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Hansraj Veljee and anr. Vs. Maganlal Veljee and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 148 of 1974
Judge
Reported inAIR1980Bom237; 1979MhLJ530
ActsArbitration Act, 1940 - Sections 14, 14(2), 17 and 44 ; General Clauses Act, 1897 - Sections 13; Registration Act, 1908 - Sections 17, 17(1), 17(2) and 49; Arbitration Act, 1899 - Sections 11 and 11(2); Limitation Act; Arbitration Rules - Rules 1, 4, 4A, 7 and 12
AppellantHansraj Veljee and anr.
RespondentMaganlal Veljee and ors.
Appellant AdvocateV.R. Manohar and;A.B. Oka, Advs.
Respondent AdvocateJ.N. Chandurkar, Adv.
Excerpt:
arbitration - filing of award - sections 14, 17 and 44 of arbitration act, 1940 - validity of award filed in court and passed in matter related to joint family business challenged - award filed in court on authority of one of two arbitrators - provisions of section 14 properly complied with - award validly filed - matter remitted back to trial court for proceeding with the matter further. - - the non-applicants, had retired from the business which was now entirely under the control and management of the present applicants and that the applicants had also made certain payments as contemplated by the award but they had failed to abide by the terms of the award fully. 1971, the applicants had failed to pay the amounts under the award to them and had also failed to give effect to the.....order1. this revision application has been filed against the findings which have been recorded by the learned civil judge, senior division, amravati in special civil suit no. 20 of 1971 on certain issues which were treated as preliminary issues. in order to appreciate the rival contentions which have been advanced before me in this revision application, a few facts may be noted.2. applicant no. 1 and non-applicant no. 1 are brothers and applicant no. 2 is their mother, while non-applicant nos. 2 and 3 are the sons of non-applicant no. 1. it appears that they were members of joint hindu family which was carrying on business at amrapati in three names, namely, shah velji narsi company, m/s. v. h. pen industries and firm shah veljee narsee. in 1969 some disputes arose between the applicants.....
Judgment:
ORDER

1. This revision application has been filed against the findings which have been recorded by the learned Civil Judge, Senior Division, Amravati in Special Civil Suit No. 20 of 1971 on certain issues which were treated as preliminary issues. In order to appreciate the rival contentions which have been advanced before me in this revision application, a few facts may be noted.

2. Applicant No. 1 and non-applicant No. 1 are brothers and applicant No. 2 is their mother, while non-applicant Nos. 2 and 3 are the sons of non-applicant No. 1. It appears that they were members of joint Hindu family which was carrying on business at Amrapati in three names, namely, Shah Velji Narsi Company, M/s. V. H. Pen Industries and Firm Shah Veljee Narsee. In 1969 some disputes arose between the applicants and the non-applicants with regard to the business they were carrying on and the properties owned by them and in order to resolve these disputes, they appointed Shall Morarjibhai Raisey and Shah Jethabai Gosar as arbitrators under an agreement dated 12th Dec. 1969. These two arbitrators entered upon arbitration and made their award on 14th Dec. 1969 This award related to the business which the firm was carrying on under the above-said three trade names and also to the immoveable property owned by the family. The arbitrators proposed arrangements between the applicants on one hand and the non-applicants on the other hand. The applicants were treated as continuing party, and the non-applicants were treated as the retiring party. What purports to have been meant by these two terms was that the retiring party would cease to have any concern with the business of the family on certain terms and conditions and the business would be continued by the continuing party. The parties to the award, namely, the applicants and the non-applicants subscribed their signatures to iton the day it was made, i.e. on 14th Dec. 1969. Thereafter on 26th Feb. 1971, one of the two arbitrators, namely, Morarjibhai Raisey issued an authority in writing in favour of applicant No. 1 and non-applicant No. 1 jointly or severally to file the said award in the Court having jurisdiction in the matter. It appears that the original award was handed over to non-applicant No. 1. On 29th June 1971 the non-applicants filed an application in the Court of the Civil Judge, Senior Division at Amraoti purporting to have been made under Section 17 read with Section 14 of the Arbitration Act, 1940 (hereinafter referred to as 'the Act'). By this application the non-applicants prayed for a decree in terms of the award. In this application they averred that the parties had accepted the award and in compliance with the terms of the award, they, i. e. the non-applicants, had retired from the business which was now entirely under the control and management of the present applicants and that the applicants had also made certain payments as contemplated by the award but they had failed to abide by the terms of the award fully. They alleged that in spite of a notice served by them on the applicants on 3rd Mar. 1971, the applicants had failed to pay the amounts under the award to them and had also failed to give effect to the other terms of the award. The non-applicants contended that the applicants were evading their liability under the award and it had, therefore, become necessary to make the award a rule of the Court by passing decree in terms of the award, so that they would be in a position to obtain relief by executing it. The non-applicants further stated in the application that one of the arbitrators, namely, Morarjibhai Raisey had authorised them to file the award in Court. They also contended that no period of limitation was provided for the arbitrators to file the award in Court and since the award was being filed under the authority of the arbitrators, the question of limitation did not arise. Lastly they submitted that the present applicants were precluded from raising any objection to the award as the period of limitation prescribed for this had expired and there was no legal impediment in passing the decree in terms of the award.

