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TMI Blog2023 (7) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... rn as is contained in the latter Act. The Court, thereafter, went on to refer to Item 63 of Schedule I of the Maharashtra Stamp Act, 1958, which dealt with Works Contract . It was found that the Stamp Act is a fiscal measure. Thereafter, the Court went on to discuss the Judgment of this Court reported in SMS Tea Estates Private Limited v. Chandmari Tea Company Private Limited. Finding in SMS TEA ESTATES [ 2011 (7) TMI 1289 - SUPREME COURT ] - When a lease deed or any other instrument is relied upon as contending the arbitration agreement, the court should consider at the outset, whether an objection in that behalf is raised or not, whether the document is properly stamped. If it comes to the conclusion that it is not properly stamped, it should be impounded and dealt with in the manner specified in Section 38 of the Stamp Act. The court cannot act upon such a document or the arbitration clause therein. But if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, the document can be acted upon or admitted in evidence. Finding in GARWARE - The Bench of two learned Judges took the view that the Arbitration Clause contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , cannot be acted upon, in view of Section 35 of the Stamp Act, unless following impounding and payment of the requisite duty, necessary certificate is provided under Section 42 of the Stamp Act - the provisions of Sections 33 and the bar under Section 35 of the Stamp Act, applicable to instruments chargeable to stamp duty under Section 3 read with the Schedule to the Stamp Act, would render the Arbitration Agreement contained in such instrument as being non-existent in law unless the instrument is validated under the Stamp Act. In a given case, the Court has power under paragraph-5 of the Scheme, to seek information from a party, even in regard to stamp duty. As per RASTOGI, J. The existence of a copy/certified copy of an arbitration agreement whether unstamped/ insufficiently stamped at the pre-referral stage is an enforceable document for the purposes of appointment of an Arbitrator under Section 11(6A) of the Act, 1996 where the judicial intervention shall be minimal confined only to the prima facie examination of existence of an arbitration agreement alone keeping in view the object of 2015 amendment and the courts must strictly adhere to the time schedule for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act,1996. The State might put into place a convenient mechanism which would efface the inconsistencies in both the Arbitration Act,1996 and the Stamp Act,1899. If we look at the legislative intent of the Arbitration Act,1996 and what our country is hoping to be as the destination of choice for Arbitration, I m of the considered opinion that it would be appropriate to interpret the statutory interplay in a constructive manner without defeating the legislative intent and thwarting the speedy referral to arbitration. The examination of stamping and impounding need not be done at the threshold by a Court, at the pre-reference stage under Section 11 of the Arbitration Act, 1996 - Non-stamping/insufficient stamping of the substantive contract/instrument would not render the arbitration agreement nonexistent in law and unenforceable/void, for the purpose of referring a matter for arbitration. Garware wrongly applied the principle in Hyundai [ 2018 (8) TMI 1469 - SUPREME COURT ] to hold that an arbitration agreement would not exist-in-law if it is unstamped/insufficiently stamped. An arbitration agreement should not be rendered void if it is suffering stamp deficiency which is a curabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 11 of the Act, unintentionally. - I am of the considered view that it was so prescribed, fully understanding the nature of exercise of power under Section 11 (6) of the Act and also the presumption of genuineness and correctness of certified copy available by virtue of Section 79 of the Evidence Act. - CIVIL APPEAL NO (S). 3802-3803 OF 2020 - - - Dated:- 25-4-2023 - HON'BLE MR. JUSTICE K.M. JOSEPH , HON'BLE MR. JUSTICE AJAY RASTOGI , HON'BLE MR. JUSTICE ANIRUDDHA BOSE , HON'BLE MR. JUSTICE HRISHIKESH ROY , HON'BLE MR. JUSTICE C.T. RAVIKUMAR For the Appellant : Mr. Gagan Sanghi, Adv. Mr. Rameshwar Prasad Goyal, AOR For the Respondent : Mr. K Rama Kant Reddy, Sr. Adv. Mr. Rajul Srivastava, Adv. Ms. Charu Ambwani, AOR Ms. Komal Agarwal, Adv. Mr. Amit Khare, Adv. Ms. Manisha Ambwani, Adv. Mr. Sanjay Kapur, AOR Ms. Megha Karnwal, Adv. Mr. Surya Prakash, Adv. Mr. Arjun Bhatia, Adv. Mr. Lalit Rajput, Adv. Mr. Devesh Dubey, Adv. Mr. Debesh Panda, AOR Mr. Naman Maheshwari, Adv. Mr. Garv Malhotra, Adv. Mr. Udbhav Gady, Adv. Mr. Neil Chatterjee, Adv. Mrs. Snehal Maheshwari, Adv. Mr. Rahul Totala, Adv. Mr. Eshan Aprameya Chaturvedi, Adv. Mr. Kan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAMP ACT; THE COURT OR THE ARBITRATOR TO ACT? ............ 124 P. ARBITRATION AGREEMENT, A DISTINCT AGREEMENT AND ITS IMPACT? ................................. 132 Q. CONCLUSIONS ............................................................................................................................. 137 1. We have perused the draft judgments prepared by our esteemed brothers Ajay Rastogi, J. and Hrishikesh Roy, J. With profound respect to our learned Brothers, we are unable to, however, concur with them in their reasoning and conclusions save as will be made clear. Hence, the following judgment. A. THE REFERENCE 2. A Bench of three learned Judges disposed of Civil Appeal Nos. 3802-3803 of 2020 by Judgment dated 11.01.2021. The Judgment is reported in N.N. Global Mercantile Private Limited v. Indo Unique Flame Limited and others (2021) 4 SCC 379 . What is of relevance for the purpose of the Reference is the following: 56. We are of the considered view that the finding in SMS Tea Estates [SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd., (2011) 14 SCC 66 : (2012) 4 SCC (Civ) 777] and Garware [Garware Wall Ropes Ltd. v. Coastal Marine Constructions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able under the Indian Stamp Act, 1899 (hereinafter referred to as, the Stamp Act , for short). C. THE FINDINGS IN N.N. GLOBAL IN REGARD TO THE QUESTION UNDER THE CAPTION VALIDITY OF AN ARBITRATION AGREEMENT IN AN UNSTAMPED AGREEMENT 4. The Court found that an Arbitration Agreement is a distinct and separate agreement, which is independent from the substantive commercial contract in which it is embedded. Under the Doctrine of Kompetenz Kompetenz, the Arbitral Tribunal had competence to rule on its own jurisdiction, including objections with regard to the existence, validity and scope of the Arbitration Agreement. Section 16(1) of the Act was relied upon. The Court made a copious reference to case law in support of the Doctrine of Kompetenz-Kompetenz. Section 5 of the Act contemplated minimal judicial interference. The Court referred to the Maharashtra Stamp Act, 1958. Section 34 of the said Act, essentially, is pari materia with Section 35 of the Stamp Act, 1899 hereinafter referred to as the Stamp Act. There are other provisions, which essentially follow the same pattern as is contained in the latter Act. The Court, thereafter, went on to refer to Item 63 of Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to the Judgment in Duro Felguera, S.A. v. Gangavaram Port Limited (2017) 9 SCC 729 , to conclude that what was to be gone into was only whether an Arbitration Agreement existed or not. The Court noted that the said position was affirmed by a Bench of three learned Judges in Mayavati Trading Private Limited v. Pradyuat Deb Burman (2019) 8 SCC 714 . Still further, the Court went on to notice the Judgment rendered by the Bench of two learned Judges in Garware Wall Ropes Limited v. Coastal Marine Constructions Engineering Limited (2019) 9 SCC 209 and referred to para 22 of the said decision where this Court relied on Section 2 (h) of the Indian Contract Act, 1872 (hereinafter referred to as, the Contract Act , for short) and found that an unstamped agreement to be unenforceable. 6. In Garware (supra), the Bench of two learned Judges took the view that the Arbitration Clause contained in the sub-contract would not exist as a matter of law until the sub-contract was duly stamped. It was further found that Section 11(6A) deals with existence as opposed to Section 8, and Section 45 of the Act [See paragraph 29 of Garware (supra)]. The Bench of three learned Judges in its ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option of a party, such as under Section 19 of the Contract Act, 1872. 29. We hold that since the arbitration agreement is an independent agreement between the parties, and is not chargeable to payment of stamp duty, the non-payment of stamp duty on the commercial contract, would not invalidate the arbitration clause, or render it unenforceable, since it has an independent existence of its own. The view taken by the Court on the issue of separability of the arbitration clause on the registration of the substantive contract, ought to have been followed even with respect to the Stamp Act. The non-payment of stamp duty on the substantive contract would not invalidate even the main contract. It is a deficiency which is curable on the payment of the requisite stamp duty. 30. The second issue in SMS Tea Estates [SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd., (2011) 14 SCC 66 : (2012) 4 SCC (Civ) 777] that a voidable contract would not be arbitrable as it affects the validity of the arbitration agreement, is in our view not the correct position in law. The allegations made by a party that the substantive contract has been obtained by coercion, fraud, or misrepresenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce by the parties consensually in accordance with the terms of the arbitration agreement, or by a designated arbitral institution, without the intervention of the court. In such a case, the arbitrator/tribunal is obligated by Section 33 of the Stamp Act, 1899 (or the applicable State Act) to impound the instrument, and direct the parties to pay the requisite stamp duty (and penalty, if any), and obtain an endorsement from the Collector concerned. This would be evident from the provisions of Section 34 of the Stamp Act which provides that any person having by law or consent of parties authority to receive evidence is mandated by law to impound the instrument, and direct the parties to pay the requisite stamp duty. 36.2. The second mode of appointment is where the parties fail to make the appointment in accordance with the arbitration agreement, and an application is filed under Section 11 before the Court to invoke the default power for making the appointment. In such a case, the High Court, or the Supreme Court, as the case may be, while exercising jurisdiction under Section 11, would impound the substantive contract which is either unstamped or inadequately stamped, and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und to observe the mandate of the law contained in Sections 33 and 35 of the Stamp Act. The law has been correctly laid down in SMS Tea Estates (supra) and Garware (supra) and it was also correctly upheld in Vidya Drolia (supra). The amendment to Section 11 by the insertion of sub-Section (6A), could not authorise a Court to overlook the dictate of Sections 33 and 35 of the Stamp Act. 11. Smt. Malvika Trivedi, learned Senior Counsel, projected the same complaint against the view taken in N.N. Global (supra). She, in fact, drew our attention to the impact of the view taken in N.N. Global (supra) to the proceedings under Section 9 of the Act. It is her case that the requirement to comply with Sections 33 and 35 of the Stamp Act, would not stand displaced, even in an Application under Section 9 of the Act. 12. Shri Gourab Banerji, learned Amicus, contended that actually, there were parts of Garware (supra), Vidya Drolia (supra) and N.N. Global (supra), which did lay down the law correctly. He began by pointing out that the Bench in N.N. Global (supra) was not correct in proceeding on the basis that, an Arbitration Agreement, was not required to be stamped. He drew our attention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Stamp Act is a consolidating Act. It is a fiscal law. Securing revenue was the aim. It cannot be used to clothe a litigant with an arm of technicality. He drew our attention to Section 5 of the Act interdicting judicial intervention. He pointed out Section 8 of the Act, which, after the amendment in the year 2015, permits disallowing of making a reference to arbitration, only if the Court found prima facie that no valid Arbitration Agreement existed. Section 8, he pointed out, did refer to validity . He took us through the decision in SMS Tea Estates (supra), in the context of the law laid down in SBP (supra), by the Constitution Bench, the Report of the Law Commission of India and emphasised the need for minimal interference and to give full meaning to Section 11(6A), by ensuring minimal interference. He drew our attention to the discussion by the high-level Committee, which preceded the amendment in Section 11. He commended for the Court s acceptance, the view taken by this Court in Duro Felguera (2017) 9 SCC 729 , wherein, Justice Kurian Joseph, speaking for the Court inter alia, held in the post Section 11(6A) scenario, as follows: 59. The scope of the power under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for an Application seeking reference to arbitration. The learned Amicus with reference to paragraph-18 of SBP (supra), submits that the Court in Garware (supra) erred in holding that only if the Arbitrator was appointed, without intervention of the Court, Section 16 would have full play. It is pointed out that the Judgment in SBP (supra) will not have life, after the amendment in 2015. He would also point out that the Court in Garware (supra) erred in paragraph-19, when it suggested that the Court was only giving effect to a mandatory enactment, which purported to protect the public revenue. While it is correct, it is pointed out that an agreement enforceable by law is a contract and Section 2(g) of the Contract Act, provides that an agreement not enforceable by law, is said to be void, non-stamping or inadequate stamping would not make an instrument void. It is pointed out that the suggestion that, an unstamped document did not become a contract, and that it was, therefore, unenforceable in law was incorrect. He also would find fault with the Court in Garware (supra), when it found that an unstamped document would not exist as a matter of law. The solution suggested by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as one has to see whether there was a valid Arbitration Agreement. It is his submission that unless it is patently void, subject matter arbitrability should be left to the Arbitrator. In a Section 8 Application, the Court should not undertake the exercise of examining of the issue relating to the stamp duty, which goes to admissibility and not jurisdiction. The word existence in Section 11(6A) meant legally enforceable existence and not mere presence in the contract. The scope of the Court must be circumscribed to narrow the prima facie examination of: i. Formal validity of the Arbitration Agreement at the stage of contract formation, including as to whether it is in writing; ii. Whether the core contractual ingredients were fulfilled?; iii. On rare occasions, whether the dispute was arbitrable; 17. The adjudication of stamp duty is a time-consuming affair and it would not align with the goal of the Act, which is to ensure the expeditious appointment of Arbitrators and the conclusion of the proceedings with the least judicial interference. If the Court refrained from interfering on the score of disputes as to stamp duty and allow the Arbitrator to deal with the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at notwithstanding anything contained in any other law for the time being in force despite the Stamp Act on the principle of minimum interference except as provided in Part-I of the Act, the Court should not be detained by Sections 33 and 35 of the Stamp Act. He also reiterates that what is required under Section 11 is a prima facie satisfaction. Parliament did not require the consideration of validity when it enacted Section 11 (6A). There is a conscious distinction between Sections 8 and 11. In other words, there is a distinction between the expressions existence and validity . The width of powers under Section 16 is untrammelled, it is contended. E. ANALYSIS 21. In view of the submission made by the learned Amicus that the Court in N.N. Global (supra) was in error in proceeding on the basis that the Arbitration Agreement would not be exigible to stamp duty, the very premise of the Order of Reference would stand removed. The reformulated question sans the words, which is not chargeable to payment of stamp duty , and words, unenforceable or invalid , would, therefore, be as follows: Whether the statutory bar contained in Section 35 of the Stamp Act applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds omitted by Act 33 of 2019. But Act 33 of 2019 has not been brought into force. G. WHAT LED TO THE INSERTION OF SECTION 11(6A)? 