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Aditya Kumar De Chowdhury Vs. Narayandas De Chowdhury - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 331 of 1961
Judge
Reported inAIR1971Cal65,75CWN439
ActsRegistration Act, 1908 - Sections 17(1), 25 and 49; ;Arbitration Act - Section 17
AppellantAditya Kumar De Chowdhury
RespondentNarayandas De Chowdhury
Appellant AdvocateRanjit Kr. Banerjee, ;Abhijit Kr. Banerjee and ;Bimal Kr. Banerjee, Advs.
Respondent AdvocateChandranath Mukherjee, Adv.
DispositionAppeal dismissed
Cases ReferredChampalal v. Mst. Samarathbai.
Excerpt:
- .....relied on, which we will presently discuss.9. first decision relied on by mr. banerjee is a full bench decision of the patna high court in the case of sheonarain lal v. prabhu chand, : air1958pat252 . three questions for consideration of which that full bench was constituted were :'1. is an award on reference to arbitration without the intervention of a court made subsequent to the coming into force of the indian arbitration act, 1940, deciding questions of title to the immoveable property worth one hundred rupees and upwards compulsorily regis-trable?2. can such award, if not registered, be enforced so as to enable the court to pronounce judgment according to it under section 17 of the indian arbitration act, 1940? and3. can objection to the award that, for want of registration or for.....
Judgment:

Amaresh Roy, J.

1. This appeal has arisen out of an Arbitration proceeding which was registered as a suit in the circumstances that will appear from what we will recount presently. The present appellant and the respondents are co-sharers of their joint and ancestral properties including a residential house. When disputes had arisen between them regarding enjoyment of the joint properties, one of them, namely, Narayandas De Chowdbury instituted a suit in the Court of Munsil at Kama over disputes regarding some of the joint properties. That was Title Suit No. 120 of 1957. During the pendency of that suit the parties filed an application stating inter alia that they have appointed an Arbitrator for settling the disputes regarding the subject-matter of that suit, and on their prayer that suit was stayed. In fact by an agreement for arbitration between the parties Sri Amrita Lal Mukharji was appointed as Arbitrator to effect complete partition of all their joint properties. That agreement was executed on 5th of January. 1958. The Arbitrator made his Award concerning properties, value of which was beyond the jurisdiction of the Munsif at Kalna. The Award was therefore filed in the Court of the Subordinate Judge at Bur-dwan. Narayandas De Chowdhury filed an objection to the Award on various grounds. That objection was registered as Title Suit No. 144 of 1958 in the Court of Subordinate Judge at Burdwan, and present appeal has arisen therefrom.

2. One of the objections taken was that the Award required registration and as it was not registered the Award could not be admitted in evidence. The learned Subordinate Judge by an order passed in the suit dated 14-2-59 directed to return the Award to the Arbitrator on a proper receipt from him, with an undertaking that he would refile the same in that Court as soon as the Award was registered.

3. Against that order of the learned Subordinate Judge an application for Revision under Section 115, C. P. Code was made in this Court by the plaintiff in the suit, Narayandas De Chowdhury, who was the objector against the Award. Rule issued and it was registered as Civil Revision No. 663 of 1959. By a iudg-ment, a Division Bench of this Court (Banerjee and Neyogi, JJ.) set aside the order of the learned Subordinate Judge and directed the Court of Subordinate Judge to decide the objection as to registration and then decide what course it should adopt in finally disposing of the matter.

4. Thereupon the suit was tried in the Court of the learned Subordinate Judge in March. 1961. No oral evidence was adduced by any party; arguments of both the parties were heard by the learned Subordinate Judge and judgment was delivered by him on 28th of March, 1961. By that judgment the learned Subordinate Judge held that the Award in question was compulsorily registrable and it could not be taken into evidence for want of registration and judgment could not be passed in terms thereon under Section 17 of the Arbitration Act. The objection of Narayandas De Chowdhury was upheld bv decreeing the suit and the application of the Arbitrator for a judgment in terms of the Award was dismissed. Present appeal is against that judgment and decree and has been preferred by Defendant No. 1 in the suit.

