2023 (12) TMI 897 - SC - Indian Laws

Stamping of arbitration agreements - whether such arbitration agreements would be non-existent unenforceable or invalid if the underlying contract is not stamped? As per Dr D hananjaya Y Chandrachud CJI The consequences of the failure to stamp an instrument - HELD THAT - The procedure contemplated by the Stamp Act facilitates the collection of revenue. It permits instruments to be impounded not only by persons in charge of a public office or those who are empowered by law to receive evidence but also by any person who is empowered to receive evidence by consent of parties. The statute then sets out the procedure to be followed upon impounding a document. This procedure ensures that stamp-duty is paid. After the payment of the appropriate amount under the appropriate description in Schedule I and the penalty (if any) the Stamp Act provides for the certification of such payment by an endorsement by the appropriate authority. Once an instrument has been endorsed it may be admitted into evidence registered acted upon or authenticated as if it had been duly stamped. The difference between inadmissibility and voidness - HELD THAT - When an agreement is void we are speaking of its enforceability in a court of law. When it is inadmissible we are referring to whether the court may consider or rely upon it while adjudicating the case. This is the essence of the difference between voidness and admissibility. Section 35 of the Stamp Act renders a document inadmissible and not void - HELD THAT - The arbitration agreement must satisfy the requirements of the Contract Act. However the authority empowered to adjudicate whether the requirements of the Contract Act are satisfied is the arbitral tribunal under Section 16 of the Arbitration Act. The purpose of the Stamp Act - HELD THAT - The Stamp Act is a legislation which is enacted in the interest of the revenue. The statute must be interpreted with due regard to its purpose. The Arbitration and Conciliation Act 1996 - HELD THAT - The Arbitration Act was enacted to consolidate and amend the law relating to domestic arbitration international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to the conciliation and for matters connected therewith or incidental thereto. In the process the Arbitration Act repealed the 1940 Act the Arbitration (Protocol and Convention) Act 1937 and the Foreign Awards (Recognition and Enforcement) Act 1961. Arbitral autonomy - HELD THAT - The principle of arbitral autonomy is an integral element of the ever-evolving domain of arbitration law. Arbitral autonomy means that the parties to an arbitration agreement can exercise their contractual freedom to bestow the arbitral tribunal with the authority to decide disputes that may arise between them. The basis of arbitral autonomy is to give effect to the true intention of parties to distance themselves from the risk of domestic judicial parochialism. Principle of minimum judicial interference - HELD THAT - Section 5 is of aid in interpreting the extent of judicial interference under Sections 8 and 11 of the Arbitration Act. Section 5 contains a general rule of judicial non-interference. Therefore every provision of the Arbitration Act ought to be construed in view of Section 5 to give true effect to the legislative intention of minimal judicial intervention. The Arbitration Act is a self-contained code - HELD THAT - When a self-contained code sets out a procedure the applicability of a general legal procedure would be impliedly excluded. Being a selfcontained and exhaustive code on arbitration law the Arbitration Act carries the imperative that what is permissible under the law ought to be performed only in the manner indicated and not otherwise. Accordingly matters governed by the Arbitration Act such as the arbitration agreement appointment of arbitrators and competence of the arbitral tribunal to rule on its jurisdiction have to be assessed in the manner specified under the law. The corollary is that it is not permissible to do what is not mentioned under the Arbitration Act. Therefore provisions of other statutes cannot interfere with the working of the Arbitration Act unless specified otherwise. Principles of modern arbitration - HELD THAT - Modern arbitration law does not completely restrict the role of national courts in the arbitration process but gives priority to the arbitral tribunal to decide on disputes and issues pertaining to arbitration agreements as well as the substantive rights of the parties. The Arbitration Act reflects these aspects of modern arbitration law - It is the duty of this Court to interpret the Arbitration Act in a manner which gives life to the principles of modern arbitration in India. The law on the arbitration agreement - HELD THAT - An arbitration agreement is the foundation of arbitration as it records the consent of the parties to submit their disputes to arbitration - Section 2(b) of the Arbitration Act defines