GARWARE WALL ROPES LTD. versus COASTAL MARINE CONSTRUCTIONS & ENGINEERING LTD.
[2019] 5 S.C.R. 579, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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GARWARE WALL ROPES LTD.
v.
COASTAL MARINE CONSTRUCTIONS & ENGINEERING
LTD.
(Civil Appeal No. 3631 of 2019)
APRIL 10, 2019
[R. F. NARIMAN AND VINEET SARAN, JJ.]
Arbitration and Conciliation Act, 1996: s. 11(4), 11(6) and
11(6A) – Appointment of arbitrator – Arbitration clause contained
in a contract not stamped – Effect of – Held: When Supreme Court
or the High Court considers an application u/s. 11(4) to 11(6), and
comes across an arbitration clause in an agreement or conveyance
which is unstamped, the Court must impound the instrument which
is unstamped and hand it over to the authority under the Stamp Act,
who would decide issues qua payment of stamp duty and penalty as
expeditiously as possible, within the stipulated period – As soon as
stamp duty and penalty are paid on the instrument, any of the parties
can bring the instrument to the notice of the Court, which would
then dispose of the application u/s. 11 – Harmonious construction
is to be given to the provisions of the Stamp Act and s. 11(13) of the
1996 Act by which, if it is possible, both provisions ought to be
subserved – Furthermore, introduction of s. 11(6A) does not, in any
manner, deal with or get over the basis of the judgment in SMS Tea
Estates’s case that the mandatory provisions contained in the Stamp
Act are applicable to judicial authorities acting u/s. 11, continues
to apply even after the amendment of s. 11(6A) – On facts, the
arbitration clause contained in the sub-contract would
not “exist”
as a matter of law until the sub-contract is duly stamped – Order
passed by the High Court allowing the application u/s. for
appointment of the arbitrator, to adjudicate upon the dispute, even
though the sub-contract was unstamped, is set aside and matter is
remitted back to the High Court – Maharashtra Stamp Act, 1958 –
ss. 33 and 34.
Allowing the appeal, the Court
HELD: 1.1 It will be noticed from the *SMS Tea Estates’
case that where an arbitration clause is contained in an agreement
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or conveyance, different consequences ensue depending on
whether the agreement or conveyance is unregistered or
unstamped. It is settled by **SBP & Co.’s case that Section 16 of
the Arbitration and Conciliation Act, 1996 Act has full play only
after the arbitral tribunal is constituted, without intervention of
the Court under Section 11. In view of the law laid down by seven-
Judge Bench, it is difficult to accept the submission that Section
16 makes it clear that an arbitration agreement has an
independent existence of its own, and must be applied while
deciding an application under Section 11 of the 1996 Act. It will
be seen that neither in the Statement of Objects and Reasons
nor in the Law Commission Report is there any mention of SMS
Tea Estates’s case. This is for the very good reason that the
Supreme Court or the High Court, while deciding a Section 11
application, does not, in any manner, decide any preliminary
question that arises between the parties. The Supreme Court or
the High Court is only giving effect to the provisions of a
mandatory enactment which, no doubt, is to protect revenue. SMS
Tea Estates case has taken account of the mandatory provisions
contained in the Stamp Act and held them applicable to judicial
authorities, which would include the Supreme Court and the High
Court acting under Section 11. A close look at Section 11(6A)
would show that when the Supreme Court or the High Court
considers
an application under Section 11(4) to 11(6), and comes
across an arbitration clause in an agreement or conveyance which
is unstamped, it is enjoined by the provisions of the Stamp Act to
first impound the agreement or conveyance and see that stamp
duty and penalty (if any) is paid before the agreement, as a whole,
can be acted upon. The Stamp Act applies to the agreement or
conveyance as a whole. Therefore, it is not possible to bifurcate
the arbitration clause contained in such agreement or conveyance
so as to give it an independent existence. It is clear, therefore,
that the introduction of Section 11(6A) does not, in any manner,
deal with or get over the basis of the judgment in SMS Tea
Estates’s case, which continues to apply even after the amendment
of Section 11(6A). [Para 15, 16][602-G-H; 604-E-H; 605-A-D]
1.2 When an arbitration clause is contained “in a contract”,
it is significant that the agreement only becomes a contract if it is
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enforceable by law. Under the Stamp Act, an agreement does not
become a contract, namely, that it is not enforceable in law, unless
it is duly stamped. Therefore, even a plain reading of Section
11(6A), when read with Section 7(2) of the 1996 Act and Section
2(h) of the Contract Act, would make it clear that an arbitration
clause in an agreement would not exist when it is not enforceable
by law. This is also an indicator that SMS Tea Estates case has, in
no manner, been touched by the amendment of Section 11(6A).
[Para 19][606-B-C]
1.3 In the facts of the instant case, it is clear that the
arbitration clause that is contained in the sub-contract would not
“exist” as a matter of law until the sub–contract is duly stamped.
The argument that Section 11(6A) deals with “existence”, as
opposed to Section 8, Section 16, and Section 45, which deal with
“validity” of an arbitration agreement is answered by this Court’s
understanding of the expression “existence” in United India
Insurance Co.’s case as followed by this Court. [Para 24]
[612-B-C]
United India Insurance Co. Ltd. and Ors. v. Hyundai
Engineering and Construction Co. Ltd. and Ors.2018
SCC OnLine SC 1045 – relied on.
1.4 It was submitted that the 60-day period under section
11(13) would be breached if a document were to be impounded at
the stage of a section 11(6) application. Stamp duty, when paid
with penalty (if any), would require adjudication by the stamp
authorities, which would take far more than
the 60-day period
that is laid down by Section 11(13). Undoubtedly, Section 11(13),
which was also introduced by Amendment Act 3 of 2016, was
enacted keeping one of the important objectives of the 1996 Act
in mind, namely, speedy disposal of disputes by the arbitral
tribunal, and appointment of an arbitrator having to be made as
expeditiously as possible. Thus, a harmonious construction needs
to be given to the provisions of the Maharashtra Stamp Act and
Section 11(13) of the 1996 Act by which, if it is possible, both
provisions ought to be subserved. Under the Maharashtra Stamp
Act, the object of impounding an instrument that is unstamped is
to ensure that stamp duty and penalty (if any) must be paid on
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such instrument before it is acted upon by any authority. Likewise,
under Section 11(13) of the 1996 Act, an application made under
Section 11 for appointment of an arbitrator should be disposed of
as expeditiously as possible, and, in any event, an endeavour
shall be made to dispose of such application at least within a period
of 60 days from the date of service of notice on the opposite
party. [Para 26][613-C-F]
1.5 The doctrine of harmonious construction of statutes is
strongly imbedded in the interpretative canon. One reasonable
way of harmonising the provisions contained in Sections 33 and
34 of the Maharashtra Stamp Act, which is a general statute insofar
as it relates to safeguarding revenue, and Section 11(13) of the
1996 Act, which applies specifically to speedy resolution of
disputes by appointment of an arbitrator expeditiously, is by
declaring that while proceeding with the Section 11 application,
the High Court must impound the instrument which has not borne
stamp duty and hand it over to the authority under the
Maharashtra Stamp Act, who will then decide issues qua payment
of stamp duty and penalty (if any) as expeditiously as possible,
and preferably within a period of 45 days from the date on which
the authority receives the instrument. As soon as stamp duty
and penalty (if any) are paid on the instrument, any of the parties
can bring the instrument to the notice of the High Court, which
will then
proceed to expeditiously hear and dispose of the Section
11 application. This will also ensure that once a Section 11
application is allowed and an arbitrator is appointed, the arbitrator
can then proceed to decide the dispute within the time frame
provided by Section 29A of the 1996 Act. [Paras 27, 28][613-G;
616-F-H; 617-A-B]
Sri Venkataramana Devaru v. State of Mysore [1958]
SCR 895; J.K. Cotton Spinning & Weaving Mills
Co. Ltd. v. State of U.P. [1961] 3 SCR 185 ; Chief
Inspector of Mines v. Lala Karam Chand Thapar [1962]
1 SCR 9; Anwar Hasan Khan v. Mohd. Shafi (2001) 8
SCC 540 – referred to.
1.6 The judgment of the High Court is set aside. The matter
is remitted to the High Court to dispose of the same in the light
of this judgment. [Para 29][617-C]
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*SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P)
Ltd. (2011) 14 SCC 66 : [2011] 9  SCR 382 - followed.
Ashapura Mine–Chem Ltd. v. Gujarat Mineral
Development Corporation (2015) 8 SCC 193 : [2015]
4 SCR 880 – held inapplicable.
JMD Ltd. v. Celebrity Fitness India Pvt. Ltd. (2019) SCC
OnLine Del 6483 ; B.D. Sharma v. Swastik Infra Estate
Pvt. Ltd. & Ors. (2018) SCC OnLine Del 13279 ;
Sandeep Soni v. Sanjay Roy (2018) SCC OnLine Del
11169 ; N.D. Developers Pvt. Ltd. v. Bharathi & Ors.
(2018) SCC OnLine Kar 2938 ; Gautam Landscapes
Pvt. Ltd. v. Shailesh Shah and Ors. Arb. Pet. No. 466
of 2017 – disapproved.
