Case: FIRM RAJASTHAN UDYOG &amp; ORS.  Vs. HINDUSTAN ENGINEERING AND INDUSTRIES LTD

the land at the price so declared by the Arbitrator in its Award, could not be directed. 39. Even otherwise, there cannot be any equity in favour of the respondent, as neither any amount was paid nor deposited by the respondent. No earnest money was also paid by the respondent. It was only the stamp paper worth Rs.1,21,870/-, which was deposited by the respondent along with a deposit of Rs.5,500/- in Court at the time of filing of the application on 16.05.1994 for execution of the Award. 40. It is also noteworthy that neither the Agreement dated 01.02.1980 nor the Award dated 09.06.1985 had been registered under the Registration Act, 1908. This Court in the case of Ramesh Kumar vs. Furu Ram (2011) 8 SCC 613 had considered the effect of non-registration of an Arbitration Award relating to right, title and interest in an immovable property and held as under: 46. Thus the awards are clearly documents which purport or operate to create and declare a right, title or interest in an immovable 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 terms of such unregistered awards. 41. Although, in the present case, the Award did not relate to right, title or interest in an immovable property and was only for determination of the price of land, yet if the execution court was to treat the same for execution of sale deed of land (immovable property), it ought to have considered the impact of non-registration of such Award, which has not been done in the present case. 42. In support of his contention that the powers of the executing Court are wide enough, learned Senior Counsel for the respondent has relied on the decision of this Court in the case of Bhavan Vaja vs Solanki Hanuji Khodaji Mansang (1973) 2 SCC 40 , wherein it has been held that: 20…………For Construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it……… The question in the present case is different, which is as to whether the execution of an award could have been directed in the absence of there being any direction in the Award for execution of the sale deed, which direction could have been given only in the case of execution of the Agreement dated 01.02.1980. The question under consideration in the aforesaid case was that of a decree which was under execution, whereas there was no such decree passed by any Court which was to be executed in the present case. The facts of the present case are thus distinguishable from those in the aforesaid case. 43. Learned Senior Counsel for the respondent has also relied on the decisions of this Court rendered in Meenakshi Saxena vs ECGC Limited (2018) 7 SCC 479 as well as Topanmal Chhotamal vs Kundomal Gangaram AIR 1960 SC 388 , which in our opinion are both distinguishable on facts. In the case of Meenakshi Saxena (supra), there was a clear verdict of the Consumer Court, which was to be executed by the Court. In paragraph 17 of the said judgment, this Court held that the whole purpose of the execution proceedings is to enforce the verdict of the Court. Executing court while executing the decree is only concerned with the execution part of it but nothing else. The court has to take the judgment in its face value. In the case of Topanmal (supra), the decree under consideration was against the partnership firm and was to be executed against the personal assets of the partners. In paragraph 4 of the said judgment, this Court held that at the worst the decree can be said to be ambiguous. In such a case it is the duty of the executing Court to construe the decree. For the purpose of interpreting a decree, when its terms are ambiguous, the Court would certainly be entitled to look into the pleadings and the judgment: see Manakchand v. Manoharlal, 71 Ind. App. 65: (AIR 1944 P.C. 46). In the plaint in the Agra suit, Suit No. 205 of 1949, not only relief was asked for against the firm, but also a personal decree was claimed against defendants 2 to 6. In the present case, the Court is concerned about execution of the Award and not the Agreement. In the Award passed by the Arbitrator, the price of land was fixed, which was to be executed in terms of the Agreement dated 01.02.1980, and that too at the option of the respondent. Thus, there could be no direction to execute the sale deed at the price fixed in the Award, that too in a petition for execution of the Award, without there being any prayer for execution of the Agreement dated 01.02.1980. 44. Going behind the decree for doing complete justice would not mean that the entire nature of the case could be changed, and what was not awarded in favour of the respondent, could be granted by the executing court. It was only after the respondent had exercised its right to purchase the land at the price fixed by the Arbitrator that a right to enforce the Agreement could have arisen in favour of the respondent. The Award of the Arbitrator, in the present case, in itself was not a conclusive contract between the parties, which could be executed.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]21. The anchor sheet of the case of the respondent is the Agreement dated 01.02.1980 between the parties (i.e. appellant and respondent) as well as the Arbitration award dated 09.06.198527. In our considered opinion, in the facts of the present case, the answer to the same would be an emphatic no28. There cannot be any doubt that in terms of the Agreement dated 01.02.1980, the Arbitrator was authorized to only fix the price of the land which was to be sold by the appellant to the respondent as per the aforesaid agreement. In the said Agreement dated 01.02.1980, there was an option given to the respondent to either accept the price fixed by the Arbitrator and go ahead with the sale deed, or to refuse to get the sale deed executed at the price fixed by the Arbitrator. Thus, there was no certainty that the sale was to be executed at the price fixed by the Arbitrator. As such, it was the Agreement dated 01.02.1980 alone which could have been executed at the price fixed by the Arbitrator, in case the respondent agreed to the same29. After the passing of the Award by the Arbitrator dated 09.06.1985, which was later confirmed and made Rule of the Court by the Rajasthan High Court on 01.12.1993 and the Special Leave Petition filed by the appellant against the said order was dismissed on 29.03.1994 and the Award had attained finality, the respondent filed a Civil Suit No.60 of 1996 for specific performance of the Agreement dated 01.02.1980. It was this suit for specific performance of agreement under which a direction could have been issued for execution of the sale deed in terms of the Agreement dated 01.02.1980. However, the same was unconditionally withdrawn on 13.02.2006, on an application filed by the respondent on 06.02.2006. With the withdrawal of such suit for specific performance, the matter with