Tarapada Dey v. District Registrar, Hooghly, Calcutta High Court, Judgment, Law, casemine.com

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Case Number

C.O No. 2278 of 1985

Attorney(S)

Ranjit Kumar Banerjee with Anath Bandhu Mondal
Jamini Kumar Banerjee with Satyajit Banerjee (for Nos. 3 to 6) Dr. Monotosh Mookerjee and Tapas Kumar Mukherjee (for Nos. 7 to 10

Judges

A.M Bhattacharjee
Sukumar Chakravarty, JJ.

Acts

provisions of S. 29(2) of the Limitation Act, 1963, the provisions of S. 5
provisions of S. 25 read with S. 23 of the Registration Act.
Art. 227.2. Under S. 23 of the Registration Act,
S. 25 read with S. 23 of the Registration Act
provisions of S. 29(2) of the Limitation Act,
provisions in S. 25 of the Registration Act
S. 23 or 25 of the Registration Act.
S. 5 or S. 15 of the Limitation Act
S. 75(2) of the Registration Act
S. 25 of the Registration Act.

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Smart Summary

Factual and Procedural Background

An arbitral award dated 28-11-1977 was presented for registration to the Sub-Registrar on 25-11-1983 and admitted to registration the same day. The petitioner challenged that registration by a petition under Article 227.

Relevant procedural history in the courts (as recorded in the opinion): - The petitioner initiated proceedings under the Arbitration Act in the Munsiff Court at Arambag on 1-12-1977 (Misc. Case No. 74 of 1977). - The learned Munsiff passed an order on 26-7-1978 directing the parties and arbitrators to maintain status quo. - A later Division Bench decision in Civil Rule No. 621 of 1980 (Tarapada Dey v. Rajkumar Dey, decided 6-3-1981) struck down a Subordinate Judge's order which had permitted the arbitrators to take back the award to present it for registration; the Division Bench treated such a return as breaching the Munsiff's interim order. - The opinion records that the interim order of 26-7-1978 operated until 20-12-1982 when the Misc. Case was dismissed and the interim order lapsed. - The award was registered by the Sub-Registrar without any direction from the Registrar under Section 25 of the Registration Act authorising extension of time.

Legal Issues Presented

Whether a Sub-Registrar may admit an award for registration long after its execution, in particular almost six years after execution, without any direction from the Registrar under Section 25 read with Section 23 of the Registration Act.
Whether the period during which a court's interim order restrains parties from presenting an instrument for registration should be excluded in computing the statutory period (4 months under Section 23 and a possible additional 4 months under Section 25) for presentation of non-testamentary instruments for registration.
Whether the powers under Sections 5 and 15 of the Limitation Act (and Section 29(2) permitting their application to special laws) can be invoked before a Registration Officer (i.e., whether a Registration Officer can exercise powers analogous to those of a Court in extending or excluding time).
Whether established decisions holding that statutory presentation periods under the Registration Act are peremptory and not extendable admit of qualification where a court order prevented presentation during the statutory period.

Arguments of the Parties

Petitioner's Arguments (as recorded)

Learned counsel for the petitioner (Mr. Banerjee) contended that no registration is permissible beyond the period fixed under Section 25 read with Section 23 of the Registration Act and that any registration beyond that period is void.
To support this contention counsel relied upon two Division Bench decisions: Daw Nyi Ma v. Ma E Tim (AIR 1938 Rang 53) and Ram Singh v. Jasmer Singh (AIR 1963 Punj 100), which were cited for the propositions that a Sub-Registrar has no jurisdiction to proceed with registration after the initial four months and that a document presented after eight months could not be registered under any circumstances.

