IMPORTANT POINT
Once settlement reached is accepted by Court or an undertaking is given, it becomes binding on parties.

G.P. Mittal, J.—Crl. MA No. 227/2013 (delay).

There is a delay of 8 days in filing the petition.

2. For the reasons as stated in the application, the delay of 8 days in filing the petition is condoned.

3. The Application is allowed.

4. The Petitioner approached the Respondent ICICI Bank Limited for grant of some credit facility. The Respondent Bank acceded to the Petitioner’s request and granted him credit facility to carry out the business of his sole Proprietorship firm Bajaj Machinery Stores. The Petitioner undertook to pay the outstanding amount to the Respondent Bank as due and payable from time to time. In discharge of part of his debts/liability towards the Respondent Bank, the Petitioner issued a cheque for amount of Rs.15 lacs bearing No.097644 dated 2.1.2010 drawn on Canara Bank in favour of the Respondent. When the cheque was presented for encashment, the same was dishonoured with the remarks “fund insufficient.” A demand notice issued under Section 138 of the Negotiable Instruments Act, 1881 (the N.I. Act) remained unheeded compelling the Respondent Bank to file a Complaint under Section 138 read with Section 141 of the N.I. Act.

5. The learned Metropolitan Magistrate (MM) took cognizance of the complaint and issued summons to the Petitioner for his appearance. During pendency of the Complaint case, it was referred to the Mediation Centre, Dwarka Courts, New Delhi where on 26.5.2012 the parties entered into an amicable settlement whereby the Petitioner agreed to pay a sum of Rs.9,08,800 in full and final settlement of the claim of the respondent Bank in monthly installments of Rs.1,50,000 commencing from 26.5.2012. The last installment of Rs.1,58,800 was to be paid on 26.10.2012.

6. The Petitioner did not honour the settlement. His plea is that on 7.6.2012 he was admitted in Sir Ganga Ram Hospital where angioplasty was done and he was discharged from the hospital on 11.6.2012. A perusal of the photocopies of the documents from Sir Ganga Ram Hospital testifies that the Petitioner did undergo angioplasty on 8.6.2012. He was advised rest for three weeks w.e.f. 11.6.2012.

7. On 25.8.2012, the Petitioner approached the learned MM for modifying the settlement dated 26.5.2012 reached between the parties and waiving the costs of Rs.5,000 imposed by an order dated 16.8.2012. The learned MM noticed that the Petitioner had violated the successive undertakings given by him. It was observed that the Petitioner failed to pay a sum of Rs.1,00,000 also in view of his revised undertaking and had brought a demand draft for just Rs.17,000 on 25.8.2012. The Court further noticed that the Petitioner committed breach of the undertaking given by him on 26.5.2012, 26.6.2012, 1.8.2012 and 16.8.2012. Admittedly, the Petitioner had to be suddenly admitted in the hospital only on 7.6.2012. He was discharged from the hospital on 11.6.2012. Knowing his condition fully well, the Petitioner gave undertakings dated 26.6.2012, 1.8.2012 and 16.8.2012. The learned MM noticed that there was no change of circumstances since the previous undertakings (right from 26.6.2012) and thus, the application for modification of the settlement dated 26.5.2012 was dismissed with adjournment costs of Rs.25,000.

8. The Petitioner unsuccessfully challenged the order dated 25.8.2012 before the learned ASJ.

9. It is true that the Court has to be sympathetic to a litigant particularly when he/she suddenly suffers some ailment. In the instant case, the Petitioner was admitted in the hospital on 7.6.2012 and was discharged on 11.6.2012. The entire amount of Rs.9,08,800 was payable by the Petitioner in six installments and the last installment of Rs.1,58,800 was payable on 26.10.2012. We are in the month of January, 2013. Out of sum of Rs.9,08,800, the Petitioner has paid only a sum of Rs.2,50,000 which sufficiently reflects the conduct of the Petitioner. On an amount of Rs.9,08,800 adjournment costs of Rs.25,000 particularly by moving an application to change the term