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PETITIONER: RAJ KUMAR DEY AND OTHERS

       Vs.

RESPONDENT: TARAPADA DEY AND OTHERS

DATE OF JUDGMENT14/09/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) OZA, G.L. (J)

CITATION:  1987 AIR 2195            1988 SCR  (1) 118  1987 SCC  (4) 398        JT 1987 (3)   555  1987 SCALE  (2)551  CITATOR INFO :  D          1989 SC1923  (26)

ACT:      Arbitration  Act,   1940:  Sections   ll  and  14-Award affecting  immovable   property-Registration  of-Period   of limitation-What is-Period  during which judicial proceedings pending-Whether be excluded.      Registration Act, 1908: Sections 23 and 25-Arbitrator’s award-Registration of-period of limitation-What is.      Limitation Act,  1963: Section  15-Period during  which judicial proceedings pending-Whether to be excluded.

HEADNOTE:      An agreement was entered into by appellants Nos. 1 to 4 and respondent  No. 1  regarding partition  of joint movable and  immovable  properties.  A  dispute  arose  relating  to certain properties,  which was  referred to arbitration. The arbitrators made their award on November 28, 1977, which was filed by  them before  the Sub-Judge  on January  28,  1978, pursuant to  the application  made by appellants Nos. 1 to 4 under s. 14 of the Act.      On December  1, 1977,  respondent No.  I had  filed  an application under s. 11 of the Arbitration Act, 1940, before the Munsif, who passed an injunction order on July 26, 1978, for maintaining  status quo  till the  disposal of  the said application. On  the application  made by the arbitrators on 14th August,  1978, the  Sub-Judge ordered  on September  2, 1978, the returning back of the award to the arbitrators, to enable them  to present the same for registration before the Sub-Registrar. The  High Court in appeal set aside the above order holding  that during  the subsistence  of the  interim injunction to maintain status quo, the arbitrators could not take back  the award for presenting it for registration. and ordered that  the arbitrators’  application be  kept pending and 119 heard when the injunction order was vacated.      On December  20, 1982  the Munsif dismissed the case of the respondent  No. 1 and that interim injunction ipso facto was discharged.  Thereafter, the Subordinate Judge dismissed the application  of the  arbitrators for  returning  of  the

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award, holding that limitation for registration of the award had already expired. The High Court, in appeal, directed the Subordinate Judge  to return back the award, holding that it was the  Registrar and not the Sub-Judge who could determine the question  of limitation  for the purpose of registration of the award. On November 24, 1983, the arbitrators got back the award  and the  next day  presented it  before the  Sub- Registrar and the award was registered the same day.      The High  Court on  a  petition  by  respondent  No.  1 challenging the registration sent back the award to the Sub- Registrar to  re-consider the  question of  limitation.  The Sub-Registrar found that the award was presented within time as the  period during  which the  judicial proceedings  were pending, namely,  28th January, 1978 to 24th November, 1983, should be  excluded in  view of s. 15 of the Limitation Act. Against the  aforesaid decision,  respondent No.  1 filed an application before  the High  Court which,  by the  impugned order, quashed  the registration and held that the award had been presented for registration beyond time.      In the  appeal  by  special  leave,  the  validity  and propriety of the aforesaid order was challenged.      Allowing the appeal by special leave, this Court, ^      HELD: Under  the Registration Act, 1908, the limitation period for  registration is  four months  from the  date  of execution and  in cases where the delay in presentation does not exceed  four months, such document could be accepted for registration, on  payment of  fine. The cumulative effect of sections 23  and 25  read together is that a total period of eight  months   is  available   for  registration,   if  the conditions requisite are fulfilled. [122G; 123A-B] G      In the instant case, the award was made on November 28, 1977 and  before the  expiry of four months, it was filed in the court  pursuant to  the order  of the  court. During the period from  July 26,  1978 to  December 20, 1982, there was subsisting injunction preventing the arbitrators from taking any steps. Furthermore, as the award was in H 120 the custody  of the  court from  January 28,  1978 till  the return of the award to the arbitrators on November 24, 1983, the arbitrators  or the parties could not have presented the award for  its registration  during that time. The award was presented before  the Sub-Registrar on November 25, 1983 the very next  day of  getting possession  of the award from the court. The  Sub-Registrar, pursuant to the order of the High Court, found that the award was presented within time as the period during  which judicial  proceedings were pending from January 28,  1978 to November 24, 1983 should be excluded in view of  the principle laid down in s. 15 of the Act. [123G- H; 124A,D-E]      The High  Court was,  therefore, wrong  in holding that the only  period which  should be  excluded  was  from  26th January, 1978, the date of the order of the Munsif directing maintenance of status quo till 20th December, 1982, the date when the interim injunction was vacated. The award was still in the  custody of  the court  and there  was ample evidence that the  Arbitrators had tried to obtain the custody of the award which the court declined to give to them. [124E-G]      The two legal maxims LEX NON COGIT AU IMPOSSIBILIA, and ACTUS CURIAE  NEMINEM GRAVABIT-the law does not compel a man to do  that which  he cannot possibly perform, and an act of the Court  shall prejudice  no  man-would  apply  with  full vigour in the facts of this case. [124C]      Nityananda  M.  Joshi  and  others  v.  Life  Insurance Corporation of  India  and  others,  [1970]  I  S.C.R.  396,

