JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Sri Ramendra Asthana, learned counsel for the applicants and Sri Nimai Das, learned Amicus Curiae. 2. This application was heard at length on 3.11.2016, 7.12.2016 and 15.12.2016. 3. This application has been filed invoking the provision of Section 11(6) of the Arbitration and Conciliation Act, 1996, for appointment of an Arbitrator on the allegation that as per agreement dated 10.8.2016 filed as Annexure 2, there arose a dispute between parties and the agreement contains an Arbitration Clause. 4. Perusal of the agreement, as filed by the applicants, prima facie shows that it is an unregistered agreement to sell land of Khasra plot No. 288 and 289 M Village-Dehtora, District -Agra, shown to have been entered between Jan Sewa Sahkari Samiti Ltd. and another and the applicants. 5. The notice dated 17.10.2016 alleges the agreement to be an agreement for development of a colony. 6. Sri Asthana submits that Section 2(b) of the Arbitration and Conciliation Act, 1996 defines the words “Arbitration Agreement” to mean an agreement referred to in Section 7 of the Act. He submits that Section 7(3)/(4) of the Act provides for necessary requirements of a document to constitute an arbitration agreement and all those conditions as provided in the said provision does exist in the document in question and as such the document in question is an arbitration agreement within the meaning of Section 7 read with Section 2(b) of the Act. He submits that the document in question is not an agreement to sell of immovable property but is merely a partnership agreement which contains arbitration clause and therefore, it neither needs registration nor payment of stamp duty under the Indian Stamp Act, 1899. He further submits that the proceeding before the Court is not a judicial proceeding and therefore, the document cannot be examined to find out whether it requires payment of stamp duty or registration. 7. Sri Nimai Das, learned Amicus Curiae submits that the proceeding before this Court under Section 11 of the Act is a judicial proceeding in view of the law laid down by Hon’ble Supreme Court in the case of M/s. SBP & Co. v. M/s. Patel Engineering Ltd. and another, (2005) 8 SCC 618 . 7. Sri Nimai Das, learned Amicus Curiae submits that the proceeding before this Court under Section 11 of the Act is a judicial proceeding in view of the law laid down by Hon’ble Supreme Court in the case of M/s. SBP & Co. v. M/s. Patel Engineering Ltd. and another, (2005) 8 SCC 618 . Section 35 of the Indian Stamp Act provides that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent by parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer unless the instrument is duly stamped. He submits that document in question is clearly an agreement to sale with possession and therefore, it cannot be looked into unless the stamp duty is paid. He submits that in the case of M/s. SMS Tea Estates (P) Ltd. v. M/s. Chandmari Tea Co. (P) Ltd., 2001 (5) AWC 5013 (SC), Hon’ble Supreme Court having regard to Section 35 of the Stamp Act held that unless the stamp duty and penalty in respect to the instrument is paid, the Court cannot act upon such agreement which means that it cannot act upon the arbitration agreement also which is part of the instrument. He submits that the law laid down in the case of M/s. SMS Tea Estates (P) Ltd. (supra) clearly attracts on the facts of the present case. He submits that in the case of Omprakash v. Laxminarayan and others, 2014 (1) AWC 325 (SC), Hon’ble Supreme Court held that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of duty with which the same is chargeable and in the case of an instrument insufficiently stamped on the amount required to make up such duty together with penalty. The deed of agreement having been insufficiently stamped, the same is inadmissible in evidence. The Court being an authority to receive a document in evidence to give effect thereto, requires payment of stamp duty applicable to a deed of conveyance. The deed of agreement having been insufficiently stamped, the same is inadmissible in evidence. The Court being an authority to receive a document in evidence to give effect thereto, requires payment of stamp duty applicable to a deed of conveyance. Referring to the provisions of Section 33(2)(b) of the Stamp Act, he submits that this Court has power to examine and impound an instrument under Section 33 and may delegate the power to such officer as the Court may appoint in this behalf. 8. He submits that since the agreement in question is clearly an agreement to sale with possession of an immovable property without being duly stamped and therefore in view of the provisions of Section 33 of the Act and the law laid down by this Court in the case of M/s. SMS Tea Estates (P) Ltd. (supra) this Court cannot act upon the agreement in question including the arbitration agreement. 9. After the learned counsel for the applicants was confronted with the aforesaid judgment in the case of M/s. SMS Tea Estates (P) Ltd. (supra) and Omprakash (supra) he conceded on the facts of the present case that the instrument in question requires to be duly stamped. He submits that liberty may be granted to the applicant to make good the deficiency of Court fees after its determination by the Collector concerned. 10. I have carefully considered the submissions of learned counsel for the parties. 11. In view of the facts and legal position as noted in the order dated 7.12.2016 and the fact that the applicant has conceded that the agreement in question requires to be duly stamped and therefore, this arbitration application deserves to be dismissed at this stage without expressing any opinion with respect to the instrument in question. 12. In the case of M/s. SMS Tea Estates (P) Ltd. (supra) Hon’ble Supreme Court framed question No. (ii) in para 5 as under: “(ii) Whether an arbitration agreement in an unregistered instrument which is not duly stamped, is valid and enforceable?” 13. The aforesaid question has been replied by Hon’ble Supreme Court in its aforesaid judgment in the case of SMS Tea in paras 10, 11, 12 and 21 as under: 10. What if an arbitration agreement is contained in an unregistered (but compulsorily registrable) instrument which is not duly stamped? The aforesaid question has been replied by Hon’ble Supreme Court in its aforesaid judgment in the case of SMS Tea in paras 10, 11, 12 and 21 as under: 10. What if an arbitration agreement is contained in an unregistered (but compulsorily registrable) instrument which is not duly stamped? To find an answer, it may be necessary to refer to the provisions of the Indian Stamp Act, 1899 (‘Stamp Act’ for short). Section 33 of the Stamp Act relates to examination and impounding of instruments. The relevant portion thereof is extracted below : “33. Examination and impounding of instruments.