JUDGMENT (ORAL)

1. Petitioner has approached this Court with the following prayers:

“(a) Declare that the Memorandum of Understanding dated 12.11.2014 has been incorrectly and insufficiently stamped/endorsed by the Respondent No.1 on 18.04.2016;

(b) Declare the stamping/endorsing done by the Respondent No.1 on 18.04.2016 as non-est in the eyes of law and set aside the same;

(c) Pass any other, further order(s) as this Hon’ble Court may deem fit and proper in favour of the Petitioner and against the Respondents.”

2. As far as prayer (b) of the Petitioner is concerned, the same cannot be granted in view of the judgment passed by the Seven Judges Bench of the Apex Court in Re : Interplay between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899; 2023 SCC OnLine SC 1666, wherein the Seven Judges Bench has held that the Agreements which are not stamped or are inadequately stamped are inadmissible in evidence under Section 35 of the Stamp Act. Such agreements are not rendered void or void ab initio or unenforceable or that Non-stamping or inadequate stamping is a curable defect.

3. As far as prayer (a) of the Petitioner is concerned, it is necessary to clear certain facts. The Petitioner is a plaintiff in CS (OS) No. 371/2017, which is a suit for declaration of the Memorandum of Understanding dated 12.11.2014, which is purported to be signed between Defendant Nos.1-3 and the Plaintiff, as null and void as well as partition of the suit properties. An application under Section 8 of the Arbitration & Conciliation Act was filed in CS (OS) No. 371/2017 by Respondents No.2 & 3 herein praying that the parties to the said suit be referred to arbitration in view of the MOU dated 12.11.2014. The said application was decided on 08.08.2023. In the said application the Petitioner herein had raised a contention that the MOU seeks to create rights in the properties which would amount to conveyance under the Stamp Act 1899 (hereinafter referred to as the “Indian Stamp Act”), requiring stamping on an ad valorem basis. The Petitioner herein had also placed reliance on the judgment passed by the Five Judges Bench of the Apex Court in N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd., (2021) 4 SCC 379, to state that the MoU cannot be acted upon. The contention of the Petitioner herein was rejected by the Coordinate Bench of this Court on various grounds. Judgment of the learned Single Judge of this Court is a subject matter of an LPA which is pending before the Division Bench of this Court.

4. It is stated by the learned Counsel for the Petitioner that prayer (a) of the present Writ Petition which is for a declaration that the Memorandum of Understanding dated 12.11.2014 has been incorrectly and insufficiently stamped/endorsed by the Respondent No.1 on 18.04.2016 is maintainable because it is the duty of the authorities to adjudicate as to whether the document has been properly stamped and the writ that is sought for is for a declaration that the MOU seeks to create rights in the properties which would amount to conveyance under the Indian Stamp Act and would require stamping on an ad valorem basis. Learned Counsel for the Petitioner draws the attention of this Court to Section 33 of the Indian Stamp Act which deals with Examination and impounding of instruments provides that 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. He further relies on Section 33 (2)(b) of the Indian Stamp Act which provides that 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. R