An award made consequent upon a reference made under Section 20 of the Arbitration Act required stamp duty in terms of Article 12 of the Stamp act.

R. P. Sethi, J. - Whether an award made by an arbitrator upon reference by the court under Section 20 of the Arbitration Act requires to be stamped under the provisions of the Stamp Act; is the important question of law requiring determination in this case. It has been urged that the awards delivered upon reference made by a court in any proceedings does not require any stamp duty under Article 12 of Schedule I of the Stamp Act.

2. The facts of this case in brief are that the petitioner-claimant filed arbitration application No. 56/87 in this court which was referred to the arbitration of the Minister Incharge, Geology and Mining, J&K Government for adjudication of all the disputes between the parties in accordance with the provisions of the Arbitration Act. After entering upon the reference the arbitrator filed his award in this court, notices of which were issued to the parties on 6.7.1989. During the course of proceeding it transpires that the award filed in the court was not stamped in accordance with the provisions of the Stamp Act.

3. The petitioner-claimant vide CMP No. 660 of 1989 has prayed that if it is held that the award requires to be stamped, the same may be directed to be stamped under the provisions of the Stamp Act.

4. I have heard the learned counsel for the parties and perused the record.

5. Section 17 of the Stamp Act provides that all instruments chargeable with duty and executed by any person in the State shall be stamped before or at the time of execution. No instrument chargeable with duty is admissible in evidence for any purpose by any person having by law or consent parties authority to receive evidence or be acted upon, registered or authenticated by any such person or public officer, unless such instrument is only stamped as per terms of the prohibition embodied in Section 35 of the Stamp Act. Under proviso (a) of the said section any such instrument not being instrument chargeable with duty of paise or a bill of exchange or promissory note or acknowledgment shall, subject to all exception, be admitted in evidence on payment of duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with a penalty of five rupees, or ten times of the amount of the proper duty or if deficient portion thereof exceeds five rupees of a sum equal to ten times such duty or portion of deficiency in duty and penalty payable under this section shall be realised in revenue stamps. Article 12 of schedule I of the Stamp Act provides -

"Award, that is to say, any decision in writing by an arbitrator or impire, not being an award directing a partition, on a reference made otherwise than by an order of the court in the course of a suit."

6. The Nagpur High Court in Ram Kumar v. Kushal Chand (AIR 1928 Nag 40), held that "where the award was un-stamped the same was not admissible in evidence and at the most could be remitted to the Arbitrator with a direction to re-write it on a stamped paper and re-submit to the court." In another case Laksmi Chand v. Kallo Lal (1956 Nagpur Law Journal 504) : a Division Bench of the court approved the judgment of Ram Kumar's case (supra) and held that the award filed by the Arbitrator in a reference made under Section 20 of the Arbitration Act required to be stamped. The Supreme Court in Rikhab Dass v. Ballabh Das (AIR 1962 SC 551), approved the views of the Nagpur High Court regarding stamping of the award but set aside the judgment on another point relating to remittance of the award to the arbitrator for rewriting it on a stamp paper under Section 16 of the Arbitration Act. The Supreme Court held that, "want of stamp being a defect de-hors the award is not converted by Section 16(i)(c) and an order of court remitting an award to the Arbitrator for resubmission after duly stamping it and registering it cannot, therefore, be based on Section 16(i)(c)". However, while disposing the appeal the Suprem