HARI SHANKER SINHANIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India, the petitioners are praying for writ of mandamus or any other appropriate writ, order or direction directing the respondent Nos. 2 and/or 3 to adjudicate and certify an Award of the Arbitrator as, according to them, the stamp duty required by law has been paid thereon. The petitioners are also applying for direction to respondent Nos. 2 and/or 3 to issue a certificate under section 32 of the Bombay Stamp Act, 1958, certifying that the full duty with which it is chargeable has been paid and that the Award be registered and certified accordingly.

(2.) The petitioners and respondent Nos. 7 to 22 were parties to the Deed of Dissolution dated 26th March, 1987 and a Supplementary Agreement dated 28th March, 1987. The petitioners filed an application under section 20 of the Arbitration Act, 1940 in this Court being Arbitration Suit No. 1904 of 1992. That application was dismissed by this Court holding that it was barred by law of limitation and that order was confirmed by a Division Bench. However, the orders of the learned Single Judge and the Division Bench came to be set aside by the Hon'ble Supreme Court of India on 4th April, 2006 and it appointed the Hon'ble Shri Justice S.N. Variava, former Judge of the Supreme Court of India as a Sole Arbitrator. The learned Arbitrator made an award on 4th August, 2008/12th September, 2008 which came to be forwarded to respondent No. 2 for adjudication and determination of proper stamp duty by the learned Arbitrator. The Arbitrator sought a certificate under section 32 of the Bombay Stamp Act, 1958. It is stated that despite repeated follow up by the petitioners, the adjudication and determination under section 31 of the Act has not been taken up and, therefore, the certificate under section 32 of the said Act has not been issued.

(3.) The petitioners therefore addressed an Advocates' letter requesting expeditious issuance of certificate but despite receipt of the same and further reminder dated 3rd December, 2008, the necessary steps in accordance with law have not been taken. It is alleged that for the first time the petitioners received a letter dated 29th December, 2008, copy of which is annexed at Exhibit H to the Petition in which it was stated by respondent No. 2 that the adjudication of stamp duty is taking time since the market value of an immovable property at Kanpur, which forms a subject-matter of the award, has to be ascertained. The petitioners replied to this letter and pointed out that the award is covered by Article 12 of Schedule I to the Bombay Stamp Act, 1958 and it is not an Instrument of partition falling under Article 46 of the said Schedule. It was their case that the award is effecting partition and not an award directing partition. In these circumstances, the award should be adjudicated accordingly and the certificate be issued to that effect. Since no action was taken, that this writ petition under Article 226 of the Constitution has been filed in which the above reliefs have been claimed.