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Pramode Kumar Mittal Vs. Sri Bhuramal Chiranjilal Mittal and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberMatter No. 36 of 1977
Judge
Reported inAIR1977Cal340,82CWN574
ActsArbitration Act, 1940 - Sections 14, 14(2) and 17
AppellantPramode Kumar Mittal
RespondentSri Bhuramal Chiranjilal Mittal and ors.
Cases ReferredAnandi Lal Poddar v. Keshav Lal Poddar
Excerpt:
- .....of the reference if the same had been the subject-matter of the suit. in para 21 (1) of the award the arbitrator has directed as follows:'21. (1) andhra steel corporation ltd. has a tenancy right in respect of premises no. 24 alipore road, calcutta which is being used as residential house of members of mittal family as also in respect of office space at no. 2, brabourne road, calcutta. it has been agreed between the parties that shri m. l. mittal and members of his family will be entitled to the tenancy rights in respect of premises no. 24 alipore road, calcutta as also the office space at no. 2, brabourne road, calcutta 1, therefore direct the parties to cause andhra steel corporation ltd. to surrender its tenancy rights in respect of premises no. 24 alipore, calcutta as also.....
Judgment:
ORDER

Sabyasachi Mukharji, J.

1. This is an application under Section 14(2) of the Arbitration Act, 1940 for directing the arbitrator to file the interim award made and published by him on the 6th January, 1977, in this Court.

2. In order to appreciate the controversy in this case, it is necessary to briefly refer to certain facts. Pramode Kumar Mittal, the petitioner herein, and the respondents all belong to the same family, hereinafter referred to as Mittal family. They are all descendants of the first respondent Bhuramal Chiranjilal Mittal. It is not necessary to refer to the actual relationship between the parties. There are several companies and firms which belong to the different parties to which also it is not necessary to refer in detail. The family was also interested in several trusts. Diverse disputes and/or differences arose in the Mittal family relating to and concerning the business of the said firms, trusts and companies and regarding the control and management thereof and also regarding the properties belonging to the parties. With a view to settle the said disputes the same were referred to the sole arbitration of Shri B. P. Khaitan, Solicitor and Advocate, by an arbitration agreement dated the 21st June, 1976. Thereafter, there were several meetings but on the 8th January, 1977 the petitioner received by registered post an interim award and/or directions signed by the arbitrator. The petitioner is asking that the said interim award and/or directions be filed in Court.

3. One of the contentions raised in this application was that the directions sent by the arbitrator was not an interim award and as such was not capable of being filed in Court. Having regard to the nature of the directions given and having regard to the definition of 'Award' under Section 2(b) of the Arbitration Act, 1940. I am unable to uphold this objection. This objection was also not very seriously pressed on behalf of the respondents, who are opposing this application.

4. The next question that requires consideration in this case is whether this Court has jurisdiction to entertain this application for filing of the award, in other words, whether this is the appropriate Court for filing of the award. Under Section 2(c) of the Act Court means a Civil Court having jurisdiction to decide the questions forming the subject-matter of the reference if the same had been the subject-matter of the suit. In para 21 (1) of the award the Arbitrator has directed as follows:

'21. (1) Andhra Steel Corporation Ltd. has a tenancy right in respect of premises No. 24 Alipore Road, Calcutta which is being used as residential house of members of Mittal family as also in respect of office space at No. 2, Brabourne Road, Calcutta. It has been agreed between the parties that Shri M. L. Mittal and members of his family will be entitled to the tenancy rights in respect of premises No. 24 Alipore Road, Calcutta as also the office space at No. 2, Brabourne Road, Calcutta 1, therefore direct the parties to cause Andhra Steel Corporation Ltd. to surrender its tenancy rights in respect of premises No. 24 Alipore, Calcutta as also office space at No. 2 Brabourne Road, Calcutta in favour of Shri M. L. Mittal or his nominee. Shri M. L. Mittal will be entitled to obtain the tenancy rights in respect of premises No. 24. Alipore Road, Calcutta as also office space at No. 2, Brabourne Road, Calcutta from the respective landlords either in his name or in the name of his nominee on such terms and conditions as he may think fit. I direct that the resolutions be passed in the meeting of the Board of Directors of Andhra Steel Corporation Ltd. surrendering the tenancy rights in consultation with Shri M. L. Mittal. The implementation of these directions will also reduce expenses of Andhra Steel Corporation Ltd.'