an arbitration agreement to mean an agreement referred to in Section 7. Section 7 defines an arbitration agreement to mean an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship whether contractual or not. It provides that an arbitration agreement could be in the form of an arbitration clause in a contract or in the form of a separate agreement. Further Section 7 mandates that an arbitration agreement shall be in writing. According to Section 7(4) an arbitration agreement is in writing if it is contained in (a) a document signed by the parties; (b) an exchange of letters telex telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. Section 7(5) provides that a reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. Separability of the arbitration agreement - HELD THAT - The concept of separability or severability of an arbitration agreement from the underlying contract is a legal fiction which acknowledges the separate nature of an arbitration agreement. The separate nature of the arbitration agreement from the underlying contract is one of the cornerstones of arbitration law. As Redfern and Hunter explain an arbitration agreement is juridically independent from the underlying contract in which it is contained - To properly understand the contours of the separability presumption it is necessary to understand its origin and development in the international context. Such an analysis is important because any ruling by this Court on the separability presumption ought to be with the aid of international best practices. Correctness of the decision in N.N. GLOBAL MERCANTILE PVT. LTD. VERSUS INDO UNIQUE FLAME LTD. AND ORS. 2021 (1) TMI 1121 - SUPREME COURT - The Constitution Bench acknowledged the separability presumption but refused to apply it in the context of Sections 33 and 35 of the Stamp Act - The above position of law is contrary to the separability presumption which treats an arbitration agreement as separate from the underlying contract. The doctrine of competence-competence - HELD THAT - The doctrine of kompetenz-kompetenz (also known as competencecompetence) as originally developed in Germany was traditionally understood to imply that arbitrators are empowered to make a final ruling on their own jurisdiction with no subsequent judicial review of the decision by any court - The separability presumption insulates the arbitration agreement from the defects of the underlying contract and thereby ensures the sustenance of the tribunal s jurisdiction over the substantive rights and obligations of the parties under the underlying contract even after such a contract is put to an end. The doctrine of competence-competence allows the tribunal to decide on all substantive issues arising out of the underlying contract including the existence and validity of the arbitration agreement. In case the issue of stamping is raised before an arbitral tribunal Sections 33 and 35 of the Stamp Act make it evident that a person having authority by consent of parties to receive evidence is empowered to impound and examine an instrument. A person having authority by consent of parties to receive evidence includes an arbitral tribunal which is constituted by consent of parties. Negative competence-competence - HELD THAT - The international arbitration law as well as domestic law prioritize the arbitral tribunal by permitting them to initially decide challenges to their authority instead of the courts. The policy consideration behind this approach is twofold first to recognize the mutual intention of the parties of choosing the arbitrator to resolve all their disputes about the substantive rights and obligations arising out of contract; and second to prevent parties from initiating parallel proceedings before courts and delaying the arbitral process. This is the positive aspect of the doctrine of competence-competence - The negative aspect in contrast speaks to the national courts. It instructs the courts to limit their interference at the referral stage by deferring to the jurisdiction of the arbitral tribunal in issues pertaining to the existence and validity of an arbitration agreement. Thus the negative aspect of the doctrine of competence-competence suggests that the courts should refrain from entertaining challenge to the jurisdiction of the arbitral tribunal before the arbitrators themselves have had an opportunity to do so. Judicial interference under the Arbitration Act - HELD THAT - When parties enter into an arbitration agreement it is their mutual and unequivocal intention to submit their disputes to an arbitral tribunal. The arbitration law recognizes this aspect by granting autonomy to the parties to adopt a procedural mechanism for the appointment of arbitrators. Party autonomy has also been expressly recognized by international arbitration covenants as well as national arbitration legislations - Section 5 of the Arbitration Act disallows a judicial authority from intervening unless expressly provided