26. It is important to delve into the past and enquire as to what led to the insertion of sub-Section (6A) in Section 11 of the Act. The Act was passed in the year 1996. The Act is, undoubtedly, based on the UNCITRAL MODEL Law. The Hundred and Seventy-Sixth Report of the Law Commission of India made its recommendations for enacting amendments to the Act. This is followed by the Justice B.P. Saraf Committee Report, which was submitted on 29.01.2005. The nature of the power exercised by the courts under Section 11 of the Act, was the subject matter of considerable case law. Suffice it to notice, a Bench of seven learned Judges, with a lone dissent, in SBP (supra), proceeded to hold that the power exercised under Section 11(6) was a judicial power and not an administrative power. In the Majority Judgment, the Court had occasion to consider the impact of Section 16 of the Act, which incorporates the Principle of Kompetenz-Kompetenz. The Court held, inter alia, as follows: 12. When the Tribunal decides these two questions, namely, the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Supreme Court in the case of the decision being by the Chief Justice of the High Court or by a Judge of the High Court designated by him. (Emphasis supplied) 27. We may next notice the Judgment rendered by a Bench of two learned Judges in SMS Tea Estates (supra). They dealt with three questions. What is of relevance, is the second question, which was, whether an Arbitration Agreement in an unregistered instrument, which is not duly stamped, is valid and enforceable . The Court, inter alia, held as follows: 20. The Scheme for Appointment of Arbitrators by the Chief Justice of Gauhati High Court, 1996 requires an application under Section 11 of the Act to be accompanied by the original arbitration agreement or a duly certified copy thereof. In fact, such a requirement is found in the scheme/rules of almost all the High Courts. If what is produced is a certified copy of the agreement/contract/instrument containing the arbitration clause, it should disclose the stamp duty that has been paid on the original. Section 33 casts a duty upon every court, that is, a person having by law authority to receive evidence (as also every arbitrator who is a person having by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be a prima facie satisfaction that there was an Arbitration Agreement, which is not null and void, inoperative or incapable of being performed. Section 45, it must be noticed, at the time when the case was decided, read as follows: 45. Power of judicial authority to refer parties to arbitration.-Notwithstanding anything contained in Part I or in the Code of Civil Procedure , 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. (Emphasis supplied) 29. It was on the aforesaid statutory text that Justice B.N. Srikrishna took the view that the finding as to the existence of the Arbitration Agreement, was to be a prima facie finding. Justice D.M. Dharmadhikari agreed with Justice B.N. Srikrishna with certain additions. 30. In National Insurance Company Limited v. Boghara Polyfab Private Limited (2009) 1 SCC 267 , the question, which f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m arbitration). (ii) Merits or any claim involved in the arbitration. 23. It is clear from the scheme of the Act as explained by this Court in SBP Co. [(2005) 8 SCC 618] , that in regard to issues falling under the second category, if raised in any application under Section 11 of the Act, the Chief Justice/his designate may decide them, if necessary, by taking evidence. Alternatively, he may leave those issues open with a direction to the Arbitral Tribunal to decide the same. If the Chief Justice or his designate chooses to examine the issue and decides it, the Arbitral Tribunal cannot reexamine the same issue. The Chief Justice/his designate will, in choosing whether he will decide such issue or leave it to the Arbitral Tribunal, be guided by the object of the Act (that is expediting the arbitration process with minimum judicial intervention). Where allegations of forgery/fabrication are made in regard to the document recording discharge of contract by full and final settlement, it would be appropriate if the Chief Justice/his designate decides the issue. 24. What is however clear is when a respondent contends that the dispute is not arbitrable on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt does not exist or is null and void. In so far as the nature of intervention is concerned, it is recommended that in the event the Court/Judicial Authority is prima facie satisfied against the argument challenging the arbitration agreement, it shall appoint the arbitrator and/or refer the parties to arbitration, as the case may be. The amendment envisages that the judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void. If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the arbitral tribunal. However, if the judicial authority concludes that the agreement does not exist, then the conclusion will be final and not prima facie. The amendment also envisages that there shall be a conclusive determination as to whether the arbitration agreement is null and void. In the event that the judicial authority refers the dispute to arbitration and/or appoints an arbitrator, Under Sections 8 and 11 respectively, such a decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Estates has, in no manner, been touched by the amendment of Section 11(6A). XXX XXX XXX 29. This judgment in Hyundai Engg. case is important in that what was specifically under consideration was an arbitration Clause which would get activated only if an insurer admits or accepts liability. Since on facts it was found that the insurer repudiated the claim, though an arbitration Clause did exist , so to speak, in the policy, it would not exist in law, as was held in that judgment, when one important fact is introduced, namely, that the insurer has not admitted or accepted liability. Likewise, in the facts of the present case, it is clear that the arbitration Clause that is contained in the sub-contract would not exist as a matter of law until the sub-contract is duly stamped, as has been held by us above. The argument that Section 11(6A) deals with existence , as opposed to Section 8, Section 16, and Section 45, which deal with validity of an arbitration agreement is answered by this Court's understanding of the expression existence in Hyundai Engg. Case as followed by us. 34. We may notice that in Section 45 of the Act, for the words unless it finds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117. This position continued till the amendment brought about in 2015. After the amendment, all that the courts need to see is whether an arbitration agreement exists nothing more, nothing less. The legislative policy and purpose is essentially to minimise the Court's intervention at the stage of appointing the arbitrator and this intention as incorporated in Section 11(6- A) ought to be respected. ] . 36. The view taken in Garware (supra) [paragraphs-22 and 29 (supra)], came to be specifically approved by a Bench of three learned Judges in the Judgment reported in Vidya Drolia (supra). Therein, Justice Sanjiv Khanna wrote for the Court and Justice N.V. Ramana supplemented with his own Judgment. The Judgment was rendered on a Reference dated 28.02.2009 and the question was, whether landlord-tenant disputes, governed by provisions of the Transfer of Property Act were arbitrable or not. Apart from the said issue, the other conundrum was as to who would decide, viz., the Court at the reference stage, or the Arbitral Tribunal in the arbitration proceedings. The Court also found it fit to go into the question as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd part of Section 7(2) of the Arbitration Act, albeit the observations made and quoted above with reference to existence and validity of the arbitration agreement being apposite and extremely important, we would repeat the same by reproducing para 29 thereof : (SCC p. 238) 29. This judgment in Hyundai Engg. case [United India Insurance Co. Ltd. v. Hyundai Engg. Construction Co. Ltd., (2018) 17 SCC 607 : (2019) 2 SCC (Civ) 530] is important in that what was specifically under consideration was an arbitration clause which would get activated only if an insurer admits or accepts liability. Since on facts it was found that the insurer repudiated the claim, though an arbitration clause did exist , so to speak, in the policy, it would not exist in law, as was held in that judgment, when one important fact is introduced, namely, that the insurer has not admitted or accepted liability. Likewise, in the facts of the present case, it is clear that the arbitration clause that is contained in the sub-contract would not exist as a matter of law until the sub-contract is duly stamped, as has been held by us above. The argument that Section 11(6-A) deals with existence , as oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings. (4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or subsection (3), admit a later plea if it considers the delay justified. (5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or subsection (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award. (6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34. H. THE SCHEME OF THE STAMP ACT 39. Section 2(6) defines the word chargeable as follows: 2(6) Chargeable . ―chargeable means, as applied to an instrument executed or first executed after the commencement of this Act, chargeable under this Act, and, as applied to any other instrument, chargeable under the law in force in India when such instrument was executed or, where several persons executed the instrument at different times, first executed: 40. Section 2(11) defines the words duly stamped as follows: 2(11) Duly stamped . duly stamped, as applied to an instrument, means that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt, (a) the State Government may determine what offices shall be deemed to be public offices; (b) the State Government may determine who shall be deemed to be persons in charge of public offices. 46. Next, we must notice Section 35, which reads as follows: 35. Instruments not duly stamped inadmissible in evidence, etc. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped : Provided that (a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of any instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty and penalty (if any), leviable in respect of any instrument have been paid under section 35, section 40 or section 41, the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof, and the name and residence of the person paying them. (2) Every instrument so endorsed shall thereupon be admissible in evidence, and may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on his application in this behalf to the person from whose possession it came into the hands of the officer impounding it, or as such person may direct: Provided that (a) no instrument which has been admitted in evidence upon payment of duty and a penalty under section 35, shall be so delivered before the expiration of one month from the date of such impounding, or if the Collector has certified that its further detention is necessary and has not cancelled such certificate; (b) nothing in this section shall affect clause 3. 50. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same suit or proceeding on the ground that it has not been duly stamped. Section 36 does not prohibit a challenge against an instrument that it shall not be acted upon because it is not duly stamped, but on that account there is no bar against an instrument not duly stamped being acted upon after payment of the stamp duty and penalty according to the procedure prescribed by the Act. The doubt, if any, is removed by the terms of Section 42(2) which enact, in terms unmistakable, that every instrument endorsed by the Collector under Section 42(1) shall be admissible in evidence and may be acted upon as if it has been duly stamped. We may also profitably refer to paragraph-8 as well: 8. Our attention was invited to the statement of law by M.C. Desai, J., in Mst Bittan Bibi v. Kuntu Lal [ILR (1952) 2 All 984] : A court is prohibited from admitting an instrument in evidence and a court and a public officer both are prohibited from acting upon it. Thus a court is prohibited from both admitting it in evidence and acting upon it. It follows that the acting upon is not included in the admission and that a document can be admitted in evidence but not be acted upon. Of course it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53. Section 2(g) of the Contract Act provides that an agreement, not enforceable by law, is said to be void, whereas, Section 2(h) declares that an agreement enforceable by law, is a contract. Section 2(j) of the same Act provides that a contract, which ceases to be enforceable by law, becomes void, when it ceases to be enforceable. We may, at once, notice the distinction between an agreement and a contract. Not every agreement is a contract. Only those agreements, which are enforceable, are treated as contracts. The result of a contract, ceasing to be enforceable, is that, the contract becomes void. Next, we may notice Section 10. It reads as follows: What agreements are contracts. - All agreements are contracts, if they are made by the free consent of parties, competent to contract, for a lawful consideration and with a lawful object and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents. Section 10, in the first part, when b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... met to constitute a contract a law. 57. Further, we have already noticed that free consent is indispensable for making an agreement, a contract, under Section 10. Free consent has been defined in Section 14 and it must be read in conjunction with Sections 15 to 18 as Sections 15 to 18 define coercion, undue influence, fraud and misrepresentation, respectively. Now, the result of there being coercion, fraud or misrepresentation in securing the consent of a party, is provided for in Section 19 of the Contract Act. The presence of the three elements results in what is described as a contract voidable at the option of the party, whose consent was so caused. The effect of misrepresentation has been dealt with by this Court in the judgment reported in Ganga Retreat Towers Ltd. v. State of Rajasthan (2003) 12 SCC 91 , as follows: 28. According to Section 19 of the Contract Act when consent to an agreement is caused by misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. The latter may, if he thinks fit, insist that the contract shall be performed and that he shall be put in the position in which he would have been if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsent is said to be free, when it is not caused by mistake, subject to the provisions of Sections 20, 21 and 22, after referring to the other four aspects, which detract from free consent. We notice what Section 20 provides. Section 20 declares that where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void. We may observe that this again is a case of an agreement, which is declared void within the meaning of Section 10, apart from Sections 24 to 30. Section 21 provides that a mistake as to any law in force in India, would not make the contract voidable. Thus, while Section 10 sets out the core element for an agreement to become a contract, the effect of nonconformity varies. Therefore, the lack of competency and absence of sound mind completely detract from the formation of a contract . The absence of free consent arising from coercion, undue influence, misrepresentation and even fraud will, however, result in an agreement which is a contract though voidable (see Sections 19 and 19A of the Contract Act). The effect of mistake, is again spelt out in Section 22, insofar as it provides that a contract is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more startling result, however, is brought about on this construction if s.2(j) is read with s.65 of the Indian Contract Act, since in such a case not only would every unenforceable contract become void but each party would be under the obligation of restoring or making compensation for any benefit received, no matter how much had been done towards the performance by either party. But it is not necessary to adopt a construction leading to such surprising results. The solution is, in their Lordships view, to be found in the wording of s.2(j) itself. Not every unenforceable contract is declared void, but only those unenforceable by law, and those words mean not unenforceable by reason of some procedural regulation, but unenforceable by the substantive law. For example, a contract which was from its inception illegal, such as a contract with an alien enemy, would be avoided by s.2(g), and one which became illegal in the course of its performance, such as a contract with one who had been an alien friend but later became an alien enemy, would be avoided by s.2(j). A mere failure to sue within the time specified by the statute of limitations or an inability to sue by reason of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the Arbitration Agreement is contained, being unstamped, would not impact the Arbitration Agreement, cannot