Syed Zakir Ali S/O Jawar Ali vs Syed Zahid Ali S/O Jawar Ali
2007 Latest Caselaw 689 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. The Appeal is to be disposed of finally at the stage of admission itself as controversy is very old & Appeal is pending for admission since 2001.

2. This Appeal is under Section 17 read with Section 39(1)(vi) of the Arbitration Act, 1940, and challenges the judgment and decree dated 11.12.2000 delivered by the Civil Judge, Senior Division, Gondia, in Arbitration Case and Special Civil Suit No. 19 of 1990. The Old Case Nos. are R.C.S. No. 106 of 1971 and 14 of 1971. This First Appeal which is pending for admission since 2001 came to be dismissed for want of prosecution on 14.6.2006. The Appellant who appears in person thereafter moved Civil Application No. 6995 of 2006 along with M.C.A. St. No. 16390 of 2006 seeking restoration of said First Appeal and condonation of delay of 94 days in moving that application for restoration. We have allowed that application on 30.4.2007 by imposing cost of Rs. 10,000/-upon present Appellant. The costs have been accordingly paid and at that time parties had requested that the Appeal should be disposed of finally at the stage of admission itself and accordingly Appeal has been considered finally after hearing the parties at length.

3. The facts in brief are : The present Respondent contesting the Appeal and present Appellant are both sons of Syed Jawar Ali, who expired on 31.12.1979 during the pendency of proceedings. The dispute before lower Court was between present Appellant and his father Jawar Ali and after death of said father, present Respondent has been brought on record as his legal heir. The present Appellant and his father formed a partnership firm on 21.10.1960 and present Respondent who at that time was minor was admitted to its benefit. The capital for said firm was supplied by the present Appellant and his father but the profits were to be divided in proportion of 34% to father and 33% each to his both sons. The loss, if any, was to be shared by present Appellant and late father. The said partnership did contain Arbitration clause. In relation to minor partner, it was agreed that as and when he attained majority, the Appellant and his late father would decide on what terms and conditions he would be entitled to benefit of trade marks of the firm and a letter of understanding in this respect was entered into on 25.4.1963.

4. In 1970 dispute arose between the present Appellant and his late father and father Shri Jawar Ali issued notice dated 24.1.1971 for dissolution of firm. The dispute was referred to Arbitrators by name Shri Narharibhai Muljibhai Patel and Shri Beeharbhai Patel, who were appointed as Arbitrators on 4.2.1971. The following six points were referred to arbitration:

(A) To dissolve our partnership firm styled as Surti Tobacco & Co. and to decide from what date the partnership stands dissolved.

(B) To take accounts of the partnership business of M/s. Surti Tobacco Co., from the very beginning to settle the accounts of the partners, and of the minor Shri Zahed Ali Jawar Ali and of each partner.

(C) To decide and to evaluate all the properties of the firm of M/s. Surti Tobacco & Co., such as stock in trade, outstanding cash, movable and immovable properties, labels, rights of good will and rights of the jungle and such other all kinds of properties.

(D) To distribute equitably the properties of the partnership amongst the partners by meats and bounds, or by any other proper manner, and to set aside such property to respective partners, and to decide the share of each partner in the liabilities of the partnership.

(E) To make proper interim arrangements for conducting the business of the partnership, and to take interim decisions of all kinds in respect of the partnership business and to get them executed.

(F) Besides these, if some other points of disputes are raised by the parties (the arbitrators) shall decide the appropriateness of the same, if necessary, and then to decide the same.

The Arbitrators thereafter declared their award on 9.5.1971 and Shri Jawar Ali moved application under Section 14(2) of Arbitration Act, 1940, for obtaining a decree accordingly, which came to be registered as S.C.S. No. 14 of 1971 on the file of Civil Judge, Senior Division, Bhandara. Upon establishment of Court of Civil Judge, Senior Division, Gondia, this Civil Suit was transferred to Gondia. It was re-registered as S.C.S. No. 19 of 1990. The Arbitrators had filed award in the Court on 27.4.1972. Jawar Ali filed objections to said award vide Exhs. 30 and 33 and requested for remittance of award back to Arbitrators. The present Appellant moved application under Section 15 of Arbitration Act for its modification. By order dated 28.9.1972, the learned lower Court remitted back award after recording a finding on Clause Nos. 1 to 5, thereafter that decision in relation to those clauses would be taken after taking evidence. Arbitrators then passed modified award on 18.2.1974 vide Exh. 109. Jawar Ali objected to this award by moving objection under Sections 16 and 30 and sought declaration that award is void. The present Appellant moved application at Exh. 129 under Section 15 of Arbitration clause and prayed for its modification and passing of decree in terms of award with modification. The present Respondent also filed his objection under Section 16 and prayed for setting aside of award dated 9.5.1971 and also modified award dated 18.2.1974 on the ground that he was not party to arbitration agreement and he was also not heard through his mother who was his guardian. He further contended that his father also did not contest the proceedings on his behalf.

5. The Appellant had also moved application for interim relief and there were objections and cross objections. The matter was pending and during its pendency, Jawar Ali expired on 31.12.1979. The present Respondent then applied for substitution of his name as legal representative, which was allowed on 16.10.1984. This order was challenged by the present Appellant in Civil Revision Application No. 1186 of 1984 before this Court but it came to be rejected. The Appellant then filed Special Leave Petition No. 13347 of 1989 before the Hon'ble Apex Court which was rejected in limine. The modified award dated 18.2.1974 was sought to be modified further by present Appellant by seeking deletion of Clauses 1 to 5 of award dated 9.5.1971 and granting interest from 9.5.1971. It appears that some personal properties were also distributed by Arbitrators between the parties and properties which fell to his share were disposed of by present Appellant. In view of this development and documents being filed on record, the counsel for the Appellant accepted not to lead evidence and filed pursis accordingly. The Appellant thereafter filed another application for taking evidence pointing out earlier order dated 28.9.1972, which was rejected by trial Court on 16.10.2000. Thereafter the trial Court proceeded to deliver judgment and impugned decree in terms of award on 11.12.2000. It is the contention of present Appellant that this has been done without deciding other Exhs. like Exh. Nos. 30, 33, 114, 118, 128, 129, 171, 204, 210, 226, 227, 235 and 236. It is in this background that he has filed present Appeal.

6. We have heard Shri Syed Zakir Ali, Appellant-in-person and Shri Bhandarkar with Shri Bapat, learned Counsel for the Respondent.