**SBP & Co. v. Patel Engineering Ltd. (2005) 8
SCC 618 : [2005] 4 Suppl. SCR 688; National
Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd. (2009)
1 SCC  267 : [2008] 13 SCR 638 ; Konkan Railway
Corporation Ltd. v. Mehul Construction Co. (2000) 7
SCC 201 : [2000] 2 Suppl. SCR 563 ; Konkan Railway
Corporation Ltd. v. Rani Construction (P) Ltd. (2002)
2 SCC 388 : [2002] 1 SCR 728 ; Enercon (India) Ltd.
& Ors. v. Enercon GmbH & Anr. (2014) 5 SCC 1 :
[2014] 2 SCR 855 ; Duro Felguera, S.A. v. Gangavaram
Port Ltd. (2017) 9 SCC 729 : [2017] 10 SCR 285 –
referred to.
Case Law Reference
[2005] 4 Suppl.  SCR 688
referred to
Para 5
[2008] 13 SCR 638  
referred to
Para 5
[2000] 2 Suppl.  SCR 563 
referred to
Para 9
[2002] 1 SCR 728
referred to
Para 9
[2011] 9  SCR 382
followed
Para 16
[2014] 2 SCR 855
referred to
Para 21
[2015] 4 SCR 880
held inapplicable
Para 21
[2017] 10 SCR 285
referred to
Para 22
GARWARE WALL ROPES LTD. v. COASTAL MARINE
CONSTRUCTIONS & ENGINEERING LTD.
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[1958] SCR 895
referred to
Para 27
[1961] 3 SCR 185
referred to
Para 27
[1962] 1 SCR 9
referred to
Para 27
(2001) 8 SCC 540
referred to
Para 27
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3631
of 2019.
From the Judgment and Order dated 09.03.2018 of the High Court
of Judicature at Bombay in Arbitration Petition No. 24 of 2017.
Dhruv Mehta, Sr. Adv., Ashish Wad, Mrs. Jayashree Wad, Sidharth
Mahajan, Ms. Sukriti Jaggi (for M/s. J. S. Wad And Co.),  Advs. for the
Appellant.
Ms. Ridhi Nyati, Ashwin Shanker, Aditya Verma, Shrey Patnaik,
Advs. for the Respondent.
The Judgment of the Court was delivered by
R. F. NARIMAN, J. 1. Leave granted.
2. This appeal arises out of a sub-contract given by the appellant
to the respondent in respect of work to be done for installation of a geo-
textile tubes embankment with toe mound at village Pentha in Odisha
for protection against coastal erosion. The sub-contract agreement is
dated 14.06.2013, Annexure III of which contains the following arbitration
clause:
“Any and all claims, disputes, questions or controversies
involving the parties and arising in connection with the
Agreement or execution, interpretation, validity,
performance, termination hereof which cannot be finally
resolved by such parties [sic through] negotiation shall be
resolved by final and binding arbitration held in Pune. The
disputes shall be referred to a sole arbitrator to be appointed
by GWRL and COMACOE
jointly in agreement.”
3. Disputes arose between the parties, and on 02.01.2015, the
appellant terminated the sub-contract. As a result, on 20.07.2016, the
respondent wrote to the appellant stating that as disputes and differences
had arisen between the parties, notice was given of appointment of Mr.
Mihir Naniwadekar, Advocate, as sole arbitrator.   The appellant replied
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on 17.08.2016, stating that the appointment of Mr. Naniwadekar as sole
arbitrator was not acceptable as invocation of arbitration in pursuance
of the agreement is premature. The respondent, therefore, filed a petition
under Section 11 of the Arbitration and Conciliation Act, 1996 [“1996
Act”] on 10.02.2017 before the Bombay High Court. By the impugned
judgment dated 09.03.2018, the Section 11 petition was allowed and Mr.
Naniwadekar was appointed as sole arbitrator to adjudicate upon disputes
and differences which have arisen between the appellant and the
respondent in relation to the sub-contract dated 14.06.2013.
4. The question raised in this appeal is as to what is the effect of
an arbitration clause contained in a contract which requires to be stamped.
This Court, in SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P)
Ltd., (2011) 14 SCC 66 [“SMS Tea Estates”], has held that where an
arbitration clause is contained in an unstamped agreement, the provisions
of the Indian Stamp Act, 1899 [“Indian Stamp Act”] require the Judge
hearing the Section 11 application to impound the agreement and ensure
that stamp duty and penalty (if any) are paid thereon before proceeding
with the Section 11 application. The question is whether Section 11(6A),
which has been introduced by way of the Arbitration and Conciliation
(Amendment) Act, 2015 [“Amendment Act, 2015”], has removed the
basis of this judgment, so that the stage at which the instrument is to be
impounded is
not by the Judge hearing the Section 11 application, but by
an arbitrator who is appointed under Section 11, as has been held by the
impugned judgment.
5. Mr. Dhruv Mehta, learned Senior Advocate appearing on behalf
of the appellant, has taken us through the sub-contract as well as the
arbitration clause contained therein. He relied strongly upon the
Maharashtra Stamp Act, 1958 [“Maharashtra Stamp Act”], and
Sections 33 and 34 thereof, in particular. According to him, these are
provisions which are similar to the provisions contained in Sections 33
and 35 of the Indian Stamp Act, which, as held in SMS Tea Estates
(supra), requires judicial authorities to impound such instruments, which
cannot be admitted in evidence or cannot be acted upon until duly stamped.
According to him, the judgment in SMS Tea Estates (supra) continues
to apply even after the introduction of Section 11(6A) to the 1996 Act,
by which the Court is now to confine itself to the examination of the
existence of an arbitration agreement. Relying upon the 246th Law
Commission Report, which led to the amendment contained in Section
GARWARE WALL ROPES LTD. v. COASTAL MARINE
CONSTRUCTIONS & ENGINEERING LTD. [R. F. NARIMAN, J.]
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11(6A), together with the Statement of Objects and Reasons appended
to the Arbitration and Conciliation (Amendment) Bill, 2015, Mr. Mehta
argued that it was clear that the amendment was necessitated as a result
of two Supreme Court judgments in particular, namely, SBP & Co. v.
Patel Engineering Ltd., (2005) 8 SCC 618 [“SBP & Co.”] and
National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1
SCC 267 [“Boghara Polyfab”], by which the door was opened too
wide, so that many preliminary issues which do not relate to the existence
of an arbitration agreement were to be decided by the Court hearing the
Section 11 application instead of by the arbitrator. The focus being on
these two judgments, it is clear that it is these two judgments whose
basis has been removed, leaving SMS Tea Estates (supra) untouched.
According to him, it is clear that if, as a result of operation of law, an
instrument is to be impounded, upon which stamp duty and penalty (if
any) are then to be paid, must be followed as Section 11(6A) does not
seek to interfere with the Indian Stamp Act at all. He relied upon certain
judgments to buttress his submissions.
6. Ms. Ridhi Nyati, learned Advocate appearing on behalf of the
respondent, referred us to Sections 8, 16, and 45 of the 1996 Act in
particular, and made it clear that the object of the Amendment Act, 2015,
in introducing Section 11(6A), was to confine the Court hearing the
Section 11
application to examination of the existence of an arbitration
agreement and nothing more. She made a distinction between “validity”
and “existence” of an arbitration agreement, and argued that the provisions
of the Indian Stamp Act are a fiscal measure intended merely to collect
revenue and, if at all, will go to “validity” of an arbitration agreement and
not to its “existence”. She relied strongly upon certain judgments which
made it clear that an arbitration agreement is independent of the agreement
in which it is contained. So long as it is in writing, and therefore, exists in
fact, the Court hearing the Section 11 application is to appoint an arbitrator
and thereafter leave all other preliminary issues to the arbitrator, as is
mandated by Section 11 of the 1996 Act. The whole object of the
amendment would be defeated as otherwise, a mini-trial would be
conducted at the Section 11 stage, requiring impounding of the agreement
containing the arbitration clause. She also relied upon Section 11(13) of
the 1996 Act, making it clear that the application under Section 11 ought
to be disposed of within a period of 60 days from the date of service of
notice, and that this would not be possible if questions relating to the
Indian Stamp Act were to be decided at the Section 11 stage. Equally,
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according to her, no prejudice would be caused to any party if the
arbitrator were to commence the arbitration and then impound the
documents containing the arbitration clause by applying the Indian Stamp
Act. She also argued that, in the present case, it is the appellant who is
to pay stamp duty under the Indian Contract Act, 1872, and therefore,
cannot take advantage of its own wrong in not doing so, as has been
correctly held in the impugned judgment. She also relied upon several
other judgments to buttress her submissions.
7. Having heard learned counsel for both sides, it is important to
first set out the relevant provisions contained in the 1996 Act. Section
2(1)(b) defines “arbitration agreement” as follows:
“2. Definitions.—(1) In this Part, unless the context otherwise
requires,—
xxx xxx xxx
(b)  “arbitration agreement” means an agreement referred to in
         Section 7;
xxx xxx xxx”
Section 7 is important and deals with what is meant by an
arbitration agreement. Section 7 states:
“7. Arbitration agreement.—(1) In this Part, “arbitration
agreement” means an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which may
arise between them in respect of a defined legal relationship,
whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration
clause in a contract or in the form of a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration
agreement is in writing if it is contained in—
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other
means 
of 
telecommunication 
including
communication through electronic means which
provide a record of the agreement; or
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(c)
an exchange of statements of claim and defence in
which the existence of the agreement is alleged by
one party and not denied by the other.
