Friday, August 19, 2011

SPECIFIC PERFOMANCE OF CONTRACT, ARBITRATION AGREEMENT, FRAUD ON COURT TO AVOID STAMP DUTY AND REGISTRATION – The appellants – two brothers, are the co-owners with equal shares, in lands measuring in all 98 Kanals and 19 marlas situated in village Udana, Tehsil Indri, District Karnal. They entered into an agreement to sell the said lands to the sons of Furu Ram and Kalu Ram (brothers) the respective first respondent in these two appeals, on 18.10.1991 for a consideration of . 2 Rs.14,22,000/- and received Rs.1,00,000 as earnest money. As per the terms of the agreement, the balance was to be paid by the purchasers at the time of registration of the sale deed and the sale was to be completed by 31.1.1992.


                                                                            Reportable




                    IN THE SUPREME COURT OF INDIA




                      CIVIL APPELLATE JURISDICTION




                   CIVIL APPEAL NOS. 7085-7086 OF 2011


              [Arising out of SLP (C) Nos. 10049-10050 of 2010]








Ramesh Kumar & Anr.                                               ... Appellants




                                          Vs.




Furu Ram & Anr. etc.                                                   ... Respondents










                                  J U D G M E N T








R.V.RAVEENDRAN, J.










       Leave granted. For convenience parties will also be referred by their 




ranks in the suit or by name. 








2.     The appellants - two brothers, are the co-owners with equal shares, in 




lands measuring in all 98 Kanals and 19 marlas situated in village Udana, 




Tehsil Indri, District Karnal. They entered into an agreement to sell the said 




lands to the sons of Furu Ram and Kalu Ram (brothers) the respective first 




respondent   in   these   two   appeals,   on   18.10.1991   for   a   consideration   of 



                                              2






Rs.14,22,000/- and received Rs.1,00,000 as earnest money. As per the terms 




of the agreement, the balance was to be paid by the purchasers at the time of 




registration of the sale deed and the sale was to be completed by 31.1.1992.










The case of appellants (Ramesh Kumar & Naresh Kumar)








3.      The respondents were not in a position to pay the balance of the sale 




consideration   and   therefore   failed   to   get   the   sale   completed   by   31.1.1992. 




The respondents requested for refund of the earnest money of Rs.100,000/-. 




The appellants were not willing to return the earnest money in view of the 




breach by the respondents. There was a panchayat in that behalf wherein it 




was   decided  that   the   appellants   should   permit   the  respondents   to  cultivate 




their   said   lands   for   a   period   of   one   and   half   years   without   any   rent   in 




satisfaction   and   discharge   of   the   claim   for   refund   of   Rs.100,000/-.   In 




pursuance of the said panchayat settlement, appellants delivered possession 




of the suit lands to the respondents. The respondents represented that they 




would reduce the terms of the said settlement into writing and requested the 




appellants   to   come   to   Kurukshetra   to   sign   some   papers.   The   appellants 




trusted   the   respondents   as   it   was   a   panchayat   settlement   and   went   to 




Kurukshetra,   and   signed   the   papers   given   by   the   respondents,   under   the 




bonafide   belief   that   they   were   signing   papers   relating   to   the   terms   of   the 



                                              3






aforesaid settlement. The respondents also asked the appellants to appear in 




court   and   confirm  the   same.   The   appellants   accordingly   went   to   the   court 




and   nodded   their   assent   when   asked   whether   they   were   agreeable   for   the 




settlement. 










4.      Some   months   thereafter,   a   suit   was   filed   against   appellants   in   June 




1992   by   one   Lal   Singh   and   others   claiming   pre-emption.   During   the 




pendency of that suit, the appellants learnt that the respondents had obtained 




a  mutation  in  their   favour  on  the  basis  of  some  decrees  obtained  by  them 




from   the   court   of   Senior   Sub-Judge,   Kurukshetra.   On   verification,   the 




appellants were surprised to learn that consent orders had been passed by the 




court of Sr. Sub-Judge, Kurukshetra   on 30.3.1992 in C.S.No.366/1992 and 




C.S.No.367/1992, directing decrees be drawn in terms of arbitration awards 




dated   13.3.1992   made   by   one   Chandra   Bhushan   Sharma,   Advocate, 




Kurukshetra, appointed as per reference agreements dated 12.3.1992. 










5.      According   to   appellants,   the   agreements   dated   12.3.1992,   the 




arbitration awards dated 13.3.1992, the consent decrees dated 30.3.1992 and 




the   mutations   in   favour   of   respondents   were   all   illegal,   null   and   void   and 




non-est,  being   the   result   of   fraud   and   misrepresentation   on   the   part   of 



                                             4






respondents. According to appellants, the allegations in the said agreements, 




awards and as also the plaints in CS Nos.366 and 367 of 1992 that appellants 




had   borrowed   Rs.8   lacs   from   Furu   Ram   and   Rs.8   lacs   from   Kalu   Ram 




agreeing   to   repay   the   same   with   interest   at   2%   per   month,   that   they   had 




given their lands to Furu Ram and Kalu Ram as they were not able to repay 




the two loans of Rs.800,000/- each, were all false. They alleged that they had 




not engaged any counsel for appearance in CS Nos.366 and 367 of 1992, nor 




signed   any   written   statements,   nor   participated   in   any   arbitration 




proceedings, nor made any statements agreeing for making decrees in terms 




of   any   award.   The   appellants   claimed   that   they   only   signed   some   papers 




which respondents had represented to be documents relating to giving their 




lands on licence basis for one and half years instead of returning the earnest 




money deposit of Rupees One Lakh. The appellants therefore filed two suits 




on 11.11.1993 (renumbered as CS No.63 and 64 of 1997) in the court of the 




Civil Judge, Junior Division, Kurukshetra, against Furu Ram and Kalu Ram 




respectively   for   a   declaration   that   the   judgments   and   decrees   dated 




30.3.1992   in   C.S.No.366/1992   and   367/1992   (by   which   the   awards   dated 




13.3.1992 were made the rule of the court), the agreements dated 12.3.1992, 




the   awards   dated   13.3.1992,   the   proceedings   in   C.S.No.366/1992   and 




367/1992 and the mutations  in pursuance  of the said decrees  were all null 



                                              5






and void, non-est and not binding on them and for the consequential relief of 




possession of the suit properties. In the said suits (CS No.63 of 1997 and 64 




of   1997)   the   arbitrator   `C.B.   Sharma'   was   impleaded   as   the   second 




defendant. 








The case of respondent (Furu Ram and Kalu Ram)








6.      In their respective written statements in the two suits, Furu Ram and 




Kalu Ram alleged that they were ready to get the sale deeds registered on the 




date   fixed   for   sale   as   per   the   agreement   of  sale   dated   18.10.1991,   but   the 




appellants evaded, and therefore the matter  was referred to Arbitrator C B 




Sharma   by   both   parties   for   settlement.   It   was   further   alleged   that   the 




Arbitrator recorded the statements of appellants as well as respondents and 




made the awards. They contended that the awards made by the arbitrator and 




the decrees made in terms of the awards were lawful and valid. 








