KUSUMLATABEN D. KAMANI Vs. PRAFULCHANDRA NARBHERAM KAMANI

JUDGEMENT

(1.) THIS is a Notice of Motion for a decree in terms of the award in which some interesting questions of law have been raised on behalf of the defendant who has opposed it. Disputes and differences having arisen between the two parties, as representing two branches of the same family, regarding the estate of the deceased Narbheram, by an arbitration agreement dated June 15, 1973, all those disputes were referred to the arbitration, of one Rule R.K. Kamani who was respected as the head of the family. The said R.K. Kamani made his award on December 27, 1973, the greater part of which has already been carried out. The said arbitrator filed his award in this Court on February 27, 1975, and the present Notice of Motion has thereafter been taken out for a judgment being pronounced in accordance with that award and a decree being passed thereon under Section 17 of the Indian Arbitration Act, 1940. It is the contention of Mr. A.N. Modi on behalf of the plaintiff that the terms of Section 17 are mandatory, and that once the arbitrator files his award in this Court, a decree must be passed by this Court in accordance with that award. It is his contention that the arbitrator having filed the award in this Court, the plaintiff has no other remedy, but to apply for a decree in terms of that award, since no petition has been filed to set it aside.

(2.) AS against these contentions of Mr. Modi, Mr. Thakkar has submitted that no decree can be passed by this Court on the award in the present case for two reasons, viz. (1) this is not the Court in which the award should have been filed, and this Court, has therefore, no jurisdiction to pass a decree in accordance with that award; and (2) in view of Section 49(c) of the Registration Act, the award, cannot be looked at for the purpose of passing a decree in so far as it is one which operates to affect rights in immoveable property, and, therefore, requires registration under Section 17(1)(b) of that Act.

(3.) TURNING to the first of those two questions, it is true that Section 17 uses the word 'shall' in connection with the pronouncing of a judgment in terms of an award and passing a decree thereon, but a division Bench of this Court has laid down in the case of Hastimal Dalichand v. Hiralal (1953) 56n Bom. L.R. 99 that if an award directs a party to do an act which is prohibited by law, or if it is otherwise patently illegal or void, it would be open to the Court to consider that patent defect in the award suo motu, and that the words used both in Sections 17 and 30 of the Arbitration Act are wide enough to include the jurisdiction of the Court to deal with the matters covered by those sections suo motu, though the Court would exercise that jurisdiction rarely and only where the award may be patently illegal and void. The decision of the division Bench in Hastimal Dalichand's case is, however, distinguishable in so for as it cannot be said that the award in the present case is invalid in any respect. It is a perfectly valid award, at any rate, for the purpose of the present Motion in which it was not necessary to go into any grounds that may exist for setting aside the award since that is not the nature of the application before me. In my opinion, however, it would be a legitimate extention of the principle of Hastimal Dalichand's case to apply it to a case like the present one. Applying that principle, I hold that, on a Notice of Motion for a decree in terms of the award, the Court should consider the question whether the award has been filed in the proper Court and whether that Court has the jurisdiction to pass a decree on the award. Even without any independent application being made to take the award off the file, or for similar relief, this Court can, and indeed, should, even suo motu, go into the question as to whether it has the jurisdiction to pass a decree in terms of the award. Holding, as I do, that it has no such jurisdiction in the present case, I must, decline to grant the relief sought on this Motion.