- (1.) THESE two writ petitions arise out of the same set of facts and, therefore, it would be convenient to dispose them of by a common order. The case of the petitioner is that he and his son Suresh Kumar had some dealings in partnership with Dr. Khet Lakhani and his son Suresh Kumar (respondents Nos. 3 and 4 in S. B. Civil Writ Petition No, 1574 of 1972 ). In order to resolve the disputes which arose between the aforesaid parties relating to their partnership business, three persons, namely Shri J. P. Chandani, Shri Chandan Gir and Shri daulat Ram were appointed as Arbitrators for effecting dissolution of partnership, rendition of accounts and division of assets, including moveable and immovable properties, alleged to be belonging to the partnership. Two of the aforesaid three Arbitrators, namely Shri J. P. Chandani and Shri Chandan gir are alleged to have given an ex parte award on March 29, 1972. The aforesaid two Arbitrators are further alleged to have submitted an application on March 29, 1972 Itself in the court of the Sub-divisional Officer, jodhpur praying that the so-called award be made a Rule of the court and a decree be passed in accordance therewith. The original award was also produced by the two Arbitrators before the Sub-divisional Officer, Jodhpur along with their application dated March 29, 1972, The above mentioned application was apparently made under Section 14 of the Arbitration Act, although no specific provision was referred to in the application itself. The petitioner's case further is that on coming to know that the so-called award was presented by the aforesaid two Arbitrators in the court of the Sub-divisional Officer, Jodhpur, he appeared before the Sub-divisional Officer and raised a preliminary objection in respect of the jurisdiction of that court to entertain the application under section 14 of the Arbitration Act or to proceed to pass a decree in accordance with it, on the ground that the same could be done only by a Civil Court. The Sub-divisional Officer, Jodhpur by his order dated May 1, 1972 rejected the aforesaid preliminary objection raised by the petitioner before it in respect of the jurisdiction of that Court to entertain the application of the two Arbitrators. The petitioner felt aggrieved against the aforesaid order of the Sub-Divisional officer and filed a writ petition in this court (being S. D. Civil Writ Petition No. 1120 of 1972) challenging the said order on the ground that the Sub-divisional officer had no jurisdiction to take any proceedings in the matter, being a revenue court. In that writ petition this Court passed an ad interim order of june 12, 1972, staying further proceedings before the Sub-divisional Officer. By an order dated August 7, 1972, this court further directed that the writ petition itself be listed for hearing and also ordered that the ad interim stay order passed on June 12. 1972, would continue. Ultimately by its order dated october 31, 1972, this court allowed the writ petition No. 1120 of 1972 filed by the petitioner and held that an application could be filed by the Arbitrators, seeking to make their award a rule of the Court, only in a court having civil jurisdiction and the Sub-divisional Officer, Jodhpur being a revenue court had no jurisdiction to entertain such an application. Consequently the order passed by the Sub-divisional Officer, Jodhpur on May 1, 1972, holding that he had jurisdiction to entertain the application filed by the two Arbitrators to make their award the rule of the Court was quashed.