The Proceedings








7.      In the two suits filed by appellants (C.S.Nos.63 and 64 of 1997) the 




trial   court   framed   appropriate   issues   as   to   whether   judgments   and   decrees 




dated   30.3.1992   were   null   and   void;   whether   plaintiffs   were   entitled   to 




possession; whether the suits were not maintainable; whether the suits were 



                                              6






not within time; and whether plaintiffs were estopped from filing the suits, 




by their  own conduct; and whether  the suits  were bad for misjoinder/non-




joinder of parties. Parties led oral and documentary evidence in support of 




their cases. 








8.      The   trial   court   decreed   the   two   suits   of   appellants   by   common 




judgment   dated   7.2.1998.   The   trial   court   held   that   as   the   awards   dated 




13.3.1992   created   a   right   in   immovable   properties   in   favour   of   the 




respondents   who   did   not   have   any   pre-existing   right   therein,   they   were 




compulsorily registrable;  and as  the arbitration  awards  were  not registered 




under   the   Registration   Act,   1908,   they   were   invalid   and   consequently   the 




judgments   and   decrees   dated   30.3.1992   of   the   court,   making   decrees   in 




terms of the said awards were also invalid. In view of the said finding the 




trial court declared  that the decrees dated 30.3.1992, the agreements  dated 




12.3.1992, the awards dated 13.3.1992 and the mutations were illegal, null 




and void, not binding on the plaintiffs and granted the relief of possession. 




In   the   course   of   the   said   judgment,   the   trial   court   however   held   that   the 




evidence   of   the   advocate   Sudhir   Sharma   (DW-3)   and   the   arbitrator   C.B. 




Sharma (DW-1) showed that the appellants had full knowledge of the facts 




and circumstances of the two cases (CS Nos.366 and 367 of 1992) and only 




thereafter   they   filed   written   statements   admitting   the   claims;   and   that 



                                               7






therefore the case of the appellants that the consent decrees dated 30.3.1992 




were obtained by fraud and misrepresentation could not be accepted.










9.      The respondents filed appeals against the said common judgment and 




decrees   dated   7.2.1998   of   the   trial   court.   The   said   appeals,   filed   on 




19.3.1998, renumbered as C.A. No.37/2003 and 38/2003, were allowed by 




the   first   appellate   court   (Addl.   District   Judge,   Kurukshetra)   by   judgment 




dated 3.8.2004 and the common judgment and decrees of the trial court in 




the   two   suits   were   set   aside   and   the   suits   filed   by   the   appellants   were 




dismissed with costs. The first appellate court held that the consent decrees 




in terms of the awards could not be challenged on the ground that they were 




not registered; that having regard to section 32 of the Arbitration Act, 1940, 




no   suit   would   lie   on   any   ground   whatsoever,   for   a   decision   upon   the 




existence, effect or validity of an award, nor could any award be enforced, 




set aside, modified or in any way affected, otherwise than as provided under 




the   said   Act;     that   an   award   could   be   challenged   or   contested   only   by   an 




application under section 33 of the Act, and an award could be set aside only 




on   any   of   the   grounds   mentioned   in   section   30   of   the   said   Act.   The   first 




appellate court further held that as no application was filed under sections 30 




and 33 of the said Act by appellants for setting aside the awards and as the 



                                                 8






awards had been made rule of the court, the suits for declaration filed by the 




appellants were barred by section 32 of the Arbitration Act, 1940, and were 




not maintainable. The second appeals filed by the appellants against the said 




common  judgment of the first appellate  court were dismissed by the High 




Court by judgment dated 11.8.2009 holding that decrees passed by a court in 




terms of the arbitration awards under section 17 of the Arbitration Act, 1940, 




did not require registration and that arbitration awards could be challenged 




only by applications under section 33 of the said Act. 








Questions for consideration








10.            The said common judgment of the High Court is challenged in these 




appeals by special leave. On the contentions urged, the questions that arise 




for our consideration are as under: 








       (i)       Whether the suits by appellants were not maintainable?






       (ii)      Whether the courts below were justified in holding that there was 


                 no   fraud   or   misrepresentation   on   the   part   of   the   respondents   in 


                 obtaining the decrees in terms of the awards dated 13.3.1992? 




       (iii)     Whether   the   arbitration   awards   dated   13.3.1992   were   invalid   for 


                 want of registration? 




       (iv)      Whether the orders dated 30.3.1992 directing that the said awards 


                 be made the rule of the court, invalid?



                                             9






Re: Question (i) 








11.     The   appellants   sought   a   declaration   that   the   orders   dated   30.3.1992 




passed   by   the   Senior   Sub-Judge,   Kurukshetra   in   C.S.No.366   and   367   of 




1992   (directing   that   decrees   be   drawn   in   terms   of   the   awards   dated 




13.3.1992)   and   the   decrees   drawn   in   terms   of   the   awards   as   also   the 




agreements   dated   12.3.1992   and   the   awards   dated   13.3.1992   which   led   to 




such   decrees,   were   null   and   void,   as   they   were   the   result   of   fraud   and 




misrepresentation;  and that the mutations obtained on the basis of the said 




decrees were also null and void. In other words, the appellants were seeking 




a   declaration   that   the   proceedings   before   the   court   of   Sr.   Sub-Judge, 




Kurukshetra, in the two suits under sections 14 and 17 of the Arbitration Act 




1940 resulting in the orders dated 30.3.1992 and decrees made pursuant to 




the said orders dated 30.3.1992 were null and void as they were vitiated by 




fraud and misrepresentation and for the consequential relief of setting aside 




the   mutations   based   on   such   decrees   and   possession   of   the   lands.   The 




challenge to the validity of the agreements dated 12.3.1992 and awards dated 




13.3.1992   was   incidental   to   challenge   the   orders   dated   30.3.1992   and   the 




decrees drawn in pursuance of such orders. The first appellate court and the 




High Court have therefore erroneously proceeded on the basis that the suits 




were filed only for declaring that the arbitration agreements dated 12.3.1992 



                                              10






and awards dated 13.3.1992 were invalid and that suits for such declaration 




were not maintainable having regard to the bar contained in sections 32 and 




33 of the Arbitration Act, 1940. What has been lost sight of is the fact that 




the challenge was to the orders dated 30.3.1992 making the awards rule of 




the court. To establish that the said judgments and decrees were obtained by 




fraud and misrepresentation and therefore invalid, it was also contended that 




the   agreements   dated   12.3.1992   and   the   awards   dated   13.3.1992   and   the 




proceedings initiated under sections 14 and 17 of the Arbitration Act, 1940 




seeking   decrees   in   terms   of   the   awards   were   all   fraudulent.   Therefore, 




sections   32   and   33   of   Arbitration   Act,   1940   were   not   a   bar   to   the   suits 




(C.S.Nos. 63 and 64 of 1997) filed by the appellants.    








