NARAYAN TRADING CO Vs. ABCOM TRADING PVT LTD

JUDGEMENT

(1.) Being aggrieved by the orders dated 8-7-2011 and 29-8-2011 passed by 4th Addl. District Judge, Indore in Case No. 0/2010, whereby objections filed by the petitioner under Order XXI Rule 58, CPC was dismissed and thereafter application filed under Section 47, CPC was also dismissed, present petition has been filed. Short facts of the case are that respondent filed a petition for enforcement of the award dated 8-5-2007, which was passed by Grain and Feed Trade Association, Singapore for short GAFTA, whereby petitioner was directed to pay a sum of $ 1,78,441.92 along with interest @ 5% per annum. Objections were filed by the petitioner under Order XXI Rule 58, CPC alleging that since the petitioner is not a party to the agreement, therefore, award cannot be enforced against the petitioner. It was also alleged that since the award is not duly stamped, therefore, also award cannot be executed. It was prayed that application for enforcement of award be dismissed. Learned Court below dismissed the objections filed by the petitioner vide order dated 8-7-2011. Thereafter, another application under Section 47, CPC was filed, wherein it was alleged that objections relating to unstamped award has not been taken into consideration by the learned Court below, therefore, the same be taken into consideration and the petition filed by the respondent for enforcement of the award be dismissed. This application was also dismissed, hence this petition.

(2.) Mr. S.C. Bagadia, learned Senior Advocate appearing on behalf of petitioner submits that the impugned orders passed by the learned Court below are illegal, incorrect and deserve to be set aside. It is submitted that in the objections which were filed by the petitioner before the learned Court below by way of application under Order XXI Rule 58, CPC were in two folds, firstly that the petitioner was not a party to the arbitration agreement, therefore, the arbitration award passed by the GAFTA is not executable against the petitioner and secondly the award passed by GAFTA is not duly stamped, therefore, the same is not enforceable. Learned Counsel concedes that the application was wrongly titled as the application under Order XXI Rule 58, CPC, which ought to have been under Section 48 of Arbitration & Conciliation Act (which shall be referred hereinafter as an "A & C Act"). It is submitted that after filing of the present petition, petitioner has separately filed an application under Section 48 of A & C Act, wherein this ground has been raised, therefore, the petitioner is not raising that ground before this Court. So far as other ground is concerned, which relates to the stamp duty payable on the award is concerned, learned Counsel placed reliance on the clause (bb) of proviso to Section 3 of Indian Stamp Act and submits that the instrument is chargeable with duty mentioned in Schedule 1-A of Indian Stamp Act. Learned Counsel further submits that as per Article 11 of Schedule 1-A of Indian Stamp Act the award is required to be stamped @ Rs. 20/- for every one thousand rupees or part thereof, of the amount, or value of the property to which the award relates. Proviso (bb) of Section 3 of Indian Stamp Act reads as under:-

(3.) Learned Counsel submits that Stamp Duty is payable as per Clause 11 of Schedule I-A of Indian Stamp Act, 1899, which reads as under:-