Asmita India Ltd. v. Siddhi Developers a partnership firm having registered office at 4/A, Surve House, Anand Patil Marg, Gokhale Road, Dadar (West), Mumbai
2019-07-25
G.S.KULKARNI
body2019
DigiLaw.ai
ORDER : This is a Petition filed under section 29A of the Arbitration and Conciliation Act, 1996 whereby the petitioner seeks extension of mandate of arbitral tribunal. 2. The case of the petitioner is that the final arguments before the arbitral tribunal are concluded and the learned arbitrator would now be pronouncing an award. 3. Learned counsel for the respondents, however, would have objection to the present Petition. Reply affidavit has been filed to set out the objection. The objection is principally on the ground that the document in question is not sufficiently stamped as per the requirement of Maharashtra Stamp Act and thus, considering the decision of Supreme Court in the case of Garware Wall Ropes Ltd. vs. Coastal Marine Constructions & Engineering Ltd., 2019 SCC Online SC 515, the arbitral tribunal ought not to proceed to pronounce an award. 4. Learned counsel for the petitioner, on the objections as urged on behalf of the respondents, would contend that the issue of stamp duty was raised by the respondents before the arbitral tribunal. It is contended that by an order dated 21st July, 2018 passed by the arbitral tribunal, the Application dated 1st June, 2018 of the respondents on the objection that the document was not sufficiently stamped, came to be rejected. It is thus contended such objection as urged to oppose this Petition filed under section 29A of the Act is not maintainable. 5. Having heard the learned counsel for the parties and having perused the record, I am not persuaded to accept the submissions as urged on behalf of the respondents. The arbitral tribunal being an adjudicating authority in the process of adjudication, would be competent under section 33 of the Maharashtra Stamp Act, 1958 to consider the objections in regard to the document not being sufficiently stamped. It would be relevant to note the provisions of Section 33, which reads thus: “33.
The arbitral tribunal being an adjudicating authority in the process of adjudication, would be competent under section 33 of the Maharashtra Stamp Act, 1958 to consider the objections in regard to the document not being sufficiently stamped. It would be relevant to note the provisions of Section 33, which reads thus: “33. Instruments not duly stamped (1) Subject to the provisions of section 32A, every person having by law or consent of parties authority to receive evidence and every person in charge of a public office, except an officer of police or any other officer, empowered by law to investigate offences under any law for the time being in force, 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 duly stamped, impound the same irrespective whether the instrument is or is not valid in law. (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 for the time being in force in the State when such instrument was executed or first executed : Provided that, (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do any instrument coming before him in the course of any proceeding other than a proceeding under Chapter IX or Part D of Chapter X of the Code of Criminal Procedure, 1973; (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court may appoint in this behalf. (3) For the purposes of this section, in cases of doubt, (a) the State Government may determine what offices shall be deemed to be public offices; and (b) the State Government may determine who shall be deemed to be persons in charge of public offices.” (emphasis supplied) 6. Also Section 28 of the Act would mandate that in a domestic arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India.
Also Section 28 of the Act would mandate that in a domestic arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India. The applicability of the domestic law is also clear from the provisions of Section 28 which provides thus: 28. Rules applicable to substance of dispute.— (1) Where the place of arbitration is situate in India,— (a) in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India; (b) in international commercial arbitration,— (i) the arbitral tribunal shall decide the dispute in accordance with the rules of law designated by the parties as applicable to the substance of the dispute; (ii) any designation by the parties of the law or legal system of a given country shall be construed, unless otherwise expressed, as directly referring to the substantive law of that country and not to its conflict of laws rules; (iii) failing any designation of the law under clause (a) by the parties, the arbitral tribunal shall apply the rules of law it considers to be appropriate given all the circumstances surrounding the dispute. (2) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorised it to do so. (3) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.” (emphasis supplied) 7. The arbitral tribunal is thus competent to consider an objection on a document as tendered in evidence on the ground that it is not sufficiently stamped and on examining such objection, if it is found that the objection is sustainable, impound such instrument. 8. In the present case, the arbitral tribunal being competent to consider such an objection, being an authority as recognized under Section 33 of the Maharashtra Stamp Act read with the provisions of Arbitration and Conciliation Act, to impound document, has decided the respondent’s objection by an order dated 21st July, 2018 on examining the provisions of the Stamp Act and has come to a conclusion that the objections as urged on behalf of the respondents on the document not being sufficiently stamped, cannot be accepted.
9. Considering the said order passed by the learned sole arbitrator, in my opinion, the contention as urged on behalf of the respondents even relying on the decision of Supreme Court in the case of Garware Wall Ropes Ltd. (supra) would not assist the respondents in these proceedings. 10. Thus, such objection as raised on behalf of the respondents cannot be entertained and more particularly considering that these proceedings are under section 29A seeking extension of mandate of the arbitral tribunal. The objection is accordingly rejected. 11. The arbitral proceedings are at the fag end. What remains is the pronouncement of the award. In these circumstances, in the interest of justice, Petition is required to be allowed. The mandate of the arbitral tribunal is accordingly extended by a period of one month from today. Ordered accordingly. 12. The above observations are in the context of adjudication of the present proceedings and in no manner reflection of any opinion on any factual and/or legal issues subject matter of the arbitration. 13. Petition is disposed of in the aforesaid terms. No costs.