Re : Question (ii)








12.     The  manner  in which the agreements  dated 12.3.1992 were entered, 




the awards dated 13.3.1992 were made and the said awards were made rule 




of the court, clearly disclose a case of fraud.  Fraud can be of different forms 




and different hues. It is difficult to define it with precision, as the shape of 




each   fraud   depends   upon   the   fertile   imagination   and   cleverness   who 




conceives   of   and   perpetrates   the   fraud.   Its   ingredients   are   an   intention   to 




deceive,   use   of   unfair   means,   deliberate   concealment   of   material   facts,   or 



                                                    11






abuse   of   position   of   confidence.   `Fraud'   is   `knowing   misrepresentation   of 




the   truth   or   concealment   of  a   material   fact   to   induce  another   to  act   to  his 




detriment'. `Fraud' is also defined as a concealment or false representation 




through a statement or conduct that injures another who relies on it in acting. 




(vide The Black's Law Dictionary). Any conduct involving deceit resulting 




in injury, loss or damage to some one is fraud.










13.     Section 17 of the Indian Contract Act, 1872 defines `fraud' thus :




        "17.   `Fraud'   defined.-`Fraud'   means   and   includes   any   of   the   following 


        acts committed by a party to a contract, or with his connivance, or by his 


        agent,   with   intent   to   deceive   another   party   thereto   or   his   agent,   or   to 


        induce him to enter into the contract : 




        (1)     the suggestion, as a fact, of that which is not true, by one who does 


                not believe it to be true; 


        (2)     the active concealment of a fact by one having knowledge or belief 


                of the fact; 


        (3)     a promise made without any intention of performing it; 


        (4)     any other act fitted to deceive; 


        (5)     any   such   act   or   omission   as   the   law   specially   declares   to   be 


                fraudulent. 




        Explanation.- Mere silence as to facts likely to affect the willingness of a 


        person to enter into a contract is not fraud, unless the circumstances of the 


        case are such that, regard being had to them, it is the duty of the person 


        keeping  silence to speak, or unless  his silence,  is in itself, equivalent  to 


        speech." 










The   word   `fraud'   is   used   in  section   12   of  Hindu  Marriage   Act,   1955  in   a 




narrower sense. The said section provides that a marriage shall be voidable 




and   annulled   by   a   decree   of   nullity   if   the   consent   of   the   petitioner   was 



                                                    12






obtained by `fraud' as to the nature of the ceremony or as to any material 




fact or circumstance concerning the respondent. In the context in which it is 




used refers to misrepresentation, false statement, deception, concealment.








14.     Differently   nuanced   contextual   meanings   of   the   word   `fraud'   are 




collected   in  P.Ramnatha   Aiyar's   Advanced   Law   Lexicon  (3rd  Edition, 




Book 2, Page 1914-1915). We may extract two of them : 




                "Fraud, is deceit in grants and conveyances of lands, and bargains 


                and   sales   of   goods,   etc.,   to   the   damage   of   another   person   which 


                may   be   either   by   suppression   of   the   truth,   or   suggestion   of   a 


                falsehood. (Tomlin)




                The   colour   of   fraud   in   public   law   or   administrative   law,   as   it   is 


                developing, is assuming different shade. It arises from a deception 


                committed   by   disclosure   of   incorrect   facts   knowingly   and 


                deliberately to invoke exercise of power and procure an order from 


                an   authority   or   tribunal.   It   must   result   in   exercise   of   jurisdiction 


                which   otherwise   would   not   have   been   exercised.   That   is 


                misrepresentation must be in relation to the conditions provided in 


                a   section   on   existence   or   non-existence   of   which   power   can   be 


                exercised." 










Any wilful attempt to defeat or circumvent any tax law in order to illegally 




reduce one's tax liability is a tax evasion which is termed as a tax fraud. The 




stamp   duty   payable   under   Stamp   Act   is   considered   to   be   a   species   of   tax 




levied on certain transfer documents and instruments. Any wilful attempt to 




defeat the provision of the Stamp Act or illegally evade one's liability to pay 




stamp duty will be a stamp evasion which would amount to a fraud.



                                            13






15.    One of the plaintiffs (Naresh Kumar) was examined as PW-1 and Raj 




Kumar, a member of the Panchayat was examined as PW-2. The evidence of 




PW1 (Naresh Kumar) and PW2 (Raj Kumar)  is  consistent  and narrate  the 




events described in the plaints in the two suits showing the deceit and fraud 




practiced upon the appellants. The plaintiffs exhibited two documents that is 




revenue extracts showing the mutation in favour of the respondents and the 




decrees   made   in   pursuance   of   the   orders   dated   30.3.1992   by   the   Sr.   Sub-




Judge in CS Nos.366 and 367 of 1992. 










16.    The defendants - respondents did not step into the witness box to give 




their version, which leads to an adverse inference that if the defendants had 




examined themselves, their evidence would have been unfavourable to them 




(vide section 114 of Evidence Act, 1872 read with illustration (g) thereto). 




They   however   examined   five   witnesses   :   C.B.   Sharma,   the   arbitrator,   was 




examined   as   DW-1;   Ram   Kumar,   their   power   of   attorney   holder   was 




examined   as   DW   2;   Sudhir   Sharma,   their   Advocate   who   appeared   in 




C.S.No.366 and 367 of 1992, was examined as DW-3; Chander Pal, said to 




be a member  of the panchayat  was examined  as DW4; and Devi Dayal,  a 




court officer, was examined as DW-5 in connection with the production of 




documents from the court.  They also got exhibited among other documents, 



                                              14






the   agreement   of   sale   dated   18.10.1991,   the   reference   agreements   dated 




12.3.1992   appointing   C.   B.   Sharma   as   arbitrator,   the   statements   of   parties 




allegedly   recorded   by   the   Arbitrator   on   12.3.1992,   the   awards   dated 




13.3.1992 made by the Arbitrator, the plaints, written statements and order-




sheets all dated 16.3.1992 and the final order dated 30.3.1992 in CS Nos.366 




and   367   of   1992,   the   decrees   in   terms   of   the   awards   and   the   declarations 




made by appellants on 31.3.1992. 










17.     The oral evidence of defendants' witnesses (DW1 to DW4) unfolds a 




story, different  from what was pleaded by them in their  written statement. 




We may refer to the said evidence briefly. 










18.     C. B. Sharma who was examined as DW-1 stated that the parties gave 




him   the   agreements   dated   12.3.1992   appointing   him   as   arbitrator,   that   as 




arbitrator he recorded the statements of the appellants and the respondents 




and on that basis, made the awards dated 13.3.1992. He states that appellants 




appeared   before   the   court   and   consented   to   the   award   as   per   proceedings 




Ex.D4   dated   16.3.1992   and   he   identified   them   as   their   counsel   before   the 




court. On further questioning, he admitted that he was not aware about the 




transaction   of sale   and  purchase   between  the  parties   or  whether  there   was 



                                              15






any dispute  at all in regard to sale  or purchase  of land. He stated  that the 




parties   submitted   an   arbitration   agreement   in   regard   to   a   loan   and   that   he 




gave   the   awards   in   regard   to   the   loan;   and   that  the   reference   agreements  




dated 12.3.1992 were not in regard to any dispute relating to property nor  




about  the sale  or  purchase  thereof  nor  about  specific  performance  of any  




agreement of sale and that the dispute was only in regard to money and he  




was not appointed as arbitrator to settle any dispute in regard to any land. 