3. The above-said application, which was filed by the non-applicants, was registered as Special Suit and summonses were issued to the applicants, who appeared in the matter and took some preliminary objections to the maintainability of the said application by the present non-applicants for a decree in terms of the award. These objections were that the award had not been validly filed in Court inasmuch as it had not been filed by both the arbitrators, who had made the award, and since only one of the arbitrators had given authority to file it, it was filed without any proper authority and hence it was 'not eligible to be filed in Court'. The second objection was that the award had become ineffective due to lapse of time and hence it was invalid and could not be filed in Court. The third objection was that the award related to immovable properties and was liable to be compulsorily registered and this having not been done, the award was not only invalid, but inadmissible and it could neither be filed in Court nor could it be made rule of the Court. The applicants had taken some other contentions in the reply which they had filed in Court at Ex. 17. But we are not concerned at this stage with those contentions.

4. On the preliminary objections which had been taken by the applicants; four issues were framed and they were ordered to be treated as preliminary issues. They are as follows :

'1. Whether the application is barred by limitation?

1A) Whether the application has been filed with the authority of arbitrator?

1B) If so, whether the authority is pro-per?

2. Whether the award is invalid in view of the fact that it is not registered? 4. If so, what effect?' The learned trial Judge, after hearing the parties, answered issues' Nos. 1 and 2 in the negative and issues Nos. 1A and 1B in the affirmative. In the view which he took with regard to issues Nos. 1, 1A, 1B and 2, he held that the finding on issue No. 3 did not arise. It is these findings that are challenged in this revision application.

5. At the outset it may be stated that Mr. Manohar the learned counsel for the applicants, has not challenged the finding of the learned trial Judge in so tar as issue No. 1 is concerned. He laid stress on the findings on issue Nos. 1A, 1B and 2 only Now so far as issue Nos. 1A and 1B are concerned, it was contended before the learned trial Judge that on the language of Section 14 of the Act, one of the arbitrators had no right to file the award in Court or cause it to be filed. It was submitted before the learned trial Judge that the word used in Sub-section (2) of Section 14 is 'arbitrators' which, according to the applicants, would mean all the arbitrators who had passed the award and it would not be open to some or one of the arbitrators to cause the award to be 'filed in Court. On this interpretation of Sub-section (2) of Section 14 of the Act it was contended before the learned trial Judge that the award which had been filed by the non-applicants in the trial Court on the basis of the authority given to non-applicant No. 1 by one of the arbitrators was not validly filed and the trial Court was precluded from taking any action on this award. It appears that on behalf of the present applicants, reliance was sought to be placed on a decision of the Rajasthan High Court in Hoora v. Abdul Karim , while on the other hand the non-applicants sought to rely on the decisions of the Nagpur and Patna High Courts in Narayan Bhawn v. Devaji Bhawu AIR 1945 Nag 117 and R. K. Mishra v. Kundanlal and Raghubir Pandey v. Kaulesar Pandey : AIR1945Pat140 . It may be stated at this stage that the decision of the Patna High Court cited above has no direct bearing on the point under consideration. It also appears that the decision of the Nagpur High Court in Narayan Rhawu's case does not lay down that an award filed by some of the arbitrators in Court would comply with the provisions of Sub-section (2) of Section 14 of the Act. The only decision which has some bearing on the point under consideration is that of the Nagpur High Court in Mishra's case, wherein an objection to the filing of the award by one of the arbitrators had been overruled. The learned single Judge who decided this case, relied upon the decisions of the Rangoon and Sindh High Courts in Khatiza Bee Bee v. I. F. Abowath AIR 1927 Ran 197 and Shamdas v. Khimanlal AIR 1914 Sind 90. While on the other hand a learned Single Judge of the Rajasthan High Court relying on the language of Sub-section (2) of Section 14 of the Act, has held that Sub-section (2) of Section 14 of the Act contemplates filing of the award either by the party or by agent of the arbitrators with the authority of all the arbitrators when there are more than one and unless award is so filed, it cannot be acted upon. The learned trial Judge, relying on the decisions cited on behalf of the non-applicants and also on certain rules framed by this Court under the Act, held that the objection with regard to the filing of the award was not valid and that one of the arbitrators could authorise ft party to file the award in Court and as such the award had been validly filed in Court.

6. With regard to the question of registration of the award the learned trial Judge held, on the strength of a decision of the Supreme Court in Champalal v. Samrathbai : [1960]2SCR810 , that filing of an unregistered award was not prohibited under Section 49 of the Registration Act and that at any rate the award in question did not require registration inasmuch as it did not by itself create any legal rights while dealing with the distribution of the immoveable property but contemplated execution of legal documents in this behalf which themselves would require registration. The learned trial Judge observed that in his view, the objection that the award is invalid because it is not registered being premature, at that stage, failed on merits also.