7. Shri Syed Zakir Ali, while advancing his arguments has mainly raised four contentions for consideration. The first and foremost contention is that though while passing first order on 28.9.1972, the Court below has not disturbed entire award delivered by Arbitrators on 9.5.1971 in relation to issues No. 1 to 5 as framed, the trial Court expressly observed that challenge to clauses No. 1 to 5 of said award would be decided after parties led evidence. He states that the said Court accordingly on 28.9.1972 remitted paras or Clauses 7A, 8 and 15 of this award for reconsideration of Arbitrators. He, therefore, states that challenge to Clauses 1 to 5 was to be decided later on and remaining clauses or paras of award, particularly clause No. 16 was thus not disturbed and accepted by said Court. He argues that ignoring this, after the award was again submitted by Arbitrators, while passing the impugned judgment, the Court below has exceeded jurisdiction. He states that this fresh award is dated 18.2.1974 and its paras 4 and 5 therefore ought to have been maintained and challenge to Clauses 1 to 5 of Award dated 9.5.1971 ought to have been decided after recording evidence. He contends that this procedure has not been followed at all and hence impugned judgment and order dated 11.12.2000 is bad in law. He points out that the Court below has not given him opportunity to lead evidence at all. He invited attention to the discussion in the matter of allotment of trade marks and labels to parties and states that when value of trade marks or labels is taken into consideration, it was found that this Appellant has received trade marks of lesser denomination or value and hence Arbitrators should have compensated him by directing deceased Jawar Ali to pay him Rs. 50,000/-as compensation. He further points out that by clause No. 16 of award dated 9.5.1971, amount due and payable to present Appellant on account of distribution of partnership share or his income in partnership business was worked out and same was directed to be paid by the deceased to him in two installments. He contends that this ought to have been maintained and learned Court below has refused to exercise jurisdiction available to it by not considering this aspect. He further states that by clause No. 5 of award dated 18.2.1974, the Arbitrators rightly observed that the Appellant is entitled to grant of interest on account of amount of present Appellant which was wrongfully withheld by the deceased and which was used by the deceased and thereafter by present Respondent for their respective business and to the prejudice of present Appellant. He argues that in these circumstances, Arbitrators rightly exercised their discretion by granting interest and therefore there was no justification whatsoever for deleting said para by impugned judgment dated 11.12.2000. He further contends that the challenge to Clauses 1 to 5 of award dated 9.5.1971 was very much alive and available for consideration of Court below after receipt of second award dated 18.2.1974. He states that under mistaken impression, Advocate representing him before the lower Court erroneously filed pursis accepting not to lead evidence. He states that this was done behind his back and after returning from Gujarat when he noticed this error, another application and pursis on his behalf was filed seeking withdrawal of earlier pursis and also seeking permission to lead evidence. He argues that Clauses 1 to 5 deal with personal property of parties and said personal property did not form subject matter of arbitration before the Arbitrators. He contends that therefore his prayer for deleting those Clauses 1 to 5 of award dated 9.5.1971 ought to have been accepted and in any case when Court on earlier occasion i.e. on 28.9.1972 passed order postponing consideration of challenge to those clauses after recording of evidence, the said opportunity ought to have been given. He, therefore, contends that by not granting said opportunity, the Court below has again refused to exercise jurisdiction available to it. He argues that present Respondent produced certain Sale Deeds on record in an attempt to demonstrate that distribution of private property done by Arbitrators vide Clauses 1 to 5 of award dated 9.5.1971 was accepted by him. He states that those documents were not proved in accordance with provisions of Indian Evidence Act and therefore necessary opportunity in this respect needs to be given to him. Lastly, he contended that the present Respondent has been brought on record by observing that he is successor to deceased Jawar Ali while according to him, he is not successor and present Appellant as also present Respondent succeeded to other estate left behind by the deceased Jawar Ali. He has relied upon number of cases in support of his contention to which we will be making reference a little later.

8. As against this, Shri Bhandarkar, learned Counsel for the Respondent has argued that the present Appeal has been filed by the Appellant after taking advantage out of impugned awards. He states that it is in fact a consent decree by which the awards have been made Rule of Court and therefore according to him the Appeal is not maintainable. He also invites attention to the fact that Appeal as filed is under Section 17 read with Section 39(1)(vi) of the Arbitration Act, 1940, and in such circumstances the scope of this Appeal is very limited. He contends that there are no allegations against Arbitrators personally and Arbitrators have not misconducted themselves. According to him, therefore, the Appeal is liable to be dismissed on this short ground.

9. His next preliminary objection is based upon the proposition which according to him states that awards as involved in present matter need to be viewed differently. He states that in fact the Arbitrators have brought-in a family settlement between rival parties and therefore such awards stand on totally different footing. He places reliance upon various judgments to substantiate his contention. He has further stated that objection to the procedure followed by trial Court while making the awards Rule of Court is not that relevant in the background of this controversy. He contends that though initially order was passed stating that challenge to Clauses 1 to 5 of first award of 1971 would be decided after parties led evidence, these observations and findings in order dated 28.9.1972 cannot have the effect of nullifying the impugned judgment. He states that those Clauses 1 to 5 relate to personal dispute between the parties which was allowed to be settled and agreed to be settled by the Arbitrators. When the lower Court was pointed out that present Appellant has accepted distribution of private property in terms of awards and has executed sale deeds in furtherance thereof, the present Appellant and his counsel decided not to lead any evidence in relation to Clauses 1 to 5 and accordingly a second pursis was filed by them. He, therefore, states that taking overall view of the matter, the Court below has found that it was not necessary to record evidence and arbitration award in terms of Clauses 1 to 5 had attained finality by conduct of parties. He further states that even in relation to demand for interest, the second award has been found to be without jurisdiction because clause No. 16 of 1971 award was not disturbed in any way on 28.9.1972 and therefore said clause No. 16 had attained finality and Arbitrators therefore exceeded their jurisdiction by reopening said clause and by awarding interest to present Appellant. He states that even on that account, the Arbitration award of 1974 has been rightly found to be vitiated. He has invited attention to the Deed of Dissolution entered into between parties on 9.5.1971 and states that the said agreement has been arrived at after 1971 Award and in it, it has been expressly mentioned that the continuing partners have to pay balance payment to the separated partner as per para 16 of 1971 Award. According to him, even the Deed of Dissolution does not contemplate payment of interest. He further states that trade marks were distributed in accordance with provisions of Trade Mark Act between parties and as father Syed Jawar Ali was to look after all pending litigation and legal matters, compensation in terms of 1971 Award was found to be not payable to the Appellant. According to him, when Courts have considered all these aspects and have found that the Appellant is not entitled even to claim compensation, ultimately, all these issues were not disputed before learned lower Court. He states that arguments were heard on various dates and ultimately it was found that the Appellant had no case to defend and therefore the Appellant did not lead any evidence and the impugned judgment came to be delivered. As the impugned judgment is on account of consent of parties, according to him, the Court below has not recorded all details but as consent is apparent, he states that the said judgment needs to be maintained.

10. He has invited our attention to two Sale Deeds executed by present Appellant in which he has disclosed the Arbitration Award dated 9.5.1971 as source of his title and on that basis he has sold both properties to third party. He further invites attention to award dated 9.5.1971 and statement of present Appellant before the City Survey Superintendent, Ahmedabad, in which Appellant has accepted appointment of Arbitrator for distribution of properties and has also made a statement that value of property at Ahmedabad and that of residential house and 14 Bighas of agricultural land was equal. The Appellant has expressly referred therein to this award and therefore he contends that present Appeal as filed is only with a view to harass the Respondent and there is no substance in it.