(5) The reference in a contract to a document containing an
arbitration clause constitutes an arbitration agreement if the
contract is in writing and the reference is such as to make that
arbitration clause part of the contract.”
Section 8, which speaks of the power to refer parties to arbitration
where there is an arbitration agreement is also relevant, and states:
“8. Power to refer parties to arbitration where there is an
arbitration agreement.—(1) A judicial authority, before which
an action is brought in a matter which is the subject of an arbitration
agreement shall, if a party to the arbitration agreement or any
person claiming through or under him, so applies not later than the
date of submitting his first statement on the substance of the dispute,
then, notwithstanding any judgment, decree or order of the
Supreme Court or any Court, refer the parties to arbitration unless
it finds that prima facie no valid arbitration agreement exists.
(2) The application referred to in sub-section (1) shall not be
entertained unless it is accompanied by the original arbitration
agreement or a duly certified copy thereof.
Provided that where the original arbitration agreement or a
certified copy thereof is not available with the party applying for
reference to arbitration under
sub-section (1), and the said
agreement or certified copy is retained by the other party to that
agreement, then, the party so applying shall file such application
along with a copy of the arbitration agreement and a petition
praying the court to call upon the other party to produce the original
arbitration agreement or its duly certified copy before that court.
(3) Notwithstanding that an application has been made under sub-
section (1) and that the issue is pending before the judicial authority,
an arbitration may be commenced or continued and an arbitral
award made.”
Section 11(6A), 11(7), and 11(13) are important for decision in
this case and are set out hereinbelow:
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“11. Appointment of arbitrators.—
xxx xxx xxx
(6A) The Supreme Court or, as the case may be, the High Court,
while considering any application under sub-section (4) or sub-
section (5) or sub-section (6), shall, notwithstanding any judgment,
decree or order of any court, confine to the examination of the
existence of an arbitration agreement.
xxx xxx xxx
(7) A decision on a matter entrusted by sub-section (4) or sub-
section (5) or sub-section (6) to the Supreme Court or, as the
case may be, the High Court or the person or institution designated
by such court is final and no appeal including Letters Patent Appeal
shall lie against such decision.
xxx xxx xxx
(13) An application made under this section for appointment of an
arbitrator or arbitrators shall be disposed of by the Supreme Court
or the High Court or the person or institution designated by such
court, as the case may be, as expeditiously as possible and an
endeavour shall be made to dispose of the matter within a period
of sixty days from the date of service of notice on the opposite
party.
xxx xxx xxx”
Section 16(1) reads as follows:
“16. Competence of arbitral tribunal to rule on its
jurisdiction.—(1) The arbitral tribunal may rule on its own
jurisdiction, including ruling on any objections with respect to the
existence or validity of the arbitration agreement, and for that
purpose,—
(a) an arbitration clause which forms part of a contract shall
be treated as an agreement independent of the
other terms
of the contract; and
(b) a decision by the arbitral tribunal that the contract is null
and void shall not entail ipso jure the invalidity of the
arbitration clause.
xxx xxx xxx”
GARWARE WALL ROPES LTD. v. COASTAL MARINE
CONSTRUCTIONS & ENGINEERING LTD. [R. F. NARIMAN, J.]
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Section 45, which speaks of the power of a judicial authority to
refer parties to arbitration, when it comes to agreements referred to by
the New York Convention of 1958, states as follows:
“45. Power of judicial authority to refer parties to
arbitration.—Notwithstanding anything contained in Part I or in
the Code of Civil Procedure, 1908 (V of 1908), a judicial authority,
when seized of an action in a matter in respect of which the parties
have made an agreement referred to in Section 44, shall, at the
request of one of the parties or any person claiming through or
under him, refer the parties to arbitration, unless it finds that the
said agreement is null and void, inoperative or incapable of being
performed.”
8. Sections 33 and 34 of the Maharashtra Stamp Act, with which
we are directly concerned, read as follows:
“33. Examination and impounding of instruments.—(1)
Subject to the provisions of section 32-A, 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 or
any other officer, empowered by law to investigate offences under
any law for the time being in force, 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 irrespective
whether the instrument is or is
not valid in law.
(2) For that purpose every such person shall examine every
instrument so chargeable and so produced or coming before him
in order to ascertain whether it is stamped with a stamp of the
value and description required by the law for the time being in
force in the State when such instrument was executed or first
executed:
Provided that,—
(a) nothing herein contained shall be deemed to require any
Magistrate or Judge of a Criminal Court to examine or impound,
if he does not think fit so to do any instrument coming before
him in the course of any proceeding other than a proceeding
under Chapter IX or Part D of Chapter X of the Code of
Criminal Procedure, 1973;
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(b) 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 may appoint in this behalf.
(3) For the purposes of this section, in cases of doubt,—
(a) the State Government may determine what offices shall be
deemed to be public offices; and
(b) the State Government may determine who shall be deemed
to be persons in charge of public offices.
34. Instruments not duly stamped inadmissible in evidence,
etc.—No instrument chargeable with duty shall be admitted in
evidence for any purpose by any person having by law or consent
of parties authority to receive evidence, or shall be acted upon,
registered or authenticated by any such person or by any public
officer unless such instrument is duly stamped or if the instrument
is written on sheet of paper with impressed stamp such stamp
paper is purchased in the name of one of the parties to the
instrument:
Provided that,—
(a) any such instrument shall, subject to all just exceptions, be
admitted in evidence on payment of,—
(i) the duty with which the same is chargeable, or in the
case of an instrument insufficiently stamped, the amount
required to make up such duty, and
(ii) a penalty at the rate of 2 per cent of the deficient portion
of the stamp duty for every month or part thereof, from the
date of execution of such instrument:
Provided that, in no case, the amount of the penalty shall
exceed double the deficient
portion of the stamp duty.
(b) where a contract or agreement of any kind is effected by
correspondence consisting of two or more letters and any one
of the letters bears the proper stamp; the contract or agreement
shall be deemed to be duly stamped;
(c) nothing herein contained shall prevent the admission of any
instrument in evidence in any proceeding in a Criminal Court,
GARWARE WALL ROPES LTD. v. COASTAL MARINE
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other than a proceeding under Chapter IX or Part D of Chapter
X of the Code of Criminal Procedure, 1973;
(d) nothing herein contained shall prevent the admission of any
instrument in any Court when such instrument has been executed
by or on behalf of the Government or where it bears the
certificate of the Collector as provided by section 32 or any
other provision of this Act;
(e) nothing herein contained shall prevent the admission of a
copy of any instrument or of an oral admission of the contents
of any instrument, if the stamp duty or a deficient portion of
the stamp duty and penalty as specified in clause (a) is paid.”
9. The case law under Section 11(6) of the Arbitration Act, as it
stood prior to the Amendment Act, 2015, has had a chequered history.
In Konkan Railway Corporation Ltd. v. Mehul Construction Co.,
(2000) 7 SCC 201 [“Konkan Railway I”], it was held that the powers
of the Chief Justice under Section 11(6) of the 1996 Act are administrative
in nature, and that the Chief Justice or his designate does not act as a
judicial authority while appointing an arbitrator. The same view was
reiterated in Konkan Railway Corporation Ltd. v. Rani Construction
(P) Ltd., (2002) 2 SCC 388 [“Konkan Railway II”].
10. However, in SBP & Co. (supra), a seven-Judge Bench
overruled this view and held that the power to appoint an arbitrator under
Section 11 is judicial and not administrative. The conclusions of the seven-
Judge Bench were summarised in paragraph 47 of the aforesaid judgment.
We are concerned directly with sub-paragraphs (i), (iv), and (xii), which
read as follows:
“(i) The power exercised by the Chief Justice of the High Court
or the Chief Justice of India under Section 11(6) of the Act is not
an administrative power. It is a judicial power.
xxx xxx xxx
(iv) The Chief Justice or the designated Judge will have the right
to decide the preliminary aspects as indicated in the earlier part of
this judgment. These will be his own jurisdiction to entertain the
request, the existence of a valid arbitration agreement, the
existence or otherwise of a live claim, the existence of the condition
for the exercise of his power and on the qualifications of the
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arbitrator or arbitrators. The Chief Justice or the designated Judge
would be entitled to seek the opinion of an institution in the matter
of nominating an arbitrator qualified in terms of Section 11(8) of
the Act if the need arises but the order appointing the arbitrator
could only be that of the Chief Justice or the designated Judge.
xxx xxx xxx
(xii) The decision in Konkan Rly. Corpn. Ltd. v. Rani
Construction (P) Ltd. [(2002) 2 SCC 388] is overruled.”
This position was further clarified in Boghara Polyfab (supra) as follows:
“22. Where the intervention of the court is sought for appointment
of an Arbitral Tribunal under Section 11, the duty of the Chief
Justice or his designate is defined in SBP & Co. [(2005) 8 SCC
618]. This Court identified and segregated the preliminary issues
that may arise for consideration in an application under Section 11
of the Act into three categories, that is, (i) issues which the Chief
Justice or his designate is bound to decide; (ii) issues which he
can also decide, that is, issues which he may choose to decide;
and (iii) issues which should be left to the Arbitral Tribunal to
decide.