7. In the view he took on these two points, the learned trial Judge recorded his finding in the affirmative on issue Nos. 1A and 1B and in the negative on issue No. 2, which, as already stated above, are the subject matter of this revision application.

8. Mr. Manohar, the learned counsel for the applicants herein, submitted that the provisions contained in Sub-section (2) of Section 14 of the Act regarding filing of the award in Court will nave to be strictly construed in view of the fact that no period of limitation is prescribed for the award being filed in the Court either by the arbitrators or by an agent on their behalf, though such a period of limitation has been provided for a party applying to the court for directing the arbitrators to file the award in Court. Mr, Manohar submitted that the word 'arbitrators' occurring in the said sub-section has to be given its due weight and on the plain language of Sub-section (2) of Section 14, it is obvious that when an award is to be filed in Court by the arbitrators, all the arbitrators must join in doing so and this act cannot be performed by one of their number. In this connection Mr. Manohar strongly relied on the above-said decision of me Rajasthan High Court. With regard to the rules framed by this Court under the Arbitration Act, Mr. Manohar submitted that though Rule 4 and 4A speak only about an arbitrator, it would not mean that one arbitrator, when there are more than one, could file the award in court or cause it to be filed, since the rule cannot override the specific provisions contained in the Act itself. On the other hand, Mr; J. N. Chandurkar, the learned counsel for the non-applicants herein, submitted that it is now well settled that filing an award in Court by the arbitrators or on their authority is merely a ministerial act and if it is so, it is not necessary that this act should be done conjointly by all the arbitrators concerned in the arbitration. Apart from relying on the decision of the Nagpur High Court in Mishra's case which had also been relied upon by the learned trial Judge, Mr. Chandurkar also sought to rely on the decision of the Calcutta High Court in Anandi Lal v. Keshavdeo (AIR 1949 Cal 549) in which a learned single Judge of that Court has taken the same view as has been taken by the Nagpur High Court. According to Mr. Chandurkar, the word 'arbitrators' occurring in Sub-section (2) of Section 14 of the Act will have to be reasonably construed and it could not be attached a meaning which would lead to making the provisions of the Act itself ineffective. According to him, this word need not be construed as meaning that it makes it obligatory on all the arbitrators to file award in Court if there are more than one.

9. The question whether one of the arbitrators, when there are more than one, can cause the award to be filed in Court has been considered judicially in a few cases to which I would presently refer.

10. In Shamdas v. Khimanmal AIR 1914 Sind 90, (cited supra) which was a case, under the provisions of the Arbitration Act of 1899, the award was made by the two arbitrators and it appears that one of them only filed it in Court. It was contended before the learned Judicial Commissioner that the award had not been filed in Court in compliance with Section 11 of that Act since the petition for filing the award had been signed only by one of the arbitrators. While rejecting this objection the learned Judicial Commissioner observed that in causing the award to be filed at the request of any party the arbitrators do not act judicially, out they perform a purely ministerial act which can be legally performed by one of their number. It is true that this finding has been given on the language of Section 11, of the Arbitration Act of 1899. I may reproduce here for convenience Sub-section (2) of Section 11 of that Act, which is in the following terms:

'11. (1)

(2) The arbitrators or umpire shall, at the request of any party to the submission or any person claiming under him, and upon payment of the fees and charges due in respect of the arbitration and award, and of the costs and charges of filing the award, cause the award, or a singed copy of it, to be filed in the Courts and notice of the filing shall be given to the parties by the arbitrators or umpire'. It would appear that even in that subsection the word used was 'arbitrators', as has been used in Sub-section (2) of Section 14 of the present Act. The two sub-sections, viz., Sub-section (2) of Section 11 of the Act of 1899 and Sub-section (2) of Section 14 of the present Act are practically similar in so far as the portion relevant for the present decision is concerned. There also, as has been seen above, the sub-section spoke of the arbitrators causing the award to be filed, as has been done in Sub-section (2) of Section 14 of the present Act and on this language of Sub-section (2) of Section 11 of the Act, the learned Judicial Commissioner came to hold that one of the arbitrators was competent to file the award in Court Hence, though this decision proceeds on the language of Sub-section (2) of Section 11 of the Act dt 1899, it does not make any difference in its application to the present subsection.

