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KAILASH NATH GUPTA versus BRIJ MOHAN AND ORS.

High Court of Judicature at Allahabad

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Kailash Nath Gupta v. Brij Mohan And Ors. - WRIT - C No. 328 of 1989 [2007] RD-AH 7194 (19 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Judgment Reserved on12.02.2007

Judgment Delivered on 19.04.2007

(Reserved)

Civil Misc. Writ Petition No. 328 of 1989

Kailash Nath Gupta Versus Brij Mohan and others.

Hon'ble S.U.Khan J

At the time of argument, no one on behalf of contesting respondents was present hence only the arguments of learned counsel for the petitioner were heard.

The relevant pedigree through which contesting parties are related to each other is given below:

                             Mata Dayal------------------------------------------Ram Lal

/                                                                 /

Mathura ----------------------- Makdum                                Shitla Prasad

              /                                                /        

                                                        /                                     / --------------------/                                                                                                                          

                                    -----------------------------------------      Brij Mohan       Radhey  

   /            /      Res.No.1         Shyam

                       /                                           /                              Res.No.2

             Chameli = Hira Lal   Lakhpati = Jagannath

    /                    /

                        /                                                    Kailash Nath

-------------------------------------------------------     Petitioner

/ / / /

 Shiv Shanker    Munna Lal   Paras Nath  Ghanshyam Das

Res.No.4

Mathura was issueless. His brother Makdum had two daughters Chameli Devi and Lakhpati. Smt Lakhpati had only one son Kailash Nath Gupta, the petitioner. Smt Chameli Devi had four sons, Shiv Shanker and three others. Mathura on 18.4.1944, executed a will deed bequeathing his property including four houses to petitioner and Shiv Shanker jointly. Afterwards Smt Chameli asserted that Mathura executed another will on 21.10.1948 bequeathing his property in favour of the other sons of Smt Chameli i.e. Munna Lal, Paras Nath and Ghanshyam Das. In respect of agricultural property bequeathed by Mathura dispute arose in mutation proceedings and it appears that the case of petitioner Kailash Nath Gupta and Shiv Shanker was accepted and it was held that the first will executed by Mathura dated 18.4.1944 was his last will meaning thereby that the subsequent alleged will dated 21.10.1948 was not found to have been executed by Mathura.

Admittedly in the year 1944 petitioner and Shiv Shankar were minors.

Petitioner filed a suit basically against Shiv Shanker for partition of the four houses bequeathed through the will of 1944 being O.S No. 10 of 1964 before Civil Judge Jaunpur. However, in the suit Chameli Devi and her other three sons were also impleaded as defendants. It was alleged in the plaint of the said suit that by virtue of will of 1944 plaintiff petitioner and Shiv Shanker defendant No.1 were joint owners of the four houses. It was further alleged that the other defendants were being impleaded in order to avoid any complication or dispute, however, they had no right in the suit property i.e four houses. During the trial of the said suit, one Ram Pratap was examined as defendant's witness. While his examination was in progress he stated that earlier the matter had been refereed to arbitration and he was one of the arbitrators and arbitrators had given award on 26.5.1949 which was registered. Sri Ram Pratap filed copy of the registered award in the suit during his examination whereupon a Misc. Case No. 17 of 1965 was registered by the same court under section 14 of Arbitration Act 1940. The said Misc. Case was dismissed on 18.11.1965 on the sole ground that original award had not been filed hence arbitration proceedings were misconceived and not maintainable. However, 8 days before the said order i.e on 10.11.1965, original award had already been filed in the court. Against order dated 18.11.1965, a revision was filed in this court being Civil Revision No. 191 of 1966. The said revision was dismissed on 18.9.1968, copy of the judgment is annexure 6 to the writ petition. The complete order dated 18.9.1968, is quoted below:

"I agree with the court below that the court could not act on the basis of the certified copy of the award. The original award or signed copy thereof should have been filed as prescribed by section 14(2) of the Arbitration Act. The original award was, however, filed on 10th November 1965. It will be open to the court below to issue notice of the filing of that award and to proceed in accordance with law.

With these observations this application in revision is dismissed with costs.

   Signed

     S.K.Verma

     18.9.1968"

In view of the observations of the High Court in the above order a fresh suit in the form of suit No. 102 of 1971 was registered on the basis of original award (it is not clear that why the suit was registered after about 3 years). In the said suit notices were issued. Petitioner filed objections, which were registered as suit No. 67 of 1972. Both the suits were disposed of together by common judgment and Civil Judge, Jaunpur rejected the objections of the petitioner and made the award, rule of the court through judgment and order dated 29.2.1980. Against the said judgment and order petitioner filed Misc. Civil Appeal No. 98 of 1980 and Civil Revision No. 111 of 1980. Appeal and Revision were heard and disposed of together by III Additional District Judge Jaunpur through order dated 31.8.1988, dismissing both of them. Through this writ petition the aforesaid judgments and order dated 29.2.1980 passed by the Civil Judge, Jaunpur and order dated 31.8.1988 passed by the III A.D.J Jaunpur have been challenged.

