Madhya Pradesh High Court
Vijay vs Cholamandlam Investment And Finance ... on 12 August, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
MP no. 4127 of 2014 1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 12th OF AUGUST, 2024
MISCELLANEOUS PETITION No. 4127 of 2024
VIJAY
Versus
CHOLAMANDLAM INVESTMENT AND FINANCE COMPANY
LIMITED
Appearance:
Shri Kuldeep Pathak, learned counsel for the petitioner.
Shri Rohit Sharma, learned counsel for the respondent.
ORDER
1] This miscellaneous petition under Article 227 of the Constitution of India has been filed by the petitioner, against the order dated 13.07.2024, passed by the First Additional District Judge, Distrcit- Barwani in Execution (Arbitration) No.32/2015 wherein, the executing court has accepted the stamp duty paid by the respondent/decree holder on the arbitral award.
2] This is the second round of the litigation and in brief, the facts of the case are that the respondent judgement debtor herein has filed an execution of an arbitral award dated 6.5.2014, passed in Arbitration Case No.409/2013 for a sum of Rs.2,12,208/-. In the aforesaid case, initially an objection was raised by the petitioner Signature Not Verified Signed by: MONI RAJU Signing time: 8/27/2024 10:45:03 AM MP no. 4127 of 2014 2 regarding the non-payment of the stamp duty on the award as prescribed under Section 19-A of MP. Amendment Act and (article 11 of schedule LA of the Indian Stamp Act,1899 (hereinafter to be referred to as "Act of 1899"), and while allowing the objections raised by the petitioner, the Executing Court directed the respondent to pay the Court fees as per stamp Act, and the respondent has also paid the Court fees to the tune of Rs.4245/-.
3] After the aforesaid court fees was paid by the respondent, an objection was again raised by the petitioner by filing an application for review, stating that the court fees which the respondent had paid cannot be accepted towards the stamp duty, as the arbitration award is required to be properly stamped as per s.19A of the Act MP. Amendment Act, and the executing Court, while allowing the aforesaid review application vide order dated 22.1.2022, directed the respondents to pay the stamp duty instead of the Court fees.
4] Subsequently, the executing court reviewed its own order dated 23.1.2024 and directed that instead of the stamp duty, the court fees paid by the decree holder can be considered as the stamp duty, hence, warrants of attachment were issued. The said order was challenged by the petitioner in M.P. No.1181/2024, which was disposed by this Court vide its order dated 28.5.2024 with the following observations:-
"9. It is apparent that the learned judge of the executing court, vide the order dated 23.1.2024, has reviewed the earlier order passed by the same Court on Signature Not Verified Signed by: MONI RAJU Signing time: 8/27/2024 10:45:03 AM MP no. 4127 of 2014 3 22.1.2022, which, in turn was on an application filed under Section 114 of the CPC for review of the earlier order dated 29.11.2021.However, while passing the order dated 23.1.2024, the learned judge of the Executing Court lost sight which of the bar as provided under Rule 9 of Order 47 of the CE reads as under:-
"9. Bar of certain applications-No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained."
10. Thus, apparently the executing court has acted in excess of its jurisdiction while passing the impugned order on 23.1.2024.
11. In view of the same, without going into the merits of the case, the impugned order, being contrary to law is not tenable and is hereby set aside.
12. However, considering the fact that the petitioner has apparently succeeded in his plans to farther delay the execution proceedings, despite there being no fault on the part of the decree holder, and the fact that the objection of stamp duty was raised by the judgment debt or after a period of 5 years, this Court would not allow the petitioner to laugh all the way to home,hence the petition is allowed with a cost of Rs.5000/-,which shall be deposited by him in the account of-President and Secretary H.C. Employees Union H.C. (Account No.63006406008, Branch Code Ne 30528, IFSC No. SBIN0030528, CIF No. 73003108919) within a period of 60 days from the date of receipt of this order.
