DHARAMVEER SHARMA Vs. STATE OF M.P.

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed against the order dated 16/9/2019 passed by Third Additional District Judge, Gwalior in Case No.6900105/2016, by which the petitioner has been directed to pay the stamp duty, failing which the execution application shall stand dismissed by considering the arbitration award as not executable.

(2.) The necessary facts for disposal of the present petition in short are that the petitioner claims himself to be a registered contractor having entered into an agreement with the respondents on 19/1/2004 for the work of fixing Chanda Patthar in 42 villages of Gwalior District. A dispute arose between the parties regarding payment of work done by the petitioner and since an Arbitrator was not appointed by the respondents, therefore, the petitioner filed an application under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (in short "the Act, 1996"), which was registered as MCC No.745/2006 and by order dated 12/9/2018 Justice S.K. Dubey, Former Judge of this Court, was appointed as an Arbitrator. An award was passed on 13/6/2009 in favour of the petitioner and an amount of Rs.1,32,250/- and Rs.14,600/- alongwith interest at the rate of 15% per annum was granted and cost of Rs.15,000/- was also awarded. The respondents filed an application under Section 34 of the Act, 1996 before the Court of Second Additional District Judge, Gwalior, which was registered as MJC No.96/2010 and the said objection was dismissed by order dated 20/8/2010. Thereafter, an appeal under Section 37 of the Act, 1996 was filed before this Court, which was registered as AA No.6/2010 and the same was dismissed vide order dated 20/7/2011. Thereafter, the petitioner submitted an application for execution of award and the notices were served on the respondents and they submitted their appearance before the Executing Court. It is submitted that the Executing Court suo motu raised an objection with regard to non-payment of stamp duty on the award and has directed the petitioner to deposit the stamp duty of Rs.29,095/- within 30 days with penalty, failing which the execution application shall be dismissed as not executable.

(3.) Challenging the order passed by the court below, it is submitted by the counsel for the petitioner that the court below has not considered the provisions of Article 11 of schedule 1-A (M.P. State amendment) of the Indian Stamp Act, 1899 (in short "the Act, 1899"), which clearly provides that the stamp duty is not payable if an award is passed on a reference made by an order of the Court in the course of suit. It is submitted by the counsel for the petitioner that the Division Bench of Delhi High Court in the case of Darshan Singh Vs. M/s. Forward India Finance P. Ltd. New Delhi and others, 1984 AIR(Del) 140 has held that in case if reference is made through a Court in a suit or in some other proceedings, then the award does not require to be stamped and if the award is made on a private reference, i.e. without the intervention of the Court, then the stamp duty is to be paid. It is submitted that in the present case, the Arbitrator was appointed by the Court while exercising power under Section 11 (6) of the Act, 1996 and, therefore, the stamp duty is not payable.