He also stated that he did not charge any fee in regard to the arbitration or 




making the awards. 










19.     DW2 - Ram Kumar, (son of Furu Ram), power of attorney holder of 




defendants, stated that the agreement of sale in regard to 98 kanals 19 marlas 




was got executed for a consideration of Rs.14 lakhs in favour of three sons 




of Furu Ram (Ram Swaroop, Veer Singh and Ram Kumar) and four sons of 




Kalu Ram (Bhagat Ram, Jagir Singh, Ramesh Kumar and Lala Ram); that 




Rs.One lakh was given as earnest money under agreement dated 18.10.1991; 




that there was a dispute in regard to the price and the dispute was decided by 




a   panchayat   consisting   of   Chander   Pal,   Purushottam,   Harbhajan,   C.   B. 




Sharma (Advocate) and Sudhir Sharma (Advocate) and Rs.15 lakhs was paid 




in cash in their presence to the appellants; that after paying the money it was 



                                                16






decided that a court decree should be obtained in favour of the respondents 




and C.B. Sharma was then appointed as the arbitrator to obtain a decree; that 




C. B. Sharma made the awards and decrees were obtained from the court on 




the basis of the said awards. 










20.     DW-3   -   Sudhir   Sharma   who   was   the   counsel   for   the   respondents 




stated   that   there   was   a   dispute   in   regard   to   the   sale   price   of   the   property 




agreed to be sold  by  appellants  to respondents. There  was a panchayat  on 




12.3.1992   where   it   was   agreed   that   the   sale   price   should   be   increased   by 




Rs.200,000/-. In addition to the earnest money of Rs.100,000/-, earlier paid, 




another sum of Rs. fifteen lakhs was paid in cash by the defendants to the 




plaintiffs in full and final settlement before the members of the panchayat. 




The parties felt that the expenses of stamp duty and registration of sale deed 




would be high and agreed for an arbitration award and a decree in terms of 




it. The panchayat resolved the dispute at around 1.30 p.m. Both parties and 




C.B.   Sharma   thereafter   came   to   his   chamber.   The   agreements   dated 




12.3.1992   referring   disputes   to   arbitration,   were   prepared   by   the  arbitrator 




C.B. Sharma. The said agreements were signed by the parties in his (Sudhir 




Sharma's) office. The parties had also given their statements to C.B. Sharma 




in   his   office.   The   arbitrator   made   the   awards   on   13.3.1992.   On   the 



                                            17






instructions of respondents (Furu Ram and Kalu Ram), he filed the two suits 




under  sections  14  & 17  of  the Act  for  making decree  in terms   of  the  two 




awards   in   the   sub-court   on   16.3.1992.   The   owners   of   the   land   Ramesh 




Kumar and Naresh Kumar were impleaded as defendants 1 and 2 in the said 




two   suits   and   the   Arbitrator   C.B.   Sharma   was   impleaded   as   the   third 




defendant. C.B. Sharma, represented defendants and 1 and 2 as their counsel 




in the two suits. The court recorded the statements of both parties. After the 




statements of the appellants (defendants in those suits) were recorded by the 




court, they were identified by their counsel C.B. Sharma. He stated (in cross-




examination) that the payment of Rs.15 lakhs was made after the appellants 




made statements before court agreeing for a decree in terms of awards.










21.    DW-4   Chander  Pal   Singh  stated   that   he  was   instrumental   in   getting 




the   parties   to   enter   into   the   agreement   of   sale;   that   dispute   arose   as 




respondents wanted to register sale deeds showing a lesser consideration and 




appellants  wanted  the  sale  deed   for  the  full  consideration;  that  therefore   a 




panchayat   was   conveyed;   that   he   was   present   when   the   negotiations   took 




place   before  the  panchayat   and    settlement  was reached   by   agreeing   for  a 




price of Rs.16 lakhs; that Rs.15 lakhs was paid by Ram Kumar (Power of 




Attorney Holder of respondents) to appellants in the presence of Panchayat 



                                               18






consisting   of   himself,   Purushottam,   Harbhajan   and   Sudhir   Sharma.   Sudhir 




Sharma, counsel for respondents got C.B.Sharma as Arbitrator  to make  an 




award.   After   the   decrees   were   made   in   terms   of   the   awards,   he   tore   the 




receipt for Rs.15 lakhs given by appellants. 










22.     The   respondents'   version   of   what   transpired   as   emerging   from   the 




evidence of their four witnesses (DW1 to DW4) (shorn of inconsistencies in 




the evidence) can thus be summarized as follows : The sale in terms of the 




agreement   of   sale   dated   18.10.1991   did   not   take   place,   as   the   appellants 




unreasonably demanded an increase in price for executing the sale deed. The 




dispute   was   brought   up   before   a   panchayat.   It   was   agreed   before   the 




panchayat that the respondents should pay a sum of Rs.15,00,000 in addition 




to   earnest   money   of   Rs.1,00,000/-,   thereby   increasing   the   price   to 




Rs.16,00,000/-   instead   of   Rs.14,22,000/-.   The   respondents   paid   the   entire 




balance   of   Rs.15,00,000/-   in   cash   in   a   lump   sum   to   the   appellants   in   the 




presence  of the panchayat.  To  avoid the heavy  expenditure  towards stamp 




duty and registration charges for the sale deed, it was agreed that arbitration 




awards would be obtained in favour of respondents and the appellants would 




agree   for   decrees   in   terms   of   the   awards,   so   as   to   confer   title   upon   the 




respondents, instead of executing sale deeds. In pursuance of it, the parties 



                                            19






entered   into   two   agreements   dated   12.3.1992   appointing   C.B.   Sharma, 




Advocate, as arbitrator. The said arbitrator recorded the statements of parties 




on 12.3.1992 and made  awards dated 13.3.1992 declaring Furu Ram to be 




the owner in possession of 49 Kanals 10 Marlas of land and Kalu Ram to be 




the   owner   of   49   Kanals   and   9   Marlas   of   land.   Thereafter,   Furu   Ram   and 




Kalu  Ram  filed  petitions  under sections   14 and  17 of  the  Arbitration   Act, 




1940   in   the   Court   of   the   Senior   Sub   Judge,   Kurukshetra   praying   that   the 




awards   in   their   favour   be   made   the   rule   of   the   court.   By   orders   dated 




30.3.1992 the court directed decrees be drawn up in terms of the award. In 




pursuance   of   the   decrees,   Furu   Ram   and   Kalu   Ram   also   got   the   lands 




mutated to their names. The decrees dated 30.3.1992 in terms of the awards 




were   valid   and   binding,   and   neither   the   decrees   nor   the   awards   were 




fraudulent.








23.    We   may   now   refer   to   the   documentary   evidence   produced   by   the 




defendants - respondents, which narrate a completely different story. 








