Kishan Kaul, J.— (Oral)

1. The “Gupta” family was carrying on business under a partnership firm known as Deoki Nandan & Sons. Disputes arose inter se the family members including qua immovable property where the parties were residing known as 1, Tughlak Lane, New Delhi. A reference was made vide order dated 18.11.1985 in Suit No.2164A/1985 for resolution of disputes to the sole arbitration of Mr. Justice Jaswant Singh (Retd.) who made and published an award dated 8.6.1988. One of the issues framed before the arbitrator was as under:

“7. Whether equal physical division of the property namely I-Tughlak Lane, New Delhi amongst four parties with separate titles is possible/equitable? If not, in what manner it can be best sold/disposed off? (Onus on parties).”

2. The findings on this issue were recorded by the arbitrator after obtaining a report from an architect as also a response from the Land & Development Office, Government of India, being the perpetual lessor. The result of the aforesaid was that the land was found earmarked for group housing building and sub-division of the plot was not permitted. It was, thus, opined by the learned arbitrator that equal physical division amongst the four parties with separation of title was not possible. The alternative proposal for development of the property, in the absence of consent, was also not feasible and, thus, the only methodology for disposal of the property was by public auction in which even the parties would be free to offer their bids.

3. The aforesaid award was filed in Court to which objections were filed which were dismissed and the award was made rule of the court on 17.9.1990 in the earlier suit proceedings. The appeal against the same were dismissed on 18.9.1991.

4. The matter did not end at this as second round of litigation started in the execution proceedings. It appears that prior to the execution proceedings, being Execution Petition No.63/1993, some of the co-owners entered into an agreement to sell for transfer of their rights under the decree and that is how respondent No.10 came into the picture. The appellant is holder of 25 per cent share while respondent No.9 is the holder of remaining 25 per cent share. It is not, however, necessary to go into further details qua these execution proceedings but suffice it to say that an application came to be filed, being EA No.590/2009, by respondent No.10/Titan Estates Private Limited qua the issue of stamp duty to be filed for preparation of decree sheet arising from the award being made rule of the court.

5. The learned Single Judge in terms of the order dated 20.4.2011 considered it appropriate to issue notice to the Stamp Collector, Delhi and the Chief Controlling Officer to give a valuation report. It is this valuation report submitted by the Tehsildar from the Office of the DC, New Delhi which has given rise to the impugned order dated 20.12.2011. The learned Single Judge opined that on the basis of the valuation the stamp duty would have to be calculated on 1 per cent of the value referred to of Rs.6,33,99,000.00 and, thus, Rs.6,36,192.00 has to be paid as stamp duty.

6. The common submission of the learned counsel for the appellant and respondent No.10 is that the calculation of the stamp duty payable appears to be under misconception of legal provisions of the Indian Stamp Act, 1899 (hereinafter referred to as the „said Act?) as also the judicial pronouncements of this Court.

7. In respect of the aforesaid a reference has been made to Section 3 (a) of the said Act, which reads as under:

“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 therefor, 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 J