22.1. The issues (first category) which the Chief Justice/his
designate will have to decide are:
(a) Whether the party making the application has approached
the appropriate High Court.
(b) Whether there is an arbitration agreement and whether
the party who has applied under Section 11 of the Act, is a
party to such an agreement.
22.2. The
issues (second category) which the Chief Justice/his
designate may choose to decide (or leave them to the decision of
the Arbitral Tribunal) are:
(a) Whether the claim is a dead (long-barred) claim or a live
claim.
(b) Whether the parties have concluded the contract/transaction
by recording satisfaction of their mutual rights and obligation
or by receiving the final payment without objection.
GARWARE WALL ROPES LTD. v. COASTAL MARINE
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22.3. The issues (third category) which the Chief Justice/his
designate should leave exclusively to the Arbitral Tribunal are:
(i) Whether a claim made falls within the arbitration clause (as
for example, a matter which is reserved for final decision of a
departmental authority and excepted or excluded from
arbitration).
(ii) Merits or any claim involved in the arbitration.”
11. As a result of these judgments, the door was wide open for
the Chief Justice or his designate to decide a large number of preliminary
aspects which could otherwise have been left to be decided by the
arbitrator under Section 16 of the 1996 Act. As a result, the Law
Commission of India, by its Report No. 246 submitted in August 2014,
suggested that various sweeping changes be made in the 1996 Act.
Insofar as SBP & Co. (supra) and Boghara Polyfab (supra) are
concerned, the Law Commission examined the matter and recommended
the addition of a new sub-section, namely, sub-section (6A) in Section
11. In so doing, the Law Commission recommendations which are relevant
and which led to the introduction of Section 11(6A) are as follows:
“28. The Act recognizes situations where the intervention of the
Court is envisaged at the pre-arbitral stage, i.e. prior to the
constitution of the arbitral tribunal, which includes sections 8, 9,
11 in the case of Part I arbitrations and section 45 in the case of
Part II arbitrations. Sections 8, 45 and also section 11
relating to
“reference to arbitration” and “appointment of the tribunal”, directly
affect the constitution of the tribunal and functioning of the arbitral
proceedings. Therefore, their operation has a direct and significant
impact on the “conduct” of arbitrations. Section 9, being solely
for the purpose of securing interim relief, although having the
potential to affect the rights of parties, does not affect the
“conduct” of the arbitration in the same way as these other
provisions. It is in this context the Commission has examined and
deliberated the working of these provisions and proposed certain
amendments.
29. The Supreme Court has had occasion to deliberate upon the
scope and nature of permissible pre-arbitral judicial intervention,
especially in the context of section 11 of the Act. Unfortunately,
however, the question before the Supreme Court was framed in
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terms of whether such a power is a “judicial” or an “administrative”
power – which obfuscates the real issue underlying such
nomenclature/description as to –
-
the scope of such powers – i.e. the scope of arguments
which a Court (Chief Justice) will consider while deciding
whether to appoint an arbitrator or not – i.e. whether the
arbitration agreement exists, whether it is null and void,
whether it is voidable etc.; and which of these it should
leave for decision of the arbitral tribunal.
-
the nature of such intervention – i.e. would the Court
(Chief Justice) consider the issues upon a detailed trial
and whether the same would be decided finally or be left
for determination of the arbitral tribunal.
30. After a series of cases culminating in the decision in SBP v.
Patel Engineering, (2005) 8 SCC 618, the Supreme Court held
that the power to appoint an arbitrator under section 11 is a “judicial”
power. The underlying issues in this judgment, relating to the scope
of intervention, were subsequently clarified by raveendran j in
National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd.,
(2009) 1 SCC 267, where the Supreme Court laid down as
follows –
“1. The issues (first category) which Chief Justice/his designate
will have to decide are:
(a) Whether the party making the application has approached
the appropriate High Court?
(b) Whether there is an arbitration agreement and whether
the party who has applied under section 11 of the Act, is a
party to such an
agreement?
2. The issues (second category) which the Chief Justice/his
designate may choose to decide are:
(a) Whether the claim is a dead (long barred) claim or a
live claim?
(b) Whether the parties have concluded the contract/
transaction by recording satisfaction of their mutual rights
and obligation or by receiving the final payment without
objection?
GARWARE WALL ROPES LTD. v. COASTAL MARINE
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3. The issues (third category) which the Chief Justice/his
designate should leave exclusively to the arbitral tribunal are:
(a) Whether a claim falls within the arbitration clause (as
for example, a matter which is reserved for final decision
of a departmental authority and excepted or excluded from
arbitration)?
(b) Merits of any claim involved in the arbitration.”
31. The Commission is of the view that, in this context, the same
test regarding scope and nature of judicial intervention, as
applicable in the context of section 11, should also apply to sections
8 and 45 of the Act – since the scope and nature of judicial
intervention should not change upon whether a party (intending to
defeat the arbitration agreement) refuses to appoint an arbitrator
in terms of the arbitration agreement, or moves a proceeding before
a judicial authority in the face of such an arbitration agreement.
32. In relation to the nature of intervention, the exposition of the
law is to be found in the decision of the Supreme Court in Shin
Etsu Chemicals Co. Ltd. v. Aksh Optifibre, (2005) 7 SCC 234,
(in the context of section 45 of the Act), where the Supreme
Court has ruled in favour of looking at the issues/controversy only
prima facie.
33. It is in this context, the Commission has recommended
amendments to sections 8 and 11 of the Arbitration and Conciliation
Act, 1996. The scope of the judicial intervention is only restricted
to situations
where the Court/Judicial Authority finds that the
arbitration agreement does not exist or is null and void. In so far
as the nature of intervention is concerned, it is recommended that
in the event the Court/Judicial Authority is prima facie satisfied
against the argument challenging the arbitration agreement, it shall
appoint the arbitrator and/or refer the parties to arbitration, as the
case may be. The amendment envisages that the judicial authority
shall not refer the parties to arbitration only if it finds that there
does not exist an arbitration agreement or that it is null and void.
If the judicial authority is of the opinion that prima facie the
arbitration agreement exists, then it shall refer the dispute to
arbitration, and leave the existence of the arbitration agreement
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to be finally determined by the arbitral tribunal. However, if the
judicial authority concludes that the agreement does not exist, then
the conclusion will be final and not prima facie. The amendment
also envisages that there shall be a conclusive determination as to
whether the arbitration agreement is null and void. In the event
that the judicial authority refers the dispute to arbitration and/or
appoints an arbitrator, under sections 8 and 11 respectively, such
a decision will be final and non-appealable. An appeal can be
maintained under section 37 only in the event of refusal to refer
parties to arbitration, or refusal to appoint an arbitrator.”
12. Pursuant to the Law Commission recommendations, Section
11(6A) was introduced first by Ordinance and then by the Amendment
Act, 2015. The Statement of Objects and Reasons which were appended
to the Arbitration and Conciliation (Amendment) Bill, 2015 which
introduced the Amendment Act, 2015 read as follows:
“STATEMENT OF OBJECTS AND REASONS
xxx xxx xxx
6. It is proposed to introduce the Arbitration and Conciliation
(Amendment) Bill, 2015, to replace the Arbitration and Conciliation
(Amendment) Ordinance, 2015, which inter alia, provides for the
following, namely:—
(i) to amend the definition of “Court” to provide that in the case of
international commercial arbitrations, the Court should be the High
Court;
(ii) to ensure that an Indian Court can exercise jurisdiction to grant
interim measures, etc., even
where the seat of the arbitration is
outside India;
(iii) an application for appointment of an arbitrator shall be disposed
of by the High Court or Supreme Court, as the case may be, as
expeditiously as possible and an endeavour should be made to
dispose of the matter within a period of sixty days;
(iv) to provide that while considering any application for
appointment of arbitrator, the High Court or the Supreme Court
shall examine the existence of a prima facie arbitration agreement
and not other issues;
GARWARE WALL ROPES LTD. v. COASTAL MARINE
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(v) to provide that the arbitral tribunal shall make its award within
a period of twelve months from the date it enters upon the reference
and that the parties may, however, extend such period up to six
months, beyond which period any extension can only be granted
by the Court, on sufficient cause;
(vi) to provide that a model fee Schedule on the basis of which
High Courts may frame rules for the purpose of determination of
fees of arbitral tribunal, where a High Court appoints arbitrator in
terms of section 11 of the Act;
(vii) to provide that the parties to dispute may at any stage agree
in writing that their dispute be resolved through fast track
procedure and the award in such cases shall be made within a
period of six months;
(viii) to provide for neutrality of arbitrators, when a person is
approached in connection with possible appointment as an
arbitrator;
(ix) to provide that application to challenge the award is to be
disposed of by the Court within one year.