Both the courts below rejected the objections of the petitioners mainly on the ground of delay placing reliance upon AIR 1962 SC 666 S.S Ningashetty Vs. K.S.Ningashetty. Supreme Court in the said authority held that notice of filing of the award need not be in writing and in case award was filed within the knowledge of the parties then the limitation to file objection started from the actual knowledge and not from the date of service of notice.  Similar view has been taken in Indian Rayon Corpn. vs. Raunaq and Company A.I.R. 1988 S.C. 2054.

However, both the courts below have rejected the objections of the petitioners on merits also.

As far as the question of limitation is concerned, in my opinion, the view taken by both the courts below is erroneous in law. Even though the original award had been filed on 10.11.1965, however, on 18.11.11965 Misc. Case No. 17 of 1965 registered under section 14 of Arbitration Act had been dismissed on the ground that the said case had been initiated on registered copy of the award. Neither the court nor any of the parties had any intention of taking or participating in any further proceeding on the basis of filing of the original award.

Unless an award is filed with the prayer for making it rule of the court, no valid proceeding can be initiated. It was also observed by the Civil Judge in its order dated 18.11.1965 dismissing Misc. Case no. 19 of 1975.  Accordingly mere filing of the original award without any proper application was no proper filing of award.  If the High Court had not passed the aforesaid order dated 18.9.1968 then no proceedings would have been initiated on the basis of filing of original award.  Even the case on the basis of filing of original award was registered in 1971. Neither the High Court in the above order dated 18.9.1968 nor the trial court considered it permissible or proper to permit to continue /continue with the case which was registered on the basis of filing of copy of award i.e. Misc. Case No.17 of 1965.  In view of this, limitation could not start from the date of filing of award i.e. 10.11.1965.  Moreover, when copy of award was filed, petitioner filed his objections.  On 17.11.1965 petitioner filed an application praying that his written statement/objections filed against copy of award be taken on record. The objections which were perfectly within time could very well be treated to be the objection against award.  In para-29 of the writ petition it has been stated that vide trial court's order dated 11.12.1971 original award was taken out from the record of O.s. No.17 of 1965 and was kept in the file of O.S. No.102 of 1971.  The contention of the petitioner raised in the said paragraph to the effect that written statement/objections filed alongwith court fee, stamp of Rs.200/- also ought to have been taken out from the file of O.S. No.17 of 1965 and kept in the record of O.S. No.102 of 1971 and treated as objection is well founded.  

As far as merit of the case is concerned, the agreement to refer the matter to arbitrator dated 23.04.1949 has been filed along with supplementary affidavit. The agreement was executed by Shitla Prasad, Hira Lal father and guardian of Shiv Shanker, Jagannath Prasad  father and guardian of petitioner Kailash Nath. In the said agreement, Shitla Prasad was described as party No.1 and Hira Lal and Jagannath Prasad fathers of Kailash Nath and Shiv Shanker as party No.2. It is also mentioned in the said agreement that Mathura had executed a 'will deed' in favour of Shiv Shanker and Kailash Nath. Thereafter, it was mentioned that dispute had arisen in between party No.1 and party No.2, i.e. Shitla Prasad on the one hand and Hira Lal and Jagannath Prasad on the other hand.

In the award, share was given to Shitla Prasad as well as Smt. Chameli Devi mother of Shiv Shanker. In the agreement, there was no mention of share of Chameli Devi. In the arbitration award, copy of which is Annexure-2 to supplementary affidavit, it is mentioned that share of Kailash Nath is 6 Ana,  share of Shiv Shanker 6 Ana and share of Shitla Prasad 4 Ana. One of the houses was given to Smt. Chameli Devi.  Gold and silver had been divided among the parties to the agreement and Smt. Chameli Devi.  Agricultural property was also mentioned in the arbitration award.

In my opinion, the award is illegal at least in part  for the reason that share could not be given to Smt. Chameli Devi, as she was not party to  the agreement referring the mater to arbitrator; she also did not claim any  legal title to the properties.