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distinguished.      M. Venkataratnam  v. M.  Chelamayya, A.I.R. 1967 Andhra Pradesh 257 referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2224 of 1987.      From the  Judgment and  order dated  19.6.1986  of  the Calcutta High Court in Civil order No. 2278 of 1985.      S.N. Kacker and Sukumar Ghosh for the Appellants.      A.K.  Sen,   D.N.  Mukherji,   Ranjan  Choudhary,  N.R. Choudhary for the Respondents.      The Judgment of the Court was delivered by 121      SABYASACHI MUKHARJI, J. Special leave granted.      This appeal  is directed against the judgment and order of the  High Court  of Calcutta  dated 19th of June, 1986 in Civil order No. 2278 of 1985. On or about 11th of June, 1977 an unregistered  deed of agreement between the four brothers being the  appellants Nos.  1 to 4 and their eldest brother, respondent No  1 was  entered into  regarding  partition  of joint movable  and immovable  properties and  the same  were referred to three arbitrators; namely, three appellants Nos. 5, 6  and 7  herein. On  or about 2nd of July, 1977 the same agreement was re-written on a fresh stamp paper and the same was registered  by which  the  abovenamed  arbitrators  were given the  option to  take assistance  of one,  two or  more persons. The dispute related-to certain properties among the brothers in  Chinsurah the  district of Hooghly in the State of West Bengal. The three arbitrators took the assistance of appellant No.  8 and  he functioned  and acted as one of the arbitrators.      On or about November 28, 1977 the arbitrators explained their award to the parties and made and signed the award. On or about  1st December,  1977 the  eldest brother  filed  an application under  section l  l of the Arbitration Act, 1940 (hereinafter called  ’the Act’)  before the  learned Munsif, Arambagh being  Misc. Case  No. 74  of 1977.  The appellants Nos. I to 4 filed an application under section 14 of the Act before the  learned Sub  Judge, Hooghly at Chinsurah praying for a  direction on  the arbitrator to file the award in the court in  Misc. Case  No. 28  of 1977. The arbitrators filed the award  before the learned Sub-Judge Hooghly at Chinsurah on 28th  of January, 1978. On 26th of July, 1978 the learned Munsif, Arambagh  ordered interim  injunction on the parties including the  arbitrators to  maintain status  quo till the disposal of  Misc. Case  No. 74  of 1977  initiated  by  the appellant No.  l. On  14th of  August, 1978  the arbitrators made an application before the learned Sub Judge, Hooghly at Chinsurah to return back the award to enable them to present the same  before the  Sub-Registrar for registration. On 2nd September, 1978,  the learned Sub Judge fixed the hearing of the arbitrators’ application to return the award to them. In January, 1980 the arbitrators’ application was heard and the learned Sub  Judge  ordered  return  of  the  award  to  the arbitrators  to   enable  them   to  present  the  same  for registration.      The High  Court of  Calcutta in  Civil Rule  No. 621 of 1980 on 6th March, 1981 set aside the aforesaid order of the learned Sub Judge holding that during the subsistence of the interim injunction  order on  the  arbitrators  to  maintain status quo the arbitrators could not take 122

