MR KINNY BAHRI vs MR AUSTIN ROACH
- Court
- Karnataka High Court
HC-KAR
NC: 2026:KHC:53901
WP No. 5155 of 2025
CNR: KAHC010074922025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 29 DAY OF SEPTEMBER, 2026
R
BEFORE
THE HON'BLE MS. JUSTICE TARA VITASTA GANJU
WRIT PETITION NO. 5155 OF 2025 (GM-CPC)
BETWEEN:
MR. KINNY BAHRI
S/O LATE MR. R.K.BAHRI,
AGED ABOUT 62 YEARS,
HAVING HIS/ITS CURRENT OFFICE/,
RESIDENCE AT “SKAV AURA”,
TH
NO.405, FIRST FLOOR, 6 MAIN,
ST
1 CROSS, OFF 100 FT ROAD,
ND
H.A.L., 2 STAGE, BANGALORE-560 008.
[PAN.NO.AB0PB9954F]
PH NO. 9845001666.
EMAIL ID: KINNY [email protected] IN.
…PETITIONER
(BY SRI. BHUVANENDRA RAJU.P., ADVOCATE)
AND:
1. MR. AUSTIN ROACH
SON OF LATE P A ROACH,
AGED ABOUT 71 YEARS,
RESIDENT AT NO.5,
DEFENCE COLONY,
ST
1 MAIN ROAD, INDIRANAGARA,
BANGALORE-560 038.
(PAN NO.ACWPR3876R)
PH: 9945539866.
EMAIL: [email protected].
2. M/S. RBD SHELTERS LLP,
REGISTERED UNDER THE LIMITED LIABLITY
PARTNERSHIP ACT 2008,
BEARING IDENTIFICATION NUMBER AAB-6572,
Digitally signed
by JAI JYOTHI J
Location: HIGH
COURT OF
KARNATAKA
1
HC-KAR
NC: 2026:KHC:53901
WP No. 5155 of 2025
CNR: KAHC010074922025
HAVING ITS OFFICE AT NO.682,
TH
“TIARA 9 “A” MAIN, INDIRANAGARA,
BANGALORE-560 038,
REPRESENTED BY ITS MANAGING PARTNER
AND AUTHORIZED SIGNATORY,
MR.AUSTIN ROACH,
(PAN NO. AAPFR9036C)
…RESPONDENTS
(BY SRI. SAMMITH.S., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSITUTION
OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER
DATED 07.01.2025 PASSED ON I.A.NO.1 BY THE LXXXII
ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY CIVIL
JUDGE, BANGALORE CITY, C.C.H-83, BANGALORE, IN COM
O.S.944/2023 WHICH IS MARKED AS ANNEXURE-A, AND
RESTORE THE SUIT FOR FURTHER PROCEEDINGS IN ORDER
TO RECOVER THE PETITIONERS MONEY WITH INTEREST FROM
THE RESPONDENTS.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU
ORAL ORDER
1. The present petition seeks to challenge the order
dated 07.01.2025, passed on I.A.No.1 by the learned
LXXXII Additional City Civil And Sessions Judge, Bengaluru
in Com.O.S.No.944/2023 [hereinafter referred to as the
‘Impugned Order’]. By the Impugned Order, the learned
Commercial Court has allowed an application under
Section 8 of the Arbitration and Conciliation Act, 1996
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[hereinafter referred to as the ‘A & C Act’] filed by the
respondent No.1 and directed the parties to approach the
Arbitrator.
2. The learned counsel for the petitioner submits that
the arbitration agreement was not adequately stamped
and thus, the application could not have been allowed. In
addition, the learned counsel also refers to the conduct of
the defendant. It is contended that it is the non-
compliance by the defendant with the terms of the
agreement between the parties that has constrained the
plaintiff to file the suit before the learned Trial Court.
3. It is further contended by the learned counsel for the
petitioner that the original arbitral agreement was always
in the custody of the defendant and since the defendant
did not comply with the terms of the agreement, the
plaintiff was constrained to file the commercial suit before
the Commercial Court.
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4. Learned counsel for the respondent/defendant has
refuted these contentions. He submits that firstly, the
contention of the petitioner that the original agreement
was not in their custody is not correct. Paragraph No.6 of
the plaint sets out the date of the agreement which would
have not been available without a copy of the agreement.
He further submits that as is requisite, an application
under Section 8 of the A & C Act, the original agreement
was placed before the Commercial Court. Lastly, it is
contended by the learned counsel for the respondent, that
in terms of the settled position of law in the judgment of
the Supreme Court in the case of Interplay Between
Arbitration Agreements under Arbitration Act, 1996
1
& Stamp Act, 1899, In re , where the Supreme Court
has held that all objections of such nature, can be taken
by the Arbitral Tribunal during arbitration.
5. Section 8 of the A & C Act provides that where a
dispute provides that before filing of the statement of
1
(2024) 6 SCC 1
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defence, where a party to an arbitration agreement applies
to the Court under such provision and the Court finds that
the arbitration agreement prima facie exists, the matter
shall be referred to arbitration. Section 8 of the A & C Act
is set out below:
“ 8. Power to refer parties to arbitration where there is an
arbitration agreement.