24.    The reference agreements dated 12.3.1992, the statements recorded by 




the Arbitrator on 12.3.1992 and the awards dated 13.3.1992, all stated that 




appellants had borrowed Rs.8 lacs from Furu Ram and Rs.8 lacs from Kalu 




Ram in November 1991 and had agreed to repay the same with interest at 



                                                 20






the rate of 2% per month   that as they were not able to repay the amounts 




borrowed with interest, they agreed to give 49 kanals 10 marlas of land to 




Furu   Ram   and   49   kanals   9   marlas   of   land   to   Kalu   Ram   and   delivered 




possession and confirmed the same before the arbitrator. The arbitral awards 




stated that the disputes relating to payment of Rs.8 lacs with interest thereon 




were referred to the Arbitrator, that the appellants had admitted borrowing 




Rs.8 lacs from Furu Ram and Rs.8 lacs from Kalu Ram and further admitted 




that being unable to pay the said amount, had given 49 kanals 10 marlas of 




land   to   Furu   Ram   and   49   kanals   9   marlas   of   land   to   Kalu   Ram     and 




therefore, Furu Ram has become the owner of 49 Kanals and 10 Marlas  of 




land and Kalu Ram had become the owner of 49 kanals and 9 marlas of land. 








25.    The   identical  plaints   dated  13.3.1992  in  the  two  suits   (CS  Nos.366-




367 of 1992) under sections 14 and 17 of the Arbitration Act, 1940 filed by 




Furu Ram and Kalu Ram read as under :








       "Application   u/s   14/17   of   the   Arbitration   Act   to   make   the   award   dated 


       13.3.1992 the rule of the court.




       Sir,




                It is prayed as under:-




       1. That the respondents no.1 and 2 had borrowed a sum of Rs.8,00000/- 


       from the applicant-plaintiff. 




       2. That the respondents no.1 and 2 failed to repay the amount and interest 


       to applicant - plaintiff. 



                                                    21










       3. That vide agreement dt.12-3-1992 the respondent no.3 was appointed as 


       Arbitrator to decide the matter.




       4. That the respondent no.3 has decided the matter vide  award  dated  13-


       3-1992.




       5. That the applicant - plaintiff has been declared as owner in possession 


       of the property mentioned in the award enclosed herewith.




       6.   That   the   applicant   -   plaintiff   has   been   put   in   possession   of   the   said 


       property   at   the   spot   and   is   debarred   from   recovering   the   amount   and 


       interest from the respondents no.1 and 2.




       7. That the respondents no.1 and 2 have refused to admit the award.




       8. That the agreement and award were executed at Thanesar, Kurukshetra 


       so this learned court has got jurisdiction to try this application.




       9. That the required court fees is paid on the application.




       It is, therefore, prayed that the award dated 13-3-1992 may kindly be made 


       the   rule   of   the   court   whereby   the   plaintiff-applicant   may   kindly   be 


       declared   as   owner   in   possession   of   the   land   measuring   49   Kanals   10 


       Marlas detailed as under:-"






       [Note   :   The   other   plaint   by   Kalu   Ram   was   identical   except   the   extent 


       which was 49 kanals 9 marlas and the description of the lands].










26.    The written statements were also filed on the same day the suits were 




filed, that is 16.3.1992. The written statements were not signed by either of 




the   appellants   but   were   signed   by   C.B.   Sharma   (defendant   no.3   in   those 




suits) as advocate for the defendants 1 and 2 (appellants). The brief written 




statements  stated  that paras  1 to 7 of the plaint  were correct  and admitted 




and that paras 8 and 9 were legal and that therefore the suit be decreed. 



                                               22






27.     The order-sheets dated 16.3.1992 in the said two suits, recorded that 




the appellants (defendants 1 & 2 in the suits) appeared and stated that they 




had   no   objection   for   decrees   being   made   in   terms   of   the   award.   The 




appellants signed the order-sheets and were identified by the arbitrator C.B. 




Sharma as their counsel.  The   cases   (C.S.Nos.366   and   367   of   1992) 




thereafter   came   up   before   the   learned   Sr.Sub-Judge   on   30.3.1992.   The 




parties   were   not   present.   The   orders   of   the   court   dated   30.3.1992   in   both 




suits were identical and they are extracted below : 




        "Present : Counsel for the parties.




        Heard. Since the parties are not at issue, so the award dated 13.3.1992 - 


        Ex C1 is made the rule of the court. Decree sheet be prepared accordingly 


        and the award dated 13.3.1992 - Ex C1 shall form the part of the decree 


        sheet. The file be consigned to the record room."










28.     We find three different versions from the pleadings and evidence led 




by   the   respondents.   The   case   set   forth   in   their   written   statements   was 




completely   different   from   the   case   made   out   in   the   evidence   of   their 




witnesses DW1, DW2, DW3 and DW4. More interestingly, the case set forth 




in the written  statements  and the case  made  out in the oral  evidence  were 




completely different from what is stated in the documentary evidence. Let us 




refer to them briefly. 



                                             23






(a)     The written statements filed by the respondents merely stated that the 




appellants  did not execute the sale deed, on the date fixed for sale, as per 




agreement of sale dated 18.10.1991 and therefore, and the said dispute was 




referred to arbitration and awards were made by the arbitrator on the basis of 




their statements and decrees were made in terms of the award. 








(b)     The   evidence   of   DW1   to   DW4   was   that   appellants   unreasonably 




demanded the price to be increased from Rs.14,22,000/- to Rs.16,00,000/-, 




that   the   resultant   dispute   was   referred   to   Panchayat,   that   a   price   of 




Rs.16,00,000/-   was   agreed   before   the   Panchayat   on   12.3.1992,   that 




immediately  the respondents  paid the balance of Rs.15,00,000/- in cash  to 




the appellants in the presence of the panchayat, that the respondents felt that 




the stamp duty and registration expenses were high and that therefore, it was 




agreed   on   the   suggestion   of   their   counsel   that   they   should   resort   to   the 




process of getting an arbitration award and decree to convey the title instead 




of execution of a sale deed. It was stated that C. B. Sharma was appointed as 




the arbitrator who made the awards and decrees were obtained in terms of 




the awards. 








(c)     The   documentary   evidence,   that   is   the   reference   agreements,   the 




statements   recorded   by   the   Arbitrator,   the   awards,   the   plaints   in   the   suits 




under sections 14 and 17 of Arbitration Act, 1940, on the other hand do not 




refer to the agreement of sale or the payment of price. They showed that the 




appellants   had   borrowed   Rs.8   lakhs   from   Furu   Ram   and   Rs.8   lakhs   from 




Kalu Ram, about four months  prior to 12.3.1992, and had agreed to repay 




the same with interest at 2% per month; that thereafter, Furu Ram and Kalu 




Ram demanded the money and the appellants were not in a position to repay 



                                              24






the   loans   and   therefore   a   dispute   arose;   and   that   by   mutual   consent,   C.B. 




Sharma was appointed as an Arbitrator and parties agreed to be bound by his 




decision.   The   appellants   allegedly   made   statements   before   C.B.   Sharma 




(Arbitrator)   admitting   that   they   had   taken   Rs.8   lakhs   from   Furu   Ram   and 




Rs.8 lakhs from Kalu Ram as loans, agreeing to repay the same with interest 




at 2% per month, and that as they did not have the means to repay the same, 




they had given 49 Kanals 10 Marlas to Furu Ram and 49 Kanals 9 Marlas of 




land to Kalu Ram and also delivered possession of respective lands to Furu 




Ram and Kalu Ram. 