5. An alternative application under Section 115, C. P. Code was also filed and notices of that application were directed to and have been served on, the Respondents. No objection however has been taken as to maintainability of the appeal which has been contested on merits by the Respondent No. 1 through the learned Advocate Mr. Chandra Nath Mukherjee.

6. Appearing for the appellant, the learned Advocate Mr. Ranjit Kumar Banerjee has contended that the finding of the learned Subordinate Judge that this Award required registration is not correct and that even if it required registration. Section 49 of the Registration Act does not prevent filing of the Award in Court for passing (decree?) thereon under Section 17 of the Arbitration Act. He, therefore. contends that the suit should not have been dismissed, but a judgment and decree according to the Award should have been passed; then only, the decree incorporating the Award needed to be registered for giving effect to and enforcement of the Award.

7. Mr. Banerjee's contentions really raise only one point of law in two branches. In its first branch, Mr. Baner-iee has argued exactly what he had argued in the previous Revision Case that the Award was not such as required registration, because the intention of the parties was that there would be a decree passed on the Award and that decree alone would affect immoveable properties which are the subject-matter of the Award. In his accustomed fairness Mr. Banerjee himself has drawn our attention to a decision of a Division Bench of this Court (Mitter and Sharpe, JJ.) in the case of Nanibala Saha v. Ramgopal Saha, reported in ILR (1945) 1 Cal 454, (similar citation 48 Cal WN 721) = (AIR 1945 Cal 19) where exactly same argument was advanced at the Bar but was rejected by that Division Bench in these words :

'The substance of the contention is that the parties intended that the decree of the Court on the Award and not the Award would create, declare or limit as the case may be, the rights of the respective parties in what was formerly their joint immoveable properties or what was claimed as joint immoveable property of the family. This contention requires the construction of the 'Achalnama' by which the parties referred their disputes to arbitration ..... The parties agreed as the first four clauses indicate, that the award itself would have effect on their title. We, accordingly, hold that the Award was compulsorily registrable in view of Section 17(1)(b) of the Indian Registration Act as it has dealt with title of immoveable property worth more than rupees one hundred.'

In the present case also the Award does recount that by a written ekrarnama the parties appointed the Arbitrator for partitioning their joint immoveable properties by metes and bounds. That agreement itself clearly indicates that parties had intended that Award of the Arbitrator will be the effective document for separation of their title and for giving exclusive title to the separate allotments. In other words, the Award itself would have effect on their title. We, therefore, hold that the decision of the learned Subordinate Judge that the Award of the present case was compulsorily registrable in view of Section 17(1)(b) of the Indian Registration Act is correct and unassailable.

8. In the second branch of his contention Mr. Banerjee has urged that Section 49 of the Registration Act does not prevent filing of an Award in Court for obtaining a judgment on basis thereof under Section 17 of the Arbitration Act. He proceeded to argue that at the stage of filing the Award in Court, registration was not necessary and judgment should be passed on basis of the Award; then only the decree incorporating the Award need be registered for giving effect to and enforcement of the Award. On this point also Mr. Banerjee drew our attention to the same judgment of the Division Bench of this Court to which we have already referred. There also the same argument was advanced at the Bar but was overruled. He however reagitated the point before us by contending that the view of law that prevailed in that reported case required reconsideration and should be held to be erroneous. Mr. Banerjee in fact urged that the point should be referred to a Full Bench in view of the decisions he relied on, which we will presently discuss.

9. First decision relied on by Mr. Banerjee is a Full Bench decision of the Patna High Court in the case of Sheonarain Lal v. Prabhu Chand, : AIR1958Pat252 . Three questions for consideration of which that Full Bench was constituted were :

'1. Is an award on reference to arbitration without the intervention of a Court made subsequent to the coming into force of the Indian Arbitration Act, 1940, deciding questions of title to the immoveable property worth one hundred rupees and upwards compulsorily regis-trable?

2. Can such Award, if not registered, be enforced so as to enable the Court to pronounce judgment according to it under Section 17 of the Indian Arbitration Act, 1940? and

3. Can objection to the Award that, for want of registration or for any other reason, it could not be enforced filed after the expiry of the time for making an application to set it aside, be entertained, and if not, is the Court bound to pronounce judgment according to it under Section 17 of the Indian Arbitration Act, 1940?'

