MAGMA FINCORP LTD Vs. OMSHANKER

JUDGEMENT

(1.) This petition has been filed by the petitioner Magma Fincorp Limited under Article 227 of the Constitution of India against the order dated 18.9.2019 (Annexure P-1) passed in Arbitration Execution Case No.42/2015 by the 4th Additional District Judge, Chhindwara, whereby the learned Judge of the Executing Court, in an execution proceedings initiated under Section 36 of the Arbitration and Conciliation Act, 1996 (for short "AC Act") has directed the petitioner to pay the deficit stamp duty on the award of Rs.3,75,573/-, which was passed on 19.11.2013 in Calcutta.

(2.) Shorn of unnecessary details, the facts of the case are that the petitioner-company is duly registered under the Companies Act, 1956 having its registered head office at Calcutta. The case of the petitioner is that certain loans in the nature of higher purchase agreement were advanced to the respondents and on account of nonpayment of the same, arbitration clause contained in the agreement was invoked by the petitioner-company and pursuant to which the Arbitrator passed the final award on 19.11.2013 directing the respondents to pay a sum of Rs.3,75,573/- with interest @ 3% per month as provided in the agreement. Although the aforesaid award was passed in Calcutta, but as the respondents are the residents of District Chhindwara, M.P., the execution proceedings under Section 36 of the AC Act were filed in the Court of 4th Additional District Judge, Chhindwara. In the aforesaid proceedings, the impugned order dated 18.9.2019 has been passed and the petitioner-company has been directed to pay the deficit stamp duty on the award.

(3.) Learned counsel for the petitioner has submitted that as per the Madhya Pradesh Arbitration Rules, 1997, on an execution application filed under Section 36 of the AC Act, only a fixed court fees of Rs.200/- is required to be paid, hence no further stamp duty can be directed to be paid on the award. It is further submitted that after the award was passed under Section 34 of the AC Act and as per the provisions of Indian Stamp (Bengal Amendment) Act, 1935 the maximum stamp duty of Rs.100/- as provided under Article 12 of the said Act has already been paid and hence it was put up for its execution before the concerned Court at Chhindwara where the assets of the respondents are located. It is further submitted that the issue regarding the transfer of the decree from one Court to another Court has already been resolved by the Hon'ble Apex Court in the case of Sundaram Finance Limited Vs. Abdul Samad and others, reported in AIR 2018 SC 965 in which it is held that there is no need to obtain the transfer of the decree from the Court having jurisdiction over the arbitral proceedings and that the same can be straightway filed before the executing Court where the assets of the respondents are located. Thus, it is submitted that since the aforesaid issue has already been settled by the Supreme Court in Sundaram Finance Limited (supra) there was no occasion for the learned Judge of the Executing Court to pass the impugned order and direct the petitioner to pay the deficit stamp duty in accordance with Indian Stamp (Madhya Pradesh Amendment) Act, 2014.