It is well settled that no amount of evidence contrary to the pleading can be 




relied on or accepted. In this case, there is variance and divergence between 




the   pleading   and   documentary   evidence,   pleading   and   oral   evidence   and 




between the oral  and documentary evidence. It is thus clear that the entire 




case of the respondents is liable to be rejected. The different versions clearly 




demonstration fraud and misrepresentation on the part of the respondents. 










29.     The trial court in its judgment in C.S.Nos.63 and 64 of 1997 inferred 




from the evidence  of DW1 (C.B. Sharma) and DW3 (Sudhir Sharma) that 




appellants   had   knowledge   of   the   full   facts   and   circumstances   of  the   cases 




filed   under   sections   14   and   17   of   the   Arbitration   Act   and   that   with   such 




knowledge,   they   had   filed   written   statements   therein,   admitting   the   facts 



                                              25






and,   therefore   it   could   not   be   said   that   the   judgments   and   decrees   dated 




30.3.1992   were   obtained   by   misrepresentation   and   fraud.   But   the 




documentary evidence produced by the respondents clearly showed that in 




CS   Nos.   366   and   367   of   1992,   no   notice/summons   were   issued   to 




defendants;   that   appellants   (defendants   1   &   2)   did   not   sign   the   written 




statements which admitted the plaint averments; that the arbitrator who was 




the  third  defendant  in  those  suits,  very  strangely  appeared  as  advocate  for 




defendants 1 and 2 (appellants) and signed the written statement and made a 




statement   before   the   court   on   30.3.1992   that   defendants   did   not   have   any 




objection to the awards. All this lends credence to the case of appellants that 




respondents had conspired with  DW1 and DW3 and got certain documents 




prepared   and   persuaded   appellants   who   were   barely   literate,   to   give   their 




consent   on   16.3.1992   by   misrepresenting   to   them   that   they   were   giving 




consent for giving their lands for cultivation to respondents for a period of 




one   and   half   years   as   per   the   settlement.   The   trial   court   ignored   relevant 




evidence   and   drew   a   wrong   inference   that   there   was   no   fraud   or 




misrepresentation. 










30.     Let us now refer to the fraudulent manner in which the orders were 




obtained from the Sr. Sub-Judge, Kurukshetra for making decrees in terms 



                                           26






of   the   award.   According   to   the   evidence   of   respondents,   the   events   took 




place as under : 








Stage I (12.3.1992)




(a)       Settlement   before   the   Panchayat   that   appellants  12.3.1992


          should   sell   the   property   to   the   respondents   for 


          Rs.16 lacs


(b)       Decision  of respondents to avoid stamp duty  and  12.3.1992


          registration charges and instead have an arbitration 


          award   through   Advocate   C.   B.   Sharma   as 


          arbitrator   and   then   get   decrees   in   terms   of   the 


          awards


(c)       Reference agreements prepared by CB Sharma for  12.3.1992


          referring  the dispute to himself


(d)       The signing of the reference agreement by parties                   12.3.1992




(e)       Statements   of   parties   recorded   by   CB   Sharma   in  12.3.1992


          the   office   of   Sushil   Sharma,   Advocate   for 


          respondents   wherein   appellants   confirmed   that 


          they had given the lands to respondents




Stage II (13.3.1992)




(a)       Awards made by the Arbitrator                                       13.3.1992


(b)       Plaints under sections 14 and 17 of Arbitration Act  13.3.1992


          prepared   by   Sushil   Sharma,   on   behalf   of 


          respondents 




Stage III (16.3.1992)




(a)       CS   Nos.366   and   367   of   1992   under   sections   14  16.3.1992


          and 17 of the Arbitration Act filed by respondents 


          on


(b)       Written statements in the said suits signed by C.B.  16.3.1992


          Sharma as Advocate for appellants (defendants in 


          the suit) filed on


(c)       The   statements   of   appellants   that   they   were  16.3.1992



                                              27






           consenting to the decree, recorded by the court on 




Stage IV 




(a)        Orders  made directing decrees being drawn up in  30.3.1992


           terms of the award 


(b)        Undated declaration by appellants confirming that  31.3.1992


           they had agreed for decrees in favour of Furu Ram 


           and Kalu Ram attested by an Executive Magistrate 


           (with the endorsement "I know Naresh Kumar and 


           Ramesh   Kumar   and   they   have   signed   in   my 


           presence   made"   by   Sushil   Sharma,   advocate   for 


           respondents) 







The above narration will show that even according to the evidence  produced 




by   the   respondents   the   entire   arbitration   was   sham   and   nominal,   that   an 




alleged   Panchayat   had   settled   the   dispute   on   12.3.1992,   that   thereafter, 




Sushil Sharma, advocate for respondents and C.B. Sharma, an advocate who 




was   made   to   act   as   an   Arbitrator   at   the   instance   of   respondents   created   a 




bunch   of   documents   and   obtained   the   signatures   of   the   appellants   and 




created proceedings for obtaining decrees in terms of the awards.  










31.     C. B. Sharma was an advocate engaged by respondents through their 




counsel Sushil Sharma, to make awards in their favour. On 12.3.1992, he is 




appointed as arbitrator. On 13.3.1992, he makes the awards and gives them 




to respondents. On 16.3.1992, he signs the written statements of defendants 




(appellants   herein)   in   the   proceedings   under   sections   14   and   17   of 



                                             28






Arbitration Act, 1940 as their counsel. Though he is the third defendant in 




the said two suits (C.S. Nos.366 and 367 of 1992), he appears as the counsel 




for defendants 1 and 2 without their consent or knowledge. On 30.3.1992, he 




makes   a   statement   on   behalf   of   defendants   1   and   2   that   they   have   no 




objection for decrees being made. We fail to understand how a counsel can 




do these things. His acts are fraudulent. 










32.     We   may   next   refer   to   the   inconsistencies   and   improbabilities   in   the 




evidence.   According   to  respondents,   the   appellants   had   refused   to   execute 




the sale deed, for the price of Rs.14,22,000/- and demanded an increase in 




the price; that in the presence of a panchayat, an increase in price was agreed 




on   12.3.1992,   and   that   the   entire   balance   price   of   Rs.15,00,000/-   was 




immediately   paid   in   cash   on   12.3.1992   in   the   presence   of   the   panchayat. 




While DW2 says that Rs.15,00,000/- was paid in cash in the presence of the 




Panchayat. DW-3 Sudhir Sharma states that the payment was made after the 




appellants made a statement before the court agreeing for a decree in terms 




of the awards, that is on 16.3.1992. Further, it is highly improbable that the 




respondents   would   have   attended   the   Panchayat   readily   carrying 




Rs.15,00,000/-   in   cash   and   paid   it   immediately   after   the   settlement.   If   the 




said evidence is accepted, the entire documentary evidence showing that two 



                                             29






sums   of   Rs.800,00/-   each   were   given   as   loans   to   appellants   about   four 




months   prior   to   12.3.1992   and   the   lands   were   given   to   respondents   as 




appellants could not repay the same are proved to be false and fraudulent. 










