The central legal point established in the judgment is the interpretation of the steps to be taken under Sec. 11 of the Arbitration and Conciliation Act, 1996 when the question of stamp duty arises, as outlined in the Supreme Court's judgment in N. N. Global Mercantile Private Limited Vs. Indo Unique Flame Limited and Ors.,(2021) 4 SCC 379.

JUDGMENT

1. By this petition, filed under Sec. 11 of the Arbitration and Conciliation Act, 1996, the petitioner is seeking appointment of an arbitrator, claiming that there is an arbitration agreement between the parties.

2. The present petition is opposed on various grounds on behalf of the respondent, interalia claiming that the arbitration clause itself is vague and that therefore, the petition ought not to proceed further. It is also contended on behalf of the respondent that the document which contained arbitration clause is not sufficiently stamped and that therefore, this Court may not proceed to consider the prayers made in the present petition.

3. For the present, this Court is not going into the question of the nature of the arbitration clause, but the question of stamp duty being deficient needs to be considered.

4. The learned counsel for the rival parties have referred to various judgments and orders in that light. This Court is of the opinion that the Supreme Court in the case of N. N. Global Mercantile Private Limited Vs. Indo Unique Flame Limited and Ors.,(2021) 4 SCC 379 has deliberated on the aforesaid issue and certain conclusions have been reached. Apart from rendering certain findings as to the manner in which the High Courts, while considering the petition under Sec. 11 of the said Act, should proceed when a contention is raised regarding non payment / deficit payment of stamp duty, the Supreme Court has proceeded further to refer a specific question to be authoritatively settled by a Constitution bench of the Supreme Court. By referring to the said specific question framed in the judgment in the case of N. N. Global Mercantile Private Limited (supra), the learned counsel for the respondent submitted that this Court may hold its hands till the Constitution Bench decides the question so referred. The learned counsel for the respondent relies upon the order dtd. 24/6/2022, passed by a learned Single Judge of this Court in Arbitration Petition No.16/2018 (Speciality Restaurants Ltd. Vs. Fine Dine Ventures Pvt. Ltd. & Anr.).

5. On the other hand, the learned counsel appearing for the petitioner has relied upon order dtd. 4/4/2022, passed by the learned Single Judge of this Court in Commercial Arbitration Application (L) No.22197/2021 (B4U Broadband (India) Pvt. Ltd. Vs. Affluence Movies Pvt. Ltd.). In the said order, the learned Single Judge of this Court directed that original agreement be deposited with the Prothonotary and Senior Master of this Court who would forward the document to the concerned Sub-Registrar of Stamps for adjudication of the appropriate stamp duty payable on the document and then to proceed further in the matter.

6. This Court has considered the judgment of the Supreme Court in the case of N. N. Global Mercantile Private Limited (supra). The question referred to the Constitution Bench indicates that what needs to be decided by the Constitution Bench is the question as to whether the arbitration agreement itself, in the form of a clause in a commercial agreement can be said to be at all chargeable for stamp duty. Therefore, according to this Court, the question referred to the Constitution Bench, goes to the root of the matter, as to whether stamp duty can at all be charged on an arbitration agreement / clause, as it is to be treated as an independent agreement. But, even presuming that stamp duty would be payable, this Court is of the opinion that the steps to be taken by this Court under Sec. 11 of the said Act when the question regarding payment of appropriate stamp duty arises, have to be on the basis of paragraph No.36.2 of the said judgment of the Supreme Court in the case of N. N. Global Mercantile Private Limited (supra). The said paragraph reads as follows:

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 Sec. 11 before the Court to invoke the default power for making t