under Part I. In the present proceedings the exercise of the powers by the courts or judicial authorities as provided under Section 8 and 11 becomes particularly relevant consideration. In the course of the decision one of the questions before this Court in Vidya Drolia 2020 (12) TMI 1227 - SUPREME COURT was the interpretation of the word existence as appearing in Section 11. It was held that existence and validity are intertwined. Further it was observed that an arbitration agreement does not exist if it is illegal or does not satisfy mandatory legal requirements. Therefore this Court read the mandate of valid arbitration agreement contained in Section 8 into the mandate of Section 11 that is existence of an arbitration agreement. . Vidya Drolia proceeds on the presumption that Section 11(6A) was effectively omitted from the statute books by the 2019 Amendment Act - We are of the opinion that the above premise of the Court in Vidya Drolia is erroneous because the omission of Section 11(6A) has not been notified and therefore the said provision continues to remain in full force. Since Section 11(6A) continues to remain in force pending the notification of the Central Government it is incumbent upon this Court to give true effect to the legislative intent. Harmonious construction of the Arbitration Act the Stamp Act and the Contract Act - HELD THAT - The object of the Arbitration Act is to inter alia ensure an efficacious process of arbitration and minimize the supervisory role of courts in the arbitral process. On the other hand the object of the Stamp Act is to secure revenue for state. It is a cardinal principle of interpretation of statutes that provisions contained in two statutes must be if possible interpreted in a harmonious manner to give full effect to both the statutes. The Arbitration Act will have primacy with respect to arbitration agreements - HELD THAT - The Arbitration Act is a legislation enacted to inter alia consolidate the law relating to arbitration in India. It will have primacy over the Stamp Act and the Contract Act in relation to arbitration agreements for multiple reasons. The Arbitration Act is a special law and the Indian Contract Act and the Stamp Act are general laws - HELD THAT - It is not only the definition of arbitration agreement but also the other provisions of the Arbitration Act and the purpose for which it was enacted that makes it a special law - The Statements of Objects and Reasons of the Arbitration Act records that the main objective of this law was to comprehensively cover international and commercial arbitration and conciliation as also domestic arbitration and conciliation. Section 5 of the Arbitration Act - HELD THAT - Section 5 is effectively rendered otiose by the interpretation given to it in N N Global 2. The court failed to provide a reason for holding that Section 5 of the Arbitration Act does not have the effect of excluding the operation of Sections 33 and 35 of the Stamp Act in proceedings under Section 11 of the Arbitration Act. The non-obstante clause in Section 5 does precisely this. In addition to the effect of the non-obstante clause the Arbitration Act is a special law. We must also be cognizant of the fact that one of objectives of the Arbitration Act was to minimise the supervisory role of courts in the arbitral process. Parliament was aware of the Stamp Act when it enacted the Arbitration Act - HELD THAT - Parliament was aware of the Stamp Act when it enacted the Arbitration Act. Yet the latter does not specify stamping as a pre-condition to the existence of a valid arbitration agreement. Further Section 11(6-A) of the Arbitration Act requires the court to confine itself to the examination of the existence of the arbitration agreement. This provision stands in contrast to Section 33(2) of the Stamp Act which also uses the word examine. Harmonious construction of the three statutes under consideration - The effect of the competence-competence doctrine - HELD THAT - In A. Ayyasamy v. A. Paramasivam 2016 (10) TMI 1147 - SUPREME COURT a two-judge Bench of this Court of which one of us DY Chandrachud J was a part emphasized that arbitration must provide a one-stop forum for the resolution of disputes and held that (a) Courts must give effect to the commercial understanding of parties to arbitration agreements that arbitration is efficacious; and (b) This can be done by minimising judicial intervention. The corollary of the doctrine of competence-competence is that courts may only examine whether an arbitration agreement exists on the basis of the prima facie standard of review. The nature of objections to the jurisdiction of an arbitral tribunal on the basis that stamp-duty has not been paid or is inadequate is such as cannot be decided on a prima facie basis. Objections of this kind will require a detailed consideration of evidence and submissions and a finding as to the law as well as the facts. Obligating the court to decide issues of