11. In Khatiza Bee Bee v. I. F. Abowath AIR 1927 Rang 197 (cited supra) this question again came up for consideration before the Rangoon High Court. There also the award was filed in Court on the authority of one of the arbitrators and the objection was that this was not in accordance with Rule 1 of the Rules framed by the High Court. It appears that the rule framed by the Rangoon High Court in this connection was in time with the language of Sub-section (2) of Section 11 of the Act of 1899, which, as has been seen above, stated that arbitrators had to cause the award to be filed in Court in certain circumstances. This objection was overruled by the learned single Judge who decided the matter, observing that one arbitrator could, on behalf of himself and the others, send the award to the Court and such a procedure was sufficient compliance with the provisions of the Act. The learned Judge probably had Sub-section (2) of Section 11 of the Act of 1899 in mind when he spoke about the compliance with the provisions of the Act. It would, therefore, appear that the view which has been taken by the Rangoon High Court in Khatiza Bee Bee's case is similar to the one which had been taken by the learned Judicial Commissioner in Shamdas's case referred to above. This question came up before the erstwhile Nagpur High Court in R. K. Mishra v. Kundanlal . There the award was made by five arbitrators and an application purporting to be under Section 14(2) of the Act was made by one of the arbitrators for filing the award in Court, describing himself as umpire. The question arose whether such an application filed by one of the arbitrators was tenable and was sufficient compliance of the said sub-section. The learned single Judge who dealt with the case, held that the person who had signed the application was not an umpire. The question then arose whether he in his capacity as an arbitrator alone could file the award in Court. The learned Judge answered this question in the affirmative, relying on the decisions of the Rangoon High Court and the Court of Judicial Commissioner of Sind in Khatiza Bee Bee v. I. F. Abowath AIR 1927 Rang 197 and Shamdas v. Khimanlal AIR 1914 Sind 90 which have been discussed above.

12. The Calcutta High Court had also an occasion to deal with this question in Anandi Lal v. Keshavdeo AIR 1949 Cal 549. In this case the dispute was referred to two arbitrators who gave their award on 24th Dec., 1935. One of them died before 13th of Jan., 1945. On this date the surviving arbitrator filed the award in Court. An objection was taken to the validity of the award on the ground that it had been filed in Court only by one of the two arbitrators. It appears that Rule 12 of the Rules framed by the Calcutta High Court provided that where the arbitrators are requested to file the award, they should cause it to be filed in Court. On the basis of this rule it was contended that the rule required both the arbitrators to perform the actual act of filing and since one of the arbitrators died between the date when both of them had signed the award and the filing of it, the act of one of them filing it in Court was not in compliance with the rule and hence the award was not filed in accordance with the provisions of the rule. In dealing with this objection the learned single Judge of that Court held that in causing the award to be filed the arbitrators do not perform a judicial act but one of a ministerial nature, and although the rule spoke of arbitrators causing the award to be filed, the ministerial act of filing could properly be carried out by one of their number. For this proposition the learned single Judge relied upon the decision of the Judicial Commissioner in Shamdas's case referred to above. The learned Judge further observed that the failure or omission or inability of one of several arbitrators to participate in the ministerial act of filing an award by his co-arbitrator or co-arbitrators is not an irregularity which vitiates the proceedings of the award provided, as in that case, there is an absence of any circumstance or fact, such as fraud, connected with the act of filing.

13. It would thus appear that all the above cases, which support the view that when there are more than one arbitrators, one of them can file the award in Court or cause it to be filed and that would be sufficient compliance with the provisions of Sub-section (2) of Section 14 of the Act, proceed on the basis that the act of filing the award in Court or causing it to be filed in Court is a ministerial act. In this connection reference may be made to the decision of this Court in Dhansukhlal v. Navnitlal AIR 1934 Bom 398. This Court observed therein that the filing of the award is merely a ministerial act. It would thus appear that the view that the filing of the award in Court is merely a ministerial act taken in the above said case finds support from the decision of this Court.

