KHEM CHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) - This Revisional application is directed against the Order No. 51 dated 20.1.1986 passed by the Assistant District Judge Asansol, in Misc. Case No. 108/1981.

(2.) THE said Misc. Case arose out of an application dated 9.4.1981 for appointment of an Arbitrator and for submission of an Award. THE Arbitrator so appointed submitted his Award on 8,12.1982 and thereafter the petitioner filed a petition in the Court below under Section 14 of the Arbitration Act for pronouncing judgment and drawing up decree in accordance with law. THE Opposite Party objected to the said prayer on the ground that the Award was not properly stamped, therefore, it could not be accepted by the Court and the same was liable to be rejected. In terms of Order No. 47 dated 23.1.1984, a preliminary point was raised as to whether the Award being not engrossed on a stamped paper, had any validity or could operate as an Award? THE said preliminary point was heard by the Court below and after discussing the submissions of the respective parties and considering the decision reported in A.I.R. 1962, Supreme Court, Page 551. (Rikhav Dass-versus-Ballavdas and others) and A.I.R. 1928, Nagpur, Page 166 (Ramkumar-versus-Kishanchand Ganesh Das and others), the Learned Assistant District Judge found that unless and until the Award was engrossed on a stamped paper, the Court would not be justified in looking at it or in acting upon it, far less it could pass a decree in terms thereof. THE executant of the Award being an Arbitrator under Section 29(G) of the said Act, it was his duty primarily to direct any of the parties to provide him with necessary stamp and to see that he did not deliver or publish his award on a plain paper. It was further found that the Court had no authority or jurisdiction to remit back the Award for re-writing the same upon a stamped paper and the defect in the said Award does not come within any of the Clauses of Section 16(1) (c) of the Arbitration Act. Considering this aspect of the matter the Court below held that the Award could not be accepted and no judgment would be passed under Section.17 of the Arbitration Act on the basis of the said Award and accordingly, the Misc. Case was dismissed on contest.

(3.) WE concur with the view taken by the Division Bench of the Patna High Court in the case of M/s. Pradip Trading. Co. Versus-State of Bihar, A.I.R. 1974, Pat. 315 - The Division Bench had explained and distinguished the Supreme Court decision in Rikhavdass-versus-Ballavdas (Supra) by holding that when award made in an arbitration without Court's intervention is brought on the Court's records, it is bound to impound an unstamped award under Section 85 of the Stamp Act, and after the said defect is cured the award may be made rule of Court. Untwalia J (as he then was) in his judgment in the case of M/s. Pradip Trading Co.-versus-State of Bihar (Supra), relied upon the decision of the Andhra Pradesh High Court in the case of Srinivas Rao-versus-Venkat Narasima A.I.R. 1968 A.P. 193, which laid down that Section 35 of the Stamp Act casts a duty on the Court in all cases to admit documents of payment of penalty subject to just explanations. The learned judge had quoted from Mulla's commendary on Stamp Act to the effect that the power to impound could be used even in case of an unstamped award. The Madhya Pradesh High Court in the case of Therpal-versus-Arjun Singh A.I.R. 1957, Madhya Bharat 1949 was of the same view that defect in an unstamped award could be cured by impounding it and thereafter it could be brought on the records of the case. WE respectfully agree with the above views expressed. Therefore, although an unstamped award cannot be remitted back under Section 16(1) (c) of the Act for re-writing the same upon the stamped paper, the Court could give opportunities to parties to remedy the said defect in other way. In case an unstamped award is filed under Section 33 read with Section 85 of the Stamp Act, the Court may impound the instrument. In case party or parties pay the duty chargeable the Court may admit the award into record and thereafter proceed in accordance with it. The Supreme Court in Rakhavdass-versus-Ballavdass (Supra), did not lay down that an award which is unstamped must be straightway rejected without giving opportunities to the parties to remove such defect in a lawful manner. Section 35 of the Stamp Act lays down one such procedure for removing the defect.