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back the award for presenting the same for registration. The High Court  ordered that  the arbitrators’ application dated 14th of  August, 1978  should be  kept pending  and be heard when the  injunction order  was vacated.  On 20th  December, 1982 the  learned Munsif,  Arambagh dismissed Misc. Case No. 74 of  1977 and  the interim injunction order ipso facto was discharged. The  arbitrators therefore, renewed their prayer before the learned Sub Judge to return the award. On 25th of February  1983   the  learned   Sub  Judge   dismissed   the arbitrators’ application  and did  not direct  return of the award holding  that the  limitation for  the registration of the award had already expired. The High Court in Civil order No. 589  of 1983  on 19th  of September,  1983 directed  the learned  Sub   Judge  to   return  back  the  award  to  the arbitrators holding  that it  was the  Registrar and not the Sub Judge who could determine the question of limitation for the purpose  of registration  of the  award. The learned Sub Judge. Hooghly  at  Chinsurah  on  23rd  of  November,  1983 ordered returning  back of  the award to the arbitrators. On 24th of  November, 1983  the arbitrators  got back the award from the  court. On  25th November, 1983 i.e., the very next day the  arbitrators presented  the award  before  the  Sub- Registrar, Arambagh  for  registration.  The  Sub-Registrar, Arambagh on 25th of November, 1983 registered the award. The High Court  in Civil order No. 9696(W) of 1984 on 24th July, 1984 had  sent  back  the  award  to  the  Sub-Registrar  to reconsider the  question of  limitation and  found that  the award was  presented within  time as the period during which the judicial  proceedings  were  pending,  namely,  28th  of January, 1978  to 24th  of November, 1983 should be excluded in view  of the  principle laid down under section 15 of the Limitation Act. On 19th June, 1986 by the judgment and order impugned the  High  Court  quashed  the  registration  under Article 227  of the  Constitution holding that the award had been presented  for registration  beyond  time.  It  is  the validity  and   propriety  of  that  order  which  is  under challenge in this appeal.      The limitation  period for  registration is four months from the  date of  its execution. The award was made on 28th of November,  1977 and  it was presented for registration to the Sub-Registrar  on 25th  of November, 1983. Section 23 of the  Registration   Act,  1908   (hereinafter  called   ’the Registration Act’) stipulates that the time for registration is four months from the date of its execution. Section 25(1) of the  Registration Act  provides that  if, owing to urgent necessity or unavoidable accident, any document executed, or copy of  a decree  or  order  made,  is  not  presented  for registration  till   after  the   expiration  of   the  time hereinbefore prescribed,  the Registrar,  in cases where the delay in  presentation does  not  exceed  four  months,  may direct that, on pay- 123 ment of  a fine  not exceeding  ten times  the amount of the proper registration-fee, such document shall be accepted for registration. Sub-section  (2) of  section 25  provides that any application for such direction may be lodged with a Sub- Registrar? who  shall forward  the same  to  the  Registrar. Therefore the  cumulative effect  of sections 23 and 25 read together is  that total  period of eight months is available for registration  if the  conditions are fulfilled. The High Court had  held  that  in  this  case  the  award  has  been registered after  six years  and as such was beyond time. It was held  before the  High Court  that no  registration  was permissible beyond  the period  fixed under  section 25 read with section 23 of the Registration Act and any registration