Those questions were answered by the Full Bench of the Patna High Court, the first in the negative, the second in the affirmative, the first part of the third question also in the negative and second part of the third question in the affirmative. By those answers no doubt the Full Bench of the Patna High Court has taken a view which is directly contrary to the view of law that the Division Bench of this Court took in the case reported in 48 Cal WN 721 = (AIR 1945 Cal 19). Yet it does not appear clear if that decision of this High Court was placed before the Full Bench of the Patna High Court, though the Full Bench referred to previous decisions of the Patna High Court, particularly, the decision reported in AIR 1949 Pat 393 which have taken the same view that prevailed in Calcutta that a private Award without the intervention of the Court falls within the mischief of Clauses (b) and (c) of Sub-section (1) of Section 17 of the Registration Act and therefore it required registration. It is noticeable that the Division Bench that decided the case reported in AIR 1949 Pat 393 discussed the Calcutta view by referring to a judgment in the case of Jitendra Nath De v. Nagendra Nath, reported in AIR 1934 Cal 815 by observing : 'The principle as stated in Jitendra Nath De's case, (AIR 1934 Cal 815 = ILR 62 Cal 201), is that whereas an Award made by Arbitrators under orders of the Court has no force until a decree is passed on it, a private award, if it is valid, is operative even though neither party has sought to enforce it by a regular suit Mr. Jha contends that under the procedure prescribed by Schedule 2, Civil Procedure Code, the Award itself was made a rule of the Court whereas under the present procedure it is merely the material on which the Court grants its own operative decree, that therefore registration was necessary under the old procedure but is not necessary now. On a comparison of the provision of the schedule of the Code with the relevant provisions of the Arbitration Act it appears to me that there is no substantial difference.'

Not only so, another judgment of the Patna High Court in the case of Dewaram v. Harinarain, AIR 1948 Pat 320 also referred to the Calcutta view in these terms :

'The Calcutta High Court has taken the same view in AIR 1934 Cal 815. The Bombay High Court in AIR 1938 Bom 422 followed the Allahabad and Calcutta view and held that an Award which comes under Section 17(1)(b) is compuJsorily registrable and if the Court files such an Award which has not been registered and makes it a decree of the Court it acts contrary to the provisions of Section 49, Registration Act. A Division Bench of this Court consisting of Courtney-Terell C. J. and Fazl Ali, J. (as he then was) also came to the same conclusion in AIR 1937 Pat 183, see also the recent decision of the Madras High Court in AIR 1947 Mad 168.'

The Full Bench disagreed with, and overruled the two Patna decisions above mentioned, but neither the Calcutta decision reported in AIR 1934 Cal 815 (Jatindra's case) which was a decision before the Arbitration Act of 1940 nor the decision reported in 48 Cal WN 721 = (AIR 1945 Cal 19) (Nanibala's case) which decided the point that was exactly before the Full Bench, was noticed by their Lordships of the Patna High Court sitting on that Full Bench, In that latter decision of the Calcutta High Court the point was elaborately discussed at great length and it was held :

'No doubt by the Arbitration Act of 1940, the law governing a private Award dealing with Mofussil properties has been placed on the same footing as an Award dealing with properties situate in Presidency towns with the result that the supervising powers of the Civil Court with regard to these Awards have been enlarged and the procedure for filing such Awards and the subsequent proceedings in the Civil Court have been changed but those changes did not affect the question, which we are now dealing with, because the provisions of Section 17 of the Registration Act have not undergone any change by way of further amendment since 1929. The authority of the decision in (Jatindra's case) AIR 1934 Cal 815 in so far as it decides that a private Award has to be registered before it could be filed in the Civil Court for the purpose of obtaining a decree thereon, has not been shaken by the repeal of Schedule II of the Code of Civil Procedure and the enactment of Arbitration Act, 1940.