(2.) DURING the pendency of the aforesaid writ petition No. 1120 of 1972 in this court, it appears that the two Arbitrators, who had filed the award in the court of the Sub-divisional Officer on March 29, 1972, along with an application for making it a rule of the court, submitting another application before the Sub-divisional Officer, Jodhpur on August 23, 1972, stating that the award was required to be registered under S. 17 (2) of the Indian Registration Act and that the original award may as such be returned to them for getting the same registered. The Sub-divisional Officer, on the very same day, it appears, returned the award to the two Arbitrators. Shri J. P. Chandani and Shri chandan Gir, and a receipt in token of having obtained the original award was obtained from them on the application dated August 23, 1972. The aforesaid two Arbitrators thereafter on that very day produced the original award before the District Registrar, Jodhpur along with an application under section 25 of the Registration Act praying that the delay in producing the original award for registration be condoned and that the same may be registered. The District Registrar on August 23, 1972. itself condoned the delay under Section 25 of the Registration Act, imposing a fine of Rs. 40/- for late presentation of the award and directed that further proceedings regarding registration be taken after payment of the aforesaid amount of fine. The application submitted by the two Arbitrators before the District Registrar, jodhpur under Section 25 of the Registration Act on August 23, 1972 along with the order passed thereon is reproduced hereafter, as considerable arguments have been advanced by the learned counsel for the parties in respect of this application and the order passed on it:-- "before the District Registrar, Jodhpur. Application u/s. 25 of the registration Act. Award was filed in court of S. D. O. . Jodhpur on 293-1972. Immediately after filing the award one of the Arbitrators was out of Jodhpur hence it could not be presented for registration. It is submitted that the delay of about 25 days may kindly be condoned and it be registered. Jodhpur Sd/- J. P. Chandani 23-8-72. Arbitrator. Sd/- Goswami Chandan Gir dt. 23-8-1972. " (In Hindi)Registration presented by Shri J. P. Chandani. Report be submitted. Sd/- Daya Shanker 23-8-72. Sir, this award was executed on 29-3-72 and should have been presented by 28-7-72 according to Section 23, but it has been submitted today i. e. after a delay of 25 days. The document can be registered after condonation of delay and payment of fine not exceeding ten times of the Registration fees as per Section 25. The Registration fees in this case will be Rs. 20/ -. Submitted. Sd/-Rs. 40/- fine is imposed. After payment of fine of Rs. 40/- (Rupees forty only) delay be condoned, u/s. 25 of the Registration Act and then action be taken for registration. Sd/- Daya Shanker 23-8-72. " The petitioner felt aggrieved by the order passed by the Sub-divisional officer, Jodhpur returning the original Award to the two Arbitrators and the order passed by the District Registrar, Jodhpur under Section 25 of the registration Act. condoning the delay in presentation of the original Award for registration and has filed the two writ petitions in this Court. Writ Petition No. 1574 of 1972 is directed against the order passed by the Sub-divisional Officer, jodhpur dated August 23, 1972, returning the original Award to the two arbitrators, while the Writ Petition No. 1573 of 1972 has been submitted against the order passed by the District Registrar, Jodhpur on August 23, 1972, accepting the original Award for registration and condoning the delay in the presentation thereof for registration and it has also been prayed that the district Registrar be restrained from taking further steps in connection with the registration of the Award, in pursuance of his order dated August 23, 1972. However, it appears that during the pendency of the aforesaid writ petitions the award was registered and the petitioner thereafter submitted an application seeking to amend the relief prayed for in his Writ Petition No. 1573 of 1972 by adding a further prayer to the effect that the Award which was later on registered on the basis of the order of the District Registrar dated August 23, 1972, may be declared as void and incapable of operating as a registered document. This application for amendment was allowed by this Court by its order dated September 24. 1973. Now the first submission, which has been made by the learned counsel for the petitioner in these two writ petitions is that the two Arbitrators, Shri J. P. Chandani and Shri Chandan Gir, became functus officio as soon as they signed the Award or at least soon after presenting the Award in the court of the Sub-Divisional Officer along with an application, purporting to be under Section 14 of the Arbitration Act, for making the award the Rule of the court. Learned counsel argued that the two Arbitrators having thus become functus officio, could thereafter neither take away the Award from the court of the Sub-divisional officer, Jodhpur, nor the Sub-Divisional Officer could return the original award to the aforesaid two Arbitrators, nor the two Arbitrators could subsequently present the original award for registration before the District Registrar, along with an application under Section 25 of the Registration Act. Learned counsel for the petitioner placed reliance in support of his aforesaid submission on the decision of their Lordships of the Supreme Court in Rikhabdass v. Bal-labhdas, air 1962 SC 551 and the decisions in Mt. Parbati v. Mt. Durga Devi, AIR 1928 lah 170 and Srinivasa Rao v. Venkata Narasimha Rao, AIR 1963 Andh Pra 193. Tek Chand J. in Mst. Parbati's case, AIR 1928 Lah 170 observed that the proposition of law was firmly established that an arbitrator became functus officio as soon as he delivered the award. It was also observed by the learned judge that after the delivery of the award, the reference made to the arbitrator was exhausted and the authority of the arbitrator was at an end and he was not at liberty to exercise his mind afresh in the case and to deliver another award. In the aforesaid case it was held that when the Arbitrator at a private arbitration had delivered an award, the court could not make another reference to the arbitrator, as the arbitrator had entered upon his duties and had already delivered the award, though not through the agency of the court.
