MELANIE FIALHO Vs. MALCOLM FRANCIS PEREIRA

JUDGEMENT

(1.) BY the present petition, the petitioners pray that judgment be pronounced in terms of Award dated 26th October 1990 made by Mr. Justice B. Lentin (Retired) and that decree in accordance thereof be passed and that the Court Receiver appointed by an order dated 24th July 1984 in Notice of Motion No. 1212 of 1983 in Testamentary and Intestate Jurisdiction Suit No. 13 of 1983 in Petition No. 490 of 1982 be directed to distribute the properties to the petitioners and the respondents as per decree in terms of Award and take all required steps including registering the decree in terms of the Award with the office of Sub -Registrar of Assurances and make payment of stamp duty and other charges.

(2.) BRIEFLY stated, the facts giving rise to the present petition are as follows :

(3.) IT is the submission of Mr. Doctor that the award is null and void. It is mentioned that the reference itself is null and void as it referred to the Arbitrator the question and the dispute relating to the devolution or transmission of the tenancy rights of the said deceased of tenanted premises at Pereira House, Pereira Road, Bandra and distribution and division by metes and bounds and allotment of the said tenanted premises or portion thereof. It is submitted that such a question could not have been referred to the Arbitrator for arbitration as the dispute squarely fell within the provision of section 5 (11) (c) (i) of the Bombay Rent. , Hotel and Lodging House Rates Control Act, 1947 read with section 28 of the said Act. More about this submission a little later. However, for the purpose of disposing of this question suffice to say that Mr. Doctor is right in his contention that even in the absence of any application or any petition filed within a period prescribed under Article 119 of the Limitation Act, such a question can be raised as it is the duty of the Court even suo motu to go into the question when it is alleged that the Award is null and void and non est.