2. As the Award is inadmissible in evidence for the reason of Section 49 of the Registration Act on the principle that 'of things that do not appear and things therein do not exist the reckoning in a Court of law is the same' .... It must be taken, so far as these proceedings are concerned, that the Award does not exist: and

3. Want of registration is a defect de hors the Award or the decision of the Arbitrator, and so in our judgment is not covered by Clause (c) of Section 16(1) of the Arbitration Act of 1940. The purpose of remitting the award is for enabling the Arbitrator to reconsider his decision and the Illegality must be one connected with his decision as contained in the Award. It must not relate to a matter which has no connection with his decision or to put it succinctly, his decree. We. therefore, hold that the learned Subordinate Judge was not right in setting aside the Award on the ground of non-registration. He should have simply ignored the Award in view of Section 49 of the Registration Act.'

10. We have devoted our anxious considerations to the view of the Full Bench of the Patna High Court relied on bv Mr. Banerjee. With great respect to their Lordships of the Patna High Court, we do not agree with that view. Law laid down in the decision of our High Court we have quoted above is in our view correct and we respectfully agree with that view of law.

11. We need only mention that a Full Bench decision of Andhra Pradesh High Court : AIR1967AP257 (M. Venkata Ratnam v. M. Cha-lamavya) has dissented from the view of Patna Full Bench and has adopted the view of law that prevails in Calcutta and Madras, Allahabad and Punjab which, have been fully discussed there.

12. Mr. Banerjee also relied on the decision of the Supreme Court in the case of Champalal v. Mst. Samarathbai. : [1960]2SCR810 . On examining the facts as they appear in that reported judgment we find that in that case the Award was made on October 18, 1946; on November 15. 1946 objection to the Award was filed and on January 31, 1947 application for a iudgment in terms of the Award and for a decree was made. The Award was unregistered and therefore at the request of one of the parties it was handed over, for getting it registered, to the Attorney of the two of the three Arbitrators. On February 7, 1947 the Award was presented for registration to the Sub-Registrar but the Sub-Registrar returned it as it was not accompanied by list of particulars of the properties covered by the Award. On February 15. 1947 the list of particulars signed by Mithulal was supplied and the Award was represented for registration by one Mithulal who was an Attorney for two of the Arbitrators and as he was an Attorney of only two of the three Arbitrators the Sub-Registrar registered the document on March 26. 1947 in regard to the said Arbitrators and refused it qua the third Arbitrator Bhogilal. But under the orders of the Registrar the document was registered in regard to Bhogilal also and it was refiled on July 21. 1948 in Court of the Additional District Judge. On November 22, 1949 a iudgment was passed in accordance with the terms of the Award followed by the decree. Against that order an appeal was taken to the High Court which was dismissed on February 19. 1954. Upon these facts, regarding the contention that the filing of the Award was not within time as no application was made under Section 14 within time allowed by Limitation Act and that the Award required registration and was not registered in accordance with law. the Supreme Court held that these objections were without substance. In holding so. their Lordships referred to the fact that the Award was made on October 8, 1946 and was filed in Court on October 21, 1946 and regarding the second question that the Award required registration and could not be filed by the Arbitrator before it was registered was also held to be without substance. The Lordships of the Supreme Court observed :

'The filing of unregistered Award under Section 49 of the Registration Act is not prohibited; what is prohibited is that it could not be taken into evidence so as to affect immoveable properties falling under Section 17 of that Act.'

That is the sentence which was very strongly relied on by Mr. Banerjee before us. We do not see how that helps Mr. Banerjee's contention. Law laid down by the Supreme Court is clear. The question that is relevant for our decision is not whether the Award which is unregistered in the present case could be filed In Court; the question is whether that Award could be taken into evidence for passing a judgment and decree thereon. The Supreme Court in that judgment was dealing with a case in which the judgment and decree have been passed by the Court on a registered Award refiled in Court after registration, though at the trine when the Award was filed in Court on the first occasion it was unregistered-Section 49 of the Registration Act prohibits an unregistered Award from being taken into evidence so as to affect im-moveable properties falling under Section 17 of that Act. The Supreme Court has laid down the law in the same terms in the passage we have quoted above and on which Mr. Banerjee placed reliance. In our view Supreme Court has not laid down anv law different from what has been the Calcutta view as it appears in the Division Bench decision reported in 48 Cal WN 721 = (AIR 1945 Cal 19) (Nanibala's case). The decision of the Supreme Court and also several other decisions have been discussed in the judgment of Full Bench of Andhra Pradesh which we have mentioned above and same view as ours has been taken. We. there-fore. hold that the learned Subordinate Judge was right in the view that the unregistered Award could not be taken into evidence for passing a judgment and decree.