11. He has invited attention even to order sheets of proceedings to state that if any statement made by Court in its judgment or in order sheet is to be assailed as incorrect, the right procedure for present Appellant is to file appropriate application before the Court which has made those observations or recorded those findings. In support he has again pointed out various cases. He also states that there is no corresponding ground raised before this Court in Appeal memo. Lastly, he has alleged that the award is to be accepted or rejected as a whole by the Appellant and in facts of present case, the Appellant is attempting to approbate and reprobate. He argues that having accepted division of personal properties and having sold those properties, the Appellant is estopped from challenging that part of award and in fact the entire award. He states that when Court below passed impugned order and rejected prayer of Appellant for opportunity to lead evidence, the Appellant in fact took number of adjournments for bringing stay from High Court but ultimately did not approach this Court. He states that said order has not been challenged in present Appeal. He further points out that present Respondent has been brought on record only as legal heir of deceased Respondent and contention of Appellant that the Respondent has been held to be successor of deceased father - Jawar Ali, is factually incorrect.

12. During his reply arguments Appellant Shri Syed Zakir Ali in-person has attempted to demonstrate that what is challenged by him is not a consent decree. He further stated that pursis at Exh. 384 was filed by his Advocate under mistaken notion and during his absence. After his return back to Gondia, the mistake was sought to be rectified by filing another pursis Exh. 391 and application Exh. 392. He further argues that no compromise between the parties can be presumed in the facts of present case when he has been fighting the litigation tooth and nail. He further states that the properties distributed between the parties are not of equal value and he further stated that Ahmedabad house which was given to him was purchased just for Rs. 23,000/-and it was in the possession of tenants with whom a long drawn litigation was fought. He states that he took interest in the matter and only with a view to benefit entire family, got said house mutated in his name, compromised with tenants and thereafter sold house for Rs. Two lakhs. He states that he owes amount of Rs. One lakh to deceased Jawar Ali and his heirs and he is ready and willing to pay the same. He has also invited attention to written notes of arguments filed before the lower Court to show that he always intended to contest the suit. He further states that trial Court ought to have specified the amount of Rs. 1,64,472.13 as due and receivable by him from other side after ordering deletion of Clauses 1 to 5 from 1971 Award. He contends that unnecessary and undue amounts were paid to income tax department because of dispute with him by his father and later on refunds have been obtained. He states that Arbitrators as also Courts below ought to have paid his due share even in amount of income-tax refunds. He further contends that possession of trade marks was not given to him immediately and labels assigned to him were used by Jawar Ali and present Respondent and though they agreed to maintain separate accounts for use of said trade marks, no such accounts were filed either before Arbitrator or before Civil Court or even before this Court. He has contended that Respondent Zahid Ali has objected to entire award and hence paras 1 to 5 of 1971 Award can be safely deleted. He further states that grant of interest in his favour by Arbitrators was not questioned and as such its deletion by learned lower Court is unwarranted. He further argues that in such circumstances, the Court has not properly applied its mind. He has also cited certain cases to point out when claim can be said to have been admitted and powers of Arbitrators to award interest. He has lastly argued that as awards deal with immovable properties, it ought to have been registered and as the same is not registered, the Court below could not have acted upon it. He has further stated that when present Respondent did not enter witness box and did not submit accounts, Court below ought to have drawn adverse inference against him.

13. Shri Bhandarkar, learned Counsel for the Respondent in relation to argument about registration of Award, has contended with no such objection was raised before lower Court and in any case the award itself contemplates execution of appropriate documents between parties for transfers/ conferring of title. He has also relied upon certain cases in this respect.

14. After hearing parties, we find that the following questions arise for our consideration:

1. Whether the Court below was right in considering the award though it was not registered " Answer -Yes.

2. Whether the Appeal filed by present Appellant is maintainable " Answer:- Yes.

3. Whether the award as delivered in 1971 and modified in 1974 was within the jurisdiction of Arbitrators " Answer - Yes.

4. Whether the learned lower Court has exceeded jurisdiction available to it " Answer - Yes.

5. To what relief Appellant is entitled " Answer -Restoration of interest as granted by the Arbitrators.

15. Before proceeding further it will be in fitness to understand the scope of jurisdiction available to Civil Court in such challenges. In Bhagawati Oxygen Ltd. v. Hindustan Copper Ltd. reported at , following observation of Hon. Apex Court are important:

23. Section 30 of the Act enumerates grounds for setting aside an award passed by the Arbitrator. It reads thus:

30. Grounds for setting aside award.-An award shall not be set aside except on one or more of the following grounds, namely:

(a) that an arbitrator or umpire has misconducted himself or the proceedings;

(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under Section 35;

(c) that an award has been improperly procured or is otherwise invalid.

16. This Court has considered the provisions of Section 30 of the Act in several cases and has held that the court while exercising the power under Section 30, cannot re-appreciate the evidence or examine correctness of the conclusions arrived at by the Arbitrator. The jurisdiction is not appellate in nature and an award passed by an Arbitrator cannot be set aside on the ground that it was erroneous. It is not open to the court to interfere with the award merely because in the opinion of the court, other view is equally possible. It is only when the court is satisfied that the Arbitrator had misconducted himself or the proceedings or the award had been improperly procured or is 'otherwise' invalid that the court may set aside such award.

17. In the leading decision of Hodgkinson v. Fernie (1857) 140 ER 712, Williams, J. stated:

The law has for many years been settled, and remains so at this day, that, where a cause or matters in difference are referred to an arbitrator, whether a lawyer or a layman, he is constituted the sole and final judge of all questions both of law and of fact. Many cases have fully established that position, where awards have been attempted to be set aside on the ground of the admission of an incompetent witness or the rejection of a competent one. The court has invariably met those applications by saying, 'you have constituted your own tribunal; you are bound by its decision.

18. In Union of India v. Rallia Ram , this Court said;

An award being a decision of an arbitrator whether a lawyer or a layman chosen by the parties, and entrusted with power to decide a dispute submitted to him is ordinarily not liable to be challenged on the ground that it is erroneous. In order to make arbitration effective and the awards enforceable, machinery is devised for lending the assistance of the ordinary Courts. The Court is also entrusted with power to modify or correct the award on the ground of imperfect form or clerical errors, or decision on questions not referred, which are severable from those referred. The Court has also power to remit the award when it has left some matters, referred undertermined, or when the award is indefinite, or where the objection to the legality of the award is apparent on the face of the award. The Court may also set aside an award on the ground of corruption or misconduct of the arbitrator, or that a party has been guilty of fraudulent concealment or wilful deception. But the Court cannot interfere with the award if otherwise proper on the ground that the decision appears to it to be erroneous. The award of the arbitrator is ordinarily final and conclusive, unless a contrary intention is disclosed by the agreement. The award is the decision of a domestic tribunal chosen by the parties, and the Civil Courts which are entrusted with the power to facilitate arbitration and to effectuate the awards, cannot exercise appellate powers over the decision. Wrong or right the decision is binding if it be reached fairly after giving adequate opportunity to the parties to place their grievance in the manner provided by the arbitration agreement.

