High Court Of Calcutta
SABYASACHI MUKHERJI
MULCHAND DOSHI - Appellant
Versus
DALAM CHAND BENGANI - Respondent
Matter 706 Of 1977
Decided On : 09/21/1977
ARBITRATION - AWARD - REGISTRATION - REQUIREMENT - EFFECT OF NON-REGISTRATION - VALIDITY OF AWARD - SETTING ASIDE - LIMITATION - JURISDICTION OF COURT - PUBLIC POLICY - FINALITY OF LITIGATION.
Fact of the Case:
A dispute arose between partners of a firm, Novelty Engineering Works. The dispute was referred to arbitration, and an award was made. The award provided for the retirement of one partner, payment of his share in the partnership business, and the creation of a charge on the assets of the firm in favor of a creditor. The award was signed by all the parties, including the creditor. The award was not registered.
Finding of the Court:
The court held that the award required registration under Section 17 of the Registration Act because it purported to create a charge on the assets of the firm, which were valued at more than Rs. 100/-. However, the court also held that the award was not a nullity and could not be set aside after the expiry of the limitation period prescribed for an application under Section 30 of the Arbitration Act. The court further held that the petitioner, who was a party to the arbitration proceedings, was estopped from challenging the existence of the award at this stage.
Issues: 1. Whether the award required registration under Section 17 of the Registration Act? 2. If the award required registration, then the award being unregistered, is it void or a nullity? 3. If the award is a nullity, then does it require to be set aside as such and if so, is there any period of limitation for such an application? 4. If the award is a nullity, then what is the effect of decree being passed on that award? 5. Whether the petitioner is entitled, in the facts and circumstances of this case, to ask for the order that the award or the decree be taken off the file?
Ratio Decidendi: 1. The court held that the award required registration under Section 17 of the Registration Act because it purported to create a charge on the assets of the firm, which were valued at more than Rs. 100/-. 2. The court held that the award was not a nullity because it was not ex facie or patently bad. The court also held that an adjudication was necessary to determine whether the award required registration or not, and that such an adjudication must be by the procedure enjoined by Section 30 of the Arbitration Act. 3. The court held that the petitioner, who was a party to the arbitration proceedings, was estopped from challenging the existence of the award at this stage because he had not made an application under Section 30 of the Arbitration Act within the time prescribed.
Final Decision: The court dismissed the petitioner's application.
( 1 ) DISPUTES and differences arose between Khin Karan Doshi, Dhanraj Doshi, Mulchand Doshi and Dalam Chand Bengani, the four partners of the firm of Novelty Engineering Works. There was an agreement to refer the disputes to the arbitration on the 7th Aug. 1974. The said disputes were, accordingly, referred to the arbitration of two arbitrators and they appointed on the 8th August, 1974 one Umpire. The joint arbitrators having failed to arrive at a unanimous decision, referred the matter to the Umpire. The Umpire on the 5th of December, 1974 wrote to the parties and held sittings. There was a meeting on the 7th of December, 1974. This meeting is recited in the award. The minutes of the meeting were signed by the parties. On the 20th of December, 1974 another meeting was held by the Umpire when all the parties were present and by consent of all the parties M/s. Fulchand Manmal, a firm, which was a creditor of the partnership firm in question, was added as a party to the reference. The said minutes were also signed by all the parties. On the 3lst of December, 1974 an award was made by the Umpire. The said award was signed by all the parties as well as by Fulchand Manmal. The award is important for the purpose of examining the contentions of the partners. The award after reciting the facts and circumstances of this case, inter alia, provided as follows: --"1. I Award that Dalamchand Bengani will retire on and from the 31st day of December, 1974 from the business of Messrs. Novelty Engineering Works and will be paid a sum of Rs. 1, 708-74 p. (Rupees One Thousand Seven Hundred Eight and paise Seventy-four) towards his capital and share in the partnership business by the continuing partners in full and final settlement of all his claim. I further Award that a sum of Rs. 1,66,000/- (Rupees One Lac and Sixty-six Thousand), which is lying credited to the firm of M/s. Fulchand Manmal which amount was procured by Shri Dalamchand Bengani for the purpose of the business of Novelty Engineering Works would be paid back by the said firm Novelty Engineering Works and the continuing partners Shri K. K. Doshi, Shri M. C. Doshi and Shri D. R. Doshi for which they have executed a Promissory Note of date in favour of the said Messrs. Fulchand Manmall and the said amount will be repaid by them with interest at the rate of 12% per annum payable every month till the entire amount is paid off. The said entire amount with the interest has been agreed to be repaid by the continuing partners in the following instalments to the said Messrs- Fulchand Manmall :--Rs. 41,500/- on or before the 31st December, 1975; rs. 41,500/- on or before the 31st December, 1976; rs. 41,500/- on or before the 31st December, 1977; rs. 41,500/- on or before the 31st December; 1978; 2. That the said sum of Rs. 1,66,000/-payable to Messrs. Ful Chand Manmall will form a charge on the assets and machineries of Messrs. Novelty Engineering Works, which are at present valued at Rs. 4,00,000/- (Rupees Four Lacs) approximately and the same shall be deemed to be charged for payment of Rs. 1,66,000/-with interest, but for the purpose of their business the continuing partners shall be entitled to create charge with any Bank or financial institution. A list of assets and machineries are shown in the Schedule hereunder written and the said continuing partners will not do or cause to be done any act whereby the security is in any way impaired and/or jeopardised and/or reduced. In default of payment of any instalment the said Messrs. Fulchand Manmall may take steps for realisation of the money in any manner they may like. 3. That upon payment of the dues of Sri Dalamchand Bengani, he will cease to be partner and will sign the necessary Deed of Retirement and will also cease to have any right, title and interest of any nature whatsoever in the partnership assets and properties. 4. THat the continuing partners will share profit and losses in future in equal shares. 5. T
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