hold good. The reasoning in N.N. Global (supra) in paragraph-32, for disapproving of Garware (supra) in paragraph-22 thereof, that the Arbitration Clause would be nonexistent in law and unenforceable till the stamp duty in adjudicated and paid on the substantive contract, is again on the premise that the Arbitration Agreement is a separate agreement under the Stamp Act, which is not exigible to stamp duty, which we have found is not the case in law. In this regard, we may refer to Article 5 of the Stamp Act: Description of Instrument Proper Stamp duty [5. AGREEMENT OR MEMORANDUM OF AN AGREEMENT (a) if relating to the sale of a bill of exchange; (b) if relating to the sale of a Government security or share in an incorporated company or other body corporate; (c) if not otherwise provided for Exemptions Agreement or memorandum of agreement (a) for or relating to the sale of goods or merchandise exclusively, not being a NOTE OR MEMORANDUM chargeable under No. 43; (b) made in the form of tenders to the Central Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law-Giver has disabled the admission in evidence of an instrument not stamped or insufficiently stamped, for any purpose. This would include even a collateral purpose. This is in stark contrast with a document, which is compulsorily registerable but which is not registered. Under Section 49 of the Registration Act, 1908, an unregistered document may be used for proving a collateral transaction. Even this is impermissible, if the document is not stamped or insufficiently stamped. Section 35 further proceeds to declare that such an unstamped or insufficiently stamped document shall not be acted upon. It is important to juxtapose the embargo cast on an unstamped document as aforesaid with Section 2(h) of the Contract Act. Section 2(h) of the Contract Act provides that an agreement, which is enforceable in law is a contract whereas Section 2(g), an agreement not enforceable is void. The words enforceable in law or not enforceable in law , understood in the context of Sections 33 and 35 of the Stamp Act, would mean that upon there being an occasion, which necessitates one of the parties to the agreement having to enforce the same through recourse to sanctions available in law, the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i (supra) relied on Oriental Insurance Company v. Narbheram Power and Steel Private Limited (2018) 6 SCC 534 , in which case, the Court did not have occasion to interpret Section 11(6)(a) of the Act. 64. It is true that in Hyundai (supra), this Court was not dealing with the impact of the Stamp Act. The Court was dealing rather with the issue as to the effect of the Clause, in which it was agreed that there would be no arbitration, if the insurer disputed or did not accept liability under or irrespective of the policy. In the context of the said Clause, this Court, in Hyundai (supra), went on to hold, inter alia, that the denial of the plea about its liability by the insurer, rendered the making of the Arbitration Clause ineffective and incapable of being enforced, if not non-existent . No doubt, in paragraph-29 of Garware (supra), this Court found that likewise in the facts of the present case, it is clear that the Arbitration Clause, i.e., contained in the sub-contract, would not exist as a matter of law until the sub-contract is duly stamped as has been held by us above . Therefore, the rationale for finding that an Arbitration Agreement in an unstamped sub-contract woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot permissible having regard to the object and scheme of the Indian Stamp Act, 1899. The Stamp Act is a fiscal measure enacted with an object to secure revenue for the State on certain classes of instruments. It is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are conceived in the interest of the Revenue. Once that object is secured according to law, 28 the party staking his claim on the instrument will not be defeated on the ground of initial defect in the instrument (Hindustan Steel Ltd. v. Dilip Construction Co. [(1969) 1 SCC 597]). xxx xxx xxx 25. The engrossment of the final decree in a suit for partition would relate back to the date of the decree. The beginning of the period of limitation for executing such a decree cannot be made to depend upon date of the engrossment of such a decree on the stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domain, purview and control of a party. No date or period is fixed for furnishing stamp papers. No rule has been shown to us requiring the Court to call upon or give any time for furnishing of st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Arbitration Clause. This is apart from the meaning to be attributed to the words existence of an Arbitration Agreement in Section 11(6A) of the Act. We have explained the concept of enforceability in the context of the Contract Act. What is closer to the facts is the concept of enforceability or rather the lack of enforceability resulting in the voidness of the contract in the sense explained by us. K. THE STAMP ACT WHETHER A PROCEDURAL LAW? 68. In this context, it will be profitable to notice the following discussion from the work Salmond on Jurisprudence, Twelfth Edition. Dealing with Law of Procedure, it is stated: What, then, is the true nature of the distinction? The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions- jus quod ad actiones pertinent-using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject-matter. Substantive law is concerned with tPhe ends which the administration of justice seeks; procedural law deals with the means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not enforceable in law . In the said sense, it also cannot exist in law. It would be void. Our view in this regard that voidness is conflated to unenforceability receives fortification from Section 2(j) of the Contract Act which renders a contract which ceases to be enforceable void. 71. What Section 11(6A) contemplates is a contract and it is not an agreement which cannot be treated as a contract. This is despite the use of the words arbitration agreement in Section 11(6A). In other words, contract must conform to Section 7 of the Act. It must also, needless to say, fulfil the requirements of the Contract Act. 72. A voidable contract within the meaning of Section 19 and 19A, undoubtedly stands in stark contrast to void contracts. However, even in the categories of void contracts as for instance, Section 20 of the Contract Act provides that if on a material point, the parties were mistaken, the contract would be void. If in a given case where this is the contention raised by a party in a proceeding under Section 11 when the agreement otherwise satisfies the requirement of a contract to make it exist as an Arbitration Agreement, then, the Court would be justified in treatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be perfected. (Vide Words Phrases Permanent Edition West Publishing Co. Volume 22A) 74. The aforesaid statement appears apposite in the context of an instrument which is unstamped or insufficiently stamped. This is for the reason that on the one hand as long as it is not stamped or is insufficiently stamped, it is both liable to be impounded under Section 33 of the Stamp Act and it cannot be used as evidence or registered. This is apart from the unambiguous bar against acting upon such an instrument. On the other hand, if after such an instrument is impounded and duty and penalty is paid and a certificate is endorsed upon it within the meaning of Section 42(2) signals that the instrument regains life, the bar in Section 35 of the Stamp Act is removed permanently. Equally, under Section 36 in the case of an instrument (not secondary evidence of the instrument) which is allowed to be let in evidence without objection, then it would qualify as evidence founding a right. But this is an exception to the rule which is found in Section 35 of the Stamp Act. Thus, an unstamped or insufficiently stamped instrument represents a case of an agreement which not being en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we express our inability to agree that a plain reading of Section 7 of the Act, would make it clear that an Arbitration Agreement can be even non-contractual. For the purpose of clarity, we may reproduce Section 7(1) of the Act at this juncture: 7(1) Arbitration agreement.(1) In this Part, arbitration agreement means 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. (Emphasis supplied) 77. We are inclined to hold that what Section 7(1) contemplates is an Arbitration Agreement. We are also inclined to think that what the Law-Giver has intended to convey is that under the Arbitration Agreement, the parties must submit disputes, which have arisen or which may arise between them. The disputes may have arisen or may arise in respect of a defined legal relationship. The defined legal relationship, in turn, can be either contractual or otherwise. Therefore, what can give rise to disputes can be a legal relationship, which is non-contractual. The legal relationship may arise from out of a Statute. It may arise in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he word executed has been defined in the Stamp Act as meaning signed . 79. Section 7(3)(b) of the Act contemplates that an exchange of letters, telex, telegrams or other means of telecommunication, including communication through electronic means, which provide a record of the agreement, would constitute an Arbitration Agreement in writing within the meaning of Section 7(3) of the Act. We may notice that the proviso (c) to Section 35 of the Stamp Act reads as follows: (c) Where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; 80. Thus, the Stamp Act does contemplate a contract or agreement being formed through correspondence through two or more letters. It then suffices that any one of the letters bears the proper stamp. Even proceeding on the basis that an Arbitration Agreement is contained in letters and it is signed and, therefore, executed within the meaning of the Stamp Act, then, it would fall within the four corners of Sections 33 and 35 of the Stamp Act. 81. We do notice that a Bench of two le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust however be an agreement , the allegation of the existence of which remains unrefuted. Since, Section 7(1) defines an arbitration agreement to be one, under which, parties submit all or certain disputes , which have arisen or will arise, such an agreement must be alleged to exist and the allegation must remain undenied. The formation of such an agreement must necessarily be tested with reference to the indispensable requirements, such as, competency to contract and presence of sound mind. 83. All that we are holding is, an Arbitration Agreement must satisfy the requirements in Section 7(1) and, therefore, it must be an agreement. Sans an agreement, there cannot be a reference to arbitration. While Justice Hrishikesh Roy is right in holding that Section 10 of the Contract Act recognises oral agreements and that a written agreement is a sine qua non for a valid Arbitration Agreement, Section 10 of the Contract Act, it must be noticed, in the second part, provides that nothing contained in the first part, would affect any law, which, inter alia, requires that any contract is required to be made in writing. Section 7(3) of the Act which insists that an arbitration agreement m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Civ) 777] has taken account of the mandatory provisions contained in the Stamp Act and held them applicable to judicial authorities, which would include the Supreme Court and the High Court acting under Section 11. A close look at Section 11(6-A) would show that when the Supreme Court or the High Court considers an application under Sections 11(4) to 11(6), and comes across an arbitration clause in an agreement or conveyance which is unstamped, it is enjoined by the provisions of the Stamp Act to first impound the agreement or conveyance and see that stamp duty and penalty (if any) is paid before the agreement, as a whole, can be acted upon. It is important to remember that the Stamp Act applies to the agreement or conveyance as a whole. Therefore, it is not possible to bifurcate the arbitration clause contained in such agreement or conveyance so as to give it an independent existence, as has been contended for by the respondent. The independent existence that could be given for certain limited purposes, on a harmonious reading of the Registration Act, 1908 and the 1996 Act has been referred to by Raveendran, J. in SMS Tea Estates [SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to have life, and therefore, to be enforced. The legislature would not have possibly contemplated, when it incorporated Section 11(6A), that the courts must turn a blind eye to the injunction of a law and allow it to be defeated. This to our minds involves adopting an interpretation which would ignore the principle of harmonious construction of statutes. 89. As far as the conclusion in paragraph 55 of Great Offshore Ltd. (supra) that since Section 7 of the Act does not stipulate for stamping, stamping may not be required under the Stamp Act, does not commend itself to us as the correct position in law. We are equally unable to subscribe to the view that stamp duty, inter alia, should be treated as a technicality . We are also of the view that the view taken by the learned Single Judge otherwise in the said paragraph again does not represent the correct position. 90. Section 5 no doubt provides for a non-obstante clause. It provides against judicial interference except as provided in the Act. The non-obstante clause purports to proclaim so despite the presence of any law which may provide for interference otherwise. However, this does not mean that the operation of the Stam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sail of the appellant s contention, by contending that in most of the cases, since certified copies are alone being filed and they cannot be impounded, and as after reference to the Arbitrator based on the certified copy, the Arbitrator is competent, in law, under Sections 33 and 35 of the Stamp Act to do the needful, this Court may bear this aspect in mind. Thereupon, Shri Gagan Sanghi, would point out that even in the certified copy, the factum of payment of the stamp duty must be entered. The said aspect, in fact, engaged the attention of this Court in SMS Tea Estates (supra). 94. Reference has been made to Jupudi Kesava Rao (supra), to contend that a copy of an instrument, cannot be treated as an instrument under the Stamp Act for the purpose of Sections 33 and 35 of the Stamp Act. A copy cannot be impounded under Section 33, it is pointed out. Therefore, Section 33, which mandates impounding of an unstamped instrument, would not apply to a certified copy, which is permitted to be produced under the Scheme. Reliance has been placed on paragraphs-13 and 14 of Jupudi Kesava Rao (supra): 13. The first limb of Section 35 clearly shuts out from evidence any instrument charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mped or insufficiently stamped. ( Emphasis supplied ) 95. In Jupudi Kesava Rao (supra), the appellant relied on oral evidence to prove the lease document which was insufficiently stamped. The High Court held that oral evidence could not be acted upon to prove the lease agreement. The main question, which arose was, whether secondary evidence of a written agreement to grant a lease, was barred under Sections 35 and 36 of the Stamp Act. The Court went on to find, on a survey of the Evidence Act that it did not purport to deal with admissibility of documents in evidence, which were required to be stamped under the Stamp Act. It is thereafter that the Court went on to hold what was done in paragraphs-13 and 14 of the Judgment. While dealing with Section 35 of the Act, the Court, inter alia, held that the second limb of Section 35 of the Stamp Act, which related to acting upon the instrument, would obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in, when the original, admittedly chargeable with duty, was not stamped or insufficiently stamped, would tantamount to the document being acted upon by the person having by law or A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian Evidence Act, 1872 (hereinafter referred to as, the Evidence Act , for short). It reads as follows : 76. Certified copies of public documents. Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies. Every 3public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary evidence as meaning and including, inter alia, certified copies under the provisions hereinafter contained . The provisions hereinafter contained referred to in Section 63 must be understood as Section 74 read with Section 76. A certified copy can be given, no doubt, of public records kept in any State of private documents . Thus, if a sale deed between two private parties comes to be registered, instead of producing the original document, a certified copy of the sale deed, may qualify as secondary evidence and a certified copy can be sought for and issued under Section 76 of the Evidence Act. The expression public records kept in any State of a private document in Section 74 is not confined to documents, which are registered under the Registration Act. A private document, which is kept as a public record, may qualify as a public document. What is important is, to bear in mind that in view of Section 33 of the Stamp Act, an instrument, which is not duly stamped, if it is produced before any Public Office, it would become liable to be impounded and dealt with as provided in the Stamp Act. Let us assume a case where a contract, which contains an Arbitration Clause, is regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amp Act and other connected provisions, such a document again would have been impounded, unless it was originally stamped as per law. In other words, if a certified copy is produced, along with a request under Section 11 of the Act, to be treated as a document, on which the Application under Section 11 could be maintained, it must necessarily comply with the requirement that it declares the stamp, which has been paid in regard to the original. 104. The production of a copy of an instrument, may not lead to the impounding of the copy as Section 33, which mandates impounding, applies only in regard to the original, which alone is treated as an instrument under Section 2(14) of the Stamp Act. We must understand the context of the ruling in Jupudi Kesava Rao (supra) and Hariom Agrawal (supra) to be that a party cannot validate an instrument by producing a copy and by getting it impounded and paying the duty and penalty. In fact, as observed in paragraph-13 of Jupudi Kesava Rao (supra), the Court cannot be invited to act upon a copy of an instrument, which is insufficiently stamped. Thus, such a copy, while it cannot be impounded under Section 33, it cannot also be acted upon under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent not being stamped. Therefore, what the Court is to consider is, whether when the contract, in which the Arbitration Clause is contained, is not duly stamped, it becomes the duty of the Court to act under Sections 33 and 35 of the Stamp Act. ii. We have already indicated the background, consisting of the views expressed by this Court, about the nature of review undertaken under Section 11, which led to the insertion of Section 11(6A). Parliament clearly intended to deal with the Court undertaking excessive review, in exercise of the power under Section 11(6) of the Act. It was to curtail excessive judicial interference, which was in keeping also with the principle enshrined in Section 5 of the Act that Parliament interfered and enacted the amendment resulting in Section 11(6A) being inserted. Parliament was aware of the view taken by this Court in SMS Tea Estates (supra), namely that, if the Arbitration Agreement was not duly stamped, then, it had to be impounded and dealt with as provided therein. The mandate of the Stamp Act did not conflict with the legislative command contained in Section 11(6A), viz., to examine whether an Arbitration Agreement existed. Proceeding on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it may make the Reference on the basis of the existence of an Arbitration Agreement otherwise and then leave it open to the Arbitrator to exercise the power under Section 33, should it become necessary. This approach does justice to the word examine in Section 33(2) of the Stamp Act while not ignoring the command of Section 11(6A) of the Act. It is not to be confused with the duty to examine prima facie whether an Arbitration Agreement exists under Section 11(6A) of the Act, but is related to the duty to examine the matter under Section 33(2) of the Stamp Act. vi. Under the Evidence Act, production of only the original document is permissible by way of evidence (See Section 62). However, secondary evidence is permissible under Section 63 and certified copies are treated as secondary evidence. Under the Scheme, in a proceeding under Section 11, without following the procedure in the Evidence Act, secondary evidence, in the form of certified copy, is permitted. It may be true that since certified copies are permitted to maintain an Application under Section 11 and, in law, impounding cannot be done of a certified copy, as it is not an instrument, the duty of the Court to exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the other terms of the contract. Equally, Section 16(1)(b) declares that despite the Tribunal finding that the contract was null and void, it would not invalidate the Arbitration Clause. The evolution of the principle that an Arbitration Agreement is a separate and distinct agreement from the contract, would indicate that it would have no play in the context of the duty of a Court, within the meaning of Sections 33 and 35 of the Stamp Act, to act in consonance therewith. The efficacy of the Arbitration Clause in a contract is preserved so that the extinguishing of the contractual obligations by termination or non-performance or alleged performance, does not deprive the parties of their rights and the power of the Arbitrator to adjudicate on disputes, which, otherwise fall within the ambit of the Arbitration Clause. The underlying principle behind treating the Arbitration Agreement as a separate agreement is to create a mechanism, which survives the contract so that disputes, falling within the Arbitration Agreement, are resolved. Thus, the rescission of the main contract would not result in the death of the Arbitration Clause. We agree that the Arbitration Clause may be a colla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Chattram and other Charities v. Bhaskar Raju and Brothers and others (2020) 4 SCC 612 as to the effect of an unstamped contract containing an Arbitration Agreement and the steps to be taken by the Court, represent the correct position in law as explained by us hereinbefore. N.N. Global (supra) was wrongly decided, when it held to the contrary and overruled SMS Tea Estates (supra) and Garware (supra). 110. An instrument, which is exigible to stamp duty, may contain an Arbitration Clause and which is not stamped, cannot be said to be a contract, which is enforceable in law within the meaning of Section 2(h) of the Contract Act and is not enforceable under Section 2(g) of the Contract Act. An unstamped instrument, when it is required to be stamped, being not a contract and not enforceable in law, cannot, therefore, exist in law. Therefore, we approve of paragraphs-22 and 29 of Garware (supra). To this extent, we also approve of Vidya Drolia (supra), insofar as the reasoning in paragraphs-22 and 29 of Garware (supra) is approved. 111. The true intention behind the insertion of Section 11(6A) in the Act was to confine the Court, acting under Section 11, to examine and ascerta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judgments 4-20 III. Requirements under Indian Stamp Act, 1899 - Discussions on Provisions of Indian Stamp Act, 1899 (Chapter IV- Sections 33- 48, More specifically Sections 33, 35, 36, 38, 40, 42) 20-31 IV. Historical Background of Arbitration in India 31-37 V. Intent behind incorporation of Section 11(6A) of the Arbitration and Conciliation Act,1996 37-41 VI. Scope of Section 11 (6A) w.r.t. Section 8, Section 16, and Section 45 of the Arbitration and Conciliation Act, 1996 42-53 VII. Limited Examination by Court under Section 11(6A) of the Arbitration and Conciliation Act, 1996 54-55 VIII. Interpretation of Existence of Arbitration Agreement 55-57 IX. Clarification on Stamping of Arbitration Agreement 57-59 X. Answer to the Reference 59 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a collateral transaction. 21. Therefore, when a lease deed or any other instrument is relied upon as contending the arbitration agreement, the court should consider at the outset, whether an objection in that behalf is raised or not, whether the document is properly stamped. If it comes to the conclusion that it is not properly stamped, it should be impounded and dealt with in the manner specified in Section 38 of the Stamp Act. The court cannot act upon such a document or the arbitration clause therein. But if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, the document can be acted upon or admitted in evidence. 6. The above decision was followed in the case of Naina Thakkar v. Annapurna Builders, (2013) 14 SCC 354 wherein it was held as follows: 7. It is true that the consequences provided in the Stamp Act, 1899 must follow where sufficient stamp duty has not been paid on an instrument irrespective of the willingness of a party to the instrument to pay deficit stamp duty but the procedure where the arbitration clause is contained in a document which is not registered although compulsorily registrable and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aveendran, J. in SMS Tea Estates when it comes to an unregistered agreement or conveyance. However, the Stamp Act, containing no such provision as is contained in Section 49 of the Registration Act, 1908, has been held by the said judgment to apply to the agreement or conveyance as a whole, which would include the arbitration clause contained therein. It is clear, therefore, that the introduction of Section 11(6-A) does not, in any manner, deal with or get over the basis of the judgment in SMS Tea Estates, which continues to apply even after the amendment of Section 11(6-A). 22. When an arbitration clause is contained in a contract , it is significant that the agreement only becomes a contract if it is enforceable by law. We have seen how, under the Stamp Act, an agreement does not become a contract, namely, that it is not enforceable in law, unless it is duly stamped. Therefore, even a plain reading of Section 11(6-A), when read with Section 7(2) of the 1996 Act and Section 2(h) of the Contract Act, would make it clear that an arbitration clause in an agreement would not exist when it is not enforceable by law. This is also an indicator that SMS Tea Estates has, in no manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th reference to existence and validity of the arbitration agreement being apposite and extremely important, we would repeat the same by reproducing paragraph 29 thereof: 29. This judgment in Hyundai Engg. case is important in that what was specifically under consideration was an arbitration clause which would get activated only if an insurer admits or accepts liability. Since on facts it was found that the insurer repudiated the claim, though an arbitration clause did exist , so to speak, in the policy, it would not exist in law, as was held in that judgment, when one important fact is introduced, namely, that the insurer has not admitted or accepted liability. Likewise, in the facts of the present case, it is clear that the arbitration clause that is contained in the subcontract would not exist as a matter of law until the sub-contract is duly stamped, as has been held by us above. The argument that Section 11(6-A) deals with existence , as opposed to Section 8, Section 16 and Section 45, which deal with validity of an arbitration agreement is answered by this Court's understanding of the expression existence in Hyundai Engg. case, as followed by us. ; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vidya Drolia and Others(supra), and held: 56. We are of the considered view that the finding in SMS Tea Estates and Garware that the non-payment of stamp duty on the commercial contract would invalidate even the arbitration agreement, and render it non-existent in law, and un-enforceable, is not the correct position in law. 57. In view of the finding in paragraph 146 and 147 of the judgment in Vidya Drolia by a co-ordinate bench, which has affirmed the judgment in Garware, the aforesaid issue is required to be authoritatively settled by a Constitution bench of this Court. 12. As the Benches in both M/S. N.N. Global Mercantile Private Limited(supra) and Vidya Drolia and Others(supra) are of equal strength, this Constitution Bench has been called upon to authoritatively rule on the issue. To adjudicate the issue, this Bench at first needs to examine whether the requirements under the Act, 1899 at pre-referral stage are required to be examined for appointment of Arbitrator under Section 11(6A) of the Act, 1996. 13. Mr. Gourab Banerjee, learned senior counsel, who appears as Amicus Curiae to assist this Court, submits that the intention of the Act, 1996 and the lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The natural solution inevitable is to appoint the Arbitrator and to allow the dispute resolution proceedings to commence and permit the Arbitral Tribunal to fulfil its duty under the Act, 1996. There is no reason why the Arbitral Tribunal cannot prevent the evasion of stamp duty. 17. It is also brought to our notice that at the time of submitting an application under Section 11 at the pre-referral stage, the parties are not under an obligation to file an original arbitration agreement and since the copy of the arbitration agreement is to be annexed with the application, in true sense, it is not an instrument as being contemplated under Section 2(14) of the Act, 1899, particularly at the pre-referral stage, the question of invoking Sections 33 or 35 of the Act, 1899 is not available to be invoked. In support of submission Mr. Banerjee has placed reliance on the judgment of this Court reported in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and Others (1971) 1 SCC 545 which has been later followed by this Court in Hariom Agrawal v. Prakash Chand Malviya (2007) 8 SCC 514 . 18. Taking assistance thereof, Mr. Banerjee submits that Sections 33 or 35 are not concerned with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of bundle of rights and obligations recorded in the contractual document and according to him, the issue of stamping is to be looked into at the very threshold, even if it is in exercise of Section 11 (6A), i.e. at the time of pre-arbitral stage with respect to appointment of arbitrator. According to him, an instrument would exist in law only when it is enforceable and existence defined in Section 11(6A) of the Act, 1996 in respect of an arbitration agreement, has to be a valid enforceable agreement and it is always open to examine the issue of non-stamping or of insufficiently stamped at the initial/pre-referral stage itself and further highlighting three modes as provided in M/s. N.N. Global Mercantile Private Limited (supra) i.e. impounding, payment of stamp duty and appointment of arbitrator, on an application filed under Section 11 of the Act, 1996, the Court is certainly acting upon the arbitration clause which is contended to be barred by the clear expression of Section 35 of the Act, 1899 and an Agreement, unless enforceable by law, cannot be termed to be in existence under Section 11(6A) of the Act, 1996. 23. Ms. Malvika Trivedi, learned senior counsel, who app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nactment of the Act, 1996 and taking assistance thereof submits that the provisions of the Act 1996, Act 1899 and the Contract Act, 1872 (hereinafter being referred to as Act, 1872 ) has to be harmonized. Section 17 of Act, 1899 has to be read with Section 31 of the Act, 1899. The plain language of Section 7 of the Act, 1996 does not require that the parties are under an obligation to stamp the agreement. The legislative intention would be defeated, if the Court insist on non-core technical requirements such as stamps, seals and originals for the purpose of acting upon the arbitration agreement at a pre-arbitration stage for appointment of an arbitrator invoking power under Section 11(6A) of the Act, 1996. 28. Learned counsel for the respondents, further submits that in the instant facts of the case, an application was filed under Section 8 for reference of disputes to arbitration and it was not maintainable under Section 34 of the Maharashtra Stamp Act, 1958 which is almost pari materia to the Act, 1899. The work order being an unstamped document could not be received in evidence for any purpose, or acted upon, unless it is duly stamped. In consequence thereof, the arbitration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(14) ― Instrument . instrument includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded: 3. Instruments chargeable with duty. Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefore respectively, that is to say (a) every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in [India] on or after the first day of July, 1899; (b) every bill of exchange [payable otherwise than on demand] or promissory note drawn or made out of [India] on or after that day and accepted or paid, or presented for acceptance or payment, or endorsed, transferred or otherwise negotiated, in [India]; and (c) every instrument (other than a bill of exchange, or promissory note) mentioned in that Schedule, which, not having been previously executed by any person, is executed out of [India] on or after that day, relates to any property situate, or to any matter or thing done or to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33, Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same . Section 33(2) of the Act, 1899 provides that every instrument chargeable with duty shall be examined by such person as explained in sub-section (1), in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed . The definition of duly stamped as contained in Section 2(11) as applied to an instrument means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with law for the time being in force in India. 