7. The amendments proposed in the Bill will ensure that arbitration
process becomes more user-friendly, cost effective and lead to
expeditious disposal of cases.
xxx xxx xxx”
13. A reading of the Law Commission Report, together with the
Statement of Objects and Reasons, shows that the Law Commission
felt that the judgments in SBP & Co. (supra) and Boghara Polyfab
(supra) required a relook, as a result of which, so far as Section 11 is
concerned, the
Supreme Court or, as the case may be, the High Court,
while considering any application under Section 11(4) to 11(6) is to confine
itself to the examination of the existence of an arbitration agreement
and leave all other preliminary issues to be decided by the arbitrator.
The question is as to whether the decision in SMS Tea Estates (supra)
has also been done away with by the expression “notwithstanding any
judgment, decree or order of any Court” contained in Section 11(6A).
14. In SMS Tea Estates (supra), this Court was confronted with
an arbitration clause, namely, Clause 35 of a lease deed dated 21.12.2006
for a term of 30 years in regard to two tea estates. The lease deed was
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neither stamped nor registered. Paragraph 9 of the judgment set out the
questions that arose for consideration as follows:
“9. On the contentions urged the following questions arise for
consideration:
(i) Whether an arbitration agreement contained in an
unregistered (but compulsorily registerable) instrument is valid
and enforceable?
(ii) Whether an arbitration agreement in an unregistered
instrument which is not duly stamped, is valid and enforceable?
(iii) Whether there is an arbitration agreement between the
appellant and the respondent and whether an arbitrator should
be appointed?”
When it came to the question of an arbitration clause contained in
an unregistered lease deed, this Court held:
“12. When a contract contains an arbitration agreement, it is a
collateral term relating to the resolution of disputes, unrelated to
the performance of the contract. It is as if two contracts—one in
regard to the substantive terms of the main contract and the other
relating to resolution of disputes—had been rolled into one, for
purposes of convenience. An arbitration clause is therefore an
agreement independent of the other terms of the contract or the
instrument. Resultantly, even if the contract or its performance is
terminated or comes to an end on account of repudiation, frustration
or breach of contract, the arbitration agreement would survive
for the purpose of resolution of disputes arising under or in
connection with the contract.
13. Similarly, when an
instrument or deed of transfer (or a
document affecting immovable property) contains an arbitration
agreement, it is a collateral term relating to resolution of disputes,
unrelated to the transfer or transaction affecting the immovable
property. It is as if two documents—one affecting the immovable
property requiring registration and the other relating to resolution
of disputes which is not compulsorily registerable—are rolled into
a single instrument. Therefore, even if a deed of transfer of
immovable property is challenged as not valid or enforceable, the
arbitration agreement would remain unaffected for the purpose
GARWARE WALL ROPES LTD. v. COASTAL MARINE
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of resolution of disputes arising with reference to the deed of
transfer.
14. These principles have now found statutory recognition in sub-
section (1) of Section 16 of the Arbitration and Conciliation Act,
1996 which is extracted below:
“16. Competence of Arbitral Tribunal to rule on its
jurisdiction.—(1) The Arbitral Tribunal may rule on its own
jurisdiction, including ruling on any objections with respect to the
existence or validity of the arbitration agreement, and for that
purpose—
(a) an arbitration clause which forms part of a contract shall
be treated as an agreement independent of the other terms of the
contract; and
(b) a decision by the Arbitral Tribunal that the contract is null
and void shall not entail ipso jure the invalidity of the arbitration
clause.”
15. But where the contract or instrument is voidable at the
option of a party (as for example under Section 19 of the Contract
Act, 1872), the invalidity that attaches itself to the main agreement
may also attach itself to the arbitration agreement, if the reasons
which make the main agreement voidable, exist in relation to the
making of the arbitration agreement also. For example, if a person
is made to sign an agreement to sell his property under threat of
physical harm or threat to life, and the said person repudiates the
agreement on that ground, not only the agreement for sale, but
any arbitration agreement therein will not be binding.
16. An
arbitration agreement does not require registration under
the Registration Act. Even if it is found as one of the clauses in a
contract or instrument, it is an independent agreement to refer the
disputes to arbitration, which is independent of the main contract
or instrument. Therefore having regard to the proviso to Section
49 of the Registration Act read with Section 16(1)(a) of the Act,
an arbitration agreement in an unregistered but compulsorily
registerable document can be acted upon and enforced for the
purpose of dispute resolution by arbitration.”
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However, when it came to an unstamped lease deed which
contained an arbitration clause, this Court, after setting out Sections 33
and 35 of the Indian Stamp Act held:
“19. Having regard to Section 35 of the Stamp Act, unless the
stamp duty and penalty due in respect of the instrument is paid,
the court cannot act upon the instrument, which means that it
cannot act upon the arbitration agreement also which is part of
the instrument. Section 35 of the Stamp Act is distinct and different
from Section 49 of the Registration Act in regard to an unregistered
document. Section 35 of the Stamp Act, does not contain a proviso
like Section 49 of the Registration Act enabling the instrument to
be used to establish a collateral transaction.
20. The Scheme for Appointment of Arbitrators by the Chief
Justice of Gauhati High Court, 1996 requires an application under
Section 11 of the Act to be accompanied by the original arbitration
agreement or a duly certified copy thereof. In fact, such a
requirement is found in the scheme/rules of almost all the High
Courts. If what is produced is a certified copy of the agreement/
contract/instrument containing the arbitration clause, it should
disclose the stamp duty that has been paid on the original. Section
33 casts a duty upon every court, that is, a person having by law
authority to receive evidence (as also every arbitrator who is a
person having by consent of parties, authority to receive evidence)
before whom an
unregistered instrument chargeable with duty is
produced, to examine the instrument in order to ascertain whether
it is duly stamped. If the court comes to the conclusion that the
instrument is not duly stamped, it has to impound the document
and deal with it as per Section 38 of the Stamp Act.
21. Therefore, when a lease deed or any other instrument is relied
upon as contending the arbitration agreement, the court should
consider at the outset, whether an objection in that behalf is raised
or not, whether the document is properly stamped. If it comes to
the conclusion that it is not properly stamped, it should be
impounded and dealt with in the manner specified in Section 38 of
the Stamp Act. The court cannot act upon such a document or
the arbitration clause therein. But if the deficit duty and penalty is
paid in the manner set out in Section 35 or Section 40 of the
GARWARE WALL ROPES LTD. v. COASTAL MARINE
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Stamp Act, the document can be acted upon or admitted in
evidence.
22. We may therefore sum up the procedure to be adopted where
the arbitration clause is contained in a document which is not
registered (but compulsorily registerable) and which is not duly
stamped:
22.1. The court should, before admitting any document into
evidence or acting upon such document, examine whether the
instrument/document is duly stamped and whether it is an
instrument which is compulsorily registerable.
22.2. If the document is found to be not duly stamped, Section 35
of the Stamp Act bars the said document being acted upon.
Consequently, even the arbitration clause therein cannot be acted
upon. The court should then proceed to impound the document
under Section 33 of the Stamp Act and follow the procedure under
Sections 35 and 38 of the Stamp Act.
22.3. If the document is found to be duly stamped, or if the deficit
stamp duty and penalty is paid, either before the court or before
the Collector (as contemplated in Section 35 or 40 Section of the
Stamp Act), and the defect with reference to deficit stamp is
cured, the court may treat the document as duly stamped.
xxx xxx xxx”
In conclusion, this Court held:
“32. In view of the above this appeal is allowed, the order of the
High Court is set aside and the matter is remitted to the learned
Chief Justice of the Gauhati High Court to first decide the issue
of stamp duty, and if the document is
duly stamped, then appoint
an arbitrator in accordance with law.”
15. It will be noticed from the aforesaid judgment that where an
arbitration clause is contained in an agreement or conveyance, different
consequences ensue depending on whether the agreement or conveyance
is unregistered or unstamped. It is settled by SBP & Co. (supra) that
Section 16 of the 1996 Act has full play only after the arbitral tribunal is
constituted, without intervention of the Court under Section 11. This Court,
in the aforesaid judgment, held:
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“12. Section 16 of the Act only makes explicit what is even
otherwise implicit, namely, that the Arbitral Tribunal constituted
under the Act has the jurisdiction to rule on its own jurisdiction,
including ruling on objections with respect to the existence or validity
of the arbitration agreement. Sub-section (1) also directs that an
arbitration clause which forms part of a contract shall be treated
as an agreement independent of the other terms of the contract.
It also clarifies that a decision by the Arbitral Tribunal that the
contract is null and void shall not entail ipso jure the invalidity of
the arbitration clause. Sub-section (2) of Section 16 enjoins that a
party wanting to raise a plea that the Arbitral Tribunal does not
have jurisdiction, has to raise that objection not later than the
submission of the statement of defence, and that the party shall
not be precluded from raising the plea of jurisdiction merely because
he has appointed or participated in the appointment of an arbitrator.
