The Limitation Act 1963. The Applicant pleads that there exist sufficient cause/grounds to condone the aforesaid delay of 56 days as detailed herein. b. The Applicant was under a bona fide belief that the statutory Demand Notice (Form-3) under Rule-5(1)(a) r/w. Sec. 8 of the Code initiates the CIRP Process and is part and parcel of Application u/s. 9 of the Code and thus believed that serving Demand Notice u/s. 8 of the Code is sufficient compliance of the Law of Limitation in terms of Article 137 under the Limitation Act, 1963. c. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the parties and was sent to concerned court, the parties are directed to appear before concerned court on 03.12.2015. 14. We further notice that the applicant has not enclosed the order passed by the concerned court in terms of settlement arrived in between the parties at mediation centre. 15. At this juncture, we would like to refer to Rule 20 and 25 of Mediation and Conciliation Rules, 2004 and the relevant portion of aforesaid rules are quoted below:- Rule 20: Confidentiality, disclosure and inadmissibility of information. (a) When a mediator/conciliator receives factual information concerning the dispute(s) from any party, he shall disclose the substance of that information to the other party, so that the other party may have an opportunity to present such explanation as it may consider appropriate. Provided that, when a party give information to the mediator/conciliator subject to a specific condition that it be kept confidential, the mediator/conciliator shall not disclose that information to the other party. (b) Receipt or perusal, or preparation of records, reports or other documents by the mediator/conciliator, while serving in that capacity shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the concerned court and on receipt of any settlement, after hearing the parties, within seven days but in any case not beyond a period of fourteen days, if the court is satisfied that the parties have settled their dispute(s), it shall pass a decree in accordance with terms thereof. 18. In view of the aforesaid provision, when we consider the case in hand then we notice that although the settlement agreement was arrived in between the parties and the matter was referred to the concerned court under Rule 25 of the Mediation Rules but the applicant has failed to produce any document to show that the concerned court has passed any order as required under Rule 25 of the Mediation Rules. Therefore, in view of the Rule 25 of the Mediation Rules, unless an order has been passed by the concerned court, the settlement arrived in between the parties before the Mediator cannot be treated as a decree. And in view of Rule 20 of the Mediation Rules, views expressed by a party in the course of the mediation/conciliation proceedings or the proposals made or views expressed by the mediator/conciliator and admission made by a party in the course of mediation/conciliation proceeding shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Kotak Mahindra Bank Ltd. vs. Anuj Kumar Tyagi (Delhi High Court) RFA 56/2014. iv. R. Madesh vs. M. Rathinam (Madras High Court) Civil Suit No. 250 Of 2007. v. Suresh Kumar Joon vs. Moot Chand Motors Ors. (Delhi High Court) IAs No. 85611201 and 8562/2011 in CS (OS) 389/2009. 27. He further contended that the admission of the corporate debtor during the mediation process is an acknowledgement of debt and that amounts to acknowledgement under Section 25(3) of Contract Act read with Section 18 of the Limitation Act. 28. Ld. Counsel for applicant also raised all the facts, which he has raised in support of IA/854/2021 and the payment made to the operational creditor and facts mentioned in both the applications referred to above. Hence it is needless to repeat the same. 29. He further contended that he received the return memo dated 31.12.2016 in the second week of January 2017 and that is the reason according to the applicant, there is a delay of 56 (fifty Six) days it was calculated from 31.12.2016 to the date of filing i.e. 26.02.2020. 30. In the light of that submission, we have perused the decisions upon which the applicant has placed reliance as well as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient though it omits to specify the exact nature of the property or right, or avers that the time for payment delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right; (b) the word signed means signed either personally or by an agent duly authorised in this behalf; and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. 36. A bare perusal of Section 18 of Limitation Act shows that the acknowledgement must be in writing and it must be made before the expiration of prescribed period for suit or an application. 37. Admittedly, herein the case in hand, the applicant in Part-IV of the application has referred the date of default is of 10.01.2008 on the ground that the invoices are due and payable after 30 days credit period. 38. Whereas, the settlement agreement arrived in between the parties before the mediation on 16.11.2015. Admittedly, the acknowledgement is made after three years expir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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