Sunday, 19 January 2020

Whether execution application can be dismissed on ground that Arbitration award is not registered?

 Dismissal of the execution proceedings seeking to execute an award passed by an Arbitrator on the ground that said award was unregistered is the subject matter of challenge in the present writ petition.
As per the provisions of Section 17(1)(b) of the said Act, it is clear that in any testamentary document purporting to create or declare any right, title or interest in any immovable property exceeding value of Rs. 100/- is compulsory registrable. The decisions relied upon by the learned counsel for the respondent nos. 1 and 2 support the aforesaid proposition. On reading of the entire award, it becomes clear that ownership rights in favour of the parties has been created with regard to some of the properties and they have been called upon to relinquish their rights with regard to other properties. It is therefore evident that since the right, title and interest was being created in immovable property exceeding the value of Rs. 100/-, the award was required to be duly registered. In absence of such registration, the award cannot be executed. Reference in this regard can be made to the decision in Sita Ram Bhama Vs. Ramvatar Bhama, MANU/SC/0284/2018 : (2018)15 Supreme Court Cases 130.

The decisions relied upon by the learned counsel for the petitioners do not lay down that even if any right, title and interest is created in immovable property exceeding the value of Rs. 100/-, registration of such documents is not necessary. The aspect of pre-existing rights is also not very relevant especially when both the parties are required to relinquish their rights in favour of the other party with regard to some properties.

7. It is thus found that the Executing Court was legally correct in coming to the conclusion that as the award that was sought to be executed was not registered, the execution proceedings were not tenable. I therefore do not find any reason to interfere with the said order. By observing that it is open for the petitioner to have the award registered and thereafter take such steps as are permissible in law to execute the award, 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 4571/2016

Decided On: 10.06.2019

Ramchandra Vs. Kiran and Ors.

Hon'ble Judges/Coram:
A.S. Chandurkar, J.

Citation: 2020(1) MHLJ 84 SC


1. Dismissal of the execution proceedings seeking to execute an award passed by an Arbitrator on the ground that said award was unregistered is the subject matter of challenge in the present writ petition.

2. The respondent nos. 1 and 2 are the original plaintiffs who had filed a suit for perpetual injunction against the present petitioner seeking to protect their possession over the suit premises. The suit premises was a structure on the mezzanine floor wherein business was being conducted by the father of the plaintiff no. 2. The petitioner filed his written statement and opposed the suit as filed. During the pendency of the proceedings the dispute between the parties was referred to an Arbitrator. The Arbitrator passed his award on 02.12.2009. Various properties other than the suit property were included in the arbitration proceedings on the basis of which the award came to be passed. While the plaintiffs were held entitled for some of the properties, the defendant was also held entitled to have a right in other properties. On the basis of that award the petitioner filed execution proceedings seeking possession of the properties awarded to him. In those proceedings, the original plaintiffs filed an application below Exhibit 11 seeking dismissal of the execution proceedings on the ground that the award in question was not duly registered and as the subject matter of the award related to immovable properties worth more than Rs. 100/-, its registration was mandatory. This application was opposed by the petitioner and by the impugned order dated 27.10.2015, the learned Judge of the Executing Court dismissed the execution proceedings on the ground that the award was not registered.

3. Ms. Dipali Sapkal, learned counsel for the petitioners submitted that the Executing Court erred in dismissing the execution proceedings. It was not necessary to have the award registered in view of the fact that the same did not create any new rights in the parties and the rights already existing had been adjudicated upon. Placing reliance on the decisions in Sardar Singh Vs. Smt. Krishna Devi and another, MANU/SC/0102/1995 : AIR 1995 SC 491, N. Khadervali Saheb (Dead) by L.Rs. And another Vs. N. Gudu Sahib (Dead) and others, MANU/SC/0088/2003 : AIR 2003 SC 1524 and N. Khosla V. Rajlakshmi(dead) and ors. MANU/SC/1332/2006 : AIR 2006 SC 1249, it was submitted that the award in question was liable to be executed and it was not necessary to have the same registered.