The opinion does not contain a detailed account of the opposing party's (respondent's) specific legal arguments in the same manner; those arguments are not elaborated in the text provided.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Daw Nyi Ma v. Ma E Tim, AIR 1938 Rang 53	Stated that a Sub-Registrar has "no jurisdiction" to proceed with registration of a document which was already 4 months old; any such registration would be bad.	The petitioner relied on this decision. The Bench observed that, if the matter rested solely on such authorities, they would have dissented from the Rangoon view, indicating they did not regard it as controlling in the circumstances of this case.
Ram Singh v. Jasmer Singh, AIR 1963 Punj 100	Held that a document presented for registration after the period of 8 months under Section 25 "could not, under any circumstances be registered".	The petitioner relied on this decision. The Bench noted it but observed that other authorities and considerations (including later analysis) affected the applicability of an absolute rule.
Motahar Ali v. Abdul Malek, AIR 1957 Cal 324	Held that the period of 30 days fixed by Section 75(2) of the Registration Act for presentation cannot be extended; approved observations that timing provisions are peremptory and not extendable absent express provision.	The Bench acknowledged this Division Bench decision as apparently standing in the way of the petitioner's contention, but later concluded that Motahar Ali did not consider exclusion of time when the presentation was prevented by a court order and therefore its absolute statements cannot be regarded as laying down good law in view of later Supreme Court authority.
Aditya Kumar v. Narayandas, AIR 1971 Cal 65 (also reported 1971 75 Cal WN 439)	Refused to direct return of an award to the arbitrator to present it for registration because the period provided in Section 25 had elapsed; held provisions in Section 25 are imperative and time cannot be extended by Court.	The Bench recorded this decision as an obstacle to the petitioner's contention but later held that Aditya Kumar did not take into account exclusion of time due to a court stay and therefore its observations cannot be regarded as good law in light of Supreme Court authority.
Mafisur Rahaman v. Jamila Khatun, (1938) 42 Cal WN 1174	Observed that provisions of the Registration Act regarding the time within which certain acts are to be done are peremptory and not capable of being extended without express provision.	Mafisur Rahaman was referred to with approval in Motahar Ali; the Bench recorded this lineage of authority when discussing the contention that time limits are peremptory.
Tarapada Dey v. Rajkumar Dey, Civil Rule No. 621 of 1980 (decided 6-3-1981)	Division Bench held that allowing arbitrators to take back the award to present it for registration would constitute breach of an interim order directing maintenance of status quo.	The Bench relied on this decision to conclude that, in the present case, from 26-7-1978 until 20-12-1982 the parties and arbitrators were restrained by a prohibitory order from presenting the award for registration; this period should therefore be excluded when computing the statutory presentation period.
Nityananda Joshi v. Life Insurance Corporation, AIR 1970 SC 209	Explained that the scheme of the Limitation Act deals with applications to courts; powers under Sections 5 and 15 (by reason of Section 29(2)) are exercisable by courts only.	The Bench relied on this Supreme Court statement to hold that a Registration Officer is not a court and therefore cannot exercise the powers (such as extension or exclusion of time) which are available to courts under the Limitation Act.
Udit Upadhia v. Imam Bandi, (1902) ILR 24 All 402	Full Bench authority referenced to support the proposition that a Registration Officer is not a Court.	Used as supporting authority for the proposition that powers under the Limitation Act are exercisable by courts and not by Registration Officers.
Krishnamal v. Krishnaiyangar, (1912) 15 Ind Cas 652	Full Bench authority referenced to support the proposition that a Registration Officer is not a Court.	Used similarly to Udit Upadhia as authority for that proposition.
Director of Inspection of Income-tax v. Pooran Mall, AIR 1975 SC 67	Established the principle that where proceedings are stayed by an order of a court or injunction, the period of that stay should be excluded in computing any period of limitation laid down by law.	The Bench relied on this Supreme Court authority to hold that the entire period during which the award could not be presented because of the interim order should be excluded from computation of the 4- or 8-month statutory period under Sections 23 and 25 of the Registration Act.

Court's Reasoning and Analysis

The Court's analysis proceeded in the following steps, following only the reasoning and materials expressly set out in the opinion:

