MAHESHWAR DAYAL Vs. NEEL KANTHESHWAR DAYAL

JUDGEMENT

(1.) THIS appeal arises in the following circumstances. Sheo Dularay filed an application under Section 14 (2) of the Arbitration Act before the Court below alleging that he was appointed Arbitrator by the present appellant and the respondents Nos. 1 and 2 to effect partition of immovable properties situate at village Korar and Sair as also at Lucknow. He made his Award on 9-10-1973 and filed the same in the Court below on 6-11-1973. The respondents Nos. 1 and 2 filed their separate objections praying that the Award be set aside, on a variety of grounds stated in their objections. One of the common grounds taken in the objections was that the Award having not been made on stamp-paper of requisite value was inadmissible in evidence and cannot be acted upon and that the Award which was compulsorily registrable had not been registered under the provisions of the Indian Registration Act; hence it was invalid. The present appellant Maheshwar Dayal disputed this assertion. A number of other grounds were taken impugning the Award but they need not be mentioned here for the purposes of this appeal. A preliminary issue was framed in the following terms :-

(2.) THE trial Court held that the Award in question is vitiated for want of registration and as it was not properly stamped it was liable to be impounded. THE application for making the Award Rule of the Court was rejected and the objections filed by the present respondents Nos. 1 and 2 were allowed, THE Award was impounded with a direction to be sent to the Collector for necessary action. Maheshwar Dayal being aggrieved has filed the instant appeal.

(3.) WE shall now proceed to examine the rival contentions of the parties, It was not in dispute that the impugned award dated 9-10-1973 was not made on stamp paper of requisite value, In fact it did not bear any stamp at all. The award was also not registered under the provisions of the Indian Registration Act, The arbitrator filed this award in the Court without getting it registered. When an objection was raised by the respondents Nos. 1 and 2 that the impugned award being not stamped was inadmissible in evidence and could not be acted upon Maheshwar Dayal made an application on 7-7-1975 stating that he was prepared to pay stamp duty of his 1/3rd share amounting to Rs. 153,75 and praying that Neelkantheshwar and Trideshwar Dayal (respondents Nos, a and 2) be asked to deposit the remaining 2/3rd share of the stamp duty and thereafter a certificate on the award that proper stamp duty had been paid be endorsed under the Stamp Act and the same be admitted in evidence. Again on 13-8-1975 Maheshwar Dayal filed an application stating that if the other opposite parties would not pay the share of their stamp duty and penalty he was ready to pay the stamp duty and penalty, if any, of their shares also and to obtain a certificate over the award to the effect that the same is properly stamped and is admissible in evidence. Shiv Dularey Srivastava the arbitrator also filed his affidavit in the Court below dated 9-1-1976 stating, inter alia, that after completing the hearing of the parties and after the inspection of the properties he sent a registered notice dated 17-9-1973 to the present appellant and the respondents Nos. 1 and 2 separately, requesting them to appear before him on 23-9-1973 at his residence in village Bibipur, giving them an opoprtunity to state any other fact or file any document, if they desired, in support of their claims and also file their share of stamp duty and share of registration charges for the award and that in compliance of that notice Neel Kantheshwar Dayal and Trideshwar Dayal jointly approached the arbitrator on 23-9-1973 reiterating their earlier statements and promising to pay their share of stamp duty on the next date of hearing and requested that the registration of the award be done after the same was declared and made the rule of the Court, Maheshwar Dayal also promised to send the stamp duty on the next date of hearing and suggested that the award be registered after the same was declared and made the rule of the Court, 30-9-1973 was fixed as the next date of hearing on which date the stamp duty was to be paid. However, none of the parties filed the stamp duty before the arbitrator by 30-3-1973 (30-9-1973?). It is further alleged by the arbitrator that till 9-10-1973 he did not receive the stamp duty from the parties except that Maheshwar Dayal offered Jus share of stamp duty but since the other two defendants had not deposited their share of stamp duty he did not accept the share of the stamp duty from Maheshwar Dayal also (vide para 26 of the affidavit), The arbitrator says that it was in these circumstances that the award was made without bearing proper stamp and without being registered.