(1) A judicial authority, before which an action is brought
in a matter which is the subject of an arbitration
agreement shall, if a party to the arbitration agreement or
any person claiming through or under him, so applies not
later than the date of submitting his first statement on the
substance of the dispute, then, notwithstanding any
judgment, decree or order of the Supreme Court or any
Court, refer the parties to arbitration unless it finds that
prima facie no valid arbitration agreement exists.
(2)The application referred to in sub-section (1) shall not
be entertained unless it is accompanied by the original
arbitration agreement or a duly certified copy thereof:
Provided that where the original arbitration agreement or
a certified copy thereof is not available with the party
applying for reference to arbitration under sub-section
(1), and the said agreement or certified copy is retained
by the other party to that agreement, then, the party so
applying shall file such application along with a copy of
the arbitration agreement and a petition praying the Court
to call upon the other party to produce the original
arbitration agreement or its duly certified copy before that
Court.”
6. An examination of the Impugned Order reflects that
the learned Commercial Court examined the matter and
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gave a finding that an original arbitral agreement dated
19.06.2014 has been placed on record along with the
application under Section 8 of the A & C Act, by the
respondent/defendant before filing of the written
statement in the following terms:
“8. Perused the records, it reveals that, Defendant has
filed this application prior to filing of W/S. The
order sheet also reveals that, this application is
filed on 30.10.2023, on 03.02.2024 Defendant filed
memo along with original Agreement. On perusal of
the Agreement, clause No.4 Arbitration reads as under:
………”
[Emphasis Supplied]
7. The learned Commercial Court also thereafter
referenced the law in this regard and more specifically, the
judgment in the case of (i) Cox and Kings Limited vs.
2
SAP India Private Limited and in (ii) N.N. Global
3
Mercantile vs. Indo Unique Flame and held that even
though an agreement is not stamped it is not rendered as
an inchoate agreement, but the non-stamping is a curable
defect. In view of the existence of an arbitration clause in
2
(2024) 2 SCC 1
3
(2023) 7 SCC 1
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the agreement dated 19.06.2014, the Court has no
jurisdiction to adjudicate the matter.
8. The stamping of an agreement has also more
recently been dealt with in the judgment of the Supreme
Court in Interplay Between Arbitration Agreements
under Arbitration Act, 1996 & Stamp Act, 1899, In
re. The Supreme Court after examining the law in this
behalf, and more specifically the validity of an arbitral
agreement, in the context of it not being adequately
stamped, has held that such a contention can be examined
by the Arbitral Tribunal as follows:
“223. In Intercontinental Hotels Group (India) (P) Ltd. v.
Waterline Hotels (P) Ltd. [Intercontinental Hotels Group
(India) (P) Ltd. v. Waterline Hotels (P) Ltd., (2022) 7
SCC 662 : (2022) 4 SCC (Civ) 209] , the issue before a
Bench of three Judges of this Court in a Section 11
application was : whether the Court can proceed to
appoint an arbitrator when the underlying contract is
incorrectly stamped. In that case, it was observed
that although “stamp duty has been paid, whether
it be insufficient or appropriate is a question that
may be answered at a later stage as this Court
cannot review or go into this aspect under Section
11(6)”.
224. The discussion in preceding segments has
held that non-stamping or insufficient stamping of
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an instrument does not render it invalid or non-
existent. Therefore, paras 22 and 29 of Garware
Wall Ropes [Garware Wall Ropes Ltd. v. Coastal
Marine Constructions & Engg. Ltd., (2019) 9 SCC
209 : (2019) 4 SCC (Civ) 324] , which held that an
arbitration agreement contained in an unstamped
or insufficiently stamped contract would be non-
existent in law, does not set forth the correct
position of law.
xxx xxx xxx
235. The conclusions reached in this judgment are
summarised below:
235.1. Agreements which are not stamped or are
inadequately stamped are inadmissible in evidence
under Section 35 of the Stamp Act. Such
agreements are not rendered void or void ab initio
or unenforceable;
235.2. Non-stamping or inadequate stamping is a
curable defect;
235.3. An objection as to stamping does not fall for
determination under Sections 8 or 11 of the
Arbitration Act. The Court concerned must
examine whether the arbitration agreement prima
facie exists;
235.4. Any objections in relation to the stamping of
the agreement fall within the ambit of the Arbitral
Tribunal ; and
235.5. The decision in N.N. Global (2) [N.N. Global
Mercantile (P) Ltd. v. Indo Unique Flame Ltd., (2023) 7
SCC 1 : (2023) 3 SCC (Civ) 564] and SMS Tea Estates
[SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd.,
(2011) 14 SCC 66 : (2012) 4 SCC (Civ) 777] are
overruled. Paras 22 and 29 of Garware Wall Ropes
[Garware Wall Ropes Ltd. v. Coastal Marine
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Constructions & Engg. Ltd., (2019) 9 SCC 209 : (2019)
4 SCC (Civ) 324] are overruled to that extent.”
[Emphasis Supplied]
9. Given the settled legal position and the fact that the
original agreement was placed on record, before the
learned Commercial Court, this Court finds no ground to
interfere with the Impugned Order. The petition is
accordingly dismissed . Pending applications, if any, stand
closed.
Digitally signed by TARA
VITASTA GANJU
Location: HIGH COURT OF
KARNATAKA
(TARA VITASTA GANJU)
JUDGE
JJ
List No.: 1 Sl No.: 12.1
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