13. Mr. Banerjee next contended that the course that the Subordinate Judge had taken in the present case by making over the Award to the Arbitrator for getting it registered was a step that has received approval of the Supreme Court in the case we have lust discussed. Yet, he points out. by the previous judgment in the Revision Case that order of the learned Subordinate Judge was set aside. Mr. Banerjee suggested that the learned Subordinate Judge should be directed again to make a similar order. To this part of Mr. Banerjee's argument the answer has been given by the learned Advocate for the respondent Mr. Chandra Nath Mukharji by pointing out that the order of the learned Subordinate Judge directing that the Award be returned to the Arbitrator for getting it registered was set aside in this Court for the express reason that the point whether the Award required to be registered under Section 17(1)(b) of the Registration Act had not been decided by the learned Subordinate Judge before making that order for returning the Award for getting it registered. By referring to the judgment passed in that Revision Case we find that Mr. Mukharji is wholly correct. The relevant passages in that judgment are in these terms :

'In our opinion the Court below should decide the point as to whether the Award required registration. The question goes to the root of the dispute and if ultimately the Court below finds that the Award could not be taken into evidence for want of registration it may have to refuse to pass a judgment in terms of the Award.

We do not ourselves desire to decide this matter, because the Court below has not itself adverted to this question. We. therefore, set aside the order passed by the Court below and direct that Court now to decide the objections to registration taken by the petitioner and then decide what course it should adopt in finally disposing of the matter. We make it clear that we express no opinion as to whether the Award is at all necessary to be registered according to law.' The direction given in that judgment has been obeyed by the learned Subordinate Judge by deciding that the Award in the present case was compulsorily registra-ble. We have held that to be a correct decision.

14. Mr. Banerjee then points out that the direction given in that judgment in the Revision Case did not compel the learned Subordinate Judge to straightway dismiss the suit if he arrived at the decision, as he has done; if the Award could not be taken into evidence for want of registration, it was open to him to make again the order to return the Award to the Arbitrator for getting it registered. As to the effect of the judgment that was passed in the Revision Case Mr. Banerjee appears to us to be right. In that judgment it has been said that :

'If the Court below finds that the Award could not be taken into evidence for want of registration it may have to refuse to pass a judgment in terms of the Award.'

Mr. Banerjee has rightly pointed out that it was not a compelling direction to dismiss the suit straightway, but was only one of the possibilities, because in the passage following that in the same judgment it was clearly said :

'We. therefore, set aside the order passed by the Court below and direct that Court now to decide the objection to registration taken by the petitioner and then decide what course it should adopt in finally disposing of the matter.'

The portion we have underlined above supports Mr. Banerjee's contention fully.

15. Yet. with regard to Mr. Baner-jee's submission before us that the judgment and decree of the Subordinate Judge should be set aside and he should be directed to make again the order to return the Award to the Arbitrator to get it registered, we have to point out that an insurmountable obstruction has now appeared, by lapse of time. The document, that is the Award cannot now be registered under the Registration Act in view of the provisions in Section 25 of that Act. Much longer than 4 months have elapsed from the date on which the Award was signed by the Arbitrator, Provisions in Section 25 of the Registration Act are imperative and that time cannot be extended by Court. It is, therefore, useless to make the order as Mr. Banerjee has now proposed. At the date when the learned Subordinate Judge was dealing with the suit the position was the same as today. For want of registration, the Award could not be taken into evidence for passing a judgment and decree thereon. The learned Subordinate Judge therefore has acted rightly and legally by giving effect to the objections and decreeing the suit.

16. The appeal therefore, fails and is dismissed. In the circumstances of the case we do not award any costs.

S.K. Datta, J.

17. I agree.


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