Admittedly there was direction regarding the immoveable property within the jurisdiction of this Court, namely No. 2, Brabourne Road, Calcutta. Therefore, by virtue of the aforesaid direction this Court would have jurisdiction to entertain this application. On behalf of the opposing respondents it was contended that No. 2, Brabourne Road premises belonged to Andhra Steel Corporation Ltd. and was not the subject-matter of properties agreed to be referred to the arbitration of Shri Khaitan. It was contended that what were agreed to be referred to arbitration were the disputes regarding the properties of the parties in their own name or in the names of the members of their families but disputes regarding properties standing in the name of separate corporate entities had not been agreed to be referred to arbitration. The arbitrator merely by giving direction in respect of the properties which had not been referred to his arbitration could not enlarge the scope of the arbitration, it was submitted. It, however, appears from the award of the arbitrator that all disputes had been agreed to be referred to his arbitration. The opposing respondents dispute this assumption. The question whether the No. 2 Brabourne Road property or other properties which are not standing in the name of the parties themselves and their families were the subject-matter of arbitration is a disputed question of fact which cannot and, in my opinion, should not be resolved in an application for filing of the award. It is clear, however, that there is a dispute whether the dispute in respect of the property which is within the jurisdiction of this Court and in respect of which directions have been given by the arbitrator had been referred to arbitration. That, in my opinion, would be sufficient part of the cause of action arising within the jurisdiction of this Court which will entitle this Court to entertain this application. In that view of the matter, I am unable to sustain this abjection raised on behalf of the opposing respondents. The view which I am taking, in my opinion, is in consonance with the observations of the learned single Judge of this Court in the case of Anandi Lall Poddar v. Keshavdeo Poddar (AIR 1949 Cal 549) wherein the definition under Section 2 of the Arbitration Act 1899 was slightly different. This view is also in consonance with the view of another learned single Judge of this Court in the case of Union of India v. Khem Chand Rajkumar (ILR (1973) 1 Cal 529). I, however, make it clear that the question whether the arbitration agreement had included disputes regarding properties other than those standing in the names of the parties to the dispute or of the members of their family, will have to be decided later on if this contention is raised in appropriate proceeding and directions, if any, given for filing of the award will not preclude raising such contention.

5. The next objection was that the award being an unregistered document could not be directed to be filed, it was contended that the award purported or operated to create or declare or assign or limit or extinguish rights in the immovable property and therefore, it required registration under the Registration Act, 1908 and not having been registered it was not capable of being filed. I am unable to accept this contention. The award itself, in my opinion, does neither create nor assign nor declare nor extinguish any right in any immovable property. The award read properly only recognises certain rights in the immovable properties which would require further instruments to be executed in order to implement the directions contained in the award.

6. I have set out Clause 21 (1) of the award. This is typical of the directions contained in the award regarding immovable property. Read properly, in my opinion, this does not, by itself create or declare or assign or extinguish a title or interest in the property but only gives a narration of transactions which had taken place in the past or, at best, which gives certain directions in respect of the immovable assets; it had to be enforced by execution of other documents. Apart from that, as I have noticed before, the award admittedly contains a direction regarding the movable assets as well as immovable properties, movable properties being shares in several companies. It is possible to contend that the award is severable and, as such, the award in as far as the same deals with the movable assets is enforceable without registration. I need not, at this stage, decide finally whether the award is severable as such in the instant case but I recognise only the possibility of such severance. Where an award contains severable obligations, one requiring registration and the other not, such an award is admissible in evidence. See in this connection the observations of the Supreme Court in the case of Mettapalli Chelamayya v. Mettapalli Venkataratnam, : AIR1972SC1121 or the report. It is not necessary for me at this stage to decide whether in the facts and circumstances of this case, the award dealing with movable assets and the award dealing with immovable assets were severable. But I only notice that this award is capable of this consideration and, if this is so, unless the award is filed this question cannot, in my opinion, be adjudicated. In the aforesaid view of the matter, as the Supreme Court observed, even if the award requires registration it could be filed before its registration. But it might not be enforceable or it might not be relied on in evidence for the assertion of the rights created in the immovable properties by the award. See for this observations of the Supreme Court in the case of Champalal v. Mst. Samrathbai, : [1960]2SCR810 and specially the observation at p. 631 or the report. In my opinion, the facts and circumstances of the case of Satish Kumar v. Surinder Kumar, : [1969]2SCR244 were different from the facts of the instant case. In view of the decisions of the Supreme Court referred to hereinbefore, I am of the opinion that the opposing respondents cannot get much assistance from the observations of the Division Bench of this Court in the case of Nanibala v. Ram Gopal, AIR 1945 Cal 19 and the observations of the learned single Judge in the case of Anandi Lal Poddar v. Keshav Lal Poddar, AIR 1949 Cal 549. For the reasons aforesaid, in any event if the award is not registered it does not prevent the Court from directing the filing of the award at this stage.

7. Next objection was that the awardhad not been properly stamped as required under Article 12 of the Stamp Act. Undoubtedly that is so. But in view of the provision of Section 35 of the said Act, it would not be proper, in my opinion, to reject this application on this ground. But if the filing of the award is directed the document should be stamped properly by the arbitrator and for this purpose the applicant would in the first instance, put the arbitrator in necessary funds. It appears that the arbitrator was called upon both by the petitioner as well as by the opposing respondents to file the award, which has not been done.

8. As I have negatived the contentions of the opposing respondents, there will therefore be an order in terms of prayer (a) of the petition subject to this direction that the arbitrator will stamp the document and for this purpose the applicant would put in the necessary funds, in the first instance. This order, however, will not prejudice the opposing respondents from raising any of the contentions about the validity and the propriety of the award, inter alia, on the ground of jurisdiction as well as on any other grounds.

9. Costs of this application will be costs in the arbitration proceedings.

10. The arbitrator will act on the signed copy of the minutes.


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