Role of ARBITRATORS/MEDIATORS should be guided by the example quoted in this judgment of the
SUPREME COURT
B K GUPTA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
S.L.P. Civil) No(s).2896 OF 2010
B.S.KRISHNA MURTHY & ANR. Petitioner(s)
VERSUS
B.S.NAGARAJ & ORS. Respondent(s)
O R D E R
Heard learned counsel for the appearing parties.
This is a dispute between brothers. In our opinion, an
effort should be made to resolve the dispute between the
parties by mediation.
In this connection, we would like to quote the
following passages from Mahatma Gandhi's book 'My
Experiments with Truth' :-
"I saw that the facts of Dada Abdulla's case
made it a very strong indeed, and that the
law was bound to be on his side. But I also
saw that the litigation, if it were
persisted in, would ruin the plaintiff and
the defendant, who were relatives and both
belonged to the same city. No one knew how
long the case might go on. Should it be
allowed to continue to be fought out in
court, it might go on indefinitely and to no
advantage of either party. Both, therefore,
desired an immediate termination of the
case, if possible.
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I approached Tyeb Sheth and requested and
advised him to go to arbitration. I
recommended him to see his counsel. I
suggested to him that if an arbitrator
commanding the confidence of both parties
could be appointed, the case would be
quickly finished. The lawyers' fees were so
rapidly mounting up that they were enough to
devour all the resources of the clients, big
merchants as they were. The case occupied so
much of their attention that they had no
time left for any other work. In the
meantime mutual ill-will was steadily
increasing. I became disgusted with the
profession. As lawyers the counsel on both
sides were bound to rake up points of law in
support of their own clients. I also saw
for the first time that the winning party
never recovers all the costs incurred. Under
the Court Fees Regulation there was a fixed
scale of costs to be allowed as between
party and party, the actual costs as between
attorney and client being very much higher.
This was more than I could bear. I felt
that my duty was to befriend both parties
and bring them together. I strained every
nerve to bring about a compromise. At last
Tyeb Sheth agreed. An arbitrator was
appointed, the case was argued before him,
and Dada Abdulla won.
But that did not satisfy me. If my client
were to seek immediate execution of the
award, it would be impossible for Tyeb Sheth
to meet the whole of the awarded amount, and
there was an unwritten law among the
Porbandar Memons living in South Africa that
death should be preferred to bankruptcy. It
was impossible for Tyeb Sheth to pay down
the whole sum of about # 37,000 and costs.
He meant to pay not a pie less than the
amount, and he did not want to be declared
bankrupt. There was only one way. Dada
Abdulla should allow him to pay in moderate
installments. He was equal to the occasion,
and granted Tyeb Sheth installments spread
over a very long period. It was more
difficult for me to secure the concession of
payment by instalments than to get the
parties to agree to arbitration. But both
were happy over the result, and both rose in
the public estimation. My joy was
boundless. I had learnt the the practice of
law. I had learnt to find out the better
side of human nature and to enter men's
hearts. I realized that the true function of
a lawyer was to unite parties riven asunder.
The lesson was so indelibly burnt into me
that a large part of my time during the
twenty years of my practice as a lawyer was
occupied in bringing about private
compromises of hundreds of cases. I lost
nothing thereby-not even money, certainly
not my soul."
In our opinion, the lawyers should advise their clients
to try for mediation for resolving the disputes, especially
where relationships, like family relationships, business
relationships, are involved, otherwise, the litigation
drags on for years and decades often ruining both the
parties.
Hence, the lawyers as well as litigants should follow
Mahatma Gandhi's advice in the matter and try for
arbitration/mediation. This is also the purpose of Section
89 of the Code of Civil Procedure.
Let the matter be referred to the Bangalore Mediation
Centre. The parties are directed to appear before the
Bangalore Mediation Centre on 21.02.2011.
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List after receiving report from the Mediation Centre.
.....................J.
(MARKANDEY KATJU)
.....................J.
(GYAN SUDHA MISRA)
NEW DELHI;
JANUARY 14, 2011.
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