Madhukar Goel vs M.S. Goel
1998 Latest Caselaw 134 Del

ORDER

K.S. Gupta, J.

1. Petitioner has filed IA No. 8099/95 alleging that with the mutual consent of the parties Sh. V.G. Baliga was appointed as an arbitrator and he made the award on 9th May, 1993. Petitioner thereafter filed petition under Section 14(2) of the Arbitration Act for the following reliefs:-

(1) the sole arbitrator-respondent Np. 3 herein be directed to file original award in this Court and the same be made rule of the court in accordance with law.

(ii) the arbitrator be directed to lodge the award for registra- tion.,

2. By the order dated 4.6.93 notice was ordered to be issued to the said arbitrator to file the ward and the proceedings returnable on 29.7.93. Arbitrator sent the award by registered post on 24.7.93 and the same was received by the Registry on 26.7.93. It is further alleged that the award involves the following immovable properties:-

a) Two godowns situated at Nabi Karim Delhi.

b) One godown situated at Kalkaji, New Delhi.

c) Three godowns situated at 10498, Bagchi Alaudin, Paharganj, New Delhi.

d) One godown in gali at Nabi Karim, Delhi.

e) Land at Surajpur.

3. Aforesaid award, thus, requires to be registered before it is made the rule of the court, Since the original award was directly filed by the arbitrator, the petitioner could not have possibly lodged it for the pur- pose of registration. It is prayed that the award dated 9.5.93 be sent for registration to the office of the Registrar of Assurance and he be directed to register it on payment of registration charges.

4. Respondent No. 1 who is the father of respondent No. 2, has contested the application by filing reply. It is inter-alia stated that under the Registration Act award can be registered within four months of its making. Objection relating to non-registration of the award was taken by respondent No. 1 as early as in November 1993 in the objection petition still neither the arbitrator nor petitioner took any steps for getting the award registered. Present application is, therefore, liable to be dismissed being barred by limitation.

5. On 1.4.97 following issues were framed:-

1. Where the award dated 9.5.93 requires registration, if so to what effect.

2. Whether the award can be sent by this court for registra- tion. If not to what effect?

3. Relief.

Issue No. 1:

6. It is not disputed that the award involves immovable properties situ- ated in Delhi and Surajpur as detailed in para No. 4 of the application. Therefore, before it is made the rule of the court, it requires to be registered under Section 17 of the Registration Act, 1908.

Issue No. 2 :

7. Submission advanced by Sh. Rajiv Dutta appearing for the petitioner was that in response to the court notice issued within four months of the making of the award, the award in question was sent by the arbitrator to the court and since then it continues to be in the custody of the court. Neither the arbitrator nor the petitioner thus could have got the award registered. According to Sh. Dutta, the period during which the award remains in the custody of court is to be excluded in computing the four months period prescribed for registration of the award. Strong reliance was placed on the decision in Raj Kumar Day & Ors. Vs. Tarapada Day & Ors. . While controverting the said submission, contention advanced by S/Sh. R.P. Bansal & D.P. Sharma appearing for respondents 1 & 2 respectively was that under Section 23 of the Registration Act the time stipulat- ed for registration of an award is four months from the date of its making objection in regard to non-registration of the award in question was taken by the respondents in November 1993 in the objection petitions, still no action was taken by the petitioner or the arbitrator for getting it registered and the present application filed on 9.8.95, is hopelessly barred by limitation. Decision in Raj Kumar Dey's case (supra) was sought to be distinguished on the grounds that the arbitrators had filed application for return of the award for registration within four months period of its making and there was a subsisting injunction preventing the arbitrators from taking steps for registration of the award in that case which is not the situation in this case.

8. As is manifest on a bare reading of para No. 3 of the decision in Raj Kumar Dey's case the award was made by the arbitrators on or about 28th November, 1977 and application was filed by the arbitrators before the Munsif for return of the award to enable them to present it before the Sub- registrar for registration, on 14th August, 1978. Obviously, application for return of the award was filed beyond eight months and the said state- ment made on behalf of the respondents that the same was made within four months of the making of the award is thus factually incorrect.