The award was given in 1949.  For 16 years i.e. Until 1965 it was not acted upon.  No claim on the basis of the said award was made by any of the parties.  In view of this the argument of the petitioner that even if the award was given, it was not intended to be acted upon and it was a mock award is quite sustainable.  Such pleas are available as valid objection to the award as held by the Supreme Court in Bhawarlal Bhandari v. M/s. Universal Heavy Mechanical Lifting Enterprises, A.I.R. 1999 S.C. 246.

The more important question to be decided is regarding limitation to file award.  Under Article 119 of the Schedule to the Limitation Act, the limitation for application by any of the parties for filing of the award in the court is 30 days from the date of service of the notice of making of the award.  It has been held that the said limitation applies only to the parties and not to the Arbitrator.  However, the Supreme Court in Patel Motibhai Naranbhai and another v. Dinubhai Motibhai Patel and others, A.I.R. 1996 S.C. 997 has held that even though 30 days limitation provided under Article 119 does not apply to the arbitrator, still  the award may be filed by the Arbitrator only within three years as the matter would be covered by Article 137 which prescribes period of three years for any other application for which no period of limitation is provided elsewhere in the said schedule.  In the aforesaid authority the Supreme Court held that Arbitrator was acting as Agent of one of the parties.  Similar is the position in the instant case.  Here also Arbitrator was appearing as witness of the defendants.  First half of para-7, paras 9 and 10 of the aforesaid authority are quoted below:

"7. The only question that falls for determination in this case is whether the Arbitrator could after a long lapse of nearly six years from the date of the Award file his Award and ask for a decree in terms of the Award, especially when neither of the two parties made any application for filing of the Award in Court even after receiving intimation of making of the Award.  The  question of making an application under Section 17 of the  Arbitration Act for judgment according to the Award cannot arise until and unless the Award is filed in Court.  There is no specific provisions in the Arbitration Act  casting a duty upon the Arbitrator to file his Award in  Court suo motu.  Article 119 of the Limitation Act lays down a time limit for making an application for filing the Award in Court or for setting aside the Award or getting the Award remitted for reconsideration.  In the instant case, the Arbitrator has not merely filed the Award in Court, he has also made an application (Miscellaneous Civil Application No. 19/1992) in the Court of Civil Judge (S. D.)  Anand, under Section 14 of the Arbitration Act and has engaged a lawyer Shri G.B. Shah to obtain orders as prayed.

9. Under Sub-section (2) of Section 14 a duty is cast upon the arbitrator to file the award or cause the award to be filed in the Court at the request of the party to the  arbitration agreement or if so directed by the Court.  There is no provision which requires the arbitrator to apply to the Court for filing of the award and pass a decree in terms of the award.  An application for filing the award in Court has to be made within thirty days from the date of service of the notice of making of the award under Article 119 of the Limitation Act.  Even if it is held that Article 119 will apply only to an application made by a party and not by the arbitrator, Article 137 will come in the way of the arbitrator's making any application beyond the period of three years from the date of making of the award.

10.   Faced with the situation that an application for filing the Award in Court under Section 14 (2)  of the Arbitration Act has become barred by limitation. Jayantikumar Ishwarbhai Patel induced the Arbitrator to make an application for filing of the Award and also for making the Award the rule of the Court.  In other words.  Jayantikumar Ishwarbhai Patel, a party to the dispute, with the help of the Arbitrator, did indirectly what he could not have done directly.  We are of the view that law cannot be allowed to be circumvented in this fashion. The Court should have declined to entertain the application moved by the Arbitrator nearly six years after making of the Award.  Without the application of the Arbitrator, the application made by Jayantikumar Ishwarbhai Patel under Section 14(2) could not survive.  The Court should not come to the aid of a party where there has been unwarrantable delay in seeking the statutory remedy.  Any remedy must be sought with reasonable promptitude having regard to the circumstances."

The said authority has been noticed in Bhawarlal Bhandari v. M/s. Universal Heavy Mechanical Lifting Enterprises, A.I.R. 1999 S.C. 246 (Supra).  However, in the latter authority objection regarding limitation was not permitted to be  raised for the reason that when award was filed (after about 4 years) the aggrieved party did not file any objection and award was made Rule of the Court.  Afterwards when decree passed on the basis of the award was put in execution, the aggrieved party raised the objection pertaining to bar of limitation in filing original award and award being mock and not intended to be acted upon.  The Supreme Court held that in execution said objections could not be raised and such questions could be considered if they had been raised in the proceedings which initiated on the filing of award for making the award Rule of the Court.

Accordingly, the award could not be made Rule of the Court as it was filed much after the period of limitation of three years that is after about 16 years.  It is also held that the said award was not intended to be acted upon and it was a mock award.

Writ petition is therefore allowed.  Both the impugned orders are set aside.

Date:19.04.2007

NLY


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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