PETITIONER: BALBIR SINGH AND ANOTHER Vs. RESPONDENT: GURBACHAN KAUR AND OTHERS DATE OF JUDGMENT13/10/1993 BENCH: MOHAN, S. (J) BENCH: MOHAN, S. (J) BHARUCHA S.P. (J) CITATION: 1994 SCC Supl. (2) 545 ACT: HEADNOTE: JUDGMENT:
ORDER
After having heard both the learned counsel, we are of the
view that the appeal will have to fail on two grounds. The
document Ex. P-3, upon which the appellant bases his claim
contains a peculiar clause to the effect that if the sale
consideration of Rs 12,000 (Rupees twelve thousand only) was
not paid on or before June 30, 1973, the document shall be
deemed to be cancelled. Therefore, this is not a case where
the sale consideration is promised to be paid on a future
date. Hence it will not qualify within the definition of
Section 54 of the Transfer of Property Act. Further, the
deed has been executed only by the transferor there being no
reciprocal promise to pay by the transferee. Even on that
score, it cannot constitute a promise to pay the sale
consideration in future. Therefore, the courts below are
correct that there is no valid conveyance of the property.
We find not any merit and the civil appeal stands dismissed.
However, there shall be no order as to costs.
545
BALBIR SINGH AND ANOTHER V. GURBACHAN KAUR AND OTHERS
ORDER
1. This is an appeal against the judgment and order of a
Division Bench of Andhra Pradesh High Court at Hyderabad
dated April 25, 1975 passed in Civil Appeal No. 9 of 1972.
2. The appellant herein was the plaintiff before the
subordinate judge, seeking under Section 20 of the
Arbitration Act, reference of the subject-matter of his
dispute with the respondent to arbitration. The trial court
agreed with his plea and referred the matter to arbitration.
On appeal, however, the High Court upset it on the basis
that the trial court was wrong in observing that the
plaintiff had laid any foundation to his assertion that the
‘no claim certificates’, put up against him as defence to
deny arbitration, were obtained under duress and coercion.
The High Court went on to observe that from the perusal of
the plaint it was evident that submission regarding
signatures of the appellant having been obtained under undue
influence and coercion, was not existing. The High Court
also viewed that in the absence of any plea to that effect,
it had to proceed on the footing that the plaintiff
voluntarily had executed those no-objection certificates.
The High Court then took the view that since the appellant
had executed ‘no claim certificates’, the contract ceased to
exist and the arbitration clause also perished, since it was
otherwise provided in one of the clauses of the agreement
that after such satisfaction, the contractor would not be
entitled to make any claim whatsoever against the respondent
by virtue of its arising out of the contract. This
according to the High Court implied that even a claim to
refer the matter to the arbitration was barred.
3. We do not want to express any opinion on the analysis
of the High Court since we have satisfied ourselves that the
High Court misread the pleadings of the appellant. A copy
of the plaint is annexed in the paper-book and it is plain
wherefrom that not only at one place but at more than one
place the appellant has asserted that he signed the so-
called no-objection certificates under undue influence and
coercion. If the fact asserted by the appellant was proved
to be correct then these no claim certificates were not
valid in law and everything which the High Court sought to
close becomes open, But if it is otherwise, it would perhaps
lead to the conclusion as arrived at by the High Court. It
would therefore have to be seen as to who would decide the
question of fact whether there was any undue influence or
coercion exercised on the appellant when he signed those no
claim certificates. If it is referable to the arbitrator
then the
547
arbitrator is the sole judge. But if it is not, then the
matter is to be decided by the trial court. The view of the
trial court in either situation is necessary. Therefore, it
would necessitate a remand to the trial court to settle the
question about the undue influence and coercion over the
appellant and whether that would vitiate the no claim
certificates clearing the way for arbitration. If on the
other hand it is held that no such undue influence or
coercion was exercised then the trial court would be at
liberty to reject the application under Section 20 of the
Arbitration Act for the matter would then be not
arbitrament. The appeal is allowed in terms remitting the
matter to the trial court. Let the trial court now decide
the matter most expeditiously as it is a very old dispute.
No costs.