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beyond  such   period  would  be  void.  But  in  this  case admittedly the  award was in the court of the learned Munsif from 28th  of January,  1978  to  24th  of  November,  1983. Therefore, this  period, that  is to  say, from 28th January 1978 to  24th November, 1983 the award was in court and this was manifest  from the  order in  Misc. Case No. 28 of 1977. The arbitrators  had made  an application  on or  about 14th August 1974  for return  of the award but that was not done. Furthermore, there  was an  injunction on  26th  July,  1978 which was only vacated on 20th December, 1982.      We have  to bear in mind two maxims of equity which are well settled, namely, "ACTUS CURIAE NEMINEM GRAVABIT"-An act of the  Court shall  prejudice  no  man.  In  Broom’s  Legal Maxims.  10th  edition,  1939  at  page  73  this  maxim  is explained that  this maxim was founded upon justice and good sense; and  afforded  a  safe  and  certain  guide  for  the administration of  the law. The above maxim should, however, be applied  with caution.  The other maxim is "LEX NON COGIT AD lMPOSSIBILIA"  (Broom’s Legal Maxims-P. 162)-The law does not compel  a man  to  do  that  which  he  cannot  possibly perform. The  law itself  and the administration of it, said Sir W. Scott, with reference to an alleged infraction of the revenue laws,  must yield  to that  to which everything must bend, to  necessity; the  law,  in  its  most  positive  and peremptory injunctions,  is understood  to disclaim,  as  it does in  its general  aphorisms, all intention of compelling impossibilities, and  the administration  of laws must adopt that  general   exception  in   the  consideration   of  all particular cases.      In this  case indisputably  during the period from 26th of July,  1978 to  20th December,  1982 there was subsisting injunction preventing the arbitrators from taking any steps. Furthermore, as noted before the award was in the custody of the court,  that is  to say,  28th of January, 1978 till the return of the award to the arbitrators on 24th of 124 November, 1983,  the arbitrators  or the  parties could  not have presented  the award  for its  registration during that time. The  award as we have noted before was made on 28th of November, 1977 and before the expiry of the four months from 28th November,  1977, the  award  was  filed  in  the  court pursuant to  the order  of the court. It was argued that the order made  by the  court directing  the arbitrators to keep the award  in the custody of the court was wrong and without jurisdiction,  but  no  arbitrator  could  be  compelled  to disobey the  order of  the court  and if  in  compliance  or obedience with  court of doubtful jurisdiction, he could not take back  the award  from the  custody of the court to take any further  steps for  its registration  then it  cannot be said that  he has  failed to get the award registered as the law required.  The aforesaid  two legal  maxims-the law does not compel a man to do that which he cannot possibly perform and an  act of the Court shall prejudice no man would, apply with full  vigour in  the facts  of this case and if that is the position  then the  award as  we have  noted before  was presented  before   the  Sub-Registrar,   Arambagh  on  25th November, 1983  the very  next one day of getting possession of the  award from  the court. The Sub-Registrar pursuant to the order  of the High Court on 24th of June,1985 found that the award  was presented  within time  as the  period during which the  judicial proceedings were pending that is to say, from 28th  of January, 1978 to 24th of November, 1983 should be excluded in view of the principle laid down in section 15 of the  Limitation Act,  1963. The High Court, therefore, in our opinion, was wrong in holding that the only period which

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should be  excluded was  from  26th  July,  1978  till  20th December, 1982.  We are unable to accept this position. 26th July, 1978  was the  date of the order of the learned Munsif directing maintenance  of status  quo and  20th of December, 1982 was  the date  when the interim injunction was vacated, but still  the award  was in  the custody  of the  court and there  is  ample  evidence  as  it  would  appear  from  the narration of  events hereinbefore  made that the arbitrators had tried to obtain the custody of the award which the court declined to  give to them. The principles enunciated by this Court in  Nityananda M.  Joshi and  others v. Life Insurance Corporation of  India and  others, [1970] 1 S.C.R. 396 would have no application to the facts of this case.      It was  urged before  us that  an award  affecting  the immovable properties  which was not registered and which was made outside  the court could not form the basis of an award and an unregistered award, in other words could not form the basis of  the award.  We are unable to accept that position. There is  no  dispute  to  the  proposition  that  an  award affecting immovable properties as in the instant case should be 125 registered. It  is therefore,  not necessary  to discuss  in detail the  ratio of A the decision of the Full Bench of the Andhra  Pradesh   High  Court  in  M.  Venkataratnam  v.  M. Chelamayya, A.I.R. 1967 Andhra Pradesh      In the  aforesaid view  of the  matter the judgment and order of  the High  Court cannot  be sustained  and are  set aside. The  appeal is  allowed and  the order  of  the  Sub- Registrar, Arambagh dated 24th of June, 1985 is restored. In the facts  and  circumstances  of  the  case,  however,  the parties are directed to pay and bear their own costs. N.P.V.                                       Appeal allowed. 126