JUDGMENT
Ashutosh Mohunta, J.
1. The challenge in the present revision is to the order dated 7.4.2004 passed by Civil Judge (Senior Division), Faridabad, whereby the objections filed by the petitioner for setting aside the award dated 16.10.1998 has been dismissed.
2. Briefly, the facts of the case are that the petitioner is owner of two shops situated at NIT, Faridabad. Petitioner entered into an agreement of sale in respect of shops in dispute with the respondent for a sale consideration of Rs. 4 lacs on 10.11.1997. The petitioner at the time of entering into agreement paid a sum of Rs. 1 lac. towards earnest money. However, just prior to the executing of the sale deed, the petitioner with the intention to cancel the bargain refused to execute the sale deed. As a result of which an arbitrator was appointed by both the parties, in terms of an agreement dated 15.9.1998. After the arbitrator was appointed, during the pendency of the arbitration proceedings, the petitioner as well as the respondent executed a settlement deed dated 20.9.1998, by which it was agreed that the petitioner would hand over the actual physical possession, of the shops in dispute at the time of registration of the sale deed, which would be executed by the end of March 1999 because the petitioner had to search for an alternate accommodation. It was also agreed as stated in the settlement deed that the petitioner who unconditionally admits the contents and execution of the sale agreement withdraws all the objections raised in the arbitration agreement including in his statement and the respondent would pay whole of the remaining sale price amounting to Rs. 3 lakhs to the petitioner either in two equal installments or in one go before the end of January, 1999. On the basis of the settlement deed, the arbitrator passed the award dated 16.10.1998 copy of which is Annexure P1. Thereafter, the petitioner in view of the award based on the settlement deed accepted the payment of Rs. 3 lakhs in cash after having executed two receipts of Rs. 1.5 lacs each dated 3.12.1998 and 15.1.1998 in favour of the respondent. The award resultantly attained finality as not only the entire sale consideration in terms of the award was accepted but the petitioner did not choose to file any application under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside of the award. The matter did not rest here. The respondent despite having paid whole of the sale consideration amounting to Rs. 4 lacs, then had to file an execution application dated 20.8.1999 being execution No. 65 of 1999 before the Civil Judge (Senior Division), Faridabad invoking the provisions of Section 36 of the Arbitration and Conciliation Act, 1996 as the petitioner failed to execute the sale deed and deliver the physical possession of the property to the respondent. In pursuance of the execution so filed by the respondent, the petitioner appeared on 25.8.1999 alongwith his counsel and made the following statement which was recorded by the Civil Judge (Senior Division), Faridabad in vernacular true translation whereof is reproduced here under:-
“Stated that I have reached a compromise Ex. C1 with the decree holder. Sale agreement Ex.C2 and receipts Ex.C3 to Ex.C5 bear my signatures and according to these receipts I have received the whole of payment of Rs. 4,00,000/-. Arbitration proceedings and award are true and correct. I have not filed any objections, according to compromise. I will execute and register the sale deed on or before 15.12.1999 and hand over the possession to the Decree holder. Site Plan Ex.C6 is true and correct and bears my signatures.”
The Civil Judge on the basis of the aforesaid statement then passed the following order :-
Present: Shri B.B. Gupta, Advocate for the DH JD in person with Shri Udey Vir Singh, Advocate.
A compromise stated to have arrived between the parties. Statement of the parties recorded. Compromise Ex.C1 is placed on record. As per the statement of JD, he has sought time for execution of sale deed dated 15.12.1999. Case file be therefore be put up on 15.1.2000 for further proceedings. Long date is given on the request of Learned counsel for the parties.
Sd/-
Civil Judge (Sr. Divn.)
Faridabad 25.8.99″
3. The petitioner despite having made the aforesaid statement and the order passed thereon by the Civil Court did not execute the sale deed, when again on 15.1.2000 the petitioner requested for more time to execute the sale deed which was duly granted by the Court.