14. The only case which takes a contrary view is Hoora v. Abdul Karim , wherein a learned single Judge of the Rajasthan High Court has held, relying on the language of Sub-section (2) of Section 14, that the award would be filed under the authority of the arbitrators or under the authority of the umpire and where there is no umpire, the award can only be filed by the authority of all the arbitrators, who gave the award. In this case the learned single Judge considered the decision of the Nagpur High Court in Mishra's case and differed from it on the ground that the reasoning adopted in that case was not correct inasmuch as the word 'arbitrators' occurring in Sub-section (2) of Section 14 could be construed as 'arbitrator' only in cases where a single arbitrator had been appointed. According to the learned Judge, if the number of arbitrators is more than one, the word 'arbitrators' would have to be construed to mean all the arbitrators who have been appointed. The Nagpur High Court had relied on Rule 7 of the Rules framed by that Court under Section 44 of the Arbitration Act, which enabled even one arbitrator to file the award in Court. The same is the position as far as Rule 4 of the Rules framed by this Court is concerned. In dealing with this aspect of the case the learned single Judge of the Rajasthan High Court observed that the rule could not override the express provisions of this Section of the Act. Then with regard to the observation of the Nagpur High Court to the effect that filing of the award is merely a ministerial act, the learned single Judge of the Rajasthan High Court held that the filing of the award was no doubt a ministerial act, but according to him, this Ministerial act can be performed by an agent of the arbitrators under the authority of all the arbitrators. The learned Judge then proceeded to consider the rulings on which the Nagpur High Court had relied for arriving at the conclusion it did. The learned Judge of the Rajasthan High Court pointed out that these decisions were not authorities on the point under consideration. 'Now the Nagpur High Court had relied on the decisions of the Rangoon High Court and the Court of Judicial Commissioner of Sind in Khatiza Ree Bee v. I. F. Abowath AIR 1927 Rang 197 and Shamdas v. Khimanmal AIR 1914 Sind 90 respectively, as has been observed above. It is true that the learned Judge of the Nagpur High Court had referred to the decisions of the Nagpur and Patna High Courts in Narayan Bhawu v. Dewajibhawu AIR 1945 Nag 117 and Raghuoir Pandey v. Kaulesar Pandey : AIR1945Pat140 . But perusal of the report would show that the learned Judge did not rely on the decision of the Patna High Court for the proposition that one of the arbitrators was competent enough to file the award in Court. He relied on this decision only in support of the proposition that the law requires the arbitrators to act together in the matter of forming their judgment and once that is done the further formalities like signing the award or filing it are merely ministerial acts. In so far as Narayan Bhawu's case is concerned, the learned Judge referred to the view expressed by Puranik J. that the rule which had been framed by the Nagpur High Court indicated that an arbitrator was not precluded from filing an award in Court under Section 14 of the Act, The learned Judge, however, did mention that the point was not specifically raised for decision in Narayan Bhawu's case. The learned Judge, however, as has been seen above, did rely on the rulings in the cases of Khatiza Bee Bee and Shamdas. With great respect, view taken by the learned Judge of the Rajasthan High Court, that the learned Judge of the Nagpur High Court had also directly relied on the decisions in Raghubir Pandey and Narayan Bhawu for his view that one of the arbitrators can hie the award in Court is not correct. Now with regard to the decision in Shamdas's case the learned Judge of the Rajasthan High Court held that the question whether one arbitrator had filed the award with the authority of others was not raised at all-Now the question which was for consideration before the learned Judicial Commissioner in Shamdas's case was not whether one of the arbitrators had filed the award in court with the authority of the other arbitrators. As has been already seen, while discussing this case, an objection had been raised to the procedure of filing the award by one of the arbitrators signing the petition and this objection had been overruled holding that the arbitrator was performing purely a ministerial act which could be legally performed by one of their number. In fact, the question whether the award could be filed by one of the arbitrators in Court had been raised in Shamdas's case and had been specifically dealt with by the learned Judicial Commissioner there. It is true that the question whether one arbitrator had filed the award with the authority of the others was not raised in that case. But that does not at all matter, because, it was not on this point that the case proceeded. This case actually dealt with the question which was before the learned single Judge of the Nagpur High Court. Then with regard to the ruling in Khatiza Bee Bee's case, the learned Judge of Rajasthan High Court has held that in this case it had been expressly held that one of the arbitrators could send the award to the Court on behalf of himself and others and that it presumed the authority on behalf of all the arbitrators. Now in Khatiza Bee Bee's case, though the award was made by several arbitrators, it was sent to the Court by one Patkar on the instructions of one of them and it was in this context that the question arose whether the filing of the award was proper. It was in this context that it was held in that case that one arbitrator could, on behalf of himself and the others, send the award to the Court. What was probably meant was that though one of the arbitrators sent award to the Court, it would be presumed that he did so on behalf of others as well as himself. It is in this light that the observations made by the learned single Judge of the Rangoon High Court in Khatiza Bee Bee's case will have to be understood. The fact remains that in that case the award, which had been filed on the authority of one of the arbitrators, had been held to be proper and valid. It would thus appear that the distinction which has been sought to be drawn by the learned single Judge of the Rajasthan High Court in respect of the cases relied upon by the Nagpur High Court in Mishra's case is not, with great respect, borne out by these decisions.

15. The view of the learned Judge of the Rajasthan High Court to the effect that the ministerial act of filing award can be performed only on the authority of all the arbitrators does not appear to have the support of any decision. It is now well settled that filing the award in Court under the provisions of Sub-section (2) of Section 14 is a ministerial act. As has been seen above this Court in Dhansukhlal's case AIR 1934 Bom 398 has held that it is a ministerial act. The question is, if it is a ministerial act, does it require the authority of all the arbitrators for its performance. In order to answer this question one has to find out what is meant by 'ministerial act'.

16. Osborne's Concise Law Dictionary (6th Edition, page 220) describes 'ministerial act' to mean an act or duty which involves exercise of administrative powers or carrying out of instructions as opposed to a judicial or discretionary act. Judicial and Statutory Definition of Words and Phrases (first series) and Black's Law Dictionary define it to mean an act which a person performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to the exercise of his own judgment upon the propriety of the act being done. This definition has been adopted by the Utah Supreme Court in State Tax Commission of Utah v. Katsis 107 ALR 1477. It is clear from the language of Sub-section (2) of Section 14 that it is obligatory on the arbitrator or umpire to file the award in Court when a request to that effect is made by a party and when costs and charges specified in the said Sub-section are paid. Thus when these two conditions are fulfilled by a party nothing is left to the discretion or judicial determination of the arbitrator. He has to file the award in Court or cause it to be filed. Now if that is so, it is difficult to see why this ministerial act of filing the award must have the authority of all the arbitrators, because notwithstanding the fact that all or majority of the arbitrators decide not to file the award in Court, it will have to be filed in any case when the above said two conditions are satisfied.