13. It is also directed to the respondent/decree holder to ensure payment of stamp duty in accordance with law, and if any such application is filed by the decree holder, the same shall be decided by stamp collector positively within a month's time, and the learned judge of the executing court is then requested to proceed further with the execution, and conclude the same within a further period of further period of six months, in accordance with law."
5] Subsequent to the aforesaid order, the respondent has paid the stamp duty through Online mode and its receipt has also been produced before the executing court which has been accepted by the court as the proper stamp duty vide its order dated 13.7.2024, which order has been challenged by the petitioner in this petition.
6] Shri Kuldeep Pathak, learned counsel appearing for the petitioner has submitted that the payment of stamp duty through Signature Not Verified Signed by: MONI RAJU Signing time: 8/27/2024 10:45:03 AM MP no. 4127 of 2014 4 OnLine mode could not have been accepted by the executing court and it was incumbent upon the respondent to pay the stamp duty in the office of the Registrar of the Stamps, who could also have impose cost on the respondent, as provided under Sections 33, 35 (b) & 40 of the Indian Stamp (M.P. Amendment) Act, 2016.
7] Shri Suhas Pundlik, learned counsel appearing for the respondent has opposed the prayer and it is submitted that no case for interference is made out, as the proper stamp duty has already been paid by the respondent in accordance with law, and since the award has come before the district court for its execution only, as has held by the co-ordinate Bench of this Court in the case of Mahendra vs. Ramvilas Shukhla & ors.{M.P.no.3009/2022 (Indore) decided on 22.8.2023} reported as I.L.R. 2024 M.P. 249 that the Court itself is competent to pass the order regarding the stamp duty in the amendment as provided under Section 35 & 40 of the Indian Stamp (M.P. Amendment) Act, 2016. Counsel has also drawn attention of this Court to the amended Sections of the Stamp Act of 1899.
8] Heard the learned counsel for the parties and perused the record.
9] From the record, it is apparent that the respondent/decree holder is trying to execute the award in which various technical objections are being raised by the petitioner/judgement debtor only with a view to further delay the proceedings, and in the last round of Signature Not Verified Signed by: MONI RAJU Signing time: 8/27/2024 10:45:03 AM MP no. 4127 of 2014 5 the litigation, this Court while imposing cost on the petitioner, had also directed to the respondent/decree holder to pay the stamp duty in accordance with law.
10] The contention of the petitioner that the respondent has not approached the Collector of Stamps to pay the stamp duty as directed by this Court, and has paid the same through OnLine mode, is without any substance, as in the considered opinion of this Court, the physical presence of the petitioner before the Collector of Stamps is not necessary when the OnLine mode of payment of stamp duty is already provided, and it is for the Collector to hold if he finds any deficiency in the stamp duty so paid through online mode.
11] In such circumstances, this Court is of the considered opinion that the learned judge of the executing court has rightly rejected the objections raised by the petitioner in holding that the proper stamp duty has been paid on the Award.
12] Accordingly, the petition being devoid of merit is hereby dismissed, with a cost of Rs.5000/- (Rupees Five Thousand only) and the learned Judge of the executing court is requested to proceed further in accordance with law.
13] The aforesaid cost of Rs.5,000/- (Rupees Five Thousand only) which shall be payable by the petitioner in the account of "President and Secretary High Court Employees Union" {Account Signature Not Verified Signed by: MONI RAJU Signing time: 8/27/2024 10:45:03 AM MP no. 4127 of 2014 6 No.63006406008, Branch Code No.30528, IFSC No. SBIN0030528, CIF No.73003108919} within a period of four weeks from the date of receipt of certified copy of this order, and the acknowledgement of the same shall be also filed before the Registry of this Court.
14] The Miscellaneous Petition stands dismissed.
(SUBODH ABHYANKAR) JUDGE moni Signature Not Verified Signed by: MONI RAJU Signing time: 8/27/2024 10:45:03 AM