Sub-section (3) lays down that a plea that the Arbitral Tribunal is
exceeding the scope of its authority, shall be raised as soon as the
matter alleged to be beyond the scope of its authority is raised
during the arbitral proceedings. When the Tribunal decides these
two questions, namely, the question of jurisdiction and the question
of exceeding the scope of authority or either of them, the same is
open to immediate challenge in an appeal, when the objection is
upheld and only in an appeal against the final award, when the
objection is overruled. Sub-section (5) enjoins that if the Arbitral
Tribunal overrules the objections under sub-section (2) or (3), it
should continue with the arbitral proceedings and make an arbitral
award. Sub-section (6) provides that a party aggrieved by such
an arbitral award overruling the plea on lack of jurisdiction and
the exceeding of the scope of authority, may make an application
on these grounds for setting aside the award in accordance with
Section 34 of the Act. The question, in the context of sub-section
(7) of Section 11 is, what is the scope of the right conferred on the
Arbitral Tribunal to rule upon its own jurisdiction and the existence
of the arbitration clause, envisaged by Section 16(1), once the
Chief Justice or the person designated by him had appointed an
arbitrator after satisfying himself that the conditions for the exercise
of power to appoint an arbitrator are present in the case. Prima
facie, it would be difficult to say that in spite of the finality conferred
by sub-section (7) of Section 11 of the Act, to such a decision of
GARWARE WALL ROPES LTD. v. COASTAL MARINE
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the Chief Justice, the Arbitral Tribunal can still go behind that
decision and rule on its own jurisdiction or on the existence of an
arbitration clause. It also appears to us to be incongruous to say
that after the Chief Justice had appointed an Arbitral Tribunal, the
Arbitral Tribunal can turn round and say that the Chief Justice
had no jurisdiction or authority to appoint the Tribunal, the very
creature brought into existence by the exercise of power by its
creator, the Chief Justice. The argument of the learned Senior
Counsel, Mr K.K. Venugopal that Section 16 has full play only
when an Arbitral Tribunal is constituted without intervention under
Section 11(6) of the Act, is one way of reconciling that provision
with Section 11 of the Act, especially in the context of sub-section
(7) thereof. We are inclined to the view that the decision of the
Chief Justice on the issue of jurisdiction and the existence of a
valid arbitration agreement would be binding on the parties when
the matter goes to the Arbitral Tribunal and at subsequent stages
of the proceeding except in an appeal in the Supreme Court in the
case of the decision being by the Chief Justice of the High Court
or by a Judge of the High Court designated by him.”
In view of the law laid down by seven-Judge Bench, it is difficult
to accede to the argument made by the learned counsel on behalf of the
respondent that Section 16 makes it clear that an arbitration
agreement
has an independent existence of its own, and must be applied while
deciding an application under Section 11 of the 1996 Act.
16. It will be seen that neither in the Statement of Objects and
Reasons nor in the Law Commission Report is there any mention of
SMS Tea Estates (supra). This is for the very good reason that the
Supreme Court or the High Court, while deciding a Section 11 application,
does not, in any manner, decide any preliminary question that arises
between the parties. The Supreme Court or the High Court is only giving
effect to the provisions of a mandatory enactment which, no doubt, is to
protect revenue. SMS Tea Estates (supra) has taken account of the
mandatory provisions contained in the Indian Stamp Act and held them
applicable to judicial authorities, which would include the Supreme Court
and the High Court acting under Section 11. A close look at Section
11(6A) would show that when the Supreme Court or the High Court
considers an application under Section 11(4) to 11(6), and comes across
an arbitration clause in an agreement or conveyance which is unstamped,
it is enjoined by the provisions of the Indian Stamp Act to first impound
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the agreement or conveyance and see that stamp duty and penalty (if
any) is paid before the agreement, as a whole, can be acted upon. It is
important to remember that the Indian Stamp Act applies to the agreement
or conveyance as a whole. Therefore, it is not possible to bifurcate the
arbitration clause contained in such agreement or conveyance so as to
give it an independent existence, as has been contended for by the
respondent. The independent existence that could be given for certain
limited purposes, on a harmonious reading of the Registration Act, 1908
and the 1996 Act has been referred to by Raveendran, J. in SMS Tea
Estates (supra) when it comes to an unregistered agreement or
conveyance. However, the Indian Stamp Act, containing no such provision
as is contained in Section 49 of the Registration Act, 1908, has been held
by the said judgment to apply to the agreement or conveyance as a
whole, which would include the arbitration clause contained therein. It is
clear, therefore, that the introduction of Section 11(6A) does not, in any
manner, deal with or get over the basis of the judgment in SMS Tea
Estates (supra), which continues to apply even after the amendment of
Section 11(6A).
17. Looked at from a slightly different angle, an arbitration
agreement which is contained in an agreement or conveyance is dealt
with in Section 7(2) of the 1996 Act. We are concerned with the first
part of Section 7(2) on the facts of the present case, and therefore,
the
arbitration clause that is contained in the sub-contract in question is the
subject matter of the present appeal. It is significant that an arbitration
agreement may be in the form of an arbitration clause “in a contract”.
18. Sections 2(a), 2(b), 2(g) and 2(h) of the Indian Contract Act,
1872 [“Contract Act”] read as under:
“2. Interpretation clause.—In this Act the following words and
expressions are used in the following senses, unless a contrary
intention appears from the context:—
(a) When one person signifies to another his willingness to do
or to abstain from doing anything, with a view to obtaining the
assent of that other to such act or abstinence, he is said to
make a proposal;
(b) When the person to whom the proposal is made signifies
his assent thereto, the proposal is said to be accepted. A proposal,
when accepted, becomes a promise;
xxx xxx xxx
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(g) An agreement not enforceable by law is said to be void;
(h) An agreement enforceable by law is a contract;
xxx xxx xxx”
19. When an arbitration clause is contained “in a contract”, it is
significant that the agreement only becomes a contract if it is enforceable
by law. We have seen how, under the Indian Stamp Act, an agreement
does not become a contract, namely, that it is not enforceable in law,
unless it is duly stamped. Therefore, even a plain reading of Section
11(6A), when read with Section 7(2) of the 1996 Act and Section 2(h) of
the Contract Act, would make it clear that an arbitration clause in an
agreement would not exist when it is not enforceable by law. This is also
an indicator that SMS Tea Estates (supra) has, in no manner, been
touched by the amendment of Section 11(6A).
20. We now come to some of the judgments cited by both the
sides.
21. Learned counsel for the respondent relied heavily upon
Enercon (India) Ltd. & Ors. v. Enercon GmbH & Anr., (2014) 5
SCC 1 [“Enercon”], in particular, paragraph 83 thereof, which reads as
follows:
“83. The concept of separability of the arbitration clause/
agreement from the underlying contract is a necessity to ensure
that the intention of the parties to resolve the disputes by arbitration
does not evaporate into thin air with every challenge to the legality,
validity, finality or breach of the underlying contract. The Indian
Arbitration Act, 1996, as noticed
above, under Section 16 accepts
the concept that the main contract and the arbitration agreement
form two independent contracts. Commercial rights and obligations
are contained in the underlying, substantive, or the main contract.
It is followed by a second contract, which expresses the
agreement and the intention of the parties to resolve the disputes
relating to the underlying contract through arbitration. A remedy
is elected by parties outside the normal civil court remedy. It is
true that support of the national courts would be required to ensure
the success of arbitration, but this would not detract from the
legitimacy or independence of the collateral arbitration agreement,
even if it is contained in a contract, which is claimed to be void or
voidable or unconcluded by one of the parties.”
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Paragraph 83 follows upon paragraph 79 of the judgment, which
reads as follows:
“79. In our opinion, all the issues raised by the appellants about
the non-existence of a concluded contract pale into insignificance
in the face of “Heads of Agreement on the proposed IPLA dated
23-5-2006”. Clause 3 of the Heads of Agreement provides as
under:
“3. Governing law and jurisdiction
3.1 This paragraph is legally binding.
3.2 This Heads of Agreement is (and all negotiations and
any legal agreements prepared in connection with the IPLA
shall be) governed by and construed in accordance with the
law of Germany.
3.3 The parties irrevocably agree that Clause 18 of the
proposed draft IPLA shall apply to settle any dispute or claim
that arises out of or in connection with this memorandum of
understanding and negotiations relating to the proposed IPLA.”
A bare perusal of this clause makes it abundantly clear that the
parties have irrevocably agreed that Clause 18 of the proposed
IPLA shall apply to settle any dispute or claim that arises out of or
in connection with this memorandum of understanding and
negotiations relating to IPLA.”
The focus in Enercon (supra) was as to whether an arbitration
clause will apply even if there is no concluded contract entered into
between the parties. Since the “Heads of Agreement” provided that
disputes which arose out of the Memorandum of Understanding and
negotiations relating to the Intellectual Property Licence Agreement
(IPLA) were
arbitrable, this Court held that the arbitration agreement in
the facts of that case was separate from the main contract, making it a
case which falls under the second part (and not under the first part) to
Section 7(2), namely, that an arbitration agreement may be in the form
of a separate agreement. This judgment, therefore, does not take the
respondent very much further. It may only be noted that the judgment in
Ashapura Mine-Chem Ltd. v. Gujarat Mineral Development
Corporation, (2015) 8 SCC 193 merely followed Enercon (supra) and
would be inapplicable for the same reasons outlined by us above.
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22. The other judgment strongly relied upon by the learned counsel
for the respondent is Duro Felguera, S.A. v. Gangavaram Port Ltd.,
(2017) 9 SCC 729 [“Duro Felguera”], and in particular, paragraph 59
of the judgment of Kurian Joseph, J.  Paragraph 59 reads as follows:
“59. The scope of the power under Section 11(6) of the 1996 Act
was considerably wide in view of the decisions in SBP and Co.