regard to the execution of the sale deed in terms of the Agreement dated 01.02.1980 came to an end. The effect of withdrawing Civil Suit No. 60 of 1996 would be that the plaintiff therein (respondent herein) had abandoned its claim of execution of the sale deed in terms of the Agreement dated 01.02.1980, which would be clear from the provisions of Rule 1(4) of Order XXIII CPC30. From the facts of this case, it is clear that the Award passed by the Arbitrator could not be independently executed, as the same was only for fixation of price of land and not for enforcement of the Agreement. The Award was only declaratory of the price of the land. As per the agreement, if the respondent agreed to the price so fixed, it could then get the sale deed executed in terms of the Agreement dated 01.02.1980 as it had the option of either accepting the price and getting the sale deed executed, or not accepting the price and thus not getting the sale deed executed. This would clearly mean that the Award was merely for the declaration of the price of the land, which would be subject to the agreement and it was not necessary for the respondent to get the sale deed executed at the price so determined by the Arbitrator. What was thus executable was the agreement, and not the Award. The relief granted by the Court below for execution of the sale deed in terms of the Award, is thus outside the realm of law, as the Award did not contemplate the transfer of land in favour of the respondent, but only determined the price of land31. It is also noteworthy that the application for execution of Award filed on 16.05.1994 before the Additional District Judge-I, Bharatpur did not provide for any provision of law under which the same was filed. Though, in paragraph 2 of the said application, it was mentioned that the Award of the Arbitrator contained a direction for execution of the Award, but in fact there was no such direction issued in the Award, in which the Arbitrator had only fixed the price of the land and nothing more32. In our view, once the respondent had given up its claim of execution of sale deed in terms of the Agreement dated 01.02.1980 by withdrawing the suit for specific performance of the agreement (Civil Suit No. 60 of 1996), which was permitted to be withdrawn unconditionally on 13.02.2006, the appellant had abandoned its claim for execution of the sale deed. Thus, in our opinion, the respondent could not be permitted to achieve the goal of execution of sale deed by indirectly claiming for execution of Award, when the direct claim for execution of sale deed of the Agreement dated 01.02.1980 had been abandoned by the respondent33. At the cost of repetition, it may be mentioned that the specific performance could only be of the Agreement dated 01.02.1980 and not of the Award dated 09.06.1985. Even the operative portion of the Award also does not give any direction for execution of the sale deed. It was after the passing of the Award that the respondent could have fallen back on the agreement for execution of the sale deed, which respondent did by filing the suit for specific performance, but abandoned such claim by withdrawing the suit unconditionally34. The submission of the learned Senior Counsel for the respondent that substantial justice has been done by the Court by directing execution of the sale deed, is not worthy of acceptance. In a Civil Case, the Courts have to follow the law in letter and spirit, which has not been done in the present case, as in law the sale deed could have been directed to be executed in execution of the Agreement dated 01.02.1980 and not the Award, which was only a declaration, fixing the price of landIt is thus clear that execution of an award can be only to the extent what has been awarded/decreed and not beyond the same. In the present case, the Arbitrator in its Award had only declared the price of land and nothing more. Thus, the question of execution of a sale deed of the land at the price so declared by the Arbitrator in its Award, could not be directed39. Even otherwise, there cannot be any equity in favour of the respondent, as neither any amount was paid nor deposited by the respondent. No earnest money was also paid by the respondent. It was only the stamp paper worth Rs.1,21,870/-, which was deposited by the respondent along with a deposit of Rs.5,500/- in Court at the time of filing of the application on 16.05.1994 for execution of the Award40. It is also noteworthy that neither the Agreement dated 01.02.1980 nor the Award dated 09.06.1985 had been registered under the Registration Act, 190841. Although, in the present case, the Award did not relate to right, title or interest in an immovable property and was only for determination of the price of land, yet if the execution court was to treat the same for execution of sale deed of land (immovable property), it ought to have considered the impact of non-registration of such Award, which has not been done in the present caseThe question in the present case is different, which is as to whether the execution of an award could have been directed in the absence of there being any direction in the Award for execution of the sale deed, which direction could have been given only in the case of execution of the Agreement dated 01.02.1980. The question under consideration in the aforesaid case was that of a decree which was under execution, whereas there was no such decree passed by any Court which was to be executed in the present case. The facts of the present case are thus distinguishable from those in the aforesaid case43. Learned Senior Counsel for the respondent has also relied on the decisions of this Court rendered in Meenakshi Saxena vs ECGC Limited (2018) 7 SCC 479     as well as Topanmal Chhotamal vs Kundomal Gangaram AIR 1960 SC 388  ,which in our opinion are both distinguishable on factsIn the present case, the Court is concerned about execution of the Award and not the Agreement. In the Award passed by the Arbitrator, the price of land was fixed, which was to be executed in terms of the Agreement dated 01.02.1980, and that too at the option of the respondent. Thus, there could be no direction to execute the sale deed at the price fixed in the Award, that too in a petition for execution of the Award, without there being any prayer for execution of the Agreement dated 01.02.198044. Going behind the decree for doing complete justice would not mean that the entire nature of the case could be changed, and what was not awarded in favour of the respondent, could be granted by the executing court. It was only after the respondent had exercised its right to purchase the land at the price fixed by the Arbitrator that a right to enforce the Agreement could have arisen in favour of the respondent. The Award of the Arbitrator, in the present case, in itself was not a conclusive contract between the parties, which could be executed.