Allahabad High Court

Raj Kumar Rastogi @ Raj Kishor ... vs Pankaj Rastogi And Another on 20 September, 2023

Bench: Jayant Banerji





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:182052
 
Court No. - 1
 
Case :- MATTERS UNDER ARTICLE 227 No. - 7550 of 2023
 
Petitioner :- Raj Kumar Rastogi @ Raj Kishor Rastogi
 
Respondent :- Pankaj Rastogi And Another
 
Counsel for Petitioner :- Sanjay Kumar Om,Praveen Kumar
 

 
Hon'ble Jayant Banerji,J.

1. Supplementary affidavit filed today is taken on record.

2. Heard Sri Sanjay Kumar Om, learned counsel for the petitioner.

3. This case has been filed seeking the following relief:

"1. To issue a order or direction set aside the order dated 16.2.2023 passed by learned District Judge, Kanpur Nagar, Kanpur in Misc. Case No. 620 of 2022 ( Raj Kumar/ Raj Kishore Rastogi Vs. Pankaj Rastogi).

2. To issue a order or direction in the nature of directing the District Judge, Kanpur Nagar, Kanpur to restore the Misc. Case No. 620 of 2022 and to execute the award dated 29.8.2013 passed by the Arbitral Tribunal."

4. It is stated that the petitioner and respondent nos. 1 and 2 were members of joint Hindu Family. The petitioner and respondent no.1 are real brothers and respondent no.2 is the son of petitioner and nephew of respondent no.1. The petitioner and the respondents were running their family business, but later on certain differences arose between them which led to misunderstandings and quarrel. It is stated that the parties mutually agreed for partition of the entire ancestral property both moveable and immoveable and the family business for which purpose the petitioner and respondent nos. 1 and 2 accorded mutual consent and entered into an oral partition of the entire moveable and immovable properties. It is stated that later, in order to further strengthen the same, they agreed to appoint five arbitrators who would jointly arbitrate between them after their oral partition of the entire assets and liabilities of the joint family. It is stated that during the pendency of the arbitral proceedings, there arose some dispute between the parties which was also amicably settled by way of an oral family arrangement and all moveable and immoveable properties were distributed amongst the members of the family as it was already agreed between them and same was reduced to writing in the shape of settlement award under Section 30 of the Arbitration and Conciliation Act, 19961.

5. It is stated that the settlement award dated 29.8.2013 has been passed by consent and none of the members of the family had any objection to the same and no objection whatsoever was raised under Section 34 of the Arbitration and Conciliation Act, 1996. It is stated that thereafter, an objection was filed by the respondent no.1 under Section 34 of the Act, 1996 which was registered as Arbitration Case No. 67/70/2017 (Pankaj Rastogi Vs. Raj Kishore Rastogi and another), which was dismissed for non-prosecution by order dated 10.8.2022 by the Addl. District Judge (Court no.17), Kanpur Nagar. Meanwhile, the petitioner filed Execution Application dated 25.7.2022 before the District Judge, Kanpur Nagar alongwith list of properties passed in settlement award dated 29.8.2013 in favour of the petitioner. This execution application was registered as Misc. Civil Case No. 620 of 2022. It is stated that by the impugned order dated 16.2.2023, the District Judge, while rejecting the application for adjournment filed by the petitioner, dismissed the execution case for not filing the original award and non-furnishing of required stamp duty.

6. It is contended by the learned counsel for the petitioner that before the Arbitrators, the only aspect that was gone into, was to give further effect to the oral settlement entered into between the parties and it cannot be said that the award created partition between the family members. It is, therefore, contended that no stamp duty is payable in the facts and circumstances of the case. In support of his contention, learned counsel for the petitioner has relied upon a judgment of Delhi High Court dated 23.3.2022 in Himani Walia Vs. Hemant Walia and others passed in Execution Petition No. 26 of 2019 and the judgment of the Supreme Court in the case of Sita Ram Bhama Vs. Ramvatar Bhama2 .

7. A perusal of the record of this petition reveals that there is no averment made in the petition as to when did any oral family partition take place between the parties. As a matter of fact, five arbitrators were appointed to jointly arbitrate between them and "look after their oral partition of the entire assets and liabilities of the joint family". It has further been mentioned that during the pendency of arbitral proceedings, there arose some dispute between the parties which was also amicably settled by way of an oral family arrangement and all moveable and immoveable properties were distributed amongst the members of the family as it was already agreed between them and same was reduced to writing in the shape of a settlement award under Section 30 of the Arbitration and Conciliation Act, 1996.

8. The original award of 29.8.2013 is not on record. However, a photo copy and typed copy of the award have been enclosed as Annexure-2 which reads as follows. (the details of the properties are expunged for privacy).

"पंचायत मीटिंग दिनांक 29.08.13 स्थान होटल लैण्डमार्क

पूर्व नियुक्त पंचों के समक्ष श्री पंकज रस्तोगी, श्री राज किशोर रस्तोगी तथा श्री सूचिर रस्तोगी के मध्य सम्पत्तियों के बंटवारे का तीन लोगों और पंचो की सहमति से निम्न प्रकार समझौता हुआ-

1. श्री राजकिशोर रस्तोगी पुत्र स्व० लाला जुगुल किशोर रस्तोगी तथा श्री सूचिर रस्तोगी पुत्र श्री राजकिशोर रस्तोगी ( बउवा भईया) को निम्न सम्पत्ति एवं दायित्व मिलेंगे।

..............................

2. श्री पंकज रस्तोगी पुत्र स्व० श्री लाला जुगुल किशोर को निम्न सम्पत्ति एवं दायित्व दिये जा रहे हैः-

..............................

3. बैंक और इनवेस्टमेंट जो जिसका है उसी के पास रहेगा।

4.सभी समझौता 09.09.13 (नौ सितंबर) तक पूरा हो जाना चाहिए।

ह० अस्पष्ट

29.08.2013

गवाह- रविन्द्र नाथ

Amar Nath Agrawal"

9. Therefore, a perusal of the aforesaid award reveals that between all three parties and with the consent of arbitrators, the agreement took place. Clause (1) state that Raj Kumar Rastogi and Suchir Rastogi will get specified properties and responsibilities. Clause (2) states that Pankaj Rastogi is being given the specified properties and responsibilities.

Clause (3) states that the bank and investments will remain with such of them who own them. Clause (4) states that all the agreements are to be fulfilled by 9.9.2013.

10. Therefore, the award of the arbitrator dated 29.8.2013 is not a record of memorandum of family settlement but rather a family settlement itself. The award divided the entire properties between the parties and evidently there is relinquishment of rights of the parties with regard to various moveable and immoveable properties. Under the circumstances, the order of the District Judge dated 16.2.2023 cannot be faulted.

11. The aforesaid judgements cited by the learned counsel for the petitioner are of no aid to the petitioner. In the present case, the award creates rights in various moveable and immoveable properties. As a matter of fact, in the judgment of Sita Ram Bhama, the Supreme Court, while referring to its judgment in the case of Kale and others. Vs. Deputy Director of Consolidation and others3, has iterated the distinction between a document that is mere memorandum of family settlement and the document that is family settlement itself. Further, in the judgment of Himani Walia, the Delhi High Court has referred to the very judgments in Kale and in Sita Ram Bhama while deciding the case.

12. For the reasons aforesaid, no interference is called for in this petition in exercise of jurisdiction under Article 227 of the Constitution of India and this petition, therefore, dismissed.

Order Date :- 20.9.2023

sfa/

(Jayant Banerji, J)