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2010 DIGILAW 60 (MP)

ASHOK KUMAR BANSAL v. SUSHILA DEVI BANSAL

2010-01-18

PIYUSH MATHUR, S.K.GANGELE

body2010
JUDGMENT PIYUSH MATHUR, J. ( 1 ) PETITIONERS ashok Kumar Bansal, Raj Kumar Bansal and renu Agrawal have challenged the Order dated 20-2-2009 passed by 7th Additional district Judge, Gwalior, in MJC No. 88/2005 (Old No. 20/2004), whereby the Trial Court has entertained and allowed the application preferred under Section 144 of the Code of civil Procedure by directing the restitution of the suit property in terms of the Arbitral award dated 29-11-1971. ( 2 ) A Partnership Firm known as "laxmi fancy Stores" was constituted by Late Shri laxminarayan, Shri Jagdish Prasad and Shri om Prakash Bansal on date 12-8-1966, for running the family business. A dispute arose between the partners in the year 1971, when they entered into an arbitration agreement and referred the dispute regarding payment of certain debts of the partnership to the Arbitrators. Later on, some other dispute relating to the residential house of the joint family was also referred to the Arbitrator. The Arbitrator passed an Award on date 12-6-1971 in relation to the debts of the Partnership as also the residential house of the joint family. An application was filed under Section 14 (2) of the arbitration Act, 1940, for making the Award, a Rule of the Court, wherein Late Laxminarayan submitted his objections, seeking relief of setting aside the Award. However, the Additional district Judge, Gwalior, dismissed the objections and passed an Order on date 29-11 -1997 by making the Award of the Arbitrator, a Rule of the Court. ( 3 ) AN appeal was preferred against the order of making the Award a Rule of the Court, which was registered as M. A. No. 18/99 before the Madhya Pradesh High Court and a cross-Appeal being FA No. 59/98 was also filed by the respondent No. 2 and both the appeals came to be disposed of finally on date 5-5-1998, wherein the High Court opined that the entire Award is illegal and is vitiated; consequently, the Award was declared to be invalid, null and void. These orders passed in the aforesaid two Appeals were challenging before the Supreme Court and after hearing the two Appeals, the Supreme Court dismissed the Civil Appeals No. 1260/99-1261/99 by an order dated 27-2-2004. This is how the dispute in relation to the debts of the Partnership and the residential property of the joint family (sought to be adjudicated through arbitral proceedings) came to a final end. This is how the dispute in relation to the debts of the Partnership and the residential property of the joint family (sought to be adjudicated through arbitral proceedings) came to a final end. ( 4 ) SINCE, the Award became non-existent, therefore the legal representatives of Jagdish prasad and Om Prakash (Respondents No. 1 to 4 and 5 to 8) submitted an application under Section 144 of CPC before the Trial Court for restoration of possession of the shop and properties by making submission that the keys of the shop were given by their predecessors to the Arbitrator before passing of the award and the same were handed over to laxminarayan on date 25-8-1971 (post-Award) and since the proceedings have terminated finally, therefore, the suit property should be restored back to them. ( 5 ) PRELIMINARY objections about the maintainability to the application were filed on behalf of the Appellant No. 1, but the same were dismissed by the trial Court on date 5-4-2006 by granting liberty to the present petitioner No. 1 to raise all the objections in reply to the main application. The Court below recorded the evidence of the parties and finally passed the impugned order dated 20-2-2009 (Anrtexure p/l) by holding that an application under Section 144 of CPC would be maintainable, in spite of the fact that the Award passed by the Arbitrator may not be a decree in the strict sense, but since the dispute has been adjudicated upon by the High Court and the Supreme Court and the Orders have been passed, therefore, the suit property should be restored to its original possession, prior to the date of the passing of the Award on date 29-11-1971. The present petitioners, on being aggrieved by the aforesaid Order dated 20-2-2009, have preferred this writ petition under Article 227 of the Constitution of India. The present petitioners, on being aggrieved by the aforesaid Order dated 20-2-2009, have preferred this writ petition under Article 227 of the Constitution of India. ( 6 ) DURING the pendency of the writ petition, an application was preferred before this court, under Section 89 of the Code of Civil procedure