stamping at the Section 8 or Section 11 stage will defeat the legislative intent underlying the Arbitration Act. Once the arbitral tribunal has been appointed it will act in accordance with law and proceed to impound the agreement under Section 33 of the Stamp Act if it sees fit to do so. It has the authority to receive evidence by consent of the parties in terms of Section 35. The procedure under Section 35 may be followed thereafter. In this manner the competence-competence doctrine is given life and arbitration proceedings can continue to remain a faster alternative to suits before the trial courts or other similar actions. The object of the Stamp Act is preserved - HELD THAT - The impounding of an agreement which contains an arbitration clause at the stage of the appointment of an arbitrator under Section 11 (or Section 8 as the case may be) of the Arbitration Act will delay the commencement of arbitration. It is a well-known fact that courts are burdened with innumerable cases on their docket. This has the inevitable consequence of delaying the speed at which each case progresses. Arbitral tribunals on the other hand deal with a smaller volume of cases. They are able to dedicate extended periods of time to the adjudication of a single case before them. If an agreement is impounded by the arbitral tribunal in a particular case it is far likelier that the process of payment of stamp-duty and a penalty (if any) and the other procedures under the Stamp Act are completed at a quicker pace than before courts. SMS Tea Estates 2011 (7) TMI 1289 - SUPREME COURT and Garware Wall Ropes 2019 (4) TMI 716 - SUPREME COURT were wrongly decided - HELD THAT - The non-obstante clause contained in Section 11(6A) pertains to those judicial precedents which delved into the discretion and power of referral courts to intervene and examine the existence and validity of an arbitration agreement at the Section 11 stage. This includes SMS Tea Estates considering the fact that it mandated the referral court to judicially intervene in the arbitration process by impounding the unstamped instrument containing the arbitration agreement. Therefore we hold that Section 11(6A) also legislatively altered the basis of SMS Tea Estates (supra) to the extent that it dealt with judicial intervention at the Section 11 stage. The discussion has held that non-stamping or insufficient stamping of an instrument does not render it invalid or nonexistent. Therefore paragraphs 22 and 29 of Garware Wall Ropes which held that an arbitration agreement contained in an unstamped or insufficiently stamped contract would be non-existent in law does not set forth the correct position of law. The Appointment of Arbitrators by the Chief Justice of India Scheme 1996 - HELD THAT - The referral court at Section 11 stage should not examine or impound an unstamped or insufficiently stamped instrument but rather leave it for the determination by the arbitral tribunal. When a party produces an arbitration agreement or its certified copy the referral court only has to examine whether an arbitration agreement exists in terms of Section 7 of the Arbitration Act. The referral court under Section 11 is not required to examine whether a certified copy of the agreement/ instrument/ contract discloses the fact of payment of stamp duty on the original. Accordingly we hold that the holding of this Court in SMS Tea Estate as reiterated in N N Global 2 is no longer valid in law. Vidya Drolia does not deal with the issue of stamping - HELD THAT - The reasoning in Vidya Drolia does not lead to the conclusion that Garware Wall Ropes was rightly decided either on the aspect of examination and impounding of unstamped or insufficiently stamped instrument with respect to arbitration proceedings or the validity of on arbitration agreement contained in an unstamped or insufficiently stamped underlying contract. Thus following conclusions have been reached out by CJI - a. Agreements which are not stamped or are inadequately stamped are inadmissible in evidence under Section 35 of the Stamp Act. Such agreements are not rendered void or void ab initio or unenforceable; b. Non-stamping or inadequate stamping is a curable defect; c. An objection as to stamping does not fall for determination under Sections 8 or 11 of the Arbitration Act. The concerned court must examine whether the arbitration agreement prima facie exists; d. Any objections in relation to the stamping of the agreement fall within the ambit of the arbitral tribunal; and e. The decision in NN Global 2 (supra) and SMS Tea Estates (supra) are overruled. Paragraphs 22 and 29 of Garware Wall Ropes (supra) are overruled to that extent. The Registry is directed to take administrative directions from Hon ble Chief Justice of India for placing the matters before an appropriate Bench. As per SANJIV KHANNA J. For the reasons set out in detail by Hon ble the Chief Justice and recorded herein the conclusions drawn are agreed with.

