9911796707
TMI Blog1989 (3) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... on was registered in the said Court and notice was issued to the appellant herein on 7th November, 1974. Objections were filed by the appellant taking various grounds. It was contended that the appellant had informed the sole arbitrator through registered notice and by a telegraphic notice that he had no faith in the said arbitrator and had thus repudiated his authority to proceed with the arbitration proceedings. It was also contended that the award was lop-sided, perverse, and totally unjust and against all cannons of justice and fair play. It was alleged that the arbitrator had acted in a partisan manner. He never heard the claim of the appellant and never called upon him to substantiate his claim and had acted as an agent of the respondent. It was, therefore, prayed by the appellant that the award be set aside. It may be mentioned that no point was raised that the award was bad and unforceable because it was not properly stamped nor any plea was taken that the award was an unregistered one as such could not be made the rule of the court. Several issues were framed. No issue was, however, framed on the ground that the award was bad because it was not properly stamped or that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt noted that the necessary stamp was purchased on 8th August, 1974 before the award was filed on the 9th September, 1974. And that being so, it could not be argued successfully that the award was unstamped. In that view of the matter, the High Court held that the learned District Judge was in error in allowing the stamp objection to be taken. As regards the registration, it was held by the High Court that the award did not create any right as such in immovable property; it only admitted the already existing rights between the parties and hence it did not require any registration. In that view of the matter, the High Court was of the opinion that the first appellate Court was wrong. The High Court was further of the view that no right was created in favour of Shri Ram Lal, the respondent herein when he was declared the owner. Both Lachhman Das, the appellant and Ram Lal, the respondent, had claimed their ownership and, according to the High Court, they had the existing rights. The award only made, according to the High Court, it clear that the ownership would vest in one of the brothers, Ram Lal. In the aforesaid view of the matter, the High Court was of the view that it did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellant would be at liberty to do what was needful. Mr. Ashri, learned counsel for the respondent, submitted that the registration was done in view of provisions of sections 23 and 25 of the Act. Mr. Sen, on the other hand, submitted before us that this was wholly irregular to have obtained registration by misleading the Sub-Registrar and this was of no effect. Furthermore, in any event, according to Mr. Sen, the registration having been beyond the period of four months as enjoined by the relevant provisions was wholly bad. The first question that requires consideration in the instant case is whether the Court could have looked into the award for the purpose of pronouncing judgment upon the award. In order to deal with this question, it is necessary to refer to Section 17 of the Act. Section 17 deals with documents of which registration is compulsory. Section 17 of the said Act mentions the documents which must be registered. Section 17(1)(e), inter alia, provides: non-testamentary instruments transferring or assigning any decree or order of a Court or any order of a Court or any award when such decree or order or award purports or operates to create, declare, assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed as arbitrator by an agreement dated 7th March, 1974 by both the parties. The award further recites that he was appointed arbitrator to adjudicate through arbitration their disputes regarding property against each other . The arbitrator thereafter recites the steps taken and the proceedings before him. It was further stated that the appellant did not orally reply to the contentions of the respondent nor did he submit his claims in writing. In these circumstances, the award was bad. The award stated, inter-alia, Land of Tibbi comprising of rect. No. 13 Kila No. 23 (3-11), 26(1-11), 16(5-15), 17(5-14), 25(4-4), 23/27 and 26/1 situated in Mauz Ugra Kheri, near Chandni Bagh, which is in the joint name of Shri Ram Lal, Party No. 1 and Shri Lachhman Dass, Party No. 2. The half ownership of Shri Lachhman Dass shall be now owned by Shri Ram Lal in addition to his 1/2 share owned by him in these lands. The award gave certain other directions. Regarding other claims, it was held that lands were allotted in the names of both the brothers and in that context ₹ 16,000 were spent by the respondent from his own sources. The arbitrator stated that he admitted these expense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a declaration of the pre-existing right but creation of new right of the parties. It is significant to bear in mind that the section enjoins registration wherever the award purports or operates to create, declare, assign, limit or extinguish whether in present or in future any right, title or interest of the value of ₹ 100 or upwards in immovable property. Shri Ashri tried to submit that while reading the award reasonably and fairly, it must be construed that there was no creation or declaration of any new right in the immovable property. What was done was only, according