37. A plain reading of Section 33 of the Act, 1899 thus explains that when an instrument or a document is produced before the authority, it is the duty of such authority to examine whether the instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 33, 35 and 2(14) of the Act, 1899 clearly demonstrates that the instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid, the said instrument can be taken as an evidence under Section 35 of the Act, 1899. But, at the same time, Sections 33 and 35 are not concerned with any copy of the instrument and party can be allowed to rely on the document which is an instrument within the meaning of Section 2(14) of the Act, 1899. This Court had an occasion to consider the scope and ambit of Sections 33, 35 and 36 of the Act, 1899 and Section 63 of the Evidence Act, 1872 in Jupudi Kesava Rao(supra) and it was held that: 13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be taken in evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Stamp Act, 1899. (Emphasis added) 45. Law on the subject is well settled that duly certified copy/photocopy of the alleged instrument cannot be validated by impounding and this cannot be admitted in evidence under the Act, 1899. It leads to the conclusion that the deficiency in an instrument, whether it is unduly stamped or insufficiently stamped, can be rectified through a procedure as prescribed under the Act, 1899. It clearly indicates that the requirement under the Act can indeed be fulfilled even after the time when the instrument was executed. The requirement under the Act is not rigid or strict, so as to make the instrument invalid at the first instance. 46. It also shows t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncies under the Act 1899, if any. IV. Historical Background of Arbitration in India 51. Arbitration can be understood as a procedure of dispute resolution in which the dispute is submitted, by the agreement of the parties, to the appointed Arbitrator or the Arbitral Tribunal who are having the jurisdiction to resolve the dispute in accordance with the applicable law as agreed among the parties. Alternatively, it can be understood as a mechanism to adjudicate disputes between the parties outside the court in a quasi-judicial manner. 52. The process of arbitration as a preferable method of dispute resolution is not new in India. According to the scholars of the ancient Hindu literature, Brhadaranayaka Upanishad is the earliest known treatise that mentions a system that can be closely associated with present-day arbitration as the same involved various arbitral bodies such as Puga or the local courts, Srenis or the people carrying out the same profession and Kulas or members concerned with the social matters of the same part of the society. All the above-explained bodies were called the Panchas and cumulatively formed Panchayat. The same has been affirmed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions contained in the statute. 56. The major development in the arbitration regime came with the enactment of the Arbitration Act, 1899 which was quite comparable to the English Arbitration Act, 1899. This enactment can be understood as the first step in the direction of enforcement of arbitration in India. The Arbitration Act, 1899 was initially applicable to all the presidency towns and there existed judicial intervention right from the initial reference of the dispute to the process of arbitration. 57. With the rapidly changing times, the evolution of the arbitration regime in India also gained momentum. The Code of Civil Procedure, 1908 was amended to insert the provision contained under Section 89 which exclusively dealt with the applicability and enforceability of the arbitration. In the early 20th century, arbitration emerged as an acceptable mode of dispute resolution and in order to meet its growing popularity, the Arbitration Act, 1940(hereinafter being referred to as the Act, 1940 ) was enacted by the legislature. The Act, 1940 was enacted with the primary motive of providing speedy and less costly method of dispute resolution in the form of arbitration. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al practices across the world. V. Intent behind incorporation of Section 11(6A) of the Arbitration and Conciliation Act, 1996 62. A major shift for the development of arbitration in India happened with the enactment of the Act, 1996. Based on the 76th Report Law Commission of India, 76th Report on Arbitration Act, 1940 of the Law Commission of India as well as the Model UNCITRAL law, the Act, 1996 was enacted with an object of making the process of arbitration cost effective, less technical and in accordance with the prevalent international practices across the world. The legislative intent was to provide effective and speedy procedure for dispute resolution among the parties as well as to limit the scope of judicial intervention in the process of arbitration. Paragraph No. 4(v), Statement of Objects and Reasons, Arbitration and Conciliation Act, 1996. India is gradually moving in the direction of minimal judicial intervention keeping abreast with the developments of arbitration in other regimes. 63. The Constitution Bench of this Court while examining the pre 2015 amendment regime in SBP Co. v. Patel Engineering Ltd. and Another (2005) 8 SCC 618 held that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existence of an arbitration agreement . 66. The 2015 amendment, including Section 11(6A), and the later amendments are in line with this evolution of arbitration jurisprudence. With the series of amendments to the principal Act, 1996, it is quite evident that the legislature is continuously engaging with the rapidly evolving arbitration regime in India and the various challenges allied it with the object to reduce the scope of intervention by the courts in the arbitration processes. It can be expected that the arbitration in India is conducted in accordance with the following views expressed by Justice Sabyasachi Mukharji in the case of Food Corporation of India(supra): 7. We should make the law of arbitration simple, less technical and more responsible to the actual realities of the situation, but must be responsive to the canons of justice and fair play and make the arbitrator adhere to such process and norms which will create confidence, not only by doing justice between the parties, but by creating a sense that justice appears to have been done. The above discussed approach of the legislature has been acknowledged by this Court. 67. In the case of Duro Fel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . VI. Scope of Section 11(6A) w.r.t. Section 8, Section 16 and Section 45 of Arbitration and Conciliation Act, 1996 70. Section 11(6A) of the Act, 1996 reads as follows: The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement. 71. The scope of inquiry under Section 11(6A) is restricted to examine the existence of an arbitration agreement . The phrase existence of an arbitration agreement is to be understood in a literal sense keeping the intention of the legislature after the introduction of the 2015 amendment. The position of law that prevails after the insertion of 2015 amendment is that there should be minimal interference by the Courts. The limited scope of the Court to examine at the pre-referral stage is whether the arbitration agreement, prima facie, exists as referred to under Section 7 of the Act, 1996 which includes determination of the following factors: (i) Whether the arbitration agreement is in writing; (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the amendment contemplates a two-step process to be adopted by a judicial authority when considering an application seeking the reference of a pending action to arbitration. The amendment envisages that the judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void. If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the arbitral tribunal. However, if the judicial authority concludes that the agreement does not exist, then the conclusion will be final and not prima facie. The amendment also envisages that there shall be a conclusive determination as to whether the arbitration agreement is null and void. 74. A plain reading of the Section 8 indicates that it limits the intervention of the Court to only one aspect i.e., when it finds that prima facie no valid arbitration agreement exists or is null and void. 75. The scheme of the Act, 1996 manifests that Sections 8 and 11 are complementary in nature and bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referral stage which is indeed not an instrument as referred to under Section 2(14) of the Act, 1899. 78. So far as the reference made of submitting a certified copy of the arbitration agreement is concerned, suffice it to say, that arbitration agreement executed between the parties relating to the business/commercial transactions is not required to be compulsorily registered under the Act, 1908. The obligation to register the document is invoked under provisions of the substantive law, namely, Transfer of Property Act, 1882, while Section 17 of the Act, 1908 mandates that the non-testamentary instrument that created any right, title or interest of the value of Rs.100/- or upwards in an immovable property must be compulsorily registered. If document is not registered, transfer is void, there is no valid transfer, and the property described in the instrument does not pass on, for example, mortgage does not become complete and enforceable until it is registered under the Act, 1908. 79. Indisputably, the arbitration agreement is not a public document to which compulsory registration as referred to under Section 17 of the Act, 1908 is required and one can obtain a certified copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. (4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay justified. (5) The arbitral tribunal shall decide on a plea referred to in subsection (2) or sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award. (6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34. 82. Section 16(1) of the Act, 1996 envisaged that an Arbitral Tribunal can rule upon own jurisdiction, including ruling on any objection with respect to the existence or validity of the arbitration agreement . The provision is based on the doctrine of Kompetenz- Kompetenz and the doctrine of Separability. The doctrine of Kompetenz-Kompetenz means that the Arbitral Tribunal is competent enough to rule on its own jurisdiction. At the same time, the Doctrine of Separability severs the arbitration clause from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the terms null and void , inoperative and incapable of being performed as under:- 33. Mr. Gopal Subramanium's contention, however, is also that the arbitration agreement was inoperative or incapable of being performed as allegations of fraud could be enquired into by the court and not by the arbitrator. The authorities on the meaning of the words inoperative or incapable of being performed do not support this contention of Mr. Subramanium. The words inoperative or incapable of being performed in Section 45 of the Act have been taken from Article II(3) of the New York Convention as set out in para 27 of this judgment. Redfern and Hunter on International Arbitration (5th Edn.) published by the Oxford University Press has explained the meaning of these words inoperative or incapable of being performed used in the New York Convention at p. 148, thus: At first sight it is difficult to see a distinction between the terms inoperative and incapable of being performed . However, an arbitration clause is inoperative where it has ceased to have effect as a result, for example, of a failure by the parties to comply with a time-limit, or where the parties have by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on with res judicata effect concerning the same subject-matter and parties. However, the mere existence of multiple proceedings is not sufficient to render the arbitration agreement inoperative. Additionally, the arbitration agreement can cease to have effect if the time-limit for initiating the arbitration or rendering the award has expired, provided that it was the parties' intent no longer to be bound by the arbitration agreement due to the expiration of this time-limit. Finally, several authorities have held that the arbitration agreement ceases to have effect if the parties waive arbitration. There are many possible ways of waiving a right to arbitrate. Most commonly, a party will waive the right to arbitrate if, in a court proceeding, it fails to properly invoke the arbitration agreement or if it actively pursues claims covered by the arbitration agreement. 88. The above explained examination does not arise in the language of Section 11(6A). That is to say, the legislature has not borrowed the language of Section 45 in Section 11(6A), which is limited to the existence of the arbitration agreement. VII. Limited Examination by Court under Section 11(6A) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation agreement. (1) In this Part, arbitration agreement means 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. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (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. (5) The 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. 92. That is to say, the limited scope of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon on account of non-payment of stamp duty. 58. We consider it appropriate to refer the following issue, to be authoritatively settled by a Constitution Bench of five Judges of this Court: Whether the statutory bar contained in Section 35 of the Stamp Act, 1899 applicable to instruments chargeable to stamp duty under Section 3 read with the Schedule to the Act, would also render the arbitration agreement contained in such an instrument, which is not chargeable to payment of stamp duty, as being non-existent, unenforceable, or invalid, pending payment of stamp duty on the substantive contract/instrument? ( Emphasis added ) 94. There appears to be an error in the view taken by the 3-Judge Bench. The Schedule I to the Act, 1899 in its Article 5 titled Agreement or Memorandum of Agreement has a residuary entry which says (c) if not otherwise provided for- Eight annas. Article 5 has been reproduced as: 5. Agreement or Memorandum of an Agreement (a) If relating to the sale of a Bill of Exchange; Two annas (b) If relating to the sale of a Government Secu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Wall Ropes Limited(supra) which are approved in paras 146 and 147 in Vidya Drolia and Others(supra) are overruled to that extent. 98. The reference is answered accordingly. 99. We appreciate the contribution made by Mr. Gourab Banerjee, Amicus Curiae in answering the reference made to this Court. J. (AJAY RASTOGI) APRIL 25, 2023. JUDGMENT Hrishikesh Roy, J. A. Introduction B. Reference to the Constitution Bench C. Facts in NN Global D. Modification of the reference question E. Submissions of Counsel F. Statutory scheme of the Stamp Act,1899 G. Statutory scheme of the Arbitration Act, 1996 i) Evolution of law under Section 11(6) of the Arbitration Act,1996 ii) Post-2015 Regime: Insertion of Section 11(6A) iii) Post-2019 Amendment and the Report of the High-level Committee to review the Institutionalisation of Arbitration in India H. Discussion on SMS Tea I. Discussion on Garware J. Interplay between the Stamp Act, Arbitration Act and Contract Act. i) Arbitration Act is a special legislation ii) Harmonious Construction K. Advent of Technology and the changing nature of transactions L. Doctrine of Separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct,1996 can be broadly categorized into three parts i.e., pre-commencement of arbitral proceedings, during the arbitral proceedings and at the post-arbitration stage. Section 8 and Section 11 in Part I of the Arbitration Act, 1996, and Section 45 in Part II of the Arbitration Act,1996 specifically deal with the role of Courts before the initiation of arbitration proceedings. Section 8 deals with the Power to refer parties to arbitration where there is an arbitration agreement; it provides for a mandatory reference to arbitration, unless the Court is prima facie satisfied that no valid arbitration agreement exists. Section 11(6), on the other hand, provides for Appointment of Arbitrators when parties fail to mutually agree on the name of an arbitrator or appoint an arbitrator in terms of the arbitration agreement. Section 45 refers to the Power of judicial authority to refer parties to arbitration in Part II of the Arbitration Act,1996. 4. Here in this reference, the extent of judicial intervention before the commencement of arbitral proceedings is being tested. It raises important issues of delays in the enforcement of arbitration agreements, subject to payment of stamp du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rolia(supra) and Garware(supra). The relevant paragraphs which define the scope of this reference are extracted below: 34. We doubt the correctness of the view taken in paras 146 and 147 of the three-Judge Bench in Vidya Drolia [Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1 : (2021) 1 SCC (Civ) 549] . We consider it appropriate to refer the findings in paras 22 and 29 of Garware Wall Ropes Ltd. [Garware Wall Ropes Ltd. v. Coastal Marine Constructions Engg. Ltd., (2019) 9 SCC 209 : (2019) 4 SCC (Civ) 324] , which has been affirmed in paras 146 and 147 of Vidya Drolia [Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1 : (2021) 1 SCC (Civ) 549] , to a Constitution Bench of five Judges. 