Statutory framework: The Court set out Sections 23 and 25 of the Registration Act as the governing provisions — Section 23 requires presentation of a non-testamentary instrument (including an award) before the Sub-Registrar within four months of execution; Section 25 permits the Registrar (but not the Sub-Registrar) to allow presentation up to an additional four months where there was urgent necessity or unavoidable accident, on payment of a fine. The total statutory limit for presentation, therefore, is 8 months where extension under Section 25 is properly granted.
Immediate legal difficulty: The award in the present case was registered almost six years after execution and was admitted by the Sub-Registrar without any direction or extension by the Registrar under Section 25; on its face that admission was palpably beyond the statutory period.
Precedent argument: The petitioner relied upon decisions that treated the statutory presentation periods as peremptory and the Sub-Registrar as lacking jurisdiction to register after the prescribed period (Rangoon and Punjab decisions). The Bench acknowledged those authorities but observed that two Division Bench decisions from this High Court (Motahar Ali and Aditya Kumar) appeared to stand in the way of an absolute rule against any late registration.
Critical factual context: The Court examined the procedural history and noted that the petitioner had instituted proceedings on 1-12-1977 and that an interim order directing maintenance of status quo was passed on 26-7-1978 in the Munsiff Misc. Case No. 74 of 1977. Further, the Division Bench in Tarapada Dey v. Rajkumar Dey had held that allowing arbitrators to take the award back for registration would breach that interim order. The opinion therefore accepts that from 26-7-1978 until 20-12-1982 the parties and arbitrators were restrained by a prohibitory order from presenting the award for registration.
Interaction with the Limitation Act: The Bench considered whether the provisions of the Limitation Act (notably Sections 5 and 15) and the enabling Section 29(2) (which allows certain Limitation Act provisions to be read into special laws) were relevant. Relying on the Supreme Court in Nityananda Joshi v. LIC, the Court noted that the Limitation Act's scheme deals with applications to courts and that powers under Sections 5 and 15 are exercisable by courts only; a Registration Officer is not a court. The Court referenced older Full Bench decisions to support that proposition.
Equitable and procedural maxims and Supreme Court authority: The Bench invoked general maxims — Lex Non Cogit Ad Impossibilia (the law does not compel what cannot be done) and Actus Curiae Neminem Gravabit (an act of the court shall prejudice none) — and found no express bar in the Registration Act to their application. The Court relied on the Supreme Court's decision in Director of Inspection of Income-tax v. Pooran Mall which establishes that periods during which proceedings are stayed by a court should be excluded in computing statutory limitation periods.
Application to the facts: Applying the Pooran Mall principle and accepting that the interim order had prevented registration from 26-7-1978 to 20-12-1982, the Court held that this entire period should be excluded when computing the 4- and 8-month periods under Sections 23 and 25.
Final statutory computation and conclusion: Even after excluding the stayed period, the award (made 28-11-1977 and presented 25-11-1983) still fell outside the 4- and 8-month limits. Therefore, the Sub-Registrar was not competent to admit the award to registration and the registration was invalid. The petition was allowed, and the impugned registration was quashed; no order was made as to costs. A concurring judge (Chakravarty, J.) agreed.

Holding and Implications

Holding: The Court allowed the petition and quashed the impugned registration of the award dated 28-11-1977 that had been admitted on 25-11-1983. The Court held that the Registration Officer could not admit and was wrong in admitting the award to registration, and the registration was therefore invalid and ineffective. The Court made no order as to costs.

Implications (as discussed in the opinion)

Direct effect: The immediate practical consequence is that the specific registration admitted on 25-11-1983 is set aside; the award's registration is invalid.
On exclusion of time when presentation is prevented by court order: The Court endorsed the principle (following the Supreme Court in Director of Inspection of Income-tax v. Pooran Mall) that where proceedings are stayed by an order of a court, the period during which presentation was prevented should be excluded in computing the statutory presentation period under Sections 23 and 25 of the Registration Act.
On limits of Registration Officers' powers: The Court reiterated that powers under the Limitation Act (Sections 5 and 15) are exercisable by courts only and a Registration Officer is not a court; consequently, a Registration Officer cannot exercise the Limitation Act's court-granted powers to extend or exclude time.
On prior High Court Bench decisions: The Bench observed that two earlier Division Bench decisions of this High Court (Motahar Ali and Aditya Kumar) did not consider exclusion of time where a court order prevented presentation; therefore, the observations in those decisions that statutory periods "cannot in any circumstances be enlarged" cannot be regarded as laying down good law in view of the Supreme Court's authority in Pooran Mall (as applied in the present case).
No broader or novel rule beyond the case facts: The Court's decision applies the established principle of excluding the period of a stay from computation of limitation to the context of presentation for registration; it did not purport to create an open-ended power for Registration Officers to admit documents after statutory periods nor to authorize courts to ignore the statutory framework on other grounds. The final outcome in this case turned on the fact that even after excluding the stay period the presentation was beyond the statutory limit, and so the registration was quashed.

Petition allowed.

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Tarapada Dey v. District Registrar, Hooghly

Bhattacharjee, J.:— An award made on 28-11-77 was presented for registration to the Sub-Registrar on 25-11-83 and was admitted to registration on the same day. Could that be done after such a long lapse of time? That is the question that has come up for our consideration in this case arising out of a petition filed under Art. 227.

2. Under S. 23 of the Registration Act, an award, like any other non-testamentary instrument, is to be presented for registration before the Sub-Registrar within 4 months from the date of its execution. If, however, owing to urgent necessity or unavoidable accident, an award or other non-testamentary instrument is not presented for registration within 4 months of its execution, the Registrar, but not the Sub-Registrar, may direct that such document shall be accepted for registration on payment of fine provided the delay in presentation beyond the period of 4 months as aforesaid, does not exceed 4 months more. In other words, while ordinarily the period within which a document is to be presented for registration before the Sub-Registrar is 4 months from the date of its execution, in some extraordinary cases as envisaged in S. 25 the Registrar may allow a further period of 4 months. A total period of 8 months, is, therefore, the limit for presenting a document for registration under the provisions of S. 25 read with S. 23 of the Registration Act. In this case, the award has been admitted to registration by the Sub-Registrar without any direction from the Registrar as to extension of time from 4 months to 8 months under S. 25 and the award having been registered almost 6 years after its execution, was registered palpably beyond time, unless time could be extended, the delay could be condoned or any period could be excluded from consideration.