19. In U.P. Hotels v. U.P. State Electricity Board , after referring to Halsbury's Laws of England, 4th edition, Vol. 2, para 624, Mukharji, J. (as his Lordship then was) stated that an award of an arbitrator may be set aside for error of law appearing on the face of it, though that jurisdiction is not lightly to be exercised. If a specific question of law is submitted to the arbitrator for his decision and he decides it, the fact that the decision is erroneous does not make the award bad on its face so as to permit it being set aside; and where the question referred for arbitration is a question of construction, which is, generally speaking, a question of law, the arbitrator's decision cannot be set aside only because the court would itself have come to a different conclusion; but if it appears on the face of the award that the arbitrator has proceeded illegally, as, for instance, by deciding on evidence which was not admissible, or on principles of construction which the law does not countenance, there is error in law which may be ground for setting aside the award.

20. In Rajasthan State Mines and Minerals Ltd. v. Eastern Engineering Enterprises and Anr. , this Court after considering several decisions on the point, held that if an Arbitrator has acted arbitrarily, irrationally, capriciously or beyond the terms of the agreement, an award passed by him can be set aside. In such cases, the Arbitrator can be said to have acted beyond the jurisdiction conferred on him.

21. In U.P. State Electricity Board v. Searsole Chemicals Ltd. , this Court held that where the Arbitrator had applied his mind to the pleadings, considered the evidence adduced before him and passed an award, the court could not interfere by reappraising the matter as if it were an appeal.

22. In Indu Engineering and Textiles Ltd. v. Delhi Development Authority , it was observed that an Arbitrator is a Judge appointed by the parties and as such the award passed by him is not to be lightly interfered with.

23. In Bharat Coking Coal Ltd. v. Annapurna Construction , this Court held that there is distinction between error within jurisdiction and error in excess of jurisdiction. The role of the Arbitrator is to arbitrate within the terms of the contract and if he acts in accordance with the terms of the agreement, his decision cannot be set aside. It is only when he travels beyond the contract that he acts in excess of jurisdiction in which case, the award passed by him becomes vulnerable and can be questioned in an appropriate court.

24. In the instant case, the Arbitrator has considered the relevant evidence on record. He has observed that oxygen was supplied by BOL which was accepted by HCL. Certain letters were, no doubt, written by HCL to BOL complaining about the quantity and quality of oxygen gas. The Arbitrator also observed that the evidence disclosed that verbal complaints were made regarding purity of gas. He, however, recorded a finding that Clause 10.4 which allowed HCL to purchase oxygen from other sources at the cost and consequence of BOL was never invoked. The said clause which was "risk purchase" from elsewhere was not resorted to by HCL. The Arbitrator noted that in some of the letters, HCL stated that it would have no option but to purchase liquid oxygen at the cost of BOL during non-availability of oxygen from BOL, but ultimately it was a letter dated October 11, 1993 HCL informed BOL that if BOL would not supply oxygen by October 26, 1993, it would be constrained to purchase oxygen from other sources. Thus, time was granted up to October 26, 1993 in view of letter dated October 11, 1993. In the light of such letter the Arbitrator concluded that HCL could not have purchased oxygen from other sources in August, 1993 and hence it was not entitled to put forward counter-claim.

25. The learned single Judge virtually re-appreciated the evidence by referring to several letters and observed that the Arbitrator had not considered those letters and there was misconduct on his part. According to the learned single Judge, HCL informed BOL about the grievance and quantity and quality of oxygen supplied by BOL, about the 'risk purchase agreement' and also about its need, necessity and completion of purchase of oxygen gas from other sources. The learned single Judge also has referred to some of those letters in which the said fact was referred by HCL.

26. In our opinion, however, the learned Counsel for BOL is justified in submitting that really it was in realm of appreciation and re-appreciation of evidence. At the most all those letters go to show that HCL had some complaint against BOL and it had also disclosed its intention to purchase oxygen gas from other sources but as observed by the Arbitrator, it was not proved that HCL had in fact purchased oxygen from other sources under Clause 10.4. If in the light of such evidence, the Arbitrator did not think it fit to allow counterclaim, it could not be said to be a case of misconduct covered by Section 30 of the Act. The learned single Judge as also the Division Bench were, therefore, not justified in setting aside the award passed by the Arbitrator dismissing the counterclaim and hence the order of the learned single Judge as confirmed by the Division Bench deserves to be set aside by restoring dismissal of counter-claim of HCL by the Arbitrator. The fact of awards delivered by Arbitrators is not in dispute between the parties. The perusal of first award dated 9.5.1971 reveals that it also takes into account immovable properties and in para 17, it has been expressly recorded that the parties should get proper partition deed executed and even in relation to labels, parties shall get necessary relinquishment or assignments done against each other. It is, therefore, apparent that the award itself is not conferring any right as such upon parties. It is also to be noted that personal properties belonged jointly to parties and they have been distributed by Arbitrators between them as per their own wisdom. This direction contained in para 17 and paras 1 to 5 of first award dated 9.5.1971 has been maintained as it is and Civil Court did not remit this portion back to Arbitrators on 28.9.1972. With the result, the modified award dated 18.2.1974 does not effect any change in this position.

27. In this background when the judgment in the case of Lachhman Dass v. Ram Lal reported at , on which the Appellant has placed reliance is perused, said judgment is delivered in facts where the Hon'ble Apex Court in para 15 has found that the award declares or assign a right, title and interest in immovable properties. Said award declared that 1/2 share of ownership of Shri Lachhman Dass would thereafter be owned by Ram Lal in addition to his 1/2 share in those lands. The Hon'ble Apex Court has relied upon its earlier judgment in the case of Ratan Lal Sharma v. Purshottam Harit reported at , in this matter. The said judgment of Hon'ble three Judges of Apex Court is considered by another judgment of Bench of equal strength reported at , wherein registration has been found to be not necessary, if award itself contemplates execution of certain documents for transfer of title. This judgment in the case of Mrs. Tehmi v. Shib Banerjee is considered by learned Single Judge of this Court in the case of Kewal Krushna Hitkari v. Anil Hitkari , wherein after considering said ruling, it has been observed that when award is not creating rights in immovable properties and rights were to be created by documents to be executed by the parties, award is not compulsorily registrable. We find that this position holds good even in present matter and hence registration of award was not necessary. It is also clear that in view of judgment in the case of Lachhman Dass v. Ram Lal (supra), the objection about non registration can be raised for the first time at appellate stage also. Accordingly, question no. 1 is answered in the negative.