56. We are of the considered view that the finding in SMS Tea Estates [SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd., (2011) 14 SCC 66 : (2012) 4 SCC (Civ) 777] and Garware [Garware Wall Ropes Ltd. v. Coastal Marine Constructions Engg. Ltd., (2019) 9 SCC 209 : (2019) 4 SCC (Civ) 324] that the non-payment of stamp duty on the commercial contract would invalidate even the arbitration agreement, and render it non-existent in law, and unenforceable, is not the correct posit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntee was an independent contract. Thereafter, Indo Unique filed a Writ Petition against the order of the Commercial Court. On 30.9.2020, the Bombay High Court allowed the application under Section 8 of the Arbitration Act,1996. It held that the nonstamping of Work Order can be raised at the stage of Section 11 of the Arbitration Act,1996 or before the Arbitral Tribunal at the appropriate stage. It set aside the order of the Commercial Court on 18.01.2018. An appeal was filed in this Court where NN Global contended that since the sub-contract was not stamped under the Maharashtra Stamp Act, 1958, the arbitration agreement would be rendered unenforceable . It is in this context that the Court doubted the correctness of previous decisions in Garware (supra) which was cited with approval in Vidya Drolia (supra) declaring such arbitration agreements to not exist in law and reconsideration of the issue was sought from this Constitution Bench. D. Modification of the reference question: 13. The original reference question in Para 58 of N.N. Global (supra) was set out as under: Whether the statutory bar contained in Section 35 of the Stamp Act, 1899 applicable to instruments cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Stamp Act,1899 and would be subject to stamp duty. E. Submissions of the Counsel: 15. We have heard the elaborate submissions from Mr. Gourab Banerjee, Learned Senior Counsel assisting this Court as Amicus Curiae; Mr. Gagan Sanghi, Learned Counsel for the appellant; Ms. Malavika Trivedi, Learned Senior Counsel for the Intervenor in IA 18516 of 2022; Mr. Ramakanth Reddy, Learned Senior Counsel for Respondent No. 1 and Mr. Debesh Panda, Learned Counsel for the Intervenor in IA 199969 of 2022. They have cited various decisions of this Court as well as of Courts in other jurisdictions. 16. The learned Amicus Curiae makes the following specific submissions: 16.1. The Determination of whether an arbitration agreement is duly stamped or not, must be left to the arbitrator. Section 11(6A) of the Arbitration Act, 1996 circumscribes the scope of the appointing authority. It begins with a nonobstante clause and was specifically meant to overrule the 7-judge bench in SBP Co v Patel Engg. Ltd (2005) 8 SCC 618 . (for short SBP ) and National Insurance Co. Ltd. V Boghara Polyfab (P) Ltd (2009) 1 SCC 267 (for short Boghara Polyfab ). Moreover, the ambit of Section 16 of Arbitr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not enacted to arm a litigant with a weapon of technicality to meet the case of the opponent. 16.6. The learned Amicus Curiae points out that a Court exercising power under Section 11(6A) of the Arbitration Act, 1996 is not a Court as defined in Section 2(1)(e) of the Arbitration Act, 1996 which has the authority to receive evidence . In some sense, under Section 11(6A), the Court is to only form a prime facie opinion. 16.7. Significantly, the parties are not under an obligation to file an original arbitration agreement and only the copy can be annexed which however is not an instrument as provided in Section 2(14) of the Stamp Act, 1899. The reading of Section 33 or 35 of the Stamp Act, 1899 would pointedly suggest that these provisions are not concerned with the copy of the instrument. Validity is always open to examination at the post-referral stage. [Jupudi Kesava Rao v Pulavarthi Venkata Subbarao and others (1971)1 SCC 545 , Hariom Agrawal v Prakash Chand Malviya (2007) 8 SCC 514 ] 17. Projecting the contrary view, Mr. Gagan Sanghi, learned Counsel for the appellant makes the following submissions: 17.1. Section 35 of the Indian Stamp Act,1899 bars admission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 35 of the Stamp Act, 1899. An Agreement, unless enforceable , is not in existence . 18. The learned Senior Advocate, Ms. Malvika Trivedi, intervening on behalf of the Appellant made the following submissions: 18.1.The Regimes of the Stamp Act, 1899 and Registration Act, 1908 are completely different. NN Global (supra) wrongly applied the principles of registration of a document to the requirement of stamping a document. While the former is a curable defect, the latter determines the very existence and completion of a document/instrument. In the absence of registration, an instrument still remains in existence but without stamping, the instrument is incomplete/inchoate. 18.2.The Stamp Act, 1899 envisages the payment of stamp duty, failing which the instrument according to Ms. Trivedi cannot be acted upon for any purpose. There is no ambiguity in the language of the Statute and plain reading should be opted. 18.3. The powers of the Court under different provisions of law, as well as the restrictions created in the Stamp Act, 1899 apply to the proceedings conducted in accordance with Section 9 of the Arbitration Act,1996. It is, therefore, argued that even if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature of a complete code. 21. Looking at the respective projection by the learned Amicus Curiae and other counsels, the following questions fall for our consideration: i) Whether the non-stamping of the substantive contract/instrument would render the arbitration agreement non-existent in law, void and unenforceable at the stage of Section 11 of the Arbitration Act, 1996 for the purpose of referring a matter for arbitration? ii) Whether the examination of stamping and impounding should be done at the threshold by the Section 11 judge or should it be left to the arbitrator? F. The Statutory framework of the Stamp Act, 1899 22. Let us begin by examining the objective behind the enactment of the Stamp Act, 1899. The 67th Law Commission Report Law Commission of India, Indian Stamp Act (67th Report, February,1997) available at https://lawcommissionofindia.nic.in/report_seventh/accessed on 11March 2023 suggests that the idea of a fiscal enactment for the purpose of collecting revenue for the State first originated in Holland and thereafter, the Bengal Regulation 6 of 1797 was enacted in India. This was initially limited to Bengal, Bihar, Orissa and Banaras. Subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be construed narrowly to that extent. In the same judgment, it was elaborated by the Pakistan Supreme Court as under: For example, an instrument would be produced in evidence only when there is a dispute about it, therefore, if the intention of the Legislature had been to render invalid all instruments not properly stamped, it would have made express provision in this respect and it would have also provided some machinery for enforcing its mandate in those cases in which the parties did not have occasion to produce unstamped instruments before the persons specified in the section. 26. This Court in RIO Glass Solar SA v. Shriram EPC Limited and Ors. (2018) 18 SCC 313 while holding that foreign awards need not be stamped noted that the Stamp Act,1899 reflects the fundamental policy of Indian law. A 2-judge bench speaking through Nariman J. noted as under: 34. The fundamental policy of Indian law, as has been held in Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644, and followed in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49, makes it clear that if a statute like the Foreign Exchange Regulation Act, 1973 dealing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, on payment of a penalty of one rupee by the person tendering it; (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898); (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of 66 [th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect is removed it can be brought on record and made a rule of the Court. Wilson Co. Pvt. Ltd. V K.S. Lokavinayagam AIR 1992 Mad 100 [emphasis supplied] 29. Similarly, Section 42(2) of the Stamp Act, 1899 which deals with the consequence of non-stamping provides as follows: 42. Endorsement of instruments in which duty has been paid under section 35, 40 or 41. (1) When the duty and penalty (if any) leviable in respect of any instrument have been paid under section 35, section 40 or section 41, the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof, and the name and residence of the person paying them. (2) Every instrument so endorsed shall thereupon be admissible in evidence, and may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on his application in this behalf to the person from whose possession it came into the hands of the officer impounding it, or as such person may direct: Provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31. The above would indicate that there is no absolute bar against the instrument being acted upon since at a later stage the defect is curable. 31.1. Arguing that the above course is not available, Ms. Malavika Trivedi, learned Senior Counsel for the intervenor had contended that Section 35 provides for a statutory bar, where the agreement shall not be admitted in evidence for any purpose nor shall it be acted upon, registered or authenticated by any such person or by any public officer. It is, therefore, submitted that when a Court appoints an arbitrator under Section 11 of Arbitration Act,1996, it is certainly acting upon the arbitration clause, which is barred by the clear language of Section 35 of the Stamp Act,1899. Let us now proceed to test the above argument. 31.2 In Hameed Joharan v. Abdul Salam (2001) 7 SCC 573 in the context of an unstamped decree for partition, 2 judges of this Court had the occasion to interpret Section 35 of the Stamp Act,1899 and the interplay with Article 136 of the Limitation Act,1963. It was contended in that case that an instrument not duly stamped, cannot be acted upon . The issue therein was whether a decree passed in a suit for pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of the decree being engrossed on the stamp paper, pertinently held as under: 23. Such an interpretation is not permissible having regard to the object and scheme of the Indian Stamp Act, 1899. The Stamp Act is a fiscal measure enacted with an object to secure revenue for the State on certain classes of instruments. It is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are conceived in the interest of the Revenue. Once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of initial defect in the instrument (Hindustan Steel Ltd. v. Dilip Construction Co. [(1969) 1 SCC 597]). [emphasis supplied] 31.5. It was specifically held that the starting of period of limitation for execution of a partition decree cannot be made contingent upon the engrossment of the decree on the stamp paper. 31.6. Thus, unstamped/insufficiently stamped document does not affect the enforceability of a document nor does it render a document invalid Gulzari Lal Malwari v Ram Gopal AIR 1937 Cal 765; Mattegunta Dhanalakshmi v Kantam Raju Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heme of the Act regarded in general [emphasis supplied] 32.2. Justice G.P. Singh in Interpretation of Statutes further notes Justice G.P. Singh: Principles of Statutory Interpretation,(LexisNexis,2016) at P. 46; Page 26 of 78 : The principle that the statute must be read as a whole is equally applicable to different parts of the same section. The section must be construed as a whole whether or not one of the parts is a saving clause or a proviso. Subbarao J calls it an elementary rule that construction of a section is to be made of all the parts together [emphasis supplied] 32.3. Thus, on a consolidated reading of Section 35,36 and the proviso to Section 35 and 42 ; the use of the word acted upon in all these sections or even in the same section, read with the objective and legislative intent of the Stamp Act 1899, it is clear that the bar under Section 35 is not intended to be absolute; non-payment of stamp duty is a curable defect as the objective is to protect revenue. Moreover, none of the provisions of the Stamp Act,1899 have the effect of rendering a document invalid or void ab initio. G. The Statutory Scheme of the Arbitration Act , 1996 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear that the Parliament went beyond Article 5 of the UNCITRAL Model law and added a non-obstante clause. To substantiate this point, it is pertinent to quote the provisions in full. Article 5 of the UNCITRAL Model Law,1985 reads as under: Article 5. Extent of Court intervention- In matters governed by this Law, no court shall intervene except where so provided in this Law. Section 5 of the Arbitration Act,1996 reads as under: 5. Extent of judicial intervention. Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. [emphasis supplied] 35. Additionally, reflecting on the purpose of Article 5, Dr. Peter Binder in UNCITRAL Model Law on International Commercial Arbitration, 1985 P. Binder, International Commercial Arbitration And Conciliation In UNCITRAL Model Law Jurisdictions 274 (2nd ed., Sweet Maxwell London 2005) P. 50-51 notes: 1-107 : According to the Commission Report, the purpose of Article 5 was to achieve a certainty as to the maximum extent of judicial intervention, including assistance, in internati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11 and Section 8 of the Arbitration Act,1996. 39. Next, it would be appropriate to briefly trace the jurisprudential history of Section 11(6) of the Arbitration Act,1996 for the purpose of this reference. i) Evolution of law under Section 11(6) of Arbitration Act, 1996 40. A 2-judge Bench of this Court in ICICI Ltd. v. East Coast Boat Builders Engineers Ltd (1998)9 SCC 728 taking into consideration delays in appointment of arbitrators under Section 11(6), referred the question of jurisdiction of a Section 11 judge to consider arbitrability of a dispute to a three-judge bench. It was noted that in KR Raveendranathan v. State of Kerala (1996)10 SCC 35 , another two Judge Bench of this Court had already referred to a larger Bench, a similar question. 41. Thereafter, in Sundaram Finance Ltd. v. NEPC India Ltd (1999)2 SCC 479 , a 2-judge bench opined that: 12. under the 1996 Act, appointment of arbitrator(s) is made as per the provisions of section 11, which does not require the Court to pass a judicial order appointing [the] arbitrator(s). 42. The above obiter was affirmed by a 2-judge Bench in Ador Samia Pvt Ltd. v. Peekay Holdings Ltd (1999)8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of affidavits and the documents produced or take such evidence or get such evidence recorded 45. However, Justice C.K. Thakker dissented from the majority opinion and came to the conclusion that it was an administrative power in the following passage: 85. There is [ ] no doubt in my mind that at that stage, the satisfaction required is merely of prima facie nature and the Chief Justice does not decide lis nor contentious issues between the parties. Section 11 neither contemplates detailed inquiry, nor trial nor findings on controversial or contested matters. 46. The four main reasons behind the dissent can be summarised as under: 111. .Firstly, the function of the Court is to interpret the provision as it is and not to amend, alter or substitute by interpretative process. Secondly, it is for the legislature to make a law applicable to certain situations contemplated by it and the judiciary has no power in entering into legislative wisdom . Thirdly, as held by me, the decision of the Chief Justice is merely prima facie decision and sub-section (1) of Section 16 confers express power on the arbitral tribunal to rule on its own jurisdiction. Fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. 48. The above line of reasoning in Justice Thakkar s dissent resonates with the internationally recognized principle of Kompetenz Komptenz and the doctrine of separability. The majority opinion in SBP (supra) suggests that a Section 11 Court could conduct a mini-trial at the pre-referral stage. The jurisprudential correctness of SBP(supra) has been doubted and was considered as excessive judicial intervention by the 246th LCI Report(supra). It has been legislatively overruled by subsequent amendments in the Arbitration Act,1996 which will be discussed later in this judgment. 49. Thereafter, a two-judge bench in Boghara Polyfab (supra) which followed SBP(supra), allowed the court to examine, inter alia, the following issues: 22.2. (a) Whether the claim is a dead (long barred) claim or a live claim. (b) Whether the parties have concluded the contract/ transaction by recording satisfaction of their mutual rights and obligation or by receiving the final payment without objection. 