17. It is true that Sub-section (2) of Section 14 does say that the arbitrators shall, in certain contingencies, cause the award to be filed in Court. No doubt, if the language of this sub-section is literally construed, it is possible to say that in cases where there are more than one arbitrator, all the arbitrators together should cause the award to be filed in Court. The question is whether this was the intention of the legislature in using the word 'arbitrators' in Sub-section (2) or could it be that the Legislature meant to include in it its singular also by virtue of Section 13 of the General Clauses Act, 1897, even when more than one arbitrator are appointed. Now the first construction sought to be put on this word may lead to some anomalous results In a case where there are more arbitrators than one and if all of them are not unanimous in their decision and some of them dissent in joining the majority in its decision, it would not be inconceivable that the dissenting arbitrators would not join the other arbitrators in causing the award to be filed in Court. Now in such circumstances could it be said that the Legislature intended that such an award would be unenforceable and in-fructuous simply because the minority of the arbitrators did not join the majority in causing the award to be filed in Court We can also visualise a situation as in Anandi Lal's case AIR 1949 Cal 549, where one of the two arbitrators died before the award could be filed in Court. It is difficult to see that in these situations the Legislature intended that the whole proceedings before the arbitrators should become infructuous and the exercise of making the award again should be taken by another body of arbitrators who would ultimately agree unanimously not only to pass the award but to cause it to be filed in Court. This certainly does not appear to be the intention of the Legislature in enacting Sub-section (2) of Section 14 of the Act and this will not be in consonance with the object and purpose of the Arbitration Act which has been enacted with the object of permitting disputes to be settled by private arbitration also. If the Legislature intended that in the above said contingencies the provisions of Sub-section (2) of Section 14 would not be applicable, it would have certainly made some provision in that Section or in any other part of the Act in order to see that the award itself, which In a given case may be arrived at by consent of the parries, does not become in-fructuous only because of this technical requirement of this sub-section. Since there is nothing repugnant in the subject or context in which the said word has been used in Sub-section (2) of Section 14, it would not be unreasonable to hold on the authority of Section 13 of the General Clauses Act, 1897 that it includes the singular even where two or more arbitrators have made the award. Indeed this interpretation would further the intention of the Legislature and object of the Act, rather than thwart it. I would, therefore, following the decisions of the Calcutta, Nagpur ana Rangoon High Courts and that of the Judicial Commissioner of Sind, hold that the award, if made by more than one arbitrators, could be filed or caused to be filed hi Court by one of them and such a filing would be sufficient compliance with Sub-section (2) of Section 14 of the Act. In this connection I respectfully differ from the view which has been taken by the learned single Judge of the Rajasthan High Court in Hoora's case .

18. It is true, as contended by Mr. Manohar, that no period of limitation is provided for when the award is to be filed in Court by the arbitrator or on his authority and that such a period of limitation has been laid down when a party moves the Court for direction to the arbitrators to file the award in Court. However, hi my view, this cannot be a reason for construing Sub-section (2) of Section 14 in the way as submitted by Mr. Manohar. The period of limitation in this behalf has been provided for in the Limitation Act. Section 14 itself does not provide for limitation in this connection. It is not possible to find out from the provisions of the Arbitration Act or for the matter of that from the provisions contained in the Limitation Act, as to why the Legislature, while enacting the Limitation Act, made this distinction between filing of the award by the arbitrator and an application made by the party to the Court for a direction to the arbitrator to file the award in Court. As seen above, if the word 'arbitrators' is construed the way Mr. Manohar urges, anomalous results would follow and in given cases and contingencies the very purpose of the Arbitration Act would be frustrated. In my view, therefore, the construction as suggested by Mr. Manohar cannot be put on the provisions of Sub-section (2) of Section 14 of the Act for the reasons advanced by him.

19. In the instant cases, as has already been seen above, the award was filed to Court by the non-applicants and authority was given to non-applicant No. 1 by one of the arbitrators. This arbitrator entered the witness box and proved the authority which he had given in this behalf to non-applicant No. 1. Hence in the view which I take of the provisions of Sub-section (2) of S. 14 of the Act, it is clear that the award had been filed in Court on the authority of one of the two arbitrators and that Should be sufficient compliance with the said provisions. In my view, therefore, the learned trial Judge was right when he recorded his finding in the affirmative on issue Nos. 1-A and 1-B.

