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2011 DIGILAW 1105 (CAL)

Subal Chandra Giri v. Panchanan Jana

2011-08-16

SYAMAL KANTI CHAKRABARTI

body2011
JUDGMENT 1. IN the instant revisional application under Article 227 of the Constitution order No. 87 dated 01.09.2009 passed by the learned Civil Judge (Junior Division), 1st Additional Court, Contai in Title Suit No. 127 of 2007 has been assailed. 2. THE petitioners/ defendants have contended that the above Title Suit No. 106 of 2002 subsequently renumbered as title Suit No. 127 of 2007 after transfer has been instituted by the plaintiff/ opposite party praying for a declaration of Title, permanent and mandatory injunction in respect of 'Ka'and 'Kha' schedule lands. In course of cross-examination of P.W.-1 in the above trial, he has admitted one 'Angikar Patra' dated 31.12.2001. In fact the Survey Commissioner submitted his report and relayed the land as contained in such document which was accepted. THE defendants then filed a petition on 17.08.2009 claiming that the said document being unstamped cannot be accepted and prayed for impounding the same for the purpose of payment of necessary stamp duty on assessment. THE plaintiff filed written objection thereon claiming, inter alia, that the document in fact is an award of the Panchayet and is not compulsorily registrable. Since the same was not registered it cannot be impounded and as such prayed for rejection of the above petition. Having heard both parties the learned Court below by order No. 87 dated 01.09.2009 has rejected the petition dated 17.08.2009 filed by the defendant/petitioner holding, inter alia, that the impugned document dated 31.12.2001 was an 'award' in nature and as such it required registration for admission into evidence. Being aggrieved by and dissatisfied with such order the defendants/petitioners have contended that the learned Court below has committed grave error in not impounding the instrument giving opportunity to them to cure the defect according to the provisions of the Stamp Act, 1899. Therefore, the said order is not sustainable in law and is liable to be set aside. 3. IT appears from the impugned order that considering the petition dated 31.12.2001 filed by the defendants the learned Court below has relied upon the testimony of P.W.-5 who has repeatedly mentioned the document as 'Salishnama' i.e, award which was also corroborated by the Survey Commissioner in his report which is also admitted by the D.W.-1. 3. IT appears from the impugned order that considering the petition dated 31.12.2001 filed by the defendants the learned Court below has relied upon the testimony of P.W.-5 who has repeatedly mentioned the document as 'Salishnama' i.e, award which was also corroborated by the Survey Commissioner in his report which is also admitted by the D.W.-1. From the recital of the document it is found that the instrument itself has placed on record that there has been a dispute over a certain portion of the property and that there has been a decision/ conclusion arrived at by the villagers in respect of the said dispute in such instrument dated 31.12.2001. The parties to such agreement have conceded to abide by such decision and in terms of the said decision they have agreed to leave some space for the purpose. Considering this aspect the learned Court below has identified the impugned document dated 31.12.2001 as an 'award' in nature and has further held that the same is required to be registered for being admitted in evidence. 4. LEARNED lawyer for the petitioner has drawn my attention to page 205 of the Registration Act, 1908,11th Edition, Mullah. It is observed therein that while enacting the new Arbitration Act, the legislature has done away with the requirement of registration of an award by putting it on high pedestal of decree of Court. He has also relied upon and referred to the decision reported in the case of Ishwarbhai Purshottambhai Patel v. Chandrakantbhai Purshottambhai Patel, reported in AIR 2006 (NOC) 834 (Guj). In the said case it has been held that in view of the object of the new Arbitration Act, legislature has done away with the requirement of registration of award and, therefore, the argument that an award begin not registered is non-enforceable is untenable. He has also relied upon and referred to the case of Union of India v Popular Construction Co., reported in (20018 SCC 470 : (2002)1 WBLR (SC) 170. It has been held therein that the Arbitration and Conciliation Act, 1996 provides Section 36 which provision is a significant departure from those of earlier Act of 1940, because such provision provide that award becomes immediately enforceable upon expiry of the period of limitation under Section 34 of the Act. It has been held therein that the Arbitration and Conciliation Act, 1996 provides Section 36 which provision is a significant departure from those of earlier Act of 1940, because such provision provide that award becomes immediately enforceable upon expiry of the period of limitation under Section 34 of the Act. For the purpose of better appreciation the provisions of Section 36 of the Act of 1996 is quoted below : "Section 36. Enforcement.