The petitioner thereafter again did not stand upto his commitment when the Civil Judge vide order dated 20.4.2000 issued the following directions:
“Present:- Shri B.B. Gupta, Advocate for DH
Despite undertaking given on 25.8.1999 and 15.1.2000 the JD has not executed the sale deed and registered in favour of D.H. In the circumstances this Court is not left with an alternative but to appoint Local Commissioner for execution and registration of the sale deed. Accordingly Reader of this Court is appointed as Local Commissioner, who shall execute and register the sale deed of the property in question in favour of the DH in terms of award dated 16.10.1998 on payment of balance sale consideration within a period of 15 days by the DH. The fee of the Local Commissioner is assessed at Rs. 550/-. The report of the Local Commissioner is awaited for 3.6.2000.
Sd/-
Civil Judge (Sr. Divn.)
Faridabad 20.4.2000″
4. After the Civil Judge passed the aforementioned order, subsequently the execution petition was dismissed in default due to non-appearance of the counsel for the respondent before Civil Judge on 15.3.2001 as a result of which the respondent filed another execution petition on 28.9.2002 which came to be numbered as Execution No. 37/20. The petitioner filed objections to the said execution application which were dismissed by the Civil Judge vide order dated 7.4.2004. It is the order which is being challenged in the present petition.
5. Shri Kul Bhushan Sharma, learned counsel for the petitioner assailing the order dated 7.4.2004, has raised following arguments;
(i) The petitioner never entered into agreement to sell and that the petitioner never entered into any arbitration agreement nor he ever joined in any arbitration proceedings nor he was ever served by any alleged notice of any arbitration proceedings nor any proceedings took place nor the petitioner was aware of any other proceedings and that signatures were taken on the blank papers as mentioned in the Objection petition;
ii) The learned Civil Judge has committed an illegality in not framing the issues and not providing the opportunity to produce the evidence in support of the objections to the petitioner;
iii) The execution petition was not maintainable as the award was not registered.
iv) The award was null and void as the grant of decree for specific performance is within the domain of the Civil Court Under Section 16 of the Specific Relief Act and the Arbitrator is not empowered to adjudicate issues involving determination of the rights and title of immovable property.
6. Controverting the aforesaid submissions, Shri Sanjay Bansal, learned counsel appearing on behalf of the respondent, decree holder has argued that the petition filed by the petitioner, judgment debtor, deserves to be dismissed on account of suppressio veri and false veri i.e. supression and concealment of material facts, by imposing heavy costs to the tune of minimum Rs. 25,000/- as was ordered by in the Hon’ble Supreme Court in the case of Ravinder Kumar v. Ashok Kumar (2003)8 S.C.C. 289. He has on the basis of the affidavit filed by the respondent, the contents of which have not been controverted by the petitioner, submitted that the petitioner has concealed the vital fact with regard to the execution of the settlement deed on the basis of which the award has been passed. Nor has the petitioner stated in the petition about the receipt of the entire amount of sale consideration and about having made the statement before the executing Court admitting the execution of the agreement to sell as per the settlement deed, the proceedings before the arbitrator and the award rendered by the arbitrator to be correct. The learned counsel further argued that since the petitioner has acted upon the award by receiving the entire amount of sale consideration, and had not made any attempt to challenge the award on merits by filing an application under Section 34 of the Arbitration and Conciliation Act, 1996 thereby allowing the award to attain finality, therefore, the challenge to the award on merits was not maintainable. In support of the said submission he has relied upon the decision rendered by the High Court of Bombay in the case of Govindjit Jevay & Co. v. Shree Saraswati Milts Ltd., A.I.R. 1982 Bom. 76. Still further, the learned counsel argued that it stands settled as a proposition of law by this Hon’ble Court in the case of Rocky Tyres, Chandigarh v. Ajit Jain, A.I.R. 1998 P&H 202 (para 18) that it is not necessary for the Trial Court to frame issues and provide opportunity to the judgment debtor to produce evidence in support of the objections and even otherwise in view of the settlement deed dated 25.8.1999 and the order passed thereon by the learned Civil Judge dated 25.8.1999 and 20.4.2000 no issues were required to be framed or opportunity to produce evidence in support of the objections to the petitioner was required to be given more so when the petitioner as a matter of fact also did not make any prayer before the learned Civil Judge by filing an application or otherwise for framing issues and providing an opportunity to lead evidence in support of his objections. The learned counsel has also pointed out that now it stands settled by the Apex Court in the case of Olympus Superstructures Pvt. Ltd. v. Meena Vijay Khetan A.I.R. 1999 S.C. 2103 (para 33 & 34) that an arbitrator can grant specific performance of contract relating to immovable property under an award. The learned counsel in fact went to the extent of submitting that the petitioner even despite having made the statement before the Civil Judge on 25.8.1999 with regard to execution and registration of the sale deed and having over the possession to the respondent, having refrained from doing so deliberately with a view to gain time on some pretext or the other, has committed a “Civil Contempt” under the Contempt of Courts Act. Lastly, the learned counsel for the respondent has submitted that the execution petition on the facts and in the circumstances was maintainable in view of the fact that a direction was given to the petitioner by the Executing Court in view of the statement made by the petitioner himself before Court for execution and registration of the sale deed and the order passed by the Civil Judge dismissing the objections was perfectly legal and valid.
