1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4362 OF 2010 M/s Gurunanak Industries Kranti Chowk, Aurangabad Through its partner. .... PETITIONER V E R S U S The Maharashtra housing and Area Development Authority Thorugh its Executive Engineer. .... RESPONDENT Mr. M.R.Chhallani, Advocate for petitioner. Mr. U.S.Mote, Advocate for respondent. ............................ CORAM : S.V. GANGAPURWALA, J. DATE: 07/09/2010 ORAL ORDER : 1. The present petitioner is the original defendant. The present respondent has filed Suit for recovery against the petitioner / original defendant. The same is pending. 2. The present petitioner moved an application ( Exh. 49 ) purported to be U/s 89 of the Code of Civil Procedure for referring the matter to Lok Adalat or for conciliation / mediation as the Court deems fit. The present respondent / original plaintiff opposed the said application by 2 filing its Say contending therein that there is no likelihood of compromise on any terms. It was further submitted that even the Examination – in – Chief has been led by the plaintiff. It is also contended by the plaintiff that it is semi Govt. office and there is no possibility of bargaining for claim amount. The trial Court considering the Say filed and also considering the fact that the possibility of settlement does not exists, rejected the said application. The petitioner has assailed the said order before this Court. 3. Mr. Chhallni, the learned counsel for the petitioner has contended that the very object and the spirit behind enactment of Section 89 is required to be considered. The said provision has been enacted to minimize the litigation in the Court and for earlier disposal of the matter. According to him, even if there is no any clause of arbitration, still the Court can exercise its jurisdiction. He has further submitted that earlier the present petitioner had also filed Suit for recovery against the defendant, which has been dismissed and the Appeal is pending. The respondent has filed the present Suit for recovery. The dispute arises from the said contract between the parties. Mr. Chhallani has further submitted that the matter would involve the evidence of technical expert, which would not be possible in the Court and so it is desirable that the dispute should be settled by the technical expert. To buttress his contention, Mr. Chhallani relied on the Judgment of the Apex Court in the case of Salem Advocate Bar Assosiciaion, Tamil Nadu V/s Union of India reported in AIR 2003 Supreme Court – 189 and the Judgment in the case of Sukanya Holdings Pvt. Ltd. V/s Jayesh H. Pandya and another reported in AIR 2003 Supreme Court - 2252. 4. Mr. U.S.Mote, the learned counsel for the respondent has contended that a detailed Say to the application has been filed, wherein it 3 has been succinctly stated by the respondent that there is no possibility or likelihood of any settlement and the respondent does not want to settle the matter nor would like to bargain on the claim. According to the learned counsel for the respondent, unless and until both the parties agree for the reference, the dispute can not be referred U/s 89. For the said purpose, he has relied on the Judgment of the learned Single Judge of this Court in the case of Godavwari Marathwada Irrigation Development Corporation, Nanded and others V/s Maruti Constructions Engineers and Contractors reported in 2006 ( 4 ) Mh.L.J. 628 and the Judgment delivered by the learned Single Judge of the Gauhati High Court in the case of the West Bengal State Electricity Board and others Vs. M/s Shanti Conductors Pvt. Ltd. reported in AIR 2004 Gauhati – 70. 5. To understanding the controversy, it would be appropriate to refer to Section 89 of the Code of Civil Procedure : “ 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; 4 (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) medication (2) where a dispute has been referred - (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act ; (b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 ( 39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 ( 39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the 5 provisions of that Act; (d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed ”. 6. The argument of Mr. Chhallani, the learned counsel for the petitioner with regard to the intention of the legislature and the spirit behind enactment of the said provision can not be the matter of debate. No doubt, the said provision has been enacted to reduce the burden on the Courts by referring to the alternate dispute resolution mechanism as is laid down by the Apex Court in the case of Salem Advocate Bar Association referred supra. At the same time, phraseology of Section 89 is clear. A reference can be made under the said Section only if the Court is satisfied that there exists element of settlement. The Court has to be objectively satisfied regarding the element of settlement and unless the said satisfaction is spelt out, the provisions of Section 89 can not be invoked, as has been held by the learned Single Judge of this Court in the case of Godavari Marathwada Irrigation Development Corporation referred supra. 7. In the light of the above, the Writ Petition being sans merit, is dismissed. However, there shall be no order as to costs. [ S.V. GANGAPURWALA, J. ] knp/ FA 4362.2010