-Where the time for making an application to set aside the arbitral award under Section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court." Learned lawyer for the opposite party No. 1 has, however, opposed the move and contended that the above instrument i.e., the 'Salishnama' or 'Angikar Patra', as the case may be, relates to extinguishment of right over some portion of village pathway. Therefore, in terms of Section 49 of the Registration Act and Section 35 of the Indian Stamp Act the said instrument is liable to be registered before admission of such document into evidence. He has also pointed out that the said document does not contain any schedule of property. So the learned Court below has rightly asked for registration of the same and refused to impound the said document which should not be interfered with. 5. HAVING heard learned Lawyer for both the parties and on perusal of the impugned order passed by the learned Court below and the principles referred to and relied upon by the learned Lawyer for the petitioner, I hold that the learned Court below has rightly held that the instrument is an award because it is the outcome of local arbitration in presence of villagers containing certain terms and conditions arrived at after deliberation amongst the villagers and the parties have agreed to abide by the decision and to leave some space for the common passage. It is also held in the case of Keval Krishna Balakram Hitkari and Ors. v. Anil Keval Hitkari and Ors., reported in AIR 2000 (Bombay) 108 that an award not creating rights in immovable properties is not compulsorily registrable. Rights were to be created by documents to be executed by parties. It is also held in the case of Keval Krishna Balakram Hitkari and Ors. v. Anil Keval Hitkari and Ors., reported in AIR 2000 (Bombay) 108 that an award not creating rights in immovable properties is not compulsorily registrable. Rights were to be created by documents to be executed by parties. Therefore, relying upon the principles laid down by the Hon'ble Apex Court in T. P. Sidhwa's case, reported in AIR 1974 SC 1912 the Hon'ble Bombay High Court has held that such award is not compulsorily registrable. 6. SECTION 7 of the Arbitration and Conciliation Act, 1996 defines arbitration agreement in the following manner: "SECTION 7. Arbitration agreement.-(1) In this Part, "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing if it is contained in - (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract." It appears that at the intervention of villagers the parties to the agreement have decided to leave some space for passage but not transferred their interest in favour of any third party. Such a reference to the arbitrators / villagers was made in respect of their existing legal right over the property and emanates from a legal relationship between the parties on account of their ownership and possession of the same. For better convenience the parties to such instrument have agreed to leave certain space for passage and as such by such instrument they have not transferred their existing right, title and interest in the disputed property. For better convenience the parties to such instrument have agreed to leave certain space for passage and as such by such instrument they have not transferred their existing right, title and interest in the disputed property. Therefore, I hold that the learned Court below has rightly held that the said instrument is an award. From this point of view his finding is partly correct. But his refusal to admit such document without registration is not consistent with the provisions laid down in Section 36 of the Act as quoted in paragraph 5 above. Because an award become enforceable after expiry of the time for making an application to set aside the same under Section 34 having the force of a decree of the Civil Court. Therefore, his subsequent finding is not sustainable in law. Therefore, I hold that there is some merit in this revisional application which is partly allowed. The impugned order of the learned Court below, so far as it relates to his refusal to admit the instrument into evidence on admission of P.W.-1 in cross-examination on account of non-registration, is hereby set aside. He is directed to admit the same as per law and to proceed with the trial as expeditiously as possible, preferably within a period of four months from the date of communication of this order. 7. INTERIM order granted earlier stands vacated.