7. I have thoughtfully considered the respective submissions made by the learned counsel for the parties and I am of the view that the petition deserves to be dismissed with examplary costs as the petitioner has not approached this Court with clean hands. It is a settled proposition of law by a catena of judgments of the Supreme Court that any party claiming relief under Articles 226/227 of the Constitution of India is duty bound to make a true and correct disclosure of all the material and relevant facts in the petition. A litigant who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document or information in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the other party. The petitioner as rightly pointed out by the learned counsel for the respondent has concealed the vital fact with regard to the execution of the settlement deed on the basis of which the award was passed. Not only this the petitioner withheld the important information with regard to having accepted an amount of Rs. 4 lacs thereby acting upon the award by receiving the benefit of payment under the same. The petitioner still further concealed the fact with regard to having made a statement before the executing Court that he had received the entire amount of Rs. 4 lacs and the arbitration proceedings and award were true and correct. Concealment is writ large. The petition on this ground, therefore, deserves dismissal. However, I proceed to deal with other contentions raised by the counsel for the petitioner.
8. The contentions of the petitioner that the learned Civil Judge had committed an illegality in not framing the issue and not providing the opportunity to produce the evidence in support of the objections to the petitioner is equally devoid of any force in view of the settled proposition of law that it is not necessary for the trail Court to frame issues and provide opportunity to the judgment debtor to produce evidence in support of the objections.
9. The learned counsel for the petitioner has relied upon a judgment of the Hon’ble Supreme Court of India in the case of M. Anasuya Devi and Anr. v. M. Manik Reddy and Ors., (2003)8 S.C.C. 565 to contend that since the award was not registered the same being inadmissible could not be enforced by the executing Court. First of all what deserves to be noticed is that the question as to what would be the effect in law of an award given on the basis of the agreement with regard to partition of the Joint Hindu properties which has not been got registered by the parties under Section 17 of the Registration Act was not decided by the Supreme Court but was left open. Now in the present case, I find that the award is based on the agreement to sell and an agreement to sell does not as per Section 54 of the Transfer of Property Act confer any right, title or interest in favour of the vendees. In such an eventuality no right, title or interest is being created by the award based on agreement of sale and in fact a direction is being given by the arbitrator to the petitioner for execution and registration of the sale deed which is sought to be enforced through the process of the Court under the Arbitration and Conciliation Act, 1996. Even otherwise the contention that since the award was not registered the same could not be enforced by the executing Court does not merit acceptance on account of two added reasons, firstly because the petitioner himself made a statement on his own accord before the executing Court that the Arbitration proceedings and award are true and correct and he would execute and register the sale deed and hand over the possession of the shops in question to the respondent decree holder. Secondly, after having made such a statement, the petitioner acquiesced in the matter thereby waiving all the objections with regard to validity of the award.
10. During the course of hearing, as is also clear from a perusal of the affidavit filed by the respondent, it was stated that he is more than 90 years of age. In this view of the matter, I direct the Executing Court to take all necessary steps immediately with regard to the execution and registration of the sale deed including handing over of the possession of the shops to the respondent.
11. Thus, finding no merit in this petition, the same is hereby dismissed with costs which are quantified at Rs. 5000/-.