9. In Raj Kumar Dey's case (supra) wherein somewhat identical issue came to be considered by the Supreme Court, in para No. 7 it was held thus:- "In this case indisputably during the period from 26th of July, 1978 to 20th December, 1982 there was subsisting injunction preventing the arbitrators from taking any steps. Furthermore, as noted before the award was in the custody of the court, that is to say, 28th of January, 1978 till the return of the award to the arbitrators on 24th of November, 1983, the arbitrators or the parties could not have presented the award for its registration during that time, the award as we have noted before was made on 28th of November, 1977 and before the expiry of the four months from 28th November, 1977, the award was filed in the court pursu- ant to the order of the court. It was argued that the order made by the court directing the arbitrators to keep the award in the custody of the court was wrong and without jurisdiction, but no arbitrator could be compelled to disobey the order of the court and if in compliance or obedience with court of doubtful juris- diction, he could not take back the award from the custody of the court to take any further steps for its registration then it cannot be said that he has failed to get the award registered as the law required. The aforesaid two legal maxims the law does not compel a man to do that which the cannot possible perform and an act of the Court shall prejudice no man would apply with full vigour in the facts of this case and if that is the position then the award as we have noted before was presented before the Sub Registrar, Arambagh on 25th November, 1993 the very next one day of getting possession of the award from the court. The Sub-Registrar pursuant to the order of the High Court on 24th of June, 1985 found that the award was presented within time as the period during which the judicial proceedings were pending that is to say, from 28th of January, 1978 to 24th of November, 1983 should be excluded in view of the principle laid down in S. 15 of the Limitation Act, 1963. The High Court, therefore, in our opinion, was wrong in holding that the only period which should be exclud- ed was from 26th July, 1978 till 20th December, 1982. We are unable to accept this position, 26th July, 1978 was the date of the order of the learned Munsif directing maintenance of status quo and 20th of December, 1982 was the date when the interimuin- junction was vacated, but still the award was in the custody of the court and there is ample evidence as it would appear from the narration of events hereinbefore made that the arbitrators had tried to obtain the custody of the award which the court declined to give to them. The principles enunciated by this Court in Nityananda M. Joshi Vs. Life Insurance Corporation of India would have no application to the facts of this case."

10. As per the ratio in the said decision not only the period during which the injunction was operating preventing the arbitrators from taking steps for registration but the entire period during which the award remained in the custody of the court was to be excluded for the purpose of computation of the period of four months for getting the award registered. That being the legal position it is immaterial that there was no subsisting injunction in this case preventing either the arbitrator or the parties from taking steps for registration of the award in question. It may be noticed that in the petition field under Section 14(2) of the Act as back as on 3.7.93, one of the reliefs prayed for by the petitioner is that the arbitrator be directed to lodge the award in question for registration. That prayer has not been considered so far. Obviously, the relief claimed in the IA for sending the award for registration is in continuation of the prayer made in the aforesaid petition. Therefore the filed of the IA on 9.8.95 inspire of the objection taken in the objection petition by the respondent regarding non-registration of the award in question will not come in the way of the petitioner in seeking direction for sending the award for registration to the Registrar now. Since the period from 26.7.93, on which the award was received in the Registry to the date the award is returned for being presented for registration, is to be excluded in view of the decision in Raj Kumar Dey's case (supra), the award in question can still be sent for registration, Decision in Lachhman Dass Vs. Ram Lal & Anr, relied on behalf of the respondents has no relevance in the matter. Issues is answered accordingly.

Issue No.3 :

11. In view of findings on issues 1 & 2, let the award dated 9.5.93 be returned to the petitioner on 19th February, 1998 for being presented for registration before the concerned Sub-Registrar.