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Balbir Singh & ANR Vs. Gurbachan Kaur & Ors [1993] INSC 432 (13 October 1993)

MOHAN, S. (J) MOHAN, S. (J) BHARUCHA S.P. (J) CITATION: 1994 SCC Supl. (2) 545

ACT:

HEADNOTE:

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 Vs. 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.

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