—(1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a pubic office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not dull stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed : x x x x “ Section 35 of Stamp Act provides that instruments not duly stamped is inadmissible in evidence and cannot be acted upon. The relevant portion of the said section is extracted below : “35. The relevant portion of the said section is extracted below : “35. Instruments not duly stamped inadmissible in evidence, etc.—No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped : Provided that— (a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion.” x x x x x Having regard to Section 35 of Stamp Act, unless the stamp duty and penalty due in respect of the instrument is paid, the Court cannot act upon the instrument, which means that it cannot act upon the arbitration agreement also which is part of the instrument. Section 35 of Stamp Act is distinct and different from Section 49 of Registration Act in regard to an unregistered document. Section 35 of Stamp Act, does not contain a proviso like to Section 49 of Registration Act enabling the instrument to be used to establish a collateral transaction. 11. The scheme for appointment of arbitrators by the Chief Justice of Guwahati High Court 1996 requires an application under Section 11 of the Act to be accompanied by the original arbitration agreement or a duly certified copy thereof. In fact, such a requirement is found in the scheme/rules of almost all the High Courts. If what is produced is a certified copy of the agreement/contract/instrument containing the arbitration clause, it should disclose the stamp duty that has been paid on the original. Section 33 casts a duty upon every Court, that is a person having by law authority to receive evidence (as also every arbitrator who is a person having by consent of parties, authority to receive evidence) before whom an unregistered instrument chargeable with duty is produced, to examine the instrument in order to ascertain whether it is duly stamped. Section 33 casts a duty upon every Court, that is a person having by law authority to receive evidence (as also every arbitrator who is a person having by consent of parties, authority to receive evidence) before whom an unregistered instrument chargeable with duty is produced, to examine the instrument in order to ascertain whether it is duly stamped. If the Court comes to the conclusion that the instrument is not duly stamped, it has to impound the document and deal with it as per Section 38 of the Stamp Act. Therefore, when a lease deed or any other instrument is relied upon as contending the arbitration agreement, the Court should consider at the outset, whether an objection in that behalf is raised or not, whether the document is properly stamped. If it comes to the conclusion that it is not properly stamped, it should be impounded and dealt with in the manner specified in Section 38 of Stamp Act. The Court cannot act upon such a document or the arbitration clause therein. But if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, the document can be acted upon or admitted in evidence. 12. We may therefore sum up the procedure to be adopted where the arbitration clause is contained in a document which is not registered (but compulsorily registrable) and which is not duly stamped : (i) The Court should, before admitting any document into evidence or acting upon such document, examine whether the instrument/document is duly stamped and whether it is an instrument which is compulsorily registrable. (ii) If the document is found to be not duly stamped, Section 35 of Stamp Act bars the said document being acted upon. Consequently, even the arbitration clause therein cannot be acted upon. The Court should then proceed to impound the document under Section 33 of the Stamp Act and follow the procedure under Section 35 and 38 of the Stamp Act. (iii) If the document is found to be duly stamped, or if the deficit stamp duty and penalty is paid, either before the Court or before the Collector (as contemplated in Section 35 or 40 of the Stamp Act), and the defect with reference to deficit stamp is cured, the Court may treat the document as duly stamped. (iii) If the document is found to be duly stamped, or if the deficit stamp duty and penalty is paid, either before the Court or before the Collector (as contemplated in Section 35 or 40 of the Stamp Act), and the defect with reference to deficit stamp is cured, the Court may treat the document as duly stamped. (iv) Once the document is found to be duly stamped, the Court shall proceed to consider whether the document is compulsorily registrable. If the document is found to be not compulsorily registrable, the Court can act upon the arbitration agreement, without any impediment. (v) If the document is not registered, but is compulsorily registrable, having regard to Section 16(1)(a) of the Act, the Court can de-link the arbitration agreement from the main document, as an agreement independent of the other terms of the document, even if the document itself cannot in any way affect the property or cannot be received as evidence of any transaction affecting such property. The only exception is where the respondent in the application demonstrates that the arbitration agreement is also void and unenforceable, as pointed out in para 8 above. If the respondent raises any objection that the arbitration agreement was invalid, the Court will consider the said objection before proceeding to appoint an arbitrator. (vi) Where the document is compulsorily registrable, but is not registered, but the arbitration agreement is valid and separable, what is required to be borne in mind is that the Arbitrator appointed in such a matter cannot rely upon the unregistered instrument except for two purposes, that is (a) as evidence of contract in a claim for specific performance and (b) as evidence of any collateral transaction which does not require registration. 21. In view of the above this appeal is allowed, the order of the High Court is set aside and the matter is remitted to the learned Chief Justice of Guwahati High Court to first decide the issue of stamp duty, and if the document is duly stamped, then appoint an arbitrator in accordance with law.” 14. 21. In view of the above this appeal is allowed, the order of the High Court is set aside and the matter is remitted to the learned Chief Justice of Guwahati High Court to first decide the issue of stamp duty, and if the document is duly stamped, then appoint an arbitrator in accordance with law.” 14. In view of the law laid down by Hon’ble Supreme Court as extracted above and the fact of the instrument in question to be not duly stamped as admitted by the applicant, the present arbitration application is rejected at this stage leaving it open to the applicant to move a fresh application after the instrument in question is duly stamped. 15. With the aforesaid observation and liberty, the application is dismissed. 16. In case the applicants approach the Collector, Agra within four weeks for determination of stamp duty payable on the instrument in question, the Collector, Agra shall take appropriate decision thereon in accordance with law within a further period of four weeks after affording opportunity of hearing to the parties concerned.