3. Mr. Banerjee, the learned counsel for the petitioner has very strongly urged that no registration is permissible beyond the period fixed under S. 25 read with S. 23 of the Registration Act and any registration beyond such period is void. Mr. Banerjee has, in support of his contention, relied on a Division Bench decision of the Rangoon High Court in Daw Nyi Ma v. Ma E Tim AIR 1938 Rang 53 and also a Division Bench decision of the Punjab High Court in Ram Singh v. Jasmer Singh AIR 1963 Punj 100. In the Rangoon decision it has been stated (supra, at 55) (of AIR 1938 Rang 53) that a Sub-Registrar has “no jurisdiction” to proceed with registration of a document which was already 4 months old and any such registration would be bad. In the Punjab decision it has been held (supra, at 102) that a document presented for registration after the period of 8 months as provided in S. 25 of the Registration Act “could not, under any circumstances be registered”.

4. If the matter rested there then we would have, with respect, dissented from the Rangoon and the Punjab view and would have held that there can be circumstances when a Registration Officer would have jurisdiction to admit a document to registration, even though presented after the period fixed under S. 23 or S. 25. But the two Division Bench decisions of this Court on which strong reliance has been placed by Mr. Banerjee, would apparently stand in the way and these decisions are Motahar Ali v. Abdul Malek AIR 1957 Cal 324 and Aditya Kumar v. Narayandas (1971) 75 Cal WN 439 : (AIR 1971 Cal 65).

5. In Motahar Ali (supra) it has been held (at 326) by the Division Bench that the period of 30 days fixed by S. 75(2) of the Registration Act for the presentation of a document for registration cannot be extended and the observations of a learned single-Judge in Mafisur Rahaman v. Jamila Khatun (1938) 42 Cal WN 1174, to the effect that the provisions of the Registration Act regarding the time within which certain acts are to be done are peremptory in character and are not capable of being extended in the absence of express provisions in that behalf, have been referred to with approval. In Aditya Kumar (AIR 1971 Cal 65) (supra at 446) (of Cal WN): (at Pp. 69-70 of AIR) the Division Bench has refused to direct return of the award to the Arbitrator to present it for registration as the period provided in S. 25 had already elapsed and “the provisions in S. 25 of the Registration Act are imperative and that time cannot be extended by Court”.

6. It appears that in this case, after the award was made and signed by the Arbitrators on 28-11-77, the present petitioner initiated a proceeding under the Arbitration Act in the Munsiff Court at Arambag on 1-12-77 and it was registered as Misc. Case No. 74 of 1977 and it appears further that in that Misc. Case No. 74 of 1977 an order was passed by the learned Munsiff of 26-7-78 directing the parties, including the Arbitrators, to maintain status quo. Even though it is not quite clear to us as to how the aforesaid order directing maintenance of status quo could prevent or restrain the Arbitrators or the parties from taking back the award filed in court and to present the same for registration, we must take the matter to have been clinched by the order of the Division Bench in Civil Rule No. 621 of 1980 (Tarapada Dey v. Rajkumar Dey — decided on 6-3-81). That Civil Rule was directed against an earlier order dated 16-1-80 passed by the Subordinate Judge, Hooghly in Misc. Case No. 28 of 1977 which arose out of an application filed by some of the opposite parties for direction upon the Arbitrators to file the award in court. After the award was filed in court in that Misc. Case on 28-1-78, the Arbitrators, having realised that the award required registration, filed an application on 14-8-1978 for return of the award to them to enable them to present the same for registration and the application was granted by the Subordinate Judge by his order dated 16-1-80. This order of the Subordinate Judge was, however, struck down by the Division Bench in Civil Rule No. 621 of 1980 as according to the Division Bench, “to allow the Arbitrators to take back the award for the purpose of presenting the same for registration would really constitute a breach of the said interim order” passed by the Munsiff in Misc. Case No. 74 of 1977 directing maintenance of status quo. It must now, therefore, be accepted that from 26-7-78 when the order directing maintenance of status quo was passed in the Misc. Case No. 74 of 1977, till 20-12-82 when the said order Lapsed with the dismissal of the Misc. Case, the parties and the Arbitrators were restrained by a prohibitory order of a competent court from presenting the award for registration. Should not then this period be excluded from computing the period of 4 months or 8 months within which the award as to be presented for registration under S. 23 or S. 25 of the Registration Act? We unhesitatingly answer in the affirmative.