28. The Respondent has contended that the impugned judgment is based upon admission and therefore is consent decree. However, after hearing the parties and after perusal of record, we find said contention to be misconceived. It is no doubt true that initially a pursis was filed by present Appellant vide Exh. 384 declaring that it was not necessary to lead evidence. However, said pursis filed by his advocate states that as Exhs. 30, 33 and 34 have already been decided and disposed of and thereafter modified award has been submitted by the Arbitrators, objection taken to modified award needs to be decided. The pursis is filed on 20.9.2000 and counsel for present Appellant has given his no objection on it. Thereafter, the Court has passed order below it holding that Exhs. 33, 30 and 34 are already disposed of. Therefore, it is apparent that this pursis nowhere states that the present Appellant did not wish to adduce any evidence or he was accepting the award. On the contrary, because of this pursis, the Court below has recorded a finding that Exhs. 33, 30 and 34 are already disposed of. In this background, it is to be noted that at Exh. 391, a pursis is filed by present Appellant on 9.10.2000 where he has sought withdrawal of Exh. 384 contending that said pursis was filed under misconceived notion. Similarly, he filed Exh. 392 on 9.10.2000 seeking permission to lead evidence. The Court below has passed orders on this application at Exh. 392 on 16.10.2000 giving previous history and mentioning therein that present Appellant on many times orally stated that no oral evidence was required and it is also recorded by the Court below that he admitted award dated 9.5.1971. It is to be noted that in 1971 Award, present Appellant was not given any interest while in 1974 award, interest has been awarded to him. The Court below, therefore, has only relied upon certain statements made before it to hold that the present Appellant accepted 1971 Award and also disclosed that he did not want to lead any oral evidence. However, there was no pursis filed before it expressing desire not to lead evidence or accepting Award of 1971. The Court below has thereafter recorded that whatever was done was as per say of party and if at that stage permission to adduce evidence was given, it would create complications and there would be no end to litigation. It is an admitted position that present Appellant took time to challenge this order dated 16.10.2000 but ultimately did not challenge and participated in proceedings in Special Civil Suit No. 19 of 1990. Not only this, in present Appeal filed before us, he has not challenged said order. However, in these circumstances, it cannot be said that he accepted the award or consented to the impugned judgment and impugned judgment is, therefore, based upon his consent. Written arguments placed by him on record and various steps taken by him in litigation show that he only agreed to compromise the issue. The Appellant has relied upon the Division Bench judgment of Patna High Court in the case of Lagandeo Singh v. Satyadeo Singh reported at , wherein the Hon'ble Patna High Court has held that Appeal against consent degree lies when factum of compromise is being disputed or when its legality is being doubted. In facts before us, perusal of impugned judgment does not show that it is based upon any compromise or consent. We, therefore, find it difficult to accept the contention of Shri Bhandarkar that present Appeal is not maintainable. Accordingly, question no. 2 is answered in the affirmative and against the present Respondent.

29. The perusal of Award dated 9.5.1971 clearly shows that it was objected to on various grounds but ultimately on 28.9.1972 while passing orders on objections raised by the parties, the Court below has remitted only paras 7A, 8 and 15 to the Arbitrators for fresh consideration. Para 7A deals with distribution of trade marks or labels of partnership business between parties. Para 8 deals with residuary properties of the firm and para 15 dealt with again trade marks associated with trade marks distributed between the parties. Insofar as paras 1 to 5 which deal with personal properties of parties, the objection to same have been ordered to be decided after taking evidence. The other relevant para is para 16 in which Arbitrators found that as both parties are Mohammadan, they were not entitled to grant of interest. This para or clause was not remitted back and has been maintained as it is.

30. One of the contentions of Shri Bhandarkar, learned Counsel was that this award was accepted and approved by both the parties thereto on 9.5.1971. It is his contention that dissolution deed in terms thereof was entered into between the parties immediately thereafter. However, as already discussed above, the award was challenged before the Civil Court and was objected to by both sides. The facts mentioned therefore clearly reveal that the statement made at the end of said award dated 9.5.1971 loose its significance when both the parties went back to Arbitrators and Arbitrators again delivered fresh award in 1974. The Dissolution deed immediately signed by parties on 9.5.1971, therefore, also is of no consequence.

31. In 1974 Award the Arbitrators have dealt with distribution of labels and in para 4 have found that in order to maintain balance between the parties because of distribution of trade mark, present Appellant should pay Rs. 50,000/-to his father Jawar Ali. In Clause (v) it has been observed that at the time of giving earlier award, because of relations between the parties, the Arbitrators did not grant interest but then the Arbitrators recorded that the parties were not acting according to that award, father Jawar Ali would pay interest to Appellant on the amount to be paid to him. It is not in dispute that said amount is mentioned in Clause No. 16 of award. It is also clear that after delivering earlier award on 9.5.1971, Arbitrators became functus officio and they entered the office again because of order of Civil Court dated 28.9.1972. However, that was only for limited purpose as already mentioned above. Clause No. 16 of 1971 Award in which Arbitrators expressly observed that as both the parties are Mohammadan they were not awarding interest was not remitted back to them and hence normally, but for change in situation, Arbitrators could not have said anything in relation to said clause or para No. 16 in relation to grant of interest. Both sides have cited several cases before us to point out that Arbitrators do not get jurisdiction in relation to matters which are not referred to them. Shri Bhandarkar, learned Counsel has contended that as issue of interest and clause No. 16 was not remitted, this portion of modified Award dated 18.2.1974 sanctioning interest to Appellant is without jurisdiction. The Appellant contended that as personal properties never formed subject matter of Arbitration agreement, Clauses 1 to 5 of first award dated 9.5.1971 are without jurisdiction. In view of the settled position in this respect and as both parties are relying upon very same position, we find it not necessary to refer to all these cases in present judgment. However in present case, there is no express authorisation to Arbitrators to grant interest and also there is no prohibition to its grant in the agreement between parties.