(3.) IN Srinivasa Rao's case (AIR 1963 Andh Pra 193) it was held, following the decision of their Lordships of the Supreme Court in Rikhabdas's case, (AIR 1962 sc 551), that the Arbitrators became functus officio as soon as they signed the award. In that case the question arose as to whether the Arbitrators were entitled to rewrite the award, which was unstamped, subsequently on a duly stamped paper. In Rikhab Dass's case the question which arose for consideration was as to whether the award which was unstamped and unregistered could be remitted to the Arbitrator by the court with a direction to rewrite the same on a stamped paper and resubmit to the court. In that case, their Lordships of the Supreme Court were pleased to observe that the award having already been made, the arbitrator had become functus officio and that in case an award is remitted to him for rewriting the same on a stamped paper, it would involve the preparation of a fresh award on a stamped paper. Their lordships held that under Section 16 of the Arbitration Act an award could be remitted to the arbitrator by the court for purposes of reconsideration but want of stamp or registration were defects de hors the award or the decision of the arbitrator. It was, therefore, held that Sec. 16 was not applicable and an award could not be remitted to the arbitrator under the aforesaid provisions. It was also held by their Lordships in the aforesaid case that neither Section 13 (d) nor clauses (b)and (c) of Section 15 of the Arbitration Act were applicable in such a case, as there was no question of correction of any clerical mistake or accidental slip in the award, nor the Court could compel the arbitrator to exercise the powers under Section 13 (d ). Moreover, the omission to submit the award for registration or get the same registered could not be termed as clerical mistake or accidental slip in the award itself. Their Lordships also observed that if the award required to be stamped, Section 151 C. P. C. did not give the court any power to direct the arbitrator to make a fresh award. Their Lordships consequently set aside the order passed by the Division Bench of the High court remitting the award to the arbitrator under Section 16 (c) of the arbitration Act with the direction to get the same stamped and registered. However, their Lordships were pleased to make the following observations: "we, therefore, think that the Division Bench was in error in thinking that an order could be made remitting the award to the arbitrator with a direction to rewrite it on a stamped paper and re-submit it to court. That is the only point that we decide in this case. " Thus from the aforesaid decision it is firmly established that the arbitrator, having made and signed the award, becomes functus officio in the sense that he could not make any change in the substance of the award and that the court could not remit the award to the arbitrator, if the same is unstamped, to rewrite it on a stamped paper, either under the provisions of Section 13 (d) or Section 16 (c) or Section 15 (b) or (c) of the Arbitration Act or even under Section 151 of the Code of Civil Procedure, as rewriting the award on a stamped paper would result in the preparation of another award and the arbitrator could not as such be permitted to make a fresh award. In Juggilal Kamlapat v. General Fibre Dealers Ltd. , AIR 1962 SC 1123, their lordships of the Supreme Court were pleased to further examine the matter and made the following observations: "it is true that generally speaking, an arbitrator is functus officio after he has made the award; but this only means that no power is left in the arbitrator to make any change of substance in the award that he had made (except in certain circumstances which have been provided in the law ).-----We have already said that generally speaking, the arbitrator becomes functus officio after he has given the award; but that does not in our opinion mean that in no circumstances can there be further arbitration proceedings where an award is set aside or that the same arbitrator can never have anything to do with the award with respect to the same dispute. Section 13 (d), for example, gives power to the arbitrator for reconsideration. Therefore, when it is said that the arbitrator is generally functus officio after he has made the award, it only means that he cannot change that award in any matter of substance himself. " ;