[SBP and Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] and
Boghara Polyfab [National Insurance Co. Ltd. v. Boghara
Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117].
This position continued till the amendment brought about in 2015.
After the amendment, all that the courts need to see is whether
an arbitration agreement exists—nothing more, nothing less. The
legislative policy and purpose is essentially to minimise the Court’s
intervention at the stage of appointing the arbitrator and this intention
as incorporated in Section 11(6-A) ought to be respected.”
This judgment also makes it clear that the mischief that was sought
to be remedied by the introduction of Section 11(6A) was contained in
the judgments of SBP & Co. (supra) and Boghara Polyfab (supra).
This judgment does not, in any manner, answer the precise issue that is
before us.
23. Indeed, in United India Insurance Co. Ltd. and Ors. v.
Hyundai Engineering and Construction Co. Ltd. and Ors., 2018
SCC OnLine SC 1045 [“United India Insurance Co.”], a three-Judge
Bench of this Court, while dealing with an arbitration clause that arose
under an insurance policy, distinguished Duro Felguera (supra) as
follows:
“12. The other decision heavily relied upon by the High Court
and also by the respondents in Duro Felguera [Duro Felguera,
S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729], will be of no
avail. Firstly, because it is a two-Judge Bench decision and also
because the Court was not called upon to consider the question
which arises in the present case, in reference to clause 7 of the
subject Insurance Policy. The exposition in this decision is a general
observation about the effect of the amended provision and not
specific to the issue under consideration. The issue under
consideration has been directly dealt with by a three-Judge Bench
of this Court in Oriental Insurance Company Limited [Oriental
Insurance Company Ltd. v. Narbheram Power and Steel (P)
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Ltd., (2018) 6 SCC 534], following the exposition in Vulcan
Insurance Co. Ltd. v. Maharaj Singh [Vulcan Insurance Co.
Ltd. v. Maharaj Singh, (1976) 1 SCC 943], which, again, is a
three-Judge Bench decision having construed clause similar to
the subject clause 7 of the Insurance Policy. In paragraphs 11 &
12 of Vulcan Insurance Co. Ltd. (supra), the Court answered
the issue thus:
“11. Although the surveyors in their letter dated April 26,
1963 had raised a dispute as to the amount of any loss or
damage alleged to have been suffered by Respondent 1, the
appellant at no point of time raised any such dispute. The
appellant company in its letter dated July 5 and 29, 1963
repudiated the claim altogether. Under clause 13 the
company was not required to mention any reason of
rejection of the claim nor did it mention any. But the
repudiation of the claim could not amount to the raising of
a dispute as to the amount of any loss or damage alleged
to have been suffered by Respondent 1. If the rejection of
the claim made by the insured be on the ground that he
had suffered no loss as a result of the fire or the amount of
loss was not to the extent claimed by him, then and then
only, a difference could have arisen as to the amount of
any loss or damage within the meaning of clause 18. In
this case, however, the company repudiated its liability to pay
any amount of loss or damage as claimed by Respondent 1. In
other words, the dispute raised by the company appertained
to
its liability to pay any amount of damage whatsoever. In our
opinion, therefore, the dispute raised by the appellant company
was not covered by the arbitration clause.
12. As per clause 13 on rejection of the claim by the
company an action or suit, meaning thereby a legal
proceeding which almost invariably in India will be in the
nature of a suit, has got to be commenced within three
months from the date of such rejection; otherwise, all
benefits under the policy stand forfeited. The rejection of
the claim may be for the reasons indicated in the first part of
clause 13, such as, false declaration, fraud or wilful neglect of
the claimant or on any other ground disclosed or undisclosed.
But as soon as there is a rejection of the claim and not the
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raising of a dispute as to the amount of any loss or damage, the
only remedy open to the claimant is to commence a legal
proceeding, namely, a suit, for establishment of the company’s
liability. It may well be that after the liability of the company is
established in such a suit, for determination of the quantum of
the loss or damage reference to arbitration will have to be
resorted to in accordance with clause 18. But the arbitration
clause, restricted as it is by the use of the words ‘if any
difference arises as to the amount of any loss or damage’,
cannot take within its sweep a dispute as to the liability of
the company when it refuses to pay any damage at all.”
xxx xxx xxx
14. From the line of authorities, it is clear that the arbitration clause
has to be interpreted strictly. The subject clause 7 which is in pari
materia to clause 13 of the policy considered by a three-Judge
Bench in Oriental Insurance Company Limited (supra), is a
conditional expression of intent. Such an arbitration clause will
get activated or kindled only if the dispute between the parties is
limited to the quantum to be paid under the policy. The liability
should be unequivocally admitted by the insurer. That is the
precondition and sine qua non for triggering the arbitration clause.
To put it differently, an arbitration clause would enliven or
invigorate only if the insurer admits or accepts its liability under or
in respect of the
concerned policy. That has been expressly
predicated in the opening part of clause 7 as well as the second
paragraph of the same clause. In the opening part, it is stated that
the “(liability being otherwise admitted)”. This is reinforced and
re-stated in the second paragraph in the following words:
“It is clearly agreed and understood that no difference or dispute
shall be referable to arbitration as herein before provided, if
the Company has disputed or not accepted liability under or in
respect of this Policy.”
15. Thus understood, there can be no arbitration in cases where
the insurance company disputes or does not accept the liability
under or in respect of the policy.
16. The core issue is whether the communication sent on
21st April, 2011 falls in the excepted category of repudiation and
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denial of liability in toto or has the effect of acceptance of liability
by the insurer under or in respect of the policy and limited to
disputation of quantum. The High Court has made no effort to
examine this aspect at all. It only reproduced clause 7 of the policy
and in reference to the dictum in Duro Felguera (supra) held
that no other enquiry can be made by the Court in that regard.
This is misreading of the said decision and the amended provision
and, in particular, mis-application of the three-Judge Bench
decisions of this Court in Vulcan Insurance Co. Ltd. (supra) and
in Oriental Insurance Company Ltd. (supra).
17. Reverting to the communication dated 21st April, 2011, we
have no hesitation in taking the view that the appellants completely
denied their liability and repudiated the claim of the JV (respondent
Nos. 1 & 2) for the reasons mentioned in the communication.
The reasons are specific. No plea was raised by the respondents
that the policy or the said clause 7 was void. The appellants
repudiated the claim of the JV and denied their liability in toto
under or in respect of the subject policy. It was not a plea to
dispute the quantum to be paid under the policy, which alone could
be referred to arbitration in terms of clause 7. Thus, the plea
taken by the appellants is of denial of its liability to indemnify the
loss as claimed by the JV, which falls in the excepted category,
thereby making the arbitration clause ineffective and incapable of
being enforced, if not non-existent. It is not actuated so as to
make a reference to arbitration. In other words, the plea of the
appellants is about falling in an excepted category and non-
arbitrable matter within the meaning of the opening part of clause
7 and as re-stated in the second paragraph of the same clause.
18. In view of the above, it must be held that the dispute in question
is non-arbitrable and respondent Nos. 1 & 2 ought to have resorted
to the remedy of a suit. The plea of respondent Nos. 1 & 2 about
the final repudiation expressed by the appellants vide
communication dated 17th April, 2017 will be of no avail. However,
whether that factum can be taken as the cause of action for
institution of the suit is a matter which can be debated in those
proceedings. We may not be understood to have expressed any
opinion either way in that regard.
(emphasis in original)
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24. This judgment is important in that what was specifically under
consideration was an arbitration clause which would get activated only
if an insurer admits or accepts liability. Since on facts it was found that
the insurer repudiated the claim, though an arbitration clause did “exist”,
so to speak, in the policy, it would not exist in law, as was held in that
judgment, when one important fact is introduced, namely, that the insurer
has not admitted or accepted liability. Likewise, in the facts of the present
case, it is clear that the arbitration clause that is contained in the sub-
contract would not “exist” as a matter of law until the sub-contract is
duly stamped, as has been held by us above. The argument that Section
11(6A) deals with “existence”, as opposed to Section 8, Section 16, and
Section 45, which deal with “validity” of an arbitration agreement is
answered by this Court’s understanding of the expression “existence” in
United India Insurance Co. (supra), as followed by us.
25. Other High Court judgments were relied upon in the context
of stamp duty, being the judgments contained in JMD Ltd. v. Celebrity
Fitness India Pvt. Ltd., (2019) SCC OnLine Del 6483, B.D. Sharma
v. Swastik Infra Estate Pvt. Ltd. & Ors., (2018) SCC OnLine Del
13279, Sandeep Soni v. Sanjay Roy, (2018) SCC OnLine Del 11169,
and N.D. Developers Pvt. Ltd. v. Bharathi & Ors., (2018) SCC
OnLine Kar 2938. In view of our holding in this
judgment, these judgments
have not declared the law correctly, and are consequently, overruled. A
recent Full Bench judgment of the Bombay High Court in Gautam
Landscapes Pvt. Ltd. v. Shailesh Shah and Ors., Arb. Pet. No. 466
of 2017 [decided on 04.04.2019] has also been brought to our notice. In
paragraph 120 thereof, the Full Bench answered two questions framed
by it as follows:
“120. In view of the above deliberation, we answer the questions
as framed by us as follows:
(1) Whether a court, under the Arbitration and Conciliation Act,
1996, can entertain and grant any interim or ad-interim relief in an
application under Section 9 of the said Act when a document
containing arbitration clause is unstamped or insufficiently
stamped?