Summary

Issues Involved:
1. Maintainability of the proceedings.
2. The impact of the Indian Stamp Act, 1899 on arbitration agreements.
3. The doctrine of competence-competence.
4. Judicial interference under the Arbitration Act.
5. Harmonious construction of the Arbitration Act, the Stamp Act, and the Contract Act.
6. The correctness of the judgments in SMS Tea Estates and Garware Wall Ropes.

Summary:

1. Maintainability of the Proceedings:
The Court addressed the preliminary issue of maintainability, noting that the curative petition and a Section 11 application were listed together. The rule of judicial discipline demands that a Bench of lower strength is bound by the decision of a larger Bench. The Court found no impropriety in the reference made to the seven-Judge Bench, emphasizing the importance of addressing issues of seminal importance for the interpretation and application of arbitration law in India.

2. The Impact of the Indian Stamp Act, 1899 on Arbitration Agreements:
The Stamp Act mandates that instruments chargeable with duty must be stamped before or at the time of execution. An unstamped instrument is inadmissible in evidence under Section 35 but is not rendered void. Non-stamping or improper stamping is a curable defect. The Court clarified that the admissibility of an instrument is distinct from its validity or enforceability in law. The majority in N N Global 2 conflated the distinction between enforceability and admissibility. The Court held that the Stamp Act does not render an unstamped instrument void but merely inadmissible until duly stamped.

3. The Doctrine of Competence-Competence:
The doctrine allows an arbitral tribunal to rule on its own jurisdiction, including objections to the existence or validity of the arbitration agreement. The Court emphasized that the arbitral tribunal has the first priority to determine issues of stamping, and courts should refrain from intervening at the referral stage. The principle of competence-competence ensures that arbitration proceedings are not derailed by preliminary objections, preserving the autonomy of the arbitral tribunal.

4. Judicial Interference under the Arbitration Act:
Section 5 of the Arbitration Act limits judicial intervention to matters expressly provided under Part I of the Act. The Court held that the referral court under Section 11 should only examine the prima facie existence of an arbitration agreement and not delve into issues of stamping. The legislative intent is to minimize judicial interference and ensure that arbitration remains a speedy and efficient dispute resolution mechanism.

5. Harmonious Construction of the Arbitration Act, the Stamp Act, and the Contract Act:
The Court emphasized the need for a harmonious construction of the three statutes to give effect to their respective purposes. The Arbitration Act, being a special law, has primacy over the Stamp Act and the Contract Act concerning arbitration agreements. The non-obstante clause in Section 5 of the Arbitration Act reinforces this primacy. The Court held that the arbitral tribunal has the authority to impound and examine an instrument for stamping, ensuring that the interests of revenue are protected without undermining the arbitration process.

6. The Correctness of the Judgments in SMS Tea Estates and Garware Wall Ropes:
The Court overruled the decisions in SMS Tea Estates and Garware Wall Ropes to the extent that they mandated judicial intervention at the Section 11 stage for impounding unstamped instruments. The Court clarified that the referral court should not examine or impound an unstamped instrument but leave it to the arbitral tribunal. The Court held that non-stamping or insufficient stamping does not render an arbitration agreement void or non-existent, and the arbitral tribunal is competent to address such issues.

Conclusion:
The Court concluded that agreements which are not stamped or are inadequately stamped are inadmissible in evidence but not void or unenforceable. The objections related to stamping fall within the ambit of the arbitral tribunal. The decisions in NN Global 2 and SMS Tea Estates were overruled, and paragraphs 22 and 29 of Garware Wall Ropes were overruled to that extent. The referral court under Section 11 should only examine the prima facie existence of an arbitration agreement and not delve into issues of stamping.