(1.) IN these proceedings a number of objections have been raised on behalf of the State to the validity of the award dated January 8, 1972, given by Kh. Mohi -ud -Din Karra an advocate of this court, who was appointed as an arbitrator by the parties in terms of clause 15 of their agreement dated August 7, 1972. By this award Mr. Karra has held M/S Voltas Ltd. New Delhi, entitled to be re -imbursed by the State of Jammu and Kashmir to the extent of Rs. 20,852.85 paid by the former to the customs authorities on account of extra custom duty alleged to have been levied in respect of the import of some machinery on the basis of Customs Valuation Rules made by the Central Government in exercise of the power conferred on it under Section 156 of the Customs Act. 1962. One of the objections raised by Mr. Karim appearing on behalf of the State is that the award not having been engrossed by the Arbitrator on stamp paper as required by the Stamp Act, the same is not admissible in evidence and cannot be acted upon. It is not disputed by Mr. R.K. Koul, appearing for M/S Voltas Ltd. New Delhi, that the award was not written by the arbitrator on the requisite stamp paper on January 8, 1972, and that the stamp papers were enclosed with the award on May 15, 1972, before it was filed in the court. His contention, however, is that the award can be admitted in evidence and acted upon on payment of requisite stamp duty and penalty under proviso (a) to Section 35 of the Stamp Act. As the said proviso clearly permits the validation of an instrument of the kind in question on payment of prescribed stamp duty and penalty, I am inclined to admit the award in evidence on payment of stamp duty prescribed by Article 12 of Schedule (1) of the Stamp Act and penalty of Rs. 220/ - i.e. ten times the requisite stamp duty.
(2.) MR . Karim has raised another objection to the effect that although the bar of admission in evidence of the award can be removed by payment of the requisite stamp duty and penalty the bar created by the latter part of Section 35 of the Stamp Act viz that it cannot be acted upon cannot be over -come. This contention, in my opinion, is not tenable. Although "admitting in evidence" and "acting upon" are different acts, the latter act is permissible on the former being done. The expression "admitting in evidence" means the receiving of document on record as a piece of evidence for taking action on its basis. To act upon the document is to give effect to it. The instrument that is admitted in evidence can be acted upon if there is nothing in law to the contrary. If as held in A.I.R. 1924 P.C. 121, an instrument becomes effective on payment of requisite stamp duty and penalty, the bar to its being acted upon automatically dis -appears. The inevitable effect of payment of stamp duty and penalty is that the instrument becomes admissible in evidence and can be acted upon if it is otherwise found to be lawful. It appears to me that the Legislature intended that a document which is admitted in evidence on payment of stamp duty and penalty may be acted upon if it is not otherwise found to contravene any provision of law. If the intention of the Legislature would have been otherwise, the Supreme Court in Mattapalli Chelamayya V. Mattapalli Venkataratnam, A.I.R. 1972 Supreme Court, 1121 would have held so and would have ruled the award out of consideration. The fact that the court did not do so lends support to my view. In Mst. Bittan Bibi and another V. Kuntu Lal and ors, A.I.R. 1952 Allahabad, 996, Brij Mohan Lal J resolved the difference between Dessi and Raghbar Dayal JJ by holding after an exhaustive survey of the case law that the pharse "acting upon" occurring in Section 35 of the Stamp Act has not been used in respect of documents produced in evidence. The second objection raised by Mr. Karim is also, therefore, over -ruled.
(3.) AS the requisite stamp papers were annexed with the award before it was filed in court, I would treat that, as due -payment of stamp duty as was done in M. Venkataratnam and another V. M. Chelamayya and another, A.I.R. 1967 Andhra Pradesb, 257, and would admit the award in evidence on payment of Rs. 220/ - as penalty which shall be paid by M/s Volta Ltd. within three weeks from today failing which the document would not be admitted in evidence or acted upon.