50. The 246th LCI report(supra), discussing both SBP(supra) and Boghara(supra) significantly noted that the real issue is the scope and nature of judicial intervention: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s clear from the plain reading of Section 11(6A) as extracted below: The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section(4) or subsection(5) or sub-section(6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement. [emphasis supplied] 54. The basis for this amendment, as explained in 246th LCI Report(supra), was to undo the effect of SBP(supra) and Boghara(supra) which widened the scope of inquiry and intervention by a Court under Section 11(6) of the Arbitration Act, 1996. Section 11(6A) uses the phrase notwithstanding any judgment, decree or order of any Court and effectively overrules judgments which widened the scope of inquiry. Section 11(6A) does not use the word null and void as recommended by the Law Commission. Thus, the legislature went one step further and confined the examination to the existence of the arbitration agreement. 55. Now let us notice the language used in Sections 8,11 and 45 of the Arbitration Act,1996, all of which deal with the power of Courts at the prearbitral stage. 55.1. Section 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment and the Report of the High- Level Committee to Review the Institutionalisation of Arbitration Mechanism in India. 57. The Committee led by Justice Srikrishna Government of India, Report of the High Level Committee to Review the Institutionalisation of Arbitration Mechanism in India (HLC Report, July 2017) Available at https://legalaffairs.gov.in/sites/default/files/Report-HLC.pdf had recommended further changes to the Arbitration Act, 1996. It had recommended for the deletion of Section 11(6A) with the power of appointment of arbitrators being left entirely to the arbitral institutions. Drawing inspiration from Singapore, Hong Kong, United Kingdom etc., the Committee recommended that this would prevent further delays and set the momentum for institutional arbitration in India. Under the amended Section 11(6), the appointment of arbitrators is to be done by the arbitral institution: the appointment shall be made, on an application of the party, by the arbitral institution designated by the Supreme Court, in case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn jurisdiction and authority, including any objection to the initial or continuing existence, validity, effectiveness or scope of the Arbitration Agreement. 4. SIAC International Arbitration Centre Rules, 2016: Article 28. Jurisdiction of the Tribunal 28.1 If any party objects to the existence or validity of the arbitration agreement or to the competence of SIAC to administer an arbitration, before the Tribunal constituted,the Registrar shall determine if such objection shall be referred to the Court. If the Registrar so determines, the Court shall decide if it is prima facie satisfied that the arbitration shall proceed. The arbitration shall be terminated if the Court is not so satisfied. Any decision by the Registrar or the Court that the arbitration shall proceed is without prejudice to the power of the Tribunal to rule on its own jurisdiction. 28.2 The Tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to the existence, validity or scope of the arbitration agreement. An arbitration agreement which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimising the intervention of courts is again a recognition of the same principle. [ emphasis supplied ] 63. It upheld the one-stop arbitration principle propounded by the House of Lords in Fiona Trust and Holding Corporation v. Privalov (2007) 1 All ER(Comm) 891 (Paras 17-18) . 46. In Fiona Trust and Holding Corpn. v. Privalov [Fiona Trust and Holding Corpn. v. Privalov, (2007) 1 All ER (Comm) 891 : 2007 Bus LR 686 (CA)] , the Court of Appeal emphasised the need to make a fresh start in imparting business efficacy to arbitral agreements. The Court of Appeal held that : (Bus LR pp. 695 H-696 B F, paras 17 19) 17. For our part we consider that the time has now come for a line of some sort to be drawn and a fresh start made at any rate for cases arising in an international commercial context. Ordinary businessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine the correctness of the decisions referred to in NN Global(supra). 66. The judicial position on the enforceability of an arbitration agreement contained in an unstamped or insufficiently stamped agreement can be traced from this Court s 2011 decision in SMS Tea (supra). The facts of the case were that the appellant was granted lease of two tea estates for a term of 30 years. The leases deed contained an arbitration clause. On abrupt eviction by the respondent from the tea estates, the appellant filed an application under Section 11 of the Arbitration Act, 1996 for the appointment of arbitrator. The learned Chief Justice of Guwahati High Court dismissed the Section 11 application and held that the lease deed was compulsorily registrable under Section 17 of the Registration Act,1908 and Section 106 of the Transfer of Property Act,1882 ; and as the lease deed was not registered, even the arbitration clause would be rendered invalid. The matter reached this Court where one of the questions was whether an arbitration agreement in an unregistered instrument which is not duly stamped, is valid and enforceable. It was observed that the arbitration agreement in an unstamped or insuff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations of two different three- Judge Bench decisions in Dharmaratnakara (supra) and Black Pearl Hotels(supra) have not been considered in NN Global (supra) which is another three-judge bench and that this seriously calls into question the finding of NN Global (supra). 70. It is significant to note here that the above two judgments did not consider the recent 11(6A) Amendment. Black Pearl Hotels (supra) was delivered pre- 11(6A) and hence stands legislatively overruled. In Dharmaratnakara (supra), it appears that the amendment to Section 11(6A) was not brought to the notice of the Court and the earlier judgment in Garware (supra) was not considered. This could also be because the Court considered the order which was passed prior to introduction of Section 11(6A). In Dharmaratnakara (supra), the issue before the Court was whether a document executed between parties was a lease deed or an agreement to lease , and whether arbitration could be invoked under the said document. Even after determination by the Registrar (Judicial) of the Karnataka High Court that the concerned document was a lease deed, the deficit stamp duty was not paid. The Court relied on SMS Tea(supra), to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the parties in this case remained unfilled. The emails dated 22nd July, 2014 and 25th July, 2014 produced here for the first time as well as certain correspondence between SBPDCL and the Respondent do show that there is some dealing between the Appellant and the Respondent qua a tender floated by SBPDCL, but that is not sufficient to conclude that there is a concluded contract between the parties, which contains an arbitration clause. Given the inconclusive nature of the finding by CFSL together with the signing of the agreement in Haryana by parties whose registered offices are at Bombay and Bihar qua works to be executed in Bihar; given the fact that the Notary who signed the agreement was not authorised to do so and various other conundrums that arise on the facts of this case, it is unsafe to conclude, one way or the other, that an arbitration agreement exists between the parties. The prima facie review spoken of in Vidya Drolia (supra) can lead to only one conclusion on the facts of this case - that a deeper consideration of whether an arbitration agreement exists between the parties must be left to an Arbitrator who is to examine the documentary evidence produced befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how, under the Stamp Act, an agreement does not become a contract, namely, that it is not enforceable in law, unless it is duly stamped. Therefore, even a plain reading of Section 11(6-A), when read with Section 7(2) of the 1996 Act and Section 2(h) of the Contract Act, would make it clear that an arbitration clause in an agreement would not exist when it is not enforceable by law. This is also an indicator that SMS Tea Estates has, in no manner, been touched by the amendment of Section 11(6-A). 76. The above proposition of law in Garware(supra) appears to be incorrect. As noted earlier, the judgment in SMS Tea(supra) stands legislatively overruled as it was delivered in the pre-2015 amendment regime. Even though there is no express mention in the 246th LCI Report(supra), the non-obstante clause effectively overrules it. 77. Now let us consider Section 2(g) and 2(h) of the Indian Contract Act,1872 which read as under: (g) An agreement not enforceable by law is said to be void; (h) An agreement enforceable by law is a contract; Incorporating the principle in Garware(supra) would mean that as per Section 2(g) and (h) of the Contract Act, 1872, an agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Section 17 provides for the timing of stamping: Instruments executed in India. All instrument chargeable with duty and executed by any person in [India] shall be stamped before or at the time of execution. Execution is defined in Section 2(12): Executed or Execution used with reference to instruments, mean signed and signature ii) Indian Contract Act,1872: An agreement under the Indian Contract Act,1872 is defined in Section 2(e) as under: Every promise and every set of promises, forming the consideration for each other, is an agreement . Sections 2(g), 2(h) and 2(j) and Section 10 of the Indian Contract Act,1872 state: (g) An agreement not enforceable by law is said to be void; (h) An agreement enforceable by law is a contract; (j) A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable (10) All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. iii) Arbitration Act, 1996: Section 2(b) provides as under: (b) ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an arbitration agreement Chennai Container Terminal Pvt Ltd v. Union of India, 2007 3 Arb LR 218 (Mad), Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir 1960), Travancore Devaswom Board v. Panchamy Pack, 2004 13 SCC 510; Also see, David St. John Sutton, Judith Gill and Matthew Gearing, Russell on Arbitration(24th Edition); P. 49 However, Section 17 of the Stamp Act, 1899 provides for the timing of stamping i.e. before or at the time of execution and the term execution is defined in the Stamp Act,1899 to mean signature iv) Even though arbitral awards are liable to stamp duty under Item 12 of the Stamp Act, 1899 and are specifically mentioned in Schedule I ; the arbitration agreement for the purpose of stamp duty, gets covered only under the residuary entry viz if not otherwise provided for in Article 5(c). The Stamp Act,1899 does not specifically refer to an arbitration agreement. v) As per Section 7 of the Arbitration Act, 1996, Arbitration Agreement can even be non-contractual. vi) Section 7(4)(c) of Arbitration Act,1996 envisages that the scope of arbitration is not limited to the dispute initially referred to arbitration, but also encompasse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xis Nexis,2nd Edition; P. 270 and is not a conventional agreement in that sense. Moreover, none of the provisions of the Stamp Act,1899 would lead us to the conclusion that an arbitration agreement would be invalid/void-ab-initio when it is not stamped. Thus, the conclusion in Garware(supra) that an unstamped agreement would be rendered void is not only inconsistent with Section 7 of the Arbitration Act,1996 but also the Stamp Act,1899 as per which a document can at most, be rendered inadmissible in evidence. 78.3 In the context of Arbitration Act,1996 being a Special law, CR Datta s treatise titled Law Relating to Commercial Domestic Arbitration CR Datta, Law Relating to Commercial and Domestic Arbitration(Along with ADR) P. 98; Union of India v Popular Construction Co 2001 (8) SCC 470; United India Insurance Co. Ltd. V Kumar Texturisers AIR 1999 Bom 118 notes: The Act of 1996 is a special Act and a Central Act which provides that this Act will prevail over any other law so far as the matters governed by this Act are concerned. The Authority of the Law Courts has been curtailed. The Courts cannot intervene in any manner dealt with by Part I of this Act unless specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pliance of Section 8 of the Arbitration Act is filed, the approach of the civil court should be not to see whether the court has jurisdiction. It should be to see whether its jurisdiction has been ousted. There is a lot of difference between the two approaches. Once it is brought to the notice of the court that its jurisdiction has been taken away in terms of the procedure prescribed under a special statute, the civil court should first see whether there is ouster of jurisdiction in terms or compliance of the procedure under the special statute. The general law should yield to the special law - generalia specialibus non derogant. In such a situation, the approach shall not be to see whether there is still jurisdiction in the civil court under the general law. Such approaches would only delay the resolution of disputes and complicate the redressal of grievances and of course unnecessarily increase the pendency in the court. 78.7 Having noted that the Arbitration Act,1996 is a special legislation, and that general law should yield to special law, let us now examine the principle of harmonious construction for the purpose of this reference. ii)Harmonious Construction 79.It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying the rule of construction that in cases of conflict between a specific law and a general law, the specific law prevails and the general law like the Contract Act,1872 applies only to such cases which are not covered by the special law; I therefore, hold that Section 2(e), 2(g) , 2(h) of the Contract Act,1872 cannot override Section 7 contained in the special law i.e. the Arbitration Act,1996 when it comes to formal validity. 79.2. Moreover, when the words of the statute in Section 11 of the Arbitration Act ,1996 do not mention validity or even inoperable and incapable of being performed as mentioned in Section 45 of the Arbitration Act,1996 or prima facie no valid arbitration agreement in Section 8 of the Arbitration Act, 1996, it must be understood that the general words in a different statute such as the Contract Act, 1872 cannot override the specific words used in the special law. That is to say, that an arbitration agreement cannot be rendered void on insufficient stamping by a Section 11 judge when the scope of examination is only limited to the existence of the arbitration agreement and not validity . 79.3. Coming back to the evidentiary bar under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the aspect of no/deficient stamp duty on the concerned instrument. Such a course will also protect the interest of the revenue and the substantive law. K. Implication of changing nature of transaction and the advent of the technology 80. As we are proceeding on the basis that an arbitration agreement is liable to stamp duty, this Court cannot also be oblivious of the technological advancements as commercial transactions are going beyond pen and paper agreements. The 2015 amendment to Section 7 of the Arbitration Act,1996 which defines arbitration agreement recognizes electronic communication, bringing the process in conformity with Article 7 of the UNCITRAL Model law which was amended in 2006. It modernized and broadened the form of arbitration agreement to conform with international contract practices. The exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement are now recognized as valid arbitration agreement. 80.1.Dr. Peter Binder in International Commercial Arbitration and Mediation in UNCITRAL Model Law Jurisdictions Supra at note 40; P. 67-68 notes: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his book Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services, Oxford University Press, 2010 , The End of Lawyers? Rethinking the Nature of Legal Services, suggests that new technologies and processes, such as artificial intelligence and blockchain, may be able to simplify and streamline the arbitration process in the future. We now have the phenomenon of smart contracts and metaverse in the sphere of commercial transactions where technology and artificial intelligence are integrated. The developments in the legal framework must attune to such developing trends in technology and be conscious of their implications today and for the future. 80.6 Noticing the emerging trends, the Chief Justice of India in a recent conference observed Dr D.Y. Chandrachud, International Conference: Arbitration in the Era of Globalization (4th Edn., Dubai, 19-3-2022) that legal professionals across the globe are recommending smart contract arbitration. Describing smart contracts and how arbitration can be used to resolve disputes, Chief Justice DY Chandrachud commented: Technology and artificial intelligence are integrated into commercial transactions. One such exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be to achieve the legislative intention. [emphasis supplied] 80.8 Relying on the above case, in Trimex International FZE vs Vedanta Aluminum Limited, India 2010 (1) SCALE 574 , this Court held that the implementation of a contract cannot be affected merely because offer and acceptance was made via email. 