Bombay High Court
Supreme Mega Constructions Llp vs Nitin Pramod Samel And 3 Ors on 3 December, 2018
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMM. ARBITRATION APPLICATION NO.48 of 2016
Supreme Mega Constructions LLP .... Applicant
vs
Nitin Pramod Samel & ors ..... Respondents
__________
Mr.S.U.Kamdar Sr.Counsel with Mr.Chirag Kamdar
Ms.Tanvi Shah I.b M/s Wadia Ghandy & Co for Applicant
Mr.S.M.Shettigar with Mr.Ram Mohite for Respondent
nos 1 to 4.
Coram : G.S.KULKARNI, J
Date : 03 DECEMBER 2018
P.C
Heard Mr.Kamdar learned senior counsel for the applicant
and Mr.Shettigar for respondents .
2. By this application under section 11 (6) of the Arbitration and
Conciliation Act (for short 'the said Act') the applicant is seeking
appointment of a sole arbitrator to adjudicate the disputes which have
arisen between the parties under the MOU dated 23.12.2010 (Exhibit B.).
3. Learned counsel for the respondents has raised a preliminary
objection that the said document is not adequately stamped. His
contention is that before the Court proceeds to adjudicate this application
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and appoint an arbitrator as per law as laid down in SMS Estates Private
Limited vs Chandmari Tea Company Private Limited (2011) 14
Supreme Court Cases 66, the document needs to be adequately stamped.
4. Mr.Kamdar learned senior counsel for the applicant would
not agree with the learned counsel for the respondents. Mr.Kamdar
referring to Article 25 Explanation 1 of the Maharashtra Stamp Act,
submits that the stamp duty on the document of the nature as it stands, is
not payable. Mr.Kamdar in support of his submission has referred to a
decision of the Division Bench of this Court in Balwant Gir Ganpatgir
Giri vs Manasi Construction and Developers (2006) (5) Mh.L.J. 306.
It is submitted that the Court is required to form a prima facie opinion
under section 33 of the Act before impounding a document.
5. Learned counsel for the respondent however, would dispute
the contention as urged by Mr.Kamdar to contend that what will be
applicable are not the provisions of Article 25 but the provisions of Article
5 sub-article (gj).
6. Admittedly, the document in question is a MOU. It sets out
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in different paragraphs describing the transactions which are under the
heading "Consideration", "condition precedent", "completion",
"representations and warranties", "dispute resolutions " etc.
7. Having considered the submissions advanced at the bar and
the nature of the document it would be appropriate that the MOU dated
23.12.2010 as entered between the parties is examined for the purpose of
stamp duty. It prima facie appears that certain rights are created by virtue
of this document and if that be so, then the document needs to be
examined for the purpose of payment of stamp duty.
8. Hence the following order:-
ORDER
(i) The applicants are directed to deposit with the Prothonotary and Senior Master of this Court the MOU dated 23.12.2010 within a period of two weeks from today.
(ii) The Prothonotary and Senior Master shall forward the document to the Collector of Stamps for examination of the document and ascertainment of stamp duty if it so becomes payable.
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(iii) In case the Collector of Stamps is of the opinion that
stamp duty is payable as per provisions of Maharashtra Stamp Act, 1958 then in that case the Collector of Stamps shall impound the document and direct the party to pay the necessary stamp duty as determined by the Collector of Stamps.
(iv) Needless to observe that the Collector of Stamps shall hear the parties before passing any final order ascertaining the stamp duty.
(v) The aforesaid exercise be undertaken by the Collector of Stamps as expeditiously as possible and in any event within a period of four weeks from today.
9. Awaiting orders that would be passed by the Collector of Stamps, hearing of this application would be required to be adjourned.
Accordingly, it is adjourned to 7.1.2019.
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