20. This takes me to the question of necessity of registration of the award in question. The original award itself is in Gujrathi and translation of it in English has been put on record in the lower Court The perusal of the award will indicate that the arbitrators were dealing with the distribution of the assets and liabilities ot the business of the joint family which was being carried out in the names and style as seen above. In addition to this, the arbitrators were also called upon to partition the immoveable property belonging to the joint family. Now with regard to the business carried out in the name of Shah Veljee Narsi Company, it is held that the retiring party, namely, the applicants herein, would forgo all rights, snares, profits, etc. in the said business in favour of the continuing party, i. e. the non-applicants, The award says that a document with regard to this, as can be legally executed, would be executed at the earliest. Then with regard to the business carried on in the name and style of M/s. V. N. Pen Industries, it is said that the retiring party would voluntarily retire and none of the parties had to give or take anything from each other with regard to this business and the accounts had to be squared upon this basis. Here also the award says that a legal document in this respect should be executed at the earliest and the expenses to this effect should be borne by the parties in equal share. Then with regard to the business run in the name and style of Shah Velji Narsee firm, it is said that the retiring party would be entitled to a payment of Rs. 1,56,852/- under the account of profit and loss and also a further sum of Rs. 1,50,000/- on account of the goodwill and the retiring party was to release its right, share and benefit in the goodwill in favour of the continuing party. This amount of Rs. 3,06,352/- was to be paid to instalments which have been detailed in the latter part of the award. Some amount has also been set apart for the purposes of meeting the liabilities for income-tax and other taxes and in consideration for all this the retiring party is to forgo all its rights and shares in the said business in favour of the continuing party. Here also the award goes to say that on payment by the continuing party as stated in the award, the accounts would be adjusted or both the parties with reciprocal consent and agreement would adjust the accounts and legal documents will be executed to that effect at the expenses to be borne equally by both the parties. Thereafter the award speaks about the partition of the immoveable property belonging to the joint family and the applicants and the non-applicants. It is not necessary to state in detail here as to what property has to go to whose share. Suffice it to say that in this connection also the award says that legal document should be executed. The scheme of the award would, therefore, show that at every stage where the assets of the joint family are proposed to be partitioned, legal documents are contemplated to be executed by the parties to the award, wherever necessary.

21. It was contended, as has been observed above, before the learned trial Judge that this award dealt with irremovable property and hence it was compulsorily registerable under Section 17(1)(b) of the Registration Act. This contention has not found favour with the learned trial Judge because, according to him, the award itself did not create any rights in favour of the respective parties but a further document or documents were contemplated by the award itself and hence the award was not required to be registered compulsorily.

22. Mr. Manohar for the applicants submitted that the award in question was one which squarely fell within the provisions of Clause (b) of Sub-section (1) of Section 17 of the Registration Act and was not covered by Clause (v) of Sub-section (2) of Section 17 of that Act. According to Mr. Manohar, the tenor of the award itself would show that it purported to create any present right, title or interest in irremovable property of the value of one hundred rupees and upwards in favour of the parties to whom the immoveable properties had been allotted in partition and hence it attracted the provisions of Section 17(1)(b) of the Registration Act. According to Mr. Manohar, reference in the award with regard to the execution of the documents was merely made to make a show and that would not affect in any way the position which, according to him, obtains on a proper construction of the award, i. e., the award itself creates right, title and interest in irremovable property in favour of some of the parties. As to what would be the effect of an award which requires to be compulsorily registered but is not registered, on its validity, Mr. Manohar has drawn my attention to certain decisions of the Supreme Court which I will presently refer to. Suffice it to say at this stage that according to Mr. Manohar, the award which requires to be compulsorily registered under the provisions of the Registration Act and not having been so registered, could not be looked into by the trial Court and if that is so, it could not ultimately be made a rule of the Court under Section 17 of the Act and hence the filing of such an award in Court would be of no effect and would not lead any one any where. It is in this light that the submissions made by Mr. Manohar have to be looked at.

23. In Sarish Kumar v. Surinder Kumar : [1969]2SCR244 the question before the Supreme Court was whether an award under the Arbitration Act on a private reference required registration under Section 17(1)(b) of the Registration Act. The Supreme Court held that such an award would require registration if it effects partition of immoveable property exceeding the value of one hundred rupees. It would be of interest to observe here that in holding so, the Supreme Court dissented from a contrary view taken by the Full Benches of the Patna and Punjab and Haryana High Courts in Seonarain Lal v. Prabhau Chand : AIR1958Pat252 and Sardool Singh v. Hari Singh . The same view was reiterated by the Supreme Court in Ratanlal v. Purushottam : [1974]3SCR109 . Here the Supreme Court observed that an award which requires registration and is not registered, is inadmissible in evidence for the purposes of pronouncing judgment in accordance with it. However, in Tehmi v. Shib Banerjee & Sons Pvt. Ltd. : [1975]2SCR1 the Supreme Court observed that if such an award does not purport or operate to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, in respect of the immoveable property, as contemplated under Section 17(1)(b) of the Registration Act, and if it merely creates a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest, the award would not require registration. While I am on this point, I may also refer to the decision of the Supreme Court in M. Chelamayya v. M. Venkataratnam : AIR1972SC1121 wherein the Supreme Court observed that an award, wherein the recitals are DO more than a reference to an existing fact and does not purport to create or declare, by virtue of the award itself, right, title or interest in immoveable property, does not require registration. It also observed that a direction in an award to pay some of the money which is held due and payable by one of the parties to another, any direction giving effect to liability which already existed, does not require registration.