80.9 In the context of the evolving law, it is important to observe that although an arbitration agreement is liable to stamp duty under the residuary entry, the technicality of stamping places hurdles in ensuring efficiency and efficacy in arbitration proceedings. An arbitration agreement does not even mandatorily require signature for it to be valid as per Section 7 of the Arbitration Act,1996. The Stamp Act,1899 is rooted in the past and does not take into account the changing nature of transactions and enactments such as the Arbitration Act,1996. This is an aspect which would require the attention of the legislature. J. Doctrine of Separability 81. It appears that the Court in Garware(supra) rejected the concept of separability when it held: 15. ..it is difficult to accede to the argument made by the learned counsel on behalf of the respondent that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the existence or validity of the arbitration agreement, and for that purpose, (i) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and (ii) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. 81.3 This Court in NN Global(supra) discussed judgments in US,UK and France, noting the importance of this principle in modern and contemporary arbitral jurisprudence: 4. It is well settled in arbitration jurisprudence that an arbitration agreement is a distinct and separate agreement, which is independent from the substantive commercial contract in which it is embedded. This is based on the premise that when parties enter into a commercial contract containing an arbitration clause, they are entering into two separate agreements viz. (i) the substantive contract which contains the rights and obligations of the parties arising from the commercial transaction; and, (ii) the arbitration agreement which contains the binding obligation of the parties to resolve their disputes through the mode of arbi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re distinct as noted in NN Global(supra), reconciling the two principles would ensure that an arbitrator can rule on the objections of validity, existence as well as necessary stamping, if required. The doctrine of Kompetenz Kompetenz is discussed in greater detail in the next section. 82.Turning to the decision in Garware(supra), it appears that the Court in Garware(supra) rejected the concept of severability only by relying on SBP(Supra) when it held: 15. In view of the law laid down by seven-Judge Bench,[SBP(Supra)] it is difficult to accede to the argument made by the learned counsel on behalf of the respondent that Section 16 makes it clear that an arbitration agreement has an independent existence of its own, and must be applied while deciding an application under Section 11 of the 1996 Act. 83. In SBP(Supra),as we have noticed earlier in this opinion, stood legislatively overruled as a judge at the Section 11 stage could conduct detailed adjudication and make a conclusive determination at the pre-referral stage without deferring it to the arbitrator. As highlighted above, Section 16 and Section 11 of the Arbitration Act,1996 indicates that there is an overlap w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction Co. Ltd., (2018) 17 SCC 607 : (2019) 2 SCC (Civ) 530] . as followed by us. 84.1. In Hyundai(supra), the issue of stamping was not at all a matter of consideration and the Court decided on the arbitrability of the dispute and whether it was an excepted matter and in that process, held that the arbitration agreement would not exist-in-law , as the arbitration clause was contingent on whether the insurer accepted liability. In these circumstances, the application of the proposition in Hyundai Engg(supra) to deal with the issue of unstamped document in Garware(supra) appears to be an incorrect approach. This is because in Garware(supra), the Court found that the issue of stamping would go into the existence of the arbitration agreement in law. This was done by erroneously importing the principle enunciated in Hyundai(supra) and therefore the earlier Hyundai(supra) which had nothing to do with the stamping of the document, should have been distinguished. At this point, we may also notice the argument of the Learned Amicus who argued that the Court in Hyundai Engg(supra) relied on Oriental Insurance Co. Ltd. v. Narbheram Power and Steel (P) Ltd (2018) 6 SCC 534 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso any objections on existence or validity. This Court in Weatherford Oiltool Middle East Limited vs Baker Hughes Singapore PTE 2022 SCC OnLine 1464 where the issue concerned the validity of an unstamped document, noted as under: 8. The bare reading of the afore-stated provision makes it clear that arbitral tribunal is competent not only to rule on its own jurisdiction but to rule on the issue of the existence or validity of the arbitration agreement. It further clarifies that an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract, and that a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. 85.2. Discussing the Kompetenz Kompetenz principles in NN Global(supra), it was noted: 4.3. The doctrine of kompetenz kompetenz implies that the arbitral tribunal has the competence to determine and rule on its own jurisdiction, including objections with respect to the existence, validity, and scope of the arbitration agreement, in the first instance, which is subject to judicial scrutiny by the courts at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al intervention in arbitration proceedings adds significantly to the delays in the arbitration process and ultimately negates the benefits of arbitration. Two reasons can be attributed to such delays. First, the judicial system is over-burdened with work and is not sufficiently efficient to dispose cases, especially commercial cases, with the speed and dispatch that is required. Second, the bar for judicial intervention (despite the existence of section 5 of the Act) has been consistently set at a low threshold by the Indian judiciary, which translates into many more admissions of cases in Court which arise out of or are related to the Act. [emphasis supplied] 85.6. Considering the large pendency of cases as noted by the 246th LCI Report(supra), it is essential that Section 16 of the Arbitration Act,1996 is given full play. Discussing the history of arbitration law in India, the 246th LCI Report(supra) quoted the observations of Justice D.A. Desai in Guru Nanak Foundation v Ratan Singh and Sons (1981) 4 SCC 634 where commenting on the working of the Arbitration Act, 1940, it was noted that the challenge to arbitral proceedings in Courts have made lawyers laugh and l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instrument. As soon as stamp duty and penalty (if any) are paid on the instrument, any of the parties can bring the instrument to the notice of the High Court, which will then proceed to expeditiously hear and dispose of the Section 11 application. This will also ensure that once a Section 11 application is allowed and an arbitrator is appointed, the arbitrator can then proceed to decide the dispute within the time frame provided by Section 29A of the 1996 Act. 85.9 The above enunciation in Garware(supra) as is apparent goes against the legislative mandate which had prescribed the deadline of 60 days for appointment of arbitrators under Section 11(13) of the Arbitration Act, 1996. The criticism that a deadline of 45 days would be impractical, cannot also be brushed aside lightly. N. Discussion on Vidya Drolia 86. This case was concerned with the arbitrability of landlord-tenant disputes and the forum before which the issue of arbitrability must first be raised. The paragraph 146 as quoted below may require a relook in the context of the issue under consideration. 146. We now proceed to examine the question, whether the word existence in Section 11 merely refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ators. [emphasis in original] 86.2 I have already discussed that in the Indian regime, the Arbitrator under Section 16 has the jurisdiction to decide on existence and validity . A plain reading of Section 11(6A) would show that the examination by Court is confined only to existence and not even validity . Moreover, in the present reference, we are only concerned with the formal requirement of stamping and not arbitrability. Applying contextual interpretation to render an arbitration agreement void on the formal requirement of stamping would defeat the very purpose of the Arbitration Act,1996. A document cannot be rendered invalid or unenforceable especially if the defect is curable under the Stamp Act,1899 as noted earlier. Moreover, none of the provisions in the Stamp Act, 1899 have the effect of rendering a document invalid. Thus, we find the position in Vidya Drolia(supra) to the extent that it relies on Garware(supra) to be incorrect. O. Conclusion 87. Harking back to Charles Evans Hughes with whose words we began the judgment, let us conclude with the following quote of the same judge reflected in Prophets By Honor Alan Barth, Prophets with Honor,197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for arbitration, cannot be permitted to suffer from confusion and ambiguity. As can be seen, the present 5 judge-Bench could not provide clarity on the issue referred to us, on account of the fractured verdict, leading to legal uncertainty. The constitution of a larger Bench in this Court is certainly not commonplace as the last occasion when 7 judges assembled was in the year 2017. Around 5 matters as I am informed, are already awaiting the attention of 7 judges Bench. In such backdrop, the interplay between the Acts and how its objective is to be achieved in the course of Arbitral proceedings either at the referral stage or thereafter is much too important to be left lingering for a clarificatory verdict by a larger Bench. Therefore, I would appeal to the legislative wing of the State to revisit the Amendments which may be necessary in the Stamp Act,1899 in its application to the Arbitration Act,1996. The State might put into place a convenient mechanism which would efface the inconsistencies in both the Arbitration Act,1996 and the Stamp Act,1899. If we look at the legislative intent of the Arbitration Act,1996 and what our country is hoping to be as the destination of choice fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the referred question and the allied questions cropped up for consideration have been elaborately dealt with and answered in the erudite draft judgment of my learned brother Justice K.M. Joseph and hence, it is absolutely unessential to refer them. While considering the power of the Court under Section 11(6) of the Arbitration and Conciliation Act, 1996 it is to be noted that the position of Section 11(6) before and after the amendment and Section 11(6A), inserted by Act 2 of 2016 with effect from 23.10.2015 have been referred to in all the three opinions. Hence, I do not think it necessary to extract those provisions to avoid the risk of repetition. Certainly, the powers conferred under Section 16 of the Act often referred to as Kompetenz-Kompetenz make it clear that the Arbitral Tribunal is empowered and thus got competence to rule on its own jurisdiction, including on all jurisdictional issues and existence or validity of the arbitration agreement. This provision would have its full-play when appointment of the arbitrator takes place, on consensus, by the parties, in accordance with the terms of the arbitration agreement or by designated arbitration institution, without t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n agreement or whether the instrument contained an arbitration clause. Necessarily, if the answer is in the affirmative, an order appointing Arbitrator(s) would be passed and an answer in the negative would be the end of such proceedings. In that view of the matter, it can safely be said that what is to be decided while performing the function under Section 11 (6) is relating a jurisdictional aspect as only on returning a finding that there exists an arbitration agreement or arbitration clause, in the material so produced, that arbitrator(s) would be appointed. The answering of that question, on receiving the instrument , is the performance of the function describable as acting upon the document thus produced. In other words, as discernible from the statement of law by M.C. Desai, J. in Mt. Bittan Bibi Anr. v. Kuntu Lal Anr.. ILR [1952] 2 All 984 , (the relevant paragraph 8 extracted in the opinion of learned brother Justice K.M. Joseph), acting upon is not included in the act of admitting an instrument, though it can be acted upon, later, subject to permissibility in law therefor. 3. The cleavage in opinion occurs on the issue as to whether the Court called upon to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure, 1898 (V of 1898); (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. 5. I have already found that receiving the very instrument which is carrying the arbitration agreement or containing an arbitration clause from the party who asserts its existence is essentially an act of receiving the evidence, in that limited sense. Therefore, how can the Court, which is having authority and competence to receive evidence, for the purpose of invoking the power under Section 11 (6), abstain from proceeding further in terms of Section 33 if it appears to it that such instrument produced before it, though required to be stamped, is unstamped or is not duly stamped. According to me, in terms of the mandate under Sub-section (2) of Section 33, for that purpose, the Section 11 Judge who received evidence shall examine the instrument so chargeable and so produced in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India, when such instrument was executed or first executed. Proviso (b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thus:- 2. Submission of Request:- The request to the Chief Justice under Sub-section (4) or Subsection (5) or Sub-section (6) of Section 11 shall be made in writing and shall be accompanied by (a) the original arbitration agreement or a duly certified copy thereof. 8. In the opinion of my learned brother Justice K. M. Joseph this issue has been elaborately considered from paragraphs 77 to 89. While concurring with the conclusions and findings thereof, I would like to give my own reasons as to why the expression certified copy should be understood with reference to Section 74 and 76 of the Indian Evidence Act, 1872, (hereinafter referred to as Evidence Act ) and why the said form of secondary evidence is available to be acted upon without formal proof of existence and execution of the original document. 9. Section 62 defines primary evidence thus:- 62. Primary evidence. Primary evidence means the document itself produced for the inspection of the Court. Explanation 1. Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper. 12. Thus, it can be said that the genuineness and correctness of copies falling under clause 1 of Section 63 shall be presumed under Section 79 of the Evidence Act. The definition of shall presume is defined under Section 4 of the Evidence Act, thus:- Shall presume . Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. 13. Section 79 proceeds upon the maxim omnia praesumuntur rite esse acta, i.e., all acts are presumed to be done rightly and regularly. When the acts of official nature went through the process, the presumption arises in favour of the regular performance. 14. Section 65 of the Evidence Act, in so far as, it is relevant reads thus:- 65. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 11(10) of the Act cannot be interpreted to mean any other kind of copies provided under Section 63 of the Evidence Act other than under Section 63 (1) of the Evidence Act. 17. Learned brother Justice K. M. Joseph, after explaining as to how the expression certified copy must be understood, held that the Court exercising the power under Section 11 (6) has to exercise the power under Section 33 of the Indian Stamp Act when the original is produced before the Court. In other words, according to me, it is rightfully held that when the original document carrying the arbitration clause is produced and if it is found that it is unstamped or insufficiently stamped, the Court acting under Section 11 is duty bound to act under Section 33 of the Indian Stamp Act as held in the draft judgment. 18. I am also concurring with the view that what is permissible to be produced as secondary evidence i.e., other than the original document in terms of Section 2(a) of the scheme framed under Section 11(10) of the Act, is nothing but certified copy as mentioned earlier. But such a certified copy, would not be available to be proceeded with under Section 33 of the Stamp Act if it is unst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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