32. The dispute between the parties is pending since 1971. The entitlement of the Appellant to receive amount of Rs. 2,84,472.13 ps. from the deceased Jawar Ali now being represented by the present Respondent has been determined by first Award dated 9.5.1971. Certain amounts were to be deducted from this amount and heads as also quantum thereof stands quantified in balance sheet for the year S.Y. 2026 which is admitted by the parties. It is also apparent that said amount was to be paid in two installments but the amount has not been paid. The Arbitrators in second award delivered on 18.2.1974 in para 5 have granted interest after noticing that parties have not implemented earlier award. In earlier award interest was not granted because the parties were Mohammadan. This is expressly recorded in para 5 of Award dated 18.2.1974 by the Arbitrators. It is, therefore, clear that Arbitrators felt that the parties would abide by their award immediately and therefore only did not grant interest to present Appellant. When they found that parties were litigating in the Court of law, they thought it proper to grant interest. It is to be noted that the matter is pending in Courts of law since 1971. The perusal of judgment of the Hon'ble Apex Court in the case of Bhagwati Oxygen Ltd. v. Hindustan Copper Ltd. reported at 2005 (6) SCC 462, particularly para 39 clearly shows that in appropriate cases it must be presumed that Arbitrators must have power to award interest pendente lite. The Hon'ble Apex Court has relied upon its earlier judgment of Larger Bench in the case of Secretary, Irrigation Department, Government of Orissa v. G.C. Roy reported at . The case considered is of an agreement between the parties which did not provide for grant of such interest but also did not prohibit its grant. The Hon'ble Apex Court has noted that it is upon parties to confer upon the Arbitrator such powers and to prescribe such procedure as they may think fit. The Hon'ble Apex Court has further noticed that a person deprived of use of money to which he is legitimately entitled has a right to be compensated for the deprivation and said compensation may be called either as interest or damages or compensation. It is also observed by the Hon'ble Apex Court that the Arbitrator is an alternate forum for resolution of dispute and if it is held that Arbitrator has no power to award interest pendent lite, party claiming such interest would be required to approach Civil Court which lead to multiplicity of proceedings. It has been concluded that for doing complete justice between parties, such power has always been inferred. Here, in the facts of present case, in second Award, the Arbitrators have proceeded to grant interest after noticing that their Award was not being implemented immediately. Observations of Arbitrators itself show that earlier they did not grant interest because their first award was delivered within short time of reference of dispute to them. Notice for dissolution of partnership was issued by late Jawar Ali on 24/1/1971. Deed of reference to Arbitrators is dated 3/2/1971 and Award has come on 9/5/1971. It also reveals that subsequent developments disillusioned them & hence they proceeded to grant interest. We find that act of Civil Court in not remitting paragraph 16 of award dated 9/5/1971 did not divest Arbitrators of their power to allow interest pendent lite. Part of Award not remitted back was not made Rule of Court and such part could not have been executed by severing it from issues remanded back to Arbitrator. Hence, issue of grant of interest was very much open before the Arbitrators. After all Arbitrators were appointed by parties and at least on 9/5/1971 both of them accepted Award in their presence, executed deed of dissolution as suggested therein forthwith and later on went on to assail it. This application of mind and exercise of Arbitrators therefore is not without jurisdiction and their joint decision to compensate present Appellant by awarding him interest on the amount calculated in terms of paragraph 16 of Award dated 9/5/1971 of which he was deprived of by the other side is neither atrocious nor erroneous. Having realised that present Appellant was not getting his dues immediately interest has been awarded by them. The second Award has been delivered on 18.2.1974 and Arbitrators grant interest to Appellant from 18.2.1974 itself. In these circumstances, deletion of said grant by Trial Court while making the Awards rule of Court is clearly in breach of Section 16 of Arbitration Act, 1940, excessive and without jurisdiction. We therefore restore interest as granted to the Appellant on the said amount from 18.2.1974.

33. The Appellant has contended in second award, the Arbitrators have erroneously recorded that he has to pay the amount of Rs. 50,000/-to his father Jawar Ali, to bring about equilibrium in the distribution of trade marks. In this respect when the documents produced by him before the Arbitrators or in Civil Court are looked into, it appears that his effort was to demonstrate that trade marks allotted to him were bringing forth 41.70% of profit to the firm while trade marks allotted to his father were fetching 49.27% of profits to it. His attempt was, therefore, to demonstrate that he was thus given trade marks with lesser potential and said difference in potential was 7.57%. According to him, his share therefore representing that 7.57% deficiency worked out to Rs. 59,558.49 ps. and Arbitrators ought to have allowed him said amount to achieve equilibrium in the matter of distribution of trade marks. It is his argument that the said share could have been reduced to Rs. 50,000/-to work out an arrangement but said amount ought to have been directed to be paid by his father to him and not by him to his father. He has stated that direction issued in 1974 Award is exactly to the contrary and therefore shows non application of mind. It is apparent that effort of Arbitrators to equally divide trade marks between parties and to achieve equilibrium therein by providing for payment in cash for shortfall is in accordance with partnership deed and propriety of such exercise undertaken by Arbitrators has not been disputed before us by Appellant. But then direction of payment to deceased Jawar Ali is attempted to be justified by Adv. Bhandarkar by contending that as entire pending litigation and other liabilities were to be taken care off by Jawar Ali, Arbitrators have compensated him by directing Appellant to pay Rs. 50,000/ to Jawar Ali. However, in Awards there is nothing to gather grounds which prevailed upon Arbitrators in making such a grant. Appellant has not disputed that all liabilities and costs of litigation then pending against the firm were to be discharged by his late father. On the contrary Arbitrators expressly mention that in order to achieve equilibrium, it was resolved that present Appellant shall pay Rs. 50,000/ to deceased Jawar Ali. Court below has also not assigned any reasons while deleting this grant from the Award dated 18/02/1974. Said deletion is not challenged before us and no prayer for its restoration is made even in oral arguments. In his objection U/S 16 dated 29/4/1974 late Jawar Ali has in para 9 himself contended that Arbitrators after remand could have only redistributed the Trade Marks and they could not have valued the same or they could not have directed Sayed Zakir Ali i.e. present Appellant to pay Rs. 50,000/ to him. It appears that the Respondent also filed reply on 10/10/2000 vide Exh. 394 for deleting said grant in his favour. Documents produced by Appellant before the Arbitrators to show his entitlement in this respect were not accepted by late Jawar Ali and thereafter Appellant has not made any efforts to either prove or substantiate those documents. It is to be noted that he has not even whispered during his lengthy arguments that Arbitrators did not provide reasonable opportunity to him. Civil Court can not therefore rely on such documents and accordingly we also can not consider his contentions based upon those documents. We therefore reject prayer of present Appellant to direct Respondent to pay Rs. 50,000/ to him.

34. The objection raised by the Appellant is to the inclusion of personal property in award. The said inclusion is in paras 1 to 5 of Award dated 9.5.1971. As per Court order dated 28.9.1972, the objection thereto raised by present Appellant was to be decided after parties led their respective evidence. However, later on, the Court has found that it was not necessary to record evidence in view of pursis at Exh. 384 filed by the Appellant. It is to be noticed that after said Award dated 9.5.1971, the present Appellant has in fact executed two sale deeds in favour of third party in relation to properties which fell to his share in 1994 and 1995. Before that he filed reply before City Survey Superintendent, Ahmedabad, on 23.1.1989, mentioning therein that there was dispute between him and present Respondent whose names were recorded in revenue records as owners. He has further stated that there arose dispute between the parties in relation to distribution of these properties and therefore Arbitrators were appointed and it was also agreed that judgment delivered by them would be treated as binding by the parties. He has stated that Arbitrators have found that value of house property at Ahmedabad and that of residential house and 14 Bighas of agricultural land is equal and he also filed copy of Award dated 9.5.1971 before said Authority and gave his consent to delete name of present Respondent Zahid Ali from properties which were allotted to him by Arbitrators. The perusal of copy of sale deed dated 30.3.1994 shows that present Appellant sold for Rs. 75,000/-the property situated at Ward - Shahpura No. 2 to one Mohammad Aslam and in sale deed while clarifying his source of title, he has again pointed out the Award dated 9.5.1971 and has stated that consequently he has become absolute owner of said property. Second Sale Deed is dated 7.4.1995 which he has executed in favour of Rashida and Irfan wherein property in Ward No. Shahpura-II has been sold to them after giving very same background of Award dated 9.5.1971. All these documents were filed before the Civil Court by present Respondent to contend that distribution of personal property by Arbitrators has been accepted by present Appellant. The present Appellant has contended that the sale deeds cannot be accepted as same are not proved as required by law. However, he has not taken a stand that he has not executed sale deeds. On the contrary, even during arguments before us, he has stated that he sold house property after getting his name mutated in it for Rs. Two lakhs and also stated that he was always wanting to pay amount of Rs. One lakh to present Respondent. He contended that as tenants were occupying said property, they were posing problems, therefore, he got the property mutated in his name and thereafter sold it. In view of this admission and also considering the fact that dispute is pending between the parties since 1971 and sale deeds executed by present Appellant as also his statement before City Survey Superintendent, Ahmedabad, we find that objection to inclusion of personal property in their award by the Arbitrators is being raised only with a view to create complications. It is no doubt true that Arbitrators could not have touched personal properties, if one goes strictly by the Arbitration clause in Partnership Deed. However, it is also apparent that as dispute was between father and son and as business was being separated, parties consented to Arbitrators also dividing personal properties and accordingly personal properties came to be divided. It is clear that Arbitrators could not have undertaken such division without consent and without knowledge of parties. In view of this discussion, we answer Question No. 3 partly in affirmative but then we maintain the distribution of personal properties as undertaken by Arbitrators vide Clauses No. 1 to 5 of their award dated 9.5.1971 and also restore grant of interest to present Appellant on amount as mentioned above.