In the Affirmative
(2) Whether, inter alia, in view of Section 11 (6A) of the Arbitration
and Conciliation Act, 1996, inserted by Arbitration and Conciliation
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(Amendment) Act, 2016, it would be necessary for the Court
before considering and passing final orders on an application under
Section 11(6) of the Act to await the adjudication by the stamp
authorities, in a case where the document objected to, is not
adequately stamped?
In the Negative”
Question (2), having been answered contrary to our judgment, is
held to be incorrectly decided.
26. Learned counsel for the respondent relied strongly upon Section
11(13) of the 1996 Act to show that the 60-day period would be breached
if a document were to be impounded at the stage of a Section 11(6)
application. Stamp duty, when paid with penalty (if any), would require
adjudication by the stamp authorities, which would take far more than
the 60-day period that is laid down by Section 11(13). Undoubtedly,
Section 11(13), which was also introduced by Amendment Act 3 of 2016,
was enacted keeping one of the important objectives of the 1996 Act in
mind, namely, speedy disposal of disputes by the arbitral tribunal, and
appointment of an arbitrator having to be made as expeditiously as possible,
therefore. Thus, a harmonious construction needs to be given to the
provisions of the Maharashtra Stamp Act and Section 11(13) of the 1996
Act by which, if it is possible, both provisions ought to be subserved. We
have already seen that under the Maharashtra Stamp Act, the object of
impounding an instrument that is unstamped is to ensure that stamp duty
and penalty (if any) must be
paid on such instrument before it is acted
upon by any authority. Likewise, under Section 11(13) of the 1996 Act,
an application made under Section 11 for appointment of an arbitrator
should be disposed of as expeditiously as possible, and, in any event, an
endeavour shall be made to dispose of such application at least within a
period of 60 days from the date of service of notice on the opposite
party.
27. The doctrine of harmonious construction of statutes is strongly
imbedded in our interpretative canon. In Sri Venkataramana Devaru
v. State of Mysore, [1958] SCR 895, Articles 25 and 26 of the
Constitution of India were reconciled by applying the rule of harmonious
construction thus:
“The result then is that there are two provisions of equal authority,
neither of them being subject to the other. The question is how the
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apparent conflict between them is to be resolved. The rule of
construction is well settled that when there are in an enactment
two provisions which cannot be reconciled with each other, they
should be so interpreted that, if possible, effect could be given to
both. This is what is known as the rule of harmonious construction.
Applying this rule, if the contention of the appellants is to be
accepted, then Article 25(2)(b) will become wholly nugatory in its
application to denominational temples, though, as stated above,
the language of that Article includes them. On the other hand, if
the contention of the respondents is accepted, then full effect can
be given to Article 26(b) in all matters of religion, subject only to
this that as regards one aspect of them, entry into a temple for
worship, the rights declared under Article 25(2)(b) will prevail.
While, in the former case, Article 25(2)(b) will be put wholly out
of operation, in the latter, effect can be given to both that provision
and Article 26(b). We must accordingly hold that Article 26(b)
must be read subject to Article 25(2)(b).”
(at page 918)
In J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State
of U.P., (1961) 3 SCR 185, this Court applied the rule of harmonious
construction so that both provisions of a legislative instrument be given
effect to thus:
“To remove this incongruity, says the learned Attorney-General,
apply the rule of harmonious construction
and hold that clause 23
of the order has no application when an order is made on an
application under clause 5(a). On the assumption that under clause
5(a) an employer can raise a dispute sought to be created by his
own proposed order of dismissal of workmen there is clearly this
disharmony as pointed out above between two provisions viz. clause
5(a) and clause 23; and undoubtedly we have to apply the rule of
harmonious construction. In applying the rule, however, we have
to remember that to harmonise is not to destroy. In the
interpretation of statutes the court, always presumes that the
legislature inserted every part thereof for a purpose and the
legislative intention is that every part of the statute should have
effect. These presumptions will have to be made in the case of
rule-making authority also. On the construction suggested by the
learned Attorney-General it is obvious that by merely making an
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application under clause (5) on the allegation that a dispute has
arisen about the proposed action to dismiss workmen the employer
can in every case escape the requirements of clause 23 and if for
one reason or other every employer when proposing a dismissal
prefers to proceed under clause 5(a) instead of making an
application under clause 23, clause 23 will be a dead letter. A
construction like this which defeats the intention of the rule-making
authority in clause 23 must, if possible, be avoided.”
(at page 193)
In Chief Inspector of Mines v. Lala Karam Chand Thapar,
(1962) 1 SCR 9, the rule of harmonious construction was used to reconcile
Section 31(4) of the Mines Act, 1952 and Section 24 of the General
Clauses Act. This Court held:
“If the words of Section 31(4) are construed to mean that the
regulations became part of the Act to the extent that when the
Act is repealed, the regulations also stand repealed, a conflict at
once arises between Section 31(4) and the provisions of Section
24 of the General Clauses Act. In other words, the Mines Act,
1923, while saying in Section 31(4) that the repeal of the Act will
result in the repeal of the regulations, will be saying, in the provisions
of Section 24 of the General Clauses Act as read into it, that on
the repeal of the Act, when the Act is repealed and re-enacted,
the regulations will not stand repealed but will continue in force till
superseded by regulations made under the re-enacted Act. To
solve
this conflict the courts must apply the rule of harmonious
construction. According to Mr Pathak we have perfect harmony
if it is held that the provisions of Section 24 of the General Clauses
Act will have effect only if the regulations are such as survive the
repeal of the parent Act and at the same time, construe Section
31(4) to mean that the regulations became for all purposes part
and parcel of the Act. To harmonise is not however to destroy.
The so-called harmony on the learned counsel’s argument is
achieved by making the provisions of Section 24 of the General
Clauses Act nugatory and in effects destroying them in relation to
the Mines Act, 1923. We have to seek therefore some other means
of harmonising the two provisions. The reasonable way of
harmonising that obviously suggests itself is to construe Section
31(4) to mean that the regulations on publication shall have for
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some purposes, say, for example, the purpose of deciding the
validity of the regulations, the same effect as if they were part of
the Act, but for the purpose of the continuity of existence, they
will not be considered part of the Act, so that even though the Act
is repealed, the regulations will continue to exist, in accordance
with the provisions of Section 24 of the General Clauses Act.
This construction will give reasonable effect to Section 31(4) of
the Mines Act, 1923 and at the same time not frustrate the very
salutary object of Section 24 of the General Clauses Act. ……”
(at pp. 19-20)
In Anwar Hasan Khan v. Mohd. Shafi, (2001) 8 SCC 540, this
Court succinctly laid down what is meant by the doctrine of harmonious
construction, thus:
“8. It is settled that for interpreting a particular provision of an
Act, the import and effect of the meaning of the words and phrases
used in the statute have to be gathered from the text, the nature
of the subject-matter and the purpose and intention of the statute.
It is a cardinal principle of construction of a statute that effort
should be made in construing its provisions by avoiding a conflict
and adopting a harmonious construction. The statute or rules made
thereunder should be read as a whole and one provision should be
construed with reference to the other provision to make the
provision consistent with the object sought to be achieved. The
well-known principle of
harmonious construction is that effect
should be given to all the provisions and a construction that reduces
one of the provisions to a “dead letter” is not harmonious
construction. ……”
One reasonable way of harmonising the provisions contained in
Sections 33 and 34 of the Maharashtra Stamp Act, which is a general
statute insofar as it relates to safeguarding revenue, and Section 11(13)
of the 1996 Act, which applies specifically to speedy resolution of disputes
by appointment of an arbitrator expeditiously, is by declaring that while
proceeding with the Section 11 application, the High Court must impound
the instrument which has not borne stamp duty and hand it over to the
authority under the Maharashtra Stamp Act, who will then decide issues
qua payment of stamp duty and penalty (if any) as expeditiously as
possible, and preferably within a period of 45 days from the date on
which the authority receives the instrument. As soon as stamp duty and
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penalty (if any) are paid on the instrument, any of the parties can bring
the instrument to the notice of the High Court, which will then proceed
to expeditiously hear and dispose of the Section 11 application. This will
also ensure that once a Section 11 application is allowed and an arbitrator
is appointed, the arbitrator can then proceed to decide the dispute within
the time frame provided by Section 29A of the 1996 Act.
28. Arguments taken of prejudice, namely, that on the facts of this
case, the appellant had to pay the stamp duty and cannot take advantage
of his own wrong, are of no avail when it comes to the application of
mandatory provisions of law. Even this argument, therefore, must be
rejected.
29. We, therefore, allow the appeal and set aside the judgment of
the Bombay High Court. The matter is remitted to the Bombay High
Court to dispose of the same in the light of this judgment.
Nidhi Jain
Appeal allowed.
GARWARE WALL ROPES LTD. v. COASTAL MARINE
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