SATYENDRA SHUKLA Vs. MANORAMA RAGHUVANSHI

JUDGEMENT

(1.) Seeking constitution of an Arbitral Tribunal and invoking the jurisdiction of this Court under Section 11(6) of the Arbitration and Conciliation Act, this application has been filed by the applicant.

(2.) Dispute in question pertains to enforcement of an agreement for sale entered into between the parties for sale of certain property. Vide an agreement for sale executed between the parties at Bhopal on 7th August, 2004 parties agreed to sell certain property situated in village Kalkheda, Tahsil Huzur, District Bhopal bearing old Khasra No.24/1 measuring 2 acres. According to the applicant the agreement was entered into as is filed along with the application and in the said agreement the description of the property is indicated by referring to the old Khasra number as 24/1 measuring 2 acres. The boundaries of the property on all sides are indicated in the agreement and thereafter the property is also demarcated and identified by the portion marked in 'red' enclosed to a map which forms part of the agreement. However, after so indicating particulars of the property while entering into the agreement, new khasra number of the property has not been mentioned completely and as thereafter certain blank space is left. Initially there were some deficiency in payment of stamp duty with regard to the agreement, matter went to the Court of Collector (stamps) exercising jurisdiction of a statutory authority under the Stamps Act and stamp duty on the agreement has been affixed in accordance to the directions of the competent authority. It is the case of the applicant that as the agreement for sale is not being given effect to in its true later and spirit, they seek enforcement of arbitration clause as contained in Clause 6 of the agreement.

(3.) Shri Ravish Agrawal, learned Senior Counsel argued that even though the agreement in question is properly stamped and it contemplates an arbitration clause but the respondents have raised an objection and contend that as the agreement is not complete and as the new khasra number is not properly incorporated in the agreement, the agreement is a void agreement and based on such a agreement, arbitral proceedings is not maintainable and no arbitrator can be appointed. Shri Ravish Agrawal, learned Senior Counsel points out that merely because new Khasra number is not mentioned properly in the agreement, the agreement will not become a void agreement. Referring to Section 29 of the Indian Contract Act, 1982, learned Senior Counsel argues that if the meaning and import of the agreement is capable of being ascertained from the agreement then such an agreement would not be a void agreement. Referring to illustrations given under Section 29 of the Indian Contract Act particularly, illustrations (c) and (e), learned Senior Counsel argues that in the agreement in question the identification of the property is given in more than two ways. The property is identified by its old Khasra number and area, secondly it is identified by means of the boundaries of the property on all sides and thirdly, it is also identified with reference to the purchase made by the vendor from the original owner by a registered sale deed dated 13.10.1988 bearing registration No. A1/5699 Srl. No.4181 in the office of Deputy Registrar, Registration, Bhopal. Accordingly, contending that in the agreement in question sufficient material is available for identifying and demarcating the property, therefore, it cannot be construed that the agreement is void or incomplete. Learned Senior Counsel submits that agreement is not a void agreement and can be given effect to. In this regard, he invites my attention to certain principles laid down by the Supreme Court in the case of Sheodhyan Singh and others Vs. Mst. Sanichara Kuer and others, 1963 AIR(SC) 1879 and by referring to the principles laid down in the said judgment it is argued that if there is no doubt as to the identity of the property and if there is only a mis- description of the property, it is merely a irregularity and the agreement on such misdescription of the area would not become void if the identification of the property and its area can be made from other relevant information available in the agreement. Similarly placing reliance on another judgment of the Supreme Court in the case of Ram Khilona and others Vs. Sardar and others, 2002 6 SCC 375, learned counsel argues that in para 12 and 13 of this judgment also after referring to certain principles laid down in Halsbury's Laws of England, 4 Edn. Vol. 12 at pp.552-53 it has been held that if the alteration in a document is not material and which does not vary the legal effect of the documents and if it expresses in clear terms the particulars of the property, the agreement will not become a void agreement. It was submitted by Shri Ravish Agrawal, learned Senior Counsel that in the present case also the property can be identified by the description of the property given in the manner as indicated herein above and mere non mention of one part of the new khasra number will only amounts to mis-description of the property and on such ground agreement cannot be refused to be enforced for the purpose of maintainability of this proceedings under Section 11 of the Arbitration and Conciliation Act. Shri Agrawal, learned Senior Counsel therefore, submits that as the question of the agreement being fraud or not are question of dispute which are to be adjudicated by the Arbitrator, for the present in the light of the arbitration clause available in the agreement entered into between the parties, dispute be referred to the Arbitral Tribunal for adjudication.