35. The objection to the procedure followed by the Court is being raised by present Appellant because of its failure to record evidence. The Respondent, on the other hand, has contended that present Appellant agreed to such a course being adopted by Court below. It is to be noticed that as per order dated 28.9.1972, the Court below was to record evidence for the purpose of deciding objection to clauses/ paras 1 to 5 of Award dated 9.5.1971. The nature of Appellants objection and our finding in relation to these paras 1 to 5 is already recorded above by us. Respondents have not made any grievance for not recording of evidence. Evidence was to be recorded only in relation to propriety of Arbitrators dealing with personal properties of disputants before them. By his subsequent conduct, the present Appellant has lost his right, if any, to challenge said distribution of personal properties undertaken by Arbitrators. The obligations of learned lower Court while considering such awards can be seen from Section 17 and Section 16 of Arbitration Act, 1940. Section 17 requires Court to pronounce judgment according to Award where said Court sees no reason to remit the award or any of the matter referred to Arbitration for reconsideration or to set aside the award. In the facts of present case, on 28.9.1972, paras 7A, 8 and 15 of first Award dated 9.5.1971 were actually remitted back by a speaking order. This order dated 28.9.1972 was not questioned by any of the parties and has become final. After such limited remission, the Arbitrators have pronounced second Award on 18.2.1974. Section 16 of Arbitration Act, 1940, gives power to Court to remit award or any matter referred to the arbitrator for reconsideration if the award does not determine all matters referred to Arbitration or where it determines any matter not referred to Arbitration and such matter cannot be separated from other matters without affecting the determination by Arbitrators of the matters referred. Where the Award is incapable of execution or where objection to the legality of award is apparent upon its face, the Court can also remit the award back. Perusal of second Award dated 18.2.1974 with unremitted portion of first award dated 9.5.1971 therefore clearly shows that it was not legally possible for Court below to again remit award back on second occasion. We have also perused applications dated 12/6/1972 (Ex.33) & 10/6/1974 (Ex.129) moved by Appellant under Section 15 and we do not find any plea in it worth seeking opportunity to lead evidence in the limited scope of scrutiny available to Civil Court. No legal right of Appellant qua the scheme of Arbitration Act, 1940 has been violated as he did not or could not lead any evidence. In these circumstances, the Court below has correctly pronounced judgment according to award in view of obligation cast upon it by Section 17 of the Arbitration Act, 1940. We have already made reference to pursis Exh. 384 filed on behalf of present Appellant, pursis Exh. 391 withdrawing this pursis filed by the Appellant and his application for permission to lead evidence at Exh. 392. The Court order passed rejecting said application at Exh. 392 on 16.10.2000 is also mentioned above. Said order has not been challenged by the Appellant in present Appeal. In the facts of present case, we find that non grant of opportunity to lead evidence to assail said act of inclusion of personal property in their Award by Arbitrators has not in any way prejudiced present Appellant. We further find from various applications and objections available on record that relations between the parties were and are so strained that Arbitrators were right in bringing out severance between them once for all. Paragraph 6 of order referring the dispute to Arbitrators is a residuary power which enables Arbitrators to consider other issues also. Separation of said clauses/paras 1 to 5 from Award dated 9.5.1971 after period of about 35 years will lead to various problems. As already mentioned above, present Appellant has already disposed of certain properties by taking advantage of said distribution done by the Arbitrators. It is clear that he is trying to approbate and reprobate. In these circumstances, we find nothing wrong with the procedure followed by Court below in the matter. The said question is, therefore, answered accordingly in the negative and we find nothing wrong in the exercise of its jurisdiction by court below.

