JUDGMENT (oral)

CM APPL. 61218/2024 (exemption)

Exemption allowed, subject to all just exceptions.

CM(M) 3640/2024 & CM APPL. 61217/2024

1. Petitioner Ms. Punita Bhardwaj is judgment debtor in execution petition i.e. Ex. No. 117/2024 and challenges order dated 05.10.2024.

2. Said Execution petition has been filed in view of the arbitral award passed on 23.11.2022 whereby six connected cases and one counter claim were adjudicated by the learned Sole Arbitrator.

3. It is not in dispute that one of the respondents in said arbitral proceedings was Ms. Rashmi Juneja (respondent herein). While defending the aforesaid arbitral proceedings, she had also submitted a counter-claim and the aforesaid execution is in terms of the award passed in her favour in relation to her such counter-claim.

4. In context of issue between the two parties here, it may be noted that, before the learned Sole Arbitrator, Punita Bhardwaj was seeking cancellation of a sale deed dated 28. 7.2010 executed by her in favour of Rashmi Juneja and whereas Rashmi, in counter claim, sought to retrieve the possession of the said property from Punita Bhardwaj who purported to have retained the possession of the same.

5. The learned Sole Arbitrator, while allowing counter claim, observed that having held the sale deed dated 28.07.2010 registered on 29.07.2010 to be valid, the aspect of deciding such counter-claim was relatively easier as she had prayed for twin relief i.e. possession and the payment of mesne profits.

6. The total sale consideration of the property mentioned in sale deed dated 28.07.2010 is, admittedly, Rs. 1.12 crores which was reportedly paid by the counter-claimant Ms. Rashmi Juneja to Ms. Punita Bhardwaj. Besides above, learned Sole Arbitrator also assessed the mesne profits @ Rs. 50,000/- per month and the total amount for all the relevant months comes to Rs. 57,75,000/- as on date of filing of the execution petition i.e. on 29.05.2023.

7. During the execution proceedings, judgment debtor had raised several issues.

8. The impugned order dated 05.10.2024 talks about three different applications but at the moment, the present petition limits itself to the one passed in relation to the application moved by the judgment debtor under Section 35 of Indian Stamps Act, 1899.

9. According to judgment debtor, the award was scribed on non-judicial stamp paper of Rs. 500/- and, therefore, it was insufficiently stamped and, therefore, it ought to have been impounded by the Court and should have been sent to Collector for adjudication of proper stamp duty, before proceeding any further with the execution petition.

10. Such request has been declined by the learned Executing Court.

11. Learned counsel for Decree Holder has appeared on advance notice.

12. This Court has gone through the impugned order carefully and heard learned counsel for both the sides.

13. Learned counsel for Decree Holder submits that well before the filing of execution petition, the requisite stamp was paid through electronic mode on 25.05.2023. Such total stamp duty was Rs. 21,000/-, which was even more than what was payable as per the schedule and and, since it had already been duly paid, there was no reason or occasion for the learned Executing Court to have impounded it. Therefore, relying on Mohini Electricals Ltd. Vs. Delhi Jail Board: (2021) SCC OnLine Delhi 3506, it has been contended that learned Trial Court was fully justified in dismissing the aforesaid application moved by judgment debtor.

14. According to learned counsel for judgment debtor (petitioner herein), whereas the calculation of the stamp duty is not proper and sufficient stamp duty has not been paid.

15. According to him, worth of the property in question is approximately Rs. 7 crores as on date and such market value was required to be taken into consideration for the purpose of paying stamp duty and not the sale consideration as mentioned in the sale deed. In this regard, he relies upon Maung Po Tun and another Vs. U. Sandiwara: AIR 1935