4. On the other hand, Shri A.N. Ansari, learned counsel for the respondent nos. 1 and 2 supported the impugned order. According to him, the award resulted in creation of new rights in respect of certain properties and also relinquishment of existing rights in other properties. There was no question of adjudication of any preexisting rights on the basis of which registration of the award was not necessary. He referred to the award in question to indicate said aspect. He also referred to the provisions of Section 17(2) of the Registration Act, 1908 (for short, 'the said Act') in that regard. Learned counsel placed reliance on the decisions in Satish Kumar and others Vs. Surinder Kumar and others MANU/SC/0264/1968 : AIR 1970 SC 833, Ratan Lal Sharma Vs. Purushottam Harit, MANU/SC/0003/1974 : AIR 1974 SC 1066, Lachhman Dass Vs. Ram Lal and another, MANU/SC/0281/1989 : (1989) 3 SCC 99, Chandrabhan Rupchand Dakhale and others Vs. Birdichand Lalchand Navlakha and others, MANU/MH/0570/1983 : 1983 Mh L J 1043 and Ramesh Kumar & Ar. Vs. Furu Ram and Anr. MANU/SC/0952/2011 : 2011 ALL SCR 2215 to urge that the Executing Court was justified in dismissing the proceedings.

5. I have heard learned counsel for the parties and I have given due consideration to their respective submissions. It is not in dispute that the proceedings in the civil suit filed between the parties had been referred to the Arbitrator. The Arbitrator included various properties in which the parties had interest and passed his award on 02.12.2009. Perusal of that award indicates that insofar as flat no. 6 at SMS Building is concerned, the petitioner along with the respondent no. 3 were held to be joint owners of the said property and the respondent nos. 1 and 2 were to relinquish their rights and claims therein. Insofar as flat no. 5 in Prem Niwas Building is concerned, the award directs that the petitioner and the respondent no. 3 would have no right in that property and were to relinquish their claims therein. The respondent nos. 1 and 2 were to have full ownership in that property. Insofar as plot situated on Central Avenue Road is concerned, the petitioner along with the respondent no. 3 were held to be joint owners while the respondent nos. 1 and 2 were to relinquish their rights therein in favour of the petitioner and the respondent no. 3. Similar arrangement has been made in the award in respect of other properties. It can thus be seen from the award that the petitioner and the respondent no. 3 on one hand have been held to be absolute owners of some of the properties in which the respondent nos. 1 and 2 are required to relinquish their rights. Similarly, in other properties, the respondent nos. 1 and 2 have been held to be joint owners and the petitioner and the respondent no. 3 have to relinquish their rights in those properties.

6. As per the provisions of Section 17(1)(b) of the said Act, it is clear that in any testamentary document purporting to create or declare any right, title or interest in any immovable property exceeding value of Rs. 100/- is compulsory registrable. The decisions relied upon by the learned counsel for the respondent nos. 1 and 2 support the aforesaid proposition. On reading of the entire award, it becomes clear that ownership rights in favour of the parties has been created with regard to some of the properties and they have been called upon to relinquish their rights with regard to other properties. It is therefore evident that since the right, title and interest was being created in immovable property exceeding the value of Rs. 100/-, the award was required to be duly registered. In absence of such registration, the award cannot be executed. Reference in this regard can be made to the decision in Sita Ram Bhama Vs. Ramvatar Bhama, MANU/SC/0284/2018 : (2018)15 Supreme Court Cases 130.

The decisions relied upon by the learned counsel for the petitioners do not lay down that even if any right, title and interest is created in immovable property exceeding the value of Rs. 100/-, registration of such documents is not necessary. The aspect of pre-existing rights is also not very relevant especially when both the parties are required to relinquish their rights in favour of the other party with regard to some properties.

7. It is thus found that the Executing Court was legally correct in coming to the conclusion that as the award that was sought to be executed was not registered, the execution proceedings were not tenable. I therefore do not find any reason to interfere with the said order. By observing that it is open for the petitioner to have the award registered and thereafter take such steps as are permissible in law to execute the award, the Writ Petition stands dismissed with no orders as to costs.




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