Case Law Details
Pigments & Allieds Vs Carboline (India) Pvt. Ltd. (Bombay High Court)
In the present case, on a fair reading of provisions of the Maharashtra Stamp Act, as applicable in Maharashtra, it is evident under definition 2(d) that the agreement in question was required to be stamped when it was first executed. The agreement was first executed, it was executed by Carboline presumably with appropriate stamp duty since it is not the case of Carboline that it was under-stamped in Chennai. The only contention is that the agreement is executed in Mumbai, as seen from the face of the document. Thus, clearly, when the document was first executed, stamp duty was payable, that has been paid. The only issue now remains whether it was insufficiently stamped and whether a copy could be stamped with the duty payable. That aspect Mr. Ankhad has submitted is not for this court to go into now since the decision in InterContinental Hotels Group (Supra) clearly states that, when in doubt, one must refer the matter to arbitration. I have already dealt with the effect of Section 3(7) and the provisions of Sections 33 and 34 of the Act and taking an overall view, I have no doubt that an Arbitrator would have to be appointed. The notice invoking arbitration has nominated an Arbitrator. It now seeks appointment of an Arbitrator on behalf of the respondent and accordingly, the application must succeed, reserving all rights and contentions of the parties on merits.
Arbitration is seen as a speedy remedy but if applicants and respondents who may have counter-claims, have to await the fate of adjudication of documents for stamping and conclusion of the statutory challenge, the purpose of arbitration may be defeated. In my view, once parties are ad-idem on the fact that they have signed the writing containing an arbitration clause, the parties having acknowledged that an arbitration clause was embodied in the substantive contract, cannot prevent the court from disposing an application under Section 11 and the High Court, in my view, need not await the decision of the claimant in the case at hand as to whether or not to pay stamp-duty, as adjudicated. If this is not to be so, a large number of arbitration proceedings will be held up right at the inception, which is not desirable.
Pending the decision of the Collector of Stamps, I am of the view that the non-availability of the original agreement at this stage will not prevent this court from appointing an Arbitrator. It is possible that the document is still lying undiscovered with either of one of the parties. If it is with any of the parties, it could surface tomorrow and the agreement and its contents having been accepted and relied upon by both sides, there is no merit in contending that absent the original agreement, no reference can be made. As to whether secondary evidence can be led or not, Mr. Kamat has canvassed the respondents’ view that no secondary evidence can be led in respect of this agreement. That is once again an aspect that this court need not go into under Section 11 and is left to the arbitral tribunal to decide since it pertains to admissibility of the document.
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT
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