33.     We   may   next   refer   to   the   stamp   fraud   committed   by   respondents. 




According   to   the   DW-1   to   DW-4   under   the   agreement   of   sale   dated 




18.10.1991, the sale price agreed was Rs.14,22,000/-, that in the presence of 




a   panchayat,   there   was   a   settlement   and   the   price   was   increased   to 




Rs.16,00,000 for 98 kanals 19 marlas of land, that the said price  was paid 




half being the sale price in regard to an extent of 49 Kanals 10 marlas sold to 




Furu Ram and the remaining half being the sale price in regard to an extent 




of 49 Kanals 9 Marlas sold by appellants to Furu Ram and Kalu Ram. The 




respondents   wanted  to   avoid   payment   of   stamp   duty   and   registration  




charges   on   the   sale   deeds.     They   were   advised   by   their   lawyer   that   they  




could get decrees from a civil court in terms of an arbitration award so that  




sale   deeds   need  not  be  executed   and  stamp  duty  and  registration   charges  




need not be paid. It was decided by the respondents on the advice of their  




lawyer   to   get   arbitration   awards   declaring   them   as   owners   and   also   get  




court decrees in terms of the awards. .  On the same  day (12.3.1992) their 




lawyer   got   reference   agreements   prepared   through   the   arbitrator   C.B. 



                                              30






Sharma   which   were   executed   by   the   parties   to   get   arbitration   awards   by 




consent. In short the agreements, arbitration awards and decrees were sham 




and nominal, the object of respondents being to evade the stamp duty and 




registration charges payable with respect to a sale deed, by obtaining decrees 




from the court in terms of the awards which declared their title. 










34.     Let   us   refer   to   another   facet   of   such   stamp   fraud.   There   can   be   a 




reference to arbitration only if there is a dispute and there is an agreement to 




settle the dispute by arbitration. If the parties had already settled the disputes 




before a panchayat for sale of half of the property to Furu Ram and another 




half to Kalu Ram for a consideration of Rs.8,00,000 plus Rs.8,00,000/-, and 




appellant   had   received   the   entire   consideration,   and   delivered   possession, 




there   was   no   dispute   between   the   parties,   that   could   be   referred   to 




arbitration. The respondents, on the advice of their advocate Sudhir Sharma 




decided to have a nominal and sham arbitration proceedings and awards by 




C.B.   Sharma   and   get   decrees   made   in   terms   of   the   awards,   only   to   avoid 




stamp   duty   and   registration   charges.   The   entire   procedure   was   fraudulent 




because   (i)   there   was   no   dispute   between   the   parties;   (ii)   there   was   no 




reference of any dispute to arbitration; (iii) the reference agreements dated 




12.3.1992   were   prepared   and   executed   in   pursuance   of   a   pre-existing 



                                            31






arrangement to have a collusive awards; (iv) the arbitrator was not required 




to decide any dispute between the parties, nor was there any adjudication of 




the dispute by the arbitrator. DW-1 who claims to be the arbitrator clearly 




stated   in   his   evidence,   that   the   reference   under   the   agreements   dated 




12.3.1992   was   in   regard   to   a   dispute   relating   to   loan   of   Rs.800,000/- 




advanced to each appellant. Therefore, the statements in the two awards that 




the   reference   agreements   dated   12.3.1992   were   in   regard   to   a   dispute   in 




regard to the failure to repay the two loans of Rs.800,000/- each and interest 




thereon;   that   the   appellants   admitted   before   the   Arbitrator   that   they   had 




borrowed Rs.8,00,000 from Furu Ram and Rs.8,00,000 from Kalu Ram; that 




the appellants did not have the means to repay the same and that instead of 




repaying the amount with interest, that they had therefore given to Furu Ram 




an extent of 49 Kanals 10 Marlas and to Kalu Ram, 49 Kanals 9 marlas of 




land; that Furu Ram and Kalu Ram confirmed that they had already taken 




the  said   lands   in  lieu  of  the  amount due  to  them, are  also   false  and  at  all 




events, sham averments to create two awards. The references to arbitration, 




the   proceedings   before   the  arbitrator,   the  awards   of  the   arbitrator,   and   the 




proceedings in court to get decrees in terms of the awards, and the decrees in 




terms of the award were all thus sham and bogus, the sole fraudulent object 




being to avoid payment of stamp duty and registration charges. 



                                             32










35.     The  modus   operandi  adopted   by   the   respondents   to   obtain   title   to 




lands   without   a   conveyance   and   without   incurring   the   stamp   duty   and 




registration charges due in respect of a conveyance by obtaining a sham and 




collusive arbitration awards when there was no dispute, and then obtaining a 




nominal   decree   in   terms   of   the   said   awards   would   be   a   fraud   committed 




upon   the   court   and   the   state   government   by   evading   liability   to   pay   the 




stamp   duty   and   registration   charges.   The   irregularities,   illegalities, 




suppressions   and   misrepresentations   which   culminated   in   the   orders   dated 




30.3.1992 in CS NOs.366 and 367 of 1992 directing that the awards dated 




13.3.1992 be made decrees of the court, show that the decrees in terms of the 




awards were obtained fraudulently. 










36.     Normally, this Court would not interfere with a finding of fact relating 




to   fraud   and   misrepresentation.   But   as   material   evidence   produced   by   the 




defendants - respondents had been ignored and as the courts below failed to 




draw proper inferences therefrom and had ignored a cause of fraud, we are 




constrained to interfere with reference to a question of fact.  The suits were 




decreed by the trial court on the ground that the decrees were null and void 




and all the reliefs sought were granted.  When the decrees dated 30.3.1992 




were   held   to   be   null   and   void,   the   question   of   plaintiffs   challenging   any 



                                                    33






other   finding   in   the   judgment   did   not   arise.   Therefore   when   the   first 




appellate court and High Court held that the decree was not null and void, 




the   plaintiffs-appellants   were   entitled   to   urge   all  grounds   to  show   that   the 




entire transaction and arbitration proceedings were fraudulent and the decree 




was also a result of fraud. Be that as it may. 








Re : Point (iii)








37.     Chapter III of Registration Act, 1908 relates to registrable documents. 




Section   17   enumerates   the   documents   which   are   compulsorily   registrable 




and the exceptions to the categories of documents which are compulsorily 




registrable. The relevant portions of the said sections are extracted below: 








        "17. Documents of which registration is compulsory




        (1) The following documents shall be registered, if the property to which 


        they relate is situate in a district in which, and if they have been executed 


        on   or   after   the   date   on   which,   Act   No.   XVI   of   1864,   or   the   Indian 


        Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian 


        Registration Act, 1877 or this Act came or comes into force, namely:-




                                                xxx       xxx       xxx




        (b) other non-testamentary instruments which purport or operate to create, 


        declare,   assign,   limit   or   extinguish,   whether   in   present   or   in   future,   any 


        right,   title   or  interest,   whether  vested   or  contingent,  of  the   value   of  one 


        hundred rupees, and upwards, to or in immovable property;




        (c)   non-testamentary   instruments   which   acknowledge   the   receipt   or 


        payment   of   any   consideration   on   account   of   the   creation,   declaration, 


        assignment, limitation or extinction of any such right, title or interest; and




        (2) Nothing in clauses (b) and (c) of sub-section (1) applies to-



                                              34






                                           xxx      xxx    xxx




        (vi) any decree or order of a court except a decree or order expressed to be 


        made   on  a   compromise,   and  comprising   immovable   property  other   than 


        that which is the subject-matter of the suit or proceeding]."








