The distinction between non-payment and insufficiency of stamp duty, and the need to leave the determination of insufficiency to the arbitrator.

JUDGMENT

Sachin Datta, J.

I.A. No. 11173/2023 (Delay)

1. For the reasons stated in the application, the delay in filing the review petition is condoned.

2. The application stands disposed of.

Review Petition No. 161/2023

3. The present review petition has been filed by the respondent seeking review of the order dated 20.03.2023 passed by this court, whereby the petition filed by the petitioner under Section 11 of the Arbitration and Conciliation Act, 1996 (the Act) was allowed.

4. The review petition is filed on the premise that the agreement dated 02.02.2019 executed between the parties, containing the arbitration clause, is unstamped, and after the judgment in N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd., 2023 SCC OnLine SC 495, the same is invalid in law/cannot be acted upon, and liable to be impounded by this court. It is prayed as under:

"a. Allow the present application for review of the Order dated 20.03.2023 passed by this Hon'ble Court.

b. Impound the agreement dated 02.02.2019 under the provisions of Stamp Act, 1899 and registration Act.

c. Pass/make such other appropriate orders and /or directions as this Hon'ble court may deem fit and proper in the facts and circumstances of the present case."

5. I have perused the record and heard learned counsel for the review petitioner/respondent.

6. At the outset, it is noticed that stamp duty amount of Rs. 100/- has been paid on the agreement dated 02.02.2019. As such, the contention of learned counsel for respondent that the said agreement is unstamped is factually incorrect. It is also noticed that the order dated 20.03.2023 was a consent order which specifically reserves the right of the respondent to raise preliminary objections with regard to the arbitrability/jurisdiction (which would include objections on account of insufficiency of stamp duty, and/or for non registration of the said agreement). The said order, inter-alia, directs as under:

"9. After some hearing, respective counsels for the parties are in agreement that a Sole Arbitrator be appointed to adjudicate the disputes between the parties.

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11. It is agreed between the parties that preliminary objections sought to be raised by the respondent with regard to the arbitrability/jurisdiction shall be decided by the learned Arbitrator at the outset before adjudicating the claim/s on merits. It is directed accordingly."

7. The order dated 20.03.2023 was consistent with the judgment of the Supreme Court in Intercontinental Hotels Group (India) (P) Ltd. v. Waterline Hotels (P) Ltd., (2022) 7 SCC 662.

8. In Intercontinental Hotels (supra), the Supreme Court distinguished between the cases involving non-payment of stamp duty vis-a-vis insufficiency of stamp duty, and held as under:

"25. Although we agree that there is a need to constitute a larger Bench to settle the jurisprudence, we are also cognizant of time-sensitivity when dealing with arbitration issues. All these matters are still at a pre- appointment stage, and we cannot leave them hanging until the larger Bench settles the issue. In view of the same, this Court--until the larger Bench decides on the interplay between Sections 11(6) and 16--should ensure that arbitrations are carried on, unless the issue before the Court patently indicates existence of deadwood.

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30. It may be noted that the petitioners have themselves attempted to self- adjudicate the required stamp duty and have paid, on 29-7-2019, a stamp duty of Rs 2200, describing the HMA as a "bond". On 10-6-2020, the petitioners further purchased 11 e-stamps for Rs 200 each, describing the HMA as an "agreement" under Article 5(j). Therefore, it falls upon the Court, under the Stamp Act to review the nature of the agreement in order to ascertain the stamp duty payable. From the above it is clear, that stamp duty has been paid, whether it be insufficient or appropriate is a question that may be answered at a later stage as this Court cannot review or go into this aspect under