being IA No. 12821/2009, wherein all the parties had agreed for appointing Shri om Prakash Goyal as the Conciliator for resolving the dispute, subsisting between the parties in relation to the properties, which are the subject-matter of the present Writ Petition and pursuant to the agreement of the parties (in view of Section 89 of CPC), this court has appointed Shri Om Prakash Goyal as the Conciliator. ( 7 ) IT would be pertinent to mention that section 89 of CPC has been incorporated by way of the CPC (Amendment) Act, 1999 (46 of 1999) and the same has been enforced w. e. f. 1-7-2002, where the Court has been empowered to secure settlement of subsisting disputes through arbitration, conciliation and judicial settlement. For ready reference section 89 of CPC is quoted hereinbelow :- "s. 89 Settlement of disputes outside the court : (1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for- (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation. (2) Where a dispute has been referred - (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act; (b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of Section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute to referred to the Lok Adalat; (c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed. " ( 8 ) IN compliance and obedience to the order of this Court, the Conciliator has convened the conciliation proceedings on dates 13-11-2009,15-11-2009 and 15-12-2009 and with his persuasion the parties have amicably arrived at a Settlement, which has been described by the parties and the Conciliator as an Award. This Report/award has been submitted in Original as IA No. 1075/10 before this Court, which contains the Terms of Settlement in relation to the shop and the residential house wherein the parties have agreed that the shop bearing Old No. 37/1379, situated at Ward no. 43, which is re-numbered as Shop/building No. 1379, would remain with Raj Kumar bansal and Sons (HUF) and the building situated at Dahi Mandi bearing Old Building No. 31/399 (Later on changed as Building No. 31/ 510, 43/1172) and the present Building No. 1172/1, situated at Ward No. 43 would remain with Ashok Bansal and Sons. Respondents sushila Devi and others have relinquished their rights in relation to both the properties and have accepted respective amount totalling to rs. 20. 00 lacs by different cheques and have agreed that there exists no dispute amongst them in relation to the suit properties. Respondents sushila Devi and others have relinquished their rights in relation to both the properties and have accepted respective amount totalling to rs. 20. 00 lacs by different cheques and have agreed that there exists no dispute amongst them in relation to the suit properties. Since the parties have entered into a settlement, therefore, the terms of Settlement, contained in Paragraphs No. 1 to 7 of the Settlement are being reproduced hereinbelow :- (Vernacular matter omitted. . . . . Ed.) ( 9 ) ALTHOUGH an Order/decree has been drawn on an application preferred in terms of section 144 of CPC by the 7th Additional District Judge, Gwalior, in MJC No. 88/05, which provide for restitution of the properties, as was existing prior to the date of passing of the award, but since the parties have entered into a settlement in terms of the provisions contained in Order XXIII of CPC, while invoking the provisions as contained in Section 89 of CPC, providing for Special Proceedings and have finally resolved their dispute amicably, by making a declaration that there subsist no dispute amongst the parties, it would be in the interest of justice to affirm the terms of the Settlement arrived at amongst the parties. Therefore, in view of the terms of the Settlement (which are duly signed and accepted by all the contesting parties), the impugned judgment passed on date 20-2-2009 in MJC No. 88/05 is set aside and accordingly modified. A decree be drawn up in terms of the agreed Terms of the Settlement. ( 10 ) IT is made clear that this Court has not authorized any of the parties to secure substitution of his/her name from or in the suit properties without following the prescribed legal procedure as per the concerning laws dealing with the registration or mutation of the immovable properties and as such the beneficiaries of the Settlement would be required to comply with the concerning laws for executing the terms of the Settlement, without claiming any relaxation or exemption from payment of tax, fee or the dues, on the strength of this judgment and decree. ( 11 ) WITH these observations, the writ petition is finally disposed of in terms of the aforesaid order. Order accordingly. .