38.     A   reading   of   these   provisions   make   the   following   position   clear   (a) 




any   non-testamentary   document   purporting   or   operating   to   create,   declare 




any right, title or interest in any immoveable property of the value of more 




than Rs.100 is compulsorily registrable; (b) that an order or decree of a court 




is   not   compulsorily   registrable   even   if   it  purports   or   operates   to   create, 




declare any right, title or interest in any immoveable property of the value of 




more than Rs.100; (c) that if the decree or order of the court is not rendered 




on  merits,  but  expressed  to  be  made   on  a  compromise   and  comprises  any 




immoveable   property   which   was   not   the   subject   mater   of   the   suit   or 




proceeding, such order or decree is compulsorily registrable; and (d) that as 




clause   (iv)   of   sub-section   (2)   of   section   17   excludes   decrees   or   orders   of 




court, but does not exclude awards of arbitrator, any arbitration award which 




purports   or   operates   to   create,   declare   any   right,   title   or   interest   in   any 




immoveable   property   of   the   value   of   more   than   Rs.100   is  compulsorily 




registrable. 



                                              35






39.     As noticed above, the reference agreements dated 12.3.1992 were not 




in   regard   to   any   agreement   of   sale   or   any   dispute   relating   to   immoveable 




property, or in regard to the lands in regard to which the award was made. It 




did   not   refer   to   the   lands   in   question.   No   dispute   regarding   immoveable 




property   was   referred   to   arbitration   or   was   the   subject   matter   of   the 




arbitration.   The   alleged   subject   matter   of   arbitration   was   non-payment   of 




Rs.8,00,000   said   to   have   been   borrowed   by   each   of   the   appellants.   The 




arbitrator  recorded   an  alleged  statement   by   the  borrowers   (appellants)  that 




they had received Rs.8,00,000 from Furu Ram and Rs.8,00,000/- from Kalu 




Ram;   that   they   were   not   able   to   refund   the   same   and   therefore   they   had 




given   lands   measuring   49   Kanals   10   Marlas   to   Furu   Ram   and   another   49 




Kanals 9 Marlas to Kalu Ram; and that Furu Ram and Kalu Ram confirmed 




that   they   had   obtained   possession   of   the   said   land.   The   awards   therefore 




declared that Furu Ram and Kalu Ram had become the absolute owners of 




the lands in question. Thus the awards are clearly documents which purport 




or operate   to create   and  declare  a  right,  title  or interest   in an  immoveable 




property of the value of more than Rs.100 which was not the subject of the 




dispute or reference to arbitration. Therefore the awards were compulsorily 




registrable. If they were not registered, they could not be acted upon under 




section   49   of   the   Registration   Act,   1908   nor   could   a   decree   be   passed   in 



                                                     36






terms   of   such   unregistered   awards.   Unregistered   awards   which   are 




compulsorily registrable under section 17(1)(b) could neither be admitted in 




evidence nor can decrees be passed in terms of the same. 










40.    In  Ratan Lal Sharma vs. Purshottam Harit  AIR 1974 SC 1066, this 




court held : 




       "So  in  express   words   it  purports  to  create  rights  in  immovable  property 


       worth   above   Rs.100/-   in   favour   of   the   appellant.   It   would   accordingly 


       require registration under S.17, Registration Act. As it is unregistered, the 


       Court could not look into it. If the court could not, as we hold, look into it, 


       the   Court   not   pronounce   judgment   in   accordance   with   it.   Sec.   17, 


       Arbitration Act presupposes an award which can be validly looked into by 


       the Court. The appellant cannot successfully invoke Section 17......... we 


       are of opinion that the award requires registration and, not being registered 


       is  inadmissible   in  evidence  for  the  purpose   of  pronouncing   judgment   in 


       accordance with it."







In Lachhman Dass vs. Ram Lal - 1989 (3) SCC 99, this Court held : 




       "In the present case the award declared that half share of ownership of the 


       appellant to the lands in question "shall now be owned" by the respondent 


       in addition to his half share in the lands. On a proper construction of the 


       award, it is thus clear that the award did create, declare or assign a right, 


       title and interest in the immovable property. It is not merely a declaration 


       of the pre-existing right but creation of new right of the parties. Since the 


       award affected the immovable property over Rs.100 it was required to be 


       registered. ..............




       An award affecting immovable property of the value of more than Rs.100 


       cannot be looked into by the court for pronouncement upon the award on 


       the application under Section 14 of the Arbitration Act unless the award is 


       registered. ...........




       As   the   court   could   not   look   into   the   award,   there   is   no   question   of   the 


       court   passing   a   decree   in   accordance   with   the   award  and   that   point   can 


       also be taken when the award is sought to be enforced as the rule of the 


       court."



                                              37






         




The courts below have not considered or decided this aspect at all. 








Re: Question (iv) 








41.     If an award was not genuine, but was collusive and sham,  the court 




will not and in fact can not make it a rule of the court. As noticed above, 




there should be a dispute, there should be an agreement to refer the dispute 




to   arbitration,   there   should   be   reference   to   arbitration,   there   should   be   an 




adjudication   or   decision   by   the   arbitrator   after   hearing   parties,   for   a   valid 




arbitration. If the parties had already settled their disputes and the arbitration 




award was only a ruse to avoid payment of stamp duty and registration with 




respect to a sale deed and declare a title in persons who did not have title 




earlier, then the entire proceedings is sham and bogus. In fact, C.B. Sharma 




was not really an arbitrator, nor the proceedings before him were arbitration 




proceedings and the awards were not really arbitration  awards. If all these 




facts which have a bearing on the making of the award and the validity of 




the   award   are   suppressed   before   the   court   and   the   court   was   misled   into 




making   decrees   in   terms   of   the   awards,   necessarily   the   proceedings   are 




fraudulent   and   amounted   to   committing   fraud   on   the   court.   In   these 



                                             38






circumstances the decree in CS Nos.366 and 367 of 1992 on the file of the 




Sr. Sub-Judge, Kurukshetra were invalid.   








Conclusion 








42.     We, therefore allow these appeals, set aside the judgments of the first 




appellate   court   and   High   Court   and   restore   the   decrees   of   the   trial   court 




decreeing the suits filed by the appellants. 










                                                                  ............................J.


                                                                        (R. V. Raveendran)










                                                                  ............................J.


                                                                              (A.K. Patnaik)


New Delhi;


August 18, 2011