G.N.RAY, J. - (1.) THIS appeal is directed against the judgment passed by the learned Assistant District Judge, 2nd Court, Hooghly in other Suit No. 113 of 1987. By the aforesaid judgment, the learned trial Judge has allowed the application made by the defendant No. 1 Chitta Ranjan Chatterjee for acceptance of the award passed by the Arbitrators, respondents Nos. 2 to 4 and to make the award a decree of the Court under S.14 of the Arbitration Act.
(2.) IT is an admitted case of the parties that the said Chitta Ranjan Chatterjee and the defendant No. 1 appellant Nityaranjan Chatterjee are brothers and in order to settle their disputes, they appointed the said arbitrators. The arbitrators thereafter passed an award and they also filed the said award in the court with a prayer for passing the decree in terms of the award. After the award was filed in the court, the summons was issued to the parties to the award and the defendant No 1 prayed for accepting the award and to make it a decree of the court, but the defendant No. 2 contended that the award was improper and there was misconduct on the part of the arbitrators. Accordingly, the award should be set aside. For appreciating the contentions of the parties some dates are relevant. On 24th April, 1985, the arbitrators were appointed by the parties and the parties appeared before the arbitrators and made submissions and the arbitrators made an award. The defendant No. 1 Chitta Ranjan Chatterjee requested the arbitrators to file the award sometime in August, 1987 and on 7th September, 1987, the award was filed by the arbitrators in court. A notice and/or summons was issued to the parties viz. the appellant and the respondent No. 1 and such notice was received by the parties. On 4th December, 1987, the appellant appeared in court and prayed for time to file written statement within a month and such time was granted and the written statement and/or objection to the said award was filed on 11th January, 1988. The written objection to the award was, however, filed on 18th February, 1988 by the appellant, Nityaranjan Chatterjee. It was strongly contended by the defendant No. 1 before the learned trial Judge that as no objection against the award was filed within a month from the date of the service of the notice under S.14(2) of the Arbitration Act, but admittedly such objection was filed beyond the period of limitation on 11th January, 1988, such objection was barred by limitation and could not be looked into. Accordingly, the award should be accepted by the court and the decree on the same should be made. It appears that on behalf of the appellant it was contended that although summons was served by the court but no notice under S.14(2) of the Arbitration Act was served on the appellant. Hence, there was no question of the objection filed against the award by the appellant being barred under Art.119(b) of the Limitation Act. The objection filed by the defendant No. 2 therefore should be taken into consideration on merits and the same cannot be rejected on the ground of limitation. The learned trial Judge had come to the finding that along with the summons copy of the award had been forwarded and there was an endorsement to that effect in the summons. He has proceeded on the footing that it must be presumed under S.114(e) of the Evidence Act that the official acts had been regularly performed and the notice under S.14(2) of the Arbitration Act had, therefore, been served on the parties. The learned trial Judge also held that the defendant No. 2 appellant made an application on 4th December, 1987 before the court for time to file written statement but even in such application it was not stated by the defendant that he did not receive any notice under S.14(2) of the Arbitration Act. On the contrary, the defendant No. 1 appellant Nityaranjan Chatterjee in his application dated 4th December, 1987 stated that it was very much necessary for him to file objections against the award and he prayed for adjournment for collecting the materials to file such objection. Considering the said fact, the learned trial Judge came to the finding that the notice under S.14(2) had been duly received by the defendant appellant No. 2, but he did not file objection within the period of limitation. Hence, the objection under Sections 14 and 30 of the Arbitration Act could not be taken into consideration. The learned trial Judge, therefore, accepted the award and passed an order for making the award a decree of the court.
(3.) MR. Shyama Prasanna Roy Chowdhury, the learned counsel appearing for the appellant, has contended that S.5 of the Limitation Act has universal application to all proceedings and S.5 comprehends a wide sweep and applies to all applications before a court except per proceeding under O. 21 of the Code of Civil Procedure. The application of the Limitation Act in cases governed by the Special Statute is also mentioned in S.29(2) of the Limitation Act and S.37 of the Arbitration Act also refers to Limitation Act of 1908. The Limitation Act of 1908 has since been replaced by the Limitation Act of 1963. By necessary implication, the provisions of Limitation Act of 1963 are also applicable to Arbitration Act. Accordingly the Court had power to consider the objections under Ss.14 and 30 of the Limitation Act against the award by condoning the delay, if any, in the special facts and circumstances of the case and the learned trial Judge erred in rejecting the said objection simply on the ground of limitation. In support of this contention, MR. Roy Chowdhury has referred to a Bench decision of the Andhra Pradesh High Court made in the case of Government of Andhra Pradesh v. M/s. Durgaram Prasad reported in AIR 1984 Andh Pra 14. He has also relied on a Bench decision of the Orissa High Court made in the case of Executive Engineer, Rural Engineering Division, Puri v. M/s. Construction India reported in AIR 1982 Orissa 18. It has been held in the said decisions that the period for filing objection under S.30 of the Arbitration Act may be extended under S.5 of the Limitation Act in view of the change brought about in S.5 of the Limitation Act. MR. Roy Chowdhury has also very strongly contended that admittedly the award was not registered, but the award intends to effect partition of immovable properties valued more than Rs. 100/-. He has contended that any instrument creating rights in respect of immovable properties worth more than Rs. 100/- is registrable under S.17(1)(b) of the Registration Act. If such instrument is not registered, the instrument is invalid and want of registration is a defect dehors the award. In the absence of registration, the award is a nullity and the court must dismiss the application for making such award a rule of the Court. In support of his contention, MR. Roy Chowdhury has relied on a Bench decision of this Court made in the case of Nani Bala Saha v. Ram Gopal Saha reported in AIR 1945 Cal 19. He has also referred to a Bench decision of Nagpur High Court made in the case of Uttamchand Motilalji v. Wasudeo Deorao Digambar reported in AIR 1946 Nag 311. It has been held in the said decisions that an award creating charge on immovable property worth more than Rupees 100/-, is registrable and if the award is not registered the same is a nullity and the decree on such award can be challenged in execution. MR. Roy Chowdhury has also referred to a Supreme Court decision made in the case of Satish Kumar v. Surinder Kumar reported in AIR 1970 SC 833. It has been held in the said decision that an award affecting immovable property exceeding Rs. 100/- requires registration under S.17(1)(b) of the Registration Act. MR. Roy Chowdhury has referred to another decision of the Supreme Court made in the case of Ratanlal Sharma v. Purushottam reported in (1974) 1 SCC 671 wherein it has been held that the award creating right of immovable property valued more than Rs. 100/- requires registration and the award is inadmissible in evidence for want of registration. The Supreme Court has further held that it is therefore not necessary to express any opinion on the merits of the award. Referring on the said decisions MR. Roy Chowdhury has contended that even if the objection filed by the appellant under Ss.14 and 30 cannot be taken into consideration on the ground that such objection had been filed beyond the period of limitation, the award should have been rejected in limine by the court as the same was invalid for want of registration.;