Full Judgment Text
15.ARBPL457_2019.doc
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION (L) NO. 457 OF 2019
Asmita India Ltd.
having their registered office at
Asmita House, Asmita Township,
Mira Road (East), Dist. Thane401 107. … Petitioner
V/s.
1. Siddhi Developers
a partnership firm having registered
office at 4/A, Surve House,
Anand Patil Marg,
Gokhale Road, Dadar (West),
Mumbai – 400 028.
2. Vikramsinh Vittal SawantBhosale
Partner of Siddhi Developers
having its address at
4/A, Surve House, Anand Patil Marg,
Gokhale Road, Dadar (West)
Mumbai – 400 028.
3. Vithal Bhaskar Sawant Bhosale
Partner of Siddhi Developers
having its address at
4/A, Surve House, Anand Patil Marg,
Gokhale Road, Dadar (West)
Mumbai – 400 028.
4. Renuka Shahji Bhosale
Partner of Siddhi Developers
having its address at
4/A, Surve House, Anand Patil Marg,
Gokhale Road, Dadar (West)
Mumbai – 400 028. … Respondents
Mr. Sahil Mahajan for the petitioner.
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Mr. Aloukik Pai a/w. Tejas Luviya i/b. Thodur Law Associates for
respondent nos. 1 to 4.
CORAM : G.S.KULKARNI, J.
th
DATE : 25 July, 2019
ORAL 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.
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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
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contended that by an order dated 21 July, 2018 passed by the arbitral
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tribunal, the Application dated 1 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. 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,
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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. 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
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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
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Arbitration and Conciliation Act, to impound document, has decided
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the respondent’s objection by an order dated 21 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.
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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.
(G.S.KULKARNI, J.)
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