24. In this case the Supreme Court also considered the effect of non-registration of an award, part of which requires registration and part of which does not require registration and is separable from the one which requires registration. The Supreme Court held that where a severable part of an award cannot be given effect to for a lawful reason, there is no bar to enforce the part to which effect could be justly given. In this connection reference may be had to the decision of the Calcutta High Court in Anandi Lal v. Keshavdeo AIR 1949 Cal 549, wherein it has been stated, that if, notwithstanding some portion of an award is void, the remaining part contains a final and certain determination of every question submitted, the valid portion may frequently be maintained and the void part rejected. It is further observed that the bad portions, however, must be clearly separable in their nature in order that the award may be good for the residue.

25. The propositions which, therefore, emerge on a survey of these decisions are that an award under the Registration Act on a private reference, which creates, declares, assigns or extinguishes any right, title or interest in any immoveable property in the value of one hundred rupees or upwards, is required to be registered under the provisions of Section 17(1)(b) of the Registration Act. However, if the award itself does not create, declare, assign, limit or extinguish any such right, title or interest but merely creates right to obtain another document which would, when executed, do so, then such an award is not required to be registered as provided in Section 17(2)(v) of the Registration Act. However, if the award is compulsorily registerable under the circumstances as stated above and is not registered, it cannot be looked into and the Court cannot pronounce judgment in terms of the award under Section 17 of the Arbitration Act, as it presupposes an award which can be validly looked into. Unregistered award, a part of which only requires registration, can be given effect to in respect of that part which does not require registration, provided the latter part is separable or severable from the former. However, if the two are inseparable, such an award cannot be enforced. It is on these principles that the admissibility of an award which deals with immoveable property has to be judged.

26. While dealing with the question of necessity of registration of the award in this case the learned Judge has disposed of this issue only with a casual observation that after perusal of the award he found that it by itself did not create any legal rights while dealing with distribution of immoveable property and that there were averments in the award that legal documents should be executed- For these reasons the learned Judge seems to have agreed with the arguments advanced on behalf of the non -applicants to the effect that the award does not create any interest in immoveable property but contemplates execution of legal documents in this behalf and it is these documents, which, when executed, will naturally require registration, but not the award. It appears that while coming to this conclusion the learned Judge has not given his anxious thought to the various terms of the award and the words used therein. At least he has not exhibited the consideration of the various terms of the award in support of his conclusion. The question of the admissibility, as I have said above, has to be considered in the light of the principles which have been stated above. It does not appear that these principles were present to the mind of the learned Judge. He firstly stated that there was no prohibition for filing an unregistered award and that what is prohibited is that it cannot be taken into evidence so as to affect immoveable property falling under Section 17 of that Act and for this purpose the learned Judge referred to Section 49 of the Registration Act and the decision of the Supreme Court in Champalal v. Samarthabai : [1960]2SCR810 . After having observed as above, the learned Judge then said that the objection that the award is invalid because it is not registered being premature at this stage, failed on merits also. It is difficult to see what the learned Judge meant by saying that the objection was premature. It appears from the trend of reasoning given By the learned Judge in paragraph 8 of his order that he was more concerned at the stage of decision of the preliminary issues with the question whether the award could be filed in Court though it was unregistered. That is why probably he said that the objection that toe award is invalid because it is not registered, was premature. If that was his view and if according to him, he was concerned at the stage of the preliminary issue with the question of award being filed in Court, though unregistered, then the should not have recorded any finding on the question whether the award itself required registration or not, as he himself said that this objection was premature, which probably meant that it should be decided on merits at the time of the hearing of the matter subsequently. This observation of the learned Judge, therefore, that the award did not require registration because it did not create right, title or interest in immoveable property, cannot be sustained in view of what he has said in para 8 of his judgment. In my view, it would be proper to leave this matter for consideration at the time of the hearing of the matter when it comes finally before the Court. The learned Judge would decide this question at the appropriate time, keeping the principles which have been enunciated above in mind.

27. In the result, therefore, the revision application is partly allowed. The findings of the learned trial Judge on issue Nos. 1-A and 1-B are confirmed and the findings on issue No. 2 is set aside and the matter is remitted to the trial Court for proceeding with the matter further on other issues as may be raised and to consider issue No. 2 at that time afresh, in the light of the observations made above. In the circumstances, there shall be no order as to costs.

28. Revision partly allowed.


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