36. Though the decision of Appeal is reached above, the Appellant appearing in person has cited several cases to which we will make reference very briefly. Bhagawati Oxygen Ltd. v. Hindustan Copper Ltd. reported at (2005) 6 SCC 462, is already considered and followed by us above. Associated Engineering Co. v. Government of Andhra Pradesh reported at , A.M. Mair and Co. v. Gordhandas Sagarmull reported at , S. Harcharan Singh v. Union of India reported at , I.O.C. Ltd. v. Artson Engineering reported at , consider the scope of jurisdiction available to Arbitrator in view of language of Arbitration clause. We have already dealt with this aspect above. J.E.M.T. Co-op. Society v. General Assurance Society reported at AIR 1978 P & H 336, is the judgment of learned Single Judge of that High Court in which scope of powers of Court to set aside award under Section 30 has been considered. It has been laid down that such courts do not exercise appellate powers and stand taken before the Arbitrator cannot be allowed to be raised in application under Section 30. The reliance on these judgments is not necessary for the purpose of present Appeal. Secretary, Irrigation Department, Government of India v. G.C. Roy, reported at again considers powers of Arbitrator to grant interest. Hasham Abbas Sayyad v. Usman Abbas Sayyad reported at , is the judgment of Hon'ble Apex Court which states that order passed by the Court without jurisdiction is void. Vijayanti v. Chandrakant reported at , is the judgment of learned Single Judge of this Court on Order 12, Rule 6 of Civil Procedure Code, laying down what are essential facts and when it can be said that such facts are admitted. Satya Pal v. Ved Prakash reported at , is the judgment of learned Single Judge which holds that when signature of parties are obtained on award, merely in token of proof of its declaration, it does not amount to their agreement with terms and conditions of the award. In Abdul Samad & Sons v. Union of India reported at , deals with aspect of limitation qua application under Section 15 of Arbitration Act, 1940. BSNL v. Subash Chandra Kanchan reported at , is the judgment which considers effect of of wrong concession on legal question made by advocate on his client. Hamza Haji v. State of Kerala reported at with effect of fraud by a party on Court. Venkatappa v. Abdul Jabbar reported at (2006) 9 SCC 235, holds that a party is bound by his pleadings and new case contrary thereto cannot be submitted by it in Special Leave Petition. Naresh Kumar Gupta v. Nav Bharat Times Coop. Group reported at 1996 (1) Arbitration Law Reporter 227, is the judgment of learned Single Judge of Delhi High Court which holds that when Arbitrators publish award, they are not required to give reasons unless parties required them to do so. B.L. Gupta Construction (P) Ltd. v. Bharat Co-op. G.H.S. Ltd. reported at 1996(1) Arbitration Law Reporter 414 is again judgment of learned Single Judge of Delhi High Court about the error of law committed by Arbitrator which could be termed as apparent on face of record. In view of the findings reached by us above, it is not necessary for us to refer in detail to these rulings. Panchdeo Narain v. Jyoti reported at , is the judgment of the Hon'ble Apex Court which considers scope of provisions of Section 115 of Civil Procedure Code. Prakash Cotton Mills Pvt. Ltd. v. Municipal Commissioner, Bombay reported at , is dealing with the procedure of requirement of proof to prove execution and contents of sale deed. In view of the discussion above, in relation to two sale deeds made by us, it is not necessary to refer to this ruling as principle laid down therein cannot be extended in the facts of present case where basic dispute was before Arbitrators. Sudha Devi v. M.P. Narayanan reported at is the judgment which states that affidavits are not included in the definition of evidence in Section 3 of Evidence Act. But said judgment in para 4 also states that such affidavit can be used in evidence for sufficient reasons if Court passes an order in Order XIX, Rules 1 or 2 of C.P.C. It is apparent that the basic Awards in matter before us are delivered by Arbitrators and Civil Court was considering those awards only for limited purposes. The principle, therefore, has no application in present facts. Quamarul Islam v. S.K. Kanta reported at is the judgment of the Hon'ble Apex Court which considers requirement of evidence and pleadings to prove electoral mal-practices contemplated under Section 123 of Representation of People Act. The same has no application here. The Appellant has also cited three rulings i.e. Banwari Lal v. Chando Devi reported at , Lagandeo Singh v. Satyadeo Singh reported at and Thakur Prasad v. Bhagwandas reported at AIR 1985 MP 171, to point out when decree can be said to be based upon compromise or consent or admission. In view of the findings already reached above, we find it not necessary to consider these cases.

37. The Respondent through Shri Bhandarkar, has again relied upon number of cases. Kewal Krushna Hitkari v. Anil Hitkari reported at , is already considered by us above. Pushpa Devi Bhagat v. Rajinder Singh reported at , is the judgment which considers provisions of Order 23 Rule 3 of C.P.C. and also Order 12 Rule 6. In view of the discussion made by us above, we find that this judgment need not be commented in detail. Shankar K. Mandal v. State of Bihar reported at , is relied upon by Shri Bhandarkar, to state that whatever learned lower Court has recorded in its order must be presumed to be correct and final and challenge thereto by present Appellant cannot be accepted. Central Bank of India v. Vrajlal Kapurchand Gandhi reported at 2003 (3) All. M.R. 1120 (SC) is again the judgment in which the Hon'ble Apex Court states that concession made before Court and recorded in judgment is conclusive. Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. reported at is again the judgment of the Hon'ble Apex Court on same lines. Olaf Wumling v. State of Goa reported at , is again the judgment of Division Bench of this Court holding that record of a judgment is conclusive and lawyer or litigant has to contract it before very same Judge and nowhere else. Govindji Jevat & Co. v. Shree Saraswati Mills Ltd. reported at is judgment of learned Single Judge which holds that party accepting payment under Award is estopped from challenging it. Ananta Lal v. Jnanda Sundari reported at is again judgment of Calcutta High Court which holds that party taking benefit of an award cannot plead its invalidity. is the judgment of the Hon'ble Apex Court which holds that participation in arbitration proceedings by a party for long time disables that party from contending that because of some lacuna, matter could not have been referred to Arbitrator. We have already considered this angle in our judgment above. Vaidya Harishankar v. Pratapray reported at explains situation in which implied existence of arbitration agreement is to be presumed. Para 2 and 6 of this judgment are pressed into service because parties here have accepted and proved the award dated 9.5.1971 and on same date have also entered into a dissolution deed. However, it cannot be forgotten that both parties immediately thereafter have raised their challenge to the Arbitration award and second arbitration award has thereafter been delivered on 18.2.1974. This ruling, with respect, therefore, will have no application here. State of Rajasthan v. Nav Bharat Construction Co., reported at , hold that an Arbitrator cannot enlarge the scope of reference and entertain fresh claims without further order of reference. We have already considered this angle above and we have independently found that Arbitrators could have given interest to present Appellant after the second award was pronounced on 18.2.1974. Hari Shankar Singhania v. Gaur Hari Singhania reported at , from para 42 onwards considers family agreements and family settlements and the Hon'ble Apex Court has held that family agreement is treated differently from commercial settlement. It has been also held that family settlements generally meet with approval of the Courts. They are governed by a special equity principle where the terms are fair and bona fide. The wellbeing of a family is of utmost importance. The observations of the Hon'ble Apex Court are applicable with full vigour in the facts of present case as Arbitrators have put an end to commercial dispute and also civil dispute about personal immovable property and therefore, in Appeal we have viewed controversy before Civil Court accordingly as this litigation is going on since last about 35 years. State of Punjab v. Chahal Engineering & Co. reported at , has been pointed out to canvass that Arbitrators could not have granted interest as the amount was uncertain. Here, we find that amount was very much ascertained on 9.5.1971 itself.

38. Appellant has contended that his younger brother is declared by this Court as successor & sole legal heir of deceased Jawar Ali. He for said purpose invited our attention to certain observations made by Learned Single Judge of this Court in judgment dated 26/07/1989 in his Civil Revision Application 1126 of 1984. We are not in position to entertain & appreciate such an effort in present Appeal.

39. In these circumstances, in view of the discussion above and our answers to various questions, we partly allow this Appeal by modifying the impugned judgment dated 11/12/200 making the Awards dated 9.5.1971 and 18.2.1974 Rule of Court as under:

(1) The part of impugned judgment dated 11/12/2000 refusing judgment under Section 17 of Arbitration Act,1940 in terms of Paragraph/Clause 5 of Award dated 18/2/1974 is hereby quashed & set aside.

(i) We restore Paragraph 5 or Clause 5 of Award dated 18/2/1974 granting interest on amount quantified in terms of Clause/Para 16 of Award dated 9/5/1971. The Respondent shall pay said amount with interest to the Appellant within four months from today.

(2) The remaining part of judgment dated 11/12/2000 is maintained as it is.

(3) Decree be drawn accordingly in accordance with [i] Award dated 9/5/1971 except its Clauses 7A,8 & 15 and [ii] Award dated 18/2/1974 except its Clause 4.

Rule made absolute in above terms. However, in the facts and in the circumstances of the case, there shall be no order as to costs.