to Shri Ashri, a declaration of existing right, that is to say, Ram Lal s full ownership of the property in question. The section, however, enjoins registration in respect of any document, which purports not which intends to create a right in immovable property or declare a right in immovable property. It is not a question of declaration of an existing right. It is by this award that a new right was being created in favour of Ram Lal, the respondent herein. In that view of the matter, in our opinion, it cannot be contended that the award did not require registration. This question was considered by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was made a decree of the Court. For the purpose of s. 17(1)(b) of the Act, all that had to be seen was whether the award in question purported or operated to create or declare, assign, limit or extinguish whether in present or future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property. It was incorrect to state that an award which could not be enforced was not an award and the same did not create any right in the property which was the subject matter of the award. An award whether registered or unregistered, according to Justice Hegde, does create rights but those rights could not be enforced until the award is made the decree of the court. The learned Judge made it clear that for the purpose of s. 17(1)(b) of the Act, all that had to be seen was whether the award in question purported or operated to create or declare, assign, limit or extinguish whether in present or future any right, title or interest whether vested or contingent of the value of ₹ 100 and upwards in the immovable property. If it does, it is compulsorily registerable. A document might validly create rights but those rights mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant contended that the award was not void for uncertainty and that the award sought to assign the respondent s share in the partnership to the appellant and so did not require registration and that under sec. 17 of the Arbitration Act, the Court was bound to pronounce judgment in accordance with the award after it had dismissed the respondent s application for setting it aside. It was held that the share of a partner in the assets of the partnership, which had also immovable properties, was movable property and the assignment of the share did not require registration under s. 17 of the Act. But the award in the instant case, this Court observed, did not seek to assign the share of the respondent to the appellant, either in express words or by necessary implication. The award expressly makes an exclusive allotment of the partnership assets including the factory and liabilities to the appellant. It went further and made him absolutely entitled to the same , in consideration of a sum of ₹ 17,000 plus half of the amount of ₹ 1924.88 P. to the respondent and the appellant s renouncement of the right to share in the amounts already received by the respondent. In express w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 30(c) of the Arbitration Act. It is, however, not necessary for the present purpose to decide this question. It is sufficient to emphasise that an award affecting immovable property of the value of more than ₹ 100 cannot be looked into by the Court for pronouncement upon the award on the application under s. 14 of the Arbitration Act unless the award is registered. S. 14 enjoins that when an award of an arbitrator has been filed, the Court should give notice to the parties and thereupon the court shall pronounce judgment upon the award and made it a rule of the court. But in order to do so, the court must be competent to look into the award. S. 49 of the Act enjoins that the award cannot be received as evidence of any transaction affecting immovable property or confering power to adopt, unless it is registered. In that view of the matter, no judgment upon the award could have been pronounced upon the unregistered award. Mr. Ashri, however, relied on a decision of the learned Single Judge of the Calcutta High Court, in which one of us (Sabyasachi Mukharji, J) had occasion to deal with the question whether an application for determination of the validity of an award could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust reject it. It followed that this was one of the grounds which could be urged against the filing of an award. If it was not urged, and the award was filed, then that question was as much barred in a subsequent suit as the others. In this case, however, this point that the award is not registered and as such it could not be filed, though not taken subsequently in argument before the trial Judge, it was urged before the First Appellate Court and it was held in favour of the present respondent. This is an appeal by special leave in subsequent decision from that decision where the filing of the award is being challenged on the ground that it is unregistered. Therefore, in our opinion, though it may not be possible to take the point that the award is bad because it is unregistered as such it could not be taken into consideration in a proceeding under section 30 or 33 of the Arbitration Act, but can be taken in the proceedings under s. 14 of the Arbitration Act when the award is sought to be filed in the court and the court is called upon to pass a decree in accordance with the award. As the court, as mentioned hereinbefore, could not look into the award, there is no question of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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