7. Because of the provisions of S. 29(2) of the Limitation Act, 1963, the provisions of S. 5 thereof authorising extension of the prescribed period and of S. 15 thereof providing for exclusion of time in certain cases are available to matters governed by the special Law of Limitation. But even if those provisions are so available, those would apply to matters in or before Courts. As pointed out by the Supreme Court in Nityananda Joshi v. Life Insurance Corporation AIR 1970 SC 209, “the scheme of the Limitation Act is that it only deals with application to courts”. Even though the powers under S. 5 or S. 15 of the Limitation Act are to be read in a special or local law of Limitation by reasons of the provisions of S. 29(2) of the Limitation Act, that power is exercisable by Courts only. A Registration Officer acting under S. 23 or S. 25 is obviously not a Court and if any authority is necessary for such an obvious proposition, reference may be made to the two old Full Bench decisions of the Allahabad High Court and the Madras High Court in Udit Upadhia v. Imam Bandi (1902) ILR 24 All 402 at 404 and in Krishnamal v. Krishnaiyangar (1912) 15 Ind Cas 652 at 653. It may also be noted that S. 15, where it is applicable, would apply on its terms only to suits and applications for execution of decree and the case at hand relates neither to a suit nor to any such application.

8. But the general principles of law as enunciated in the Maxims “Lex Non Cogit Ad Impossibilia”, that is, the law does not compel a man to do that which he cannot possibly perform and “Actus Curiae Neminem Gravabit”, that is, an act of the court shall prejudice none, are of universal application and must always be applied for the prevention of miscarriage of justice unless application thereof is clearly barred by express declaration or irresistible implication. We find no such declaration or implication in S. 23 or S. 25 or anywhere else in the Registration Act. In this case if, as held by the Division Bench in Civil Rule No. 621 of 1980, the parties and the Arbitrators were restrained by the interim order passed in Misc. Case No. 74 of 1977 from proceeding with the registration of the award, it would be blatant injustice to deprive them of the right to get the award registered now after the Misc. Case is dismissed solely on the ground that the period prescribed therefor has expired as a result of running of time during the operation of the said interim order. As observed by the Supreme Court in Director of Inspection of Income-tax v. Pooran Mall, AIR 1975 SC 67 at p. 71, “it is a well established principle of judicial procedure that where any proceedings, are staved by an order of a court or by an injunction issued by any Court, that period should be excluded in computing any period of limitation laid down by law”. Therefore, if, as held by the Division Bench in Civil Rule No. 621 of 1980, proceeding with the registration of the award was stayed by the interim order in Misc. Case No. 74 of 1977, then, as pointed out by the Supreme Court in Director of Inspection of Income-tax v. Pooran Mall (AIR 1975 SC 67) (supra), according to the well established principle of judicial procedure the entire period during which the matter was so stayed as a result of the operation of the interim order should be excluded in computing the period of 4 months or 8 months as prescribed under S. 23 or 25 of the Registration Act. This aspect was not considered in the two Bench decisions of this High Court in Motahar Ali (AIR 1957 Cal 324) (supra) and in Aditya Kumar (AIR 1971 Cal 65) (supra) and the observations in these two Bench decisions to the effect that the periods fixed by the different provisions of the Registration Act cannot in any circumstances be enlarged, whether by extension or exclusion of time or otherwise, cannot be regarded to have laid down good law in view of the observations of the Supreme Court in Director of Inspection of Income-tax v. Pooran Mall (supra).

9. But even if we exclude the entire period during which the interim order was in operation preventing the registration of the award, we would thereby exclude the period from 26-7-78 till 20-12-82 only. But even after such exclusion, the award which was made on 28-11-77 and was presented for registration on 25-11-83 cannot be said to have been presented within 4 months as provided in S. 23 or even 8 months as provided in S. 25 of the Registration Act. We must, therefore, hold that the Registration Officer could not admit and was wrong in admitting the award to registration and the registration was therefore invalid and ineffective. We accordingly allow the petition, quash the impugned registration, but make no order as to costs.

Chakravarty, J.:— 10. I agree.

Petition allowed.

Tarapada Dey v. District Registrar, Hooghly

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (as recorded)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Implications (as discussed in the opinion)

Tarapada Dey v. District Registrar, Hooghly

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