Rajasthan High Court - Jaipur
Mahima Real Estate Pvt.Ltd vs M/S Ascent Buildhome Developers ... on 5 March, 2021
Author: Indrajit Mahanty
Bench: Chief Justice
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Arbitration Application No. 48/2020
Mahima Real Estate Pvt.ltd., F-1 Govind Marg, Opposite Petrol
Pump Raja Park, Jaipur At Present Head Office At 4Th Floor,
Cristal Palm, 22, Godown Circle, Jaipur- 302001 Through
Managing Director Dhirendra Madan, S/o Late D.r. Madan, Aged
60 Years, Resident Of B-22 Prabhu Marg, Tilak Marg, Jaipur.
----Petitioner
Versus
M/s Ascent Buildhome Developers Ltd.,(Cin U452012Rj2005Plc
20959), Having Its Registered Office At J-100, Basement, Ashok
Chowk, Adarsh Nagar, Jaipur Through Its Director Murshid
Ahmed.
----Respondent
For Petitioner(s) : Mr. Anoop Dhand
For Respondent(s) : Mr. Jatin Agarwal
HON'BLE THE CHIEF JUSTICE
Order
05/03/2021
1. Heard learned counsel for the respective parties.
2. This arbitration application has been filed under Sections 10 & 11 of the Arbitration & Conciliation Act, 1996 (hereinafter to be referred as 'the Act of 1996') for appointment of an Arbitrator to adjudicate the disputes arisen between the parties.
3. Learned counsel for the respondent raised a preliminary objection on account of the fact that alleged documents in which the transaction is alleged to have been entered into has not been stamped. Accordingly, he placed reliance on certain judgments passed by Hon'ble Supreme Court in the case of SMS Tea (Downloaded on 12/03/2021 at 08:35:59 PM) (2 of 3) [ARBAP-48/2020] Estates Pvt. Ltd. Vs. M/s Chandmari Tea Co. Pvt. Ltd. reported in (2011) 14 SCC 66 and Garware Wall Ropes Limited Vs. Coastal Marine Constructions and Engineering Limited reported in (2019) 9 SCC 209.
4. Learned counsel for the petitioner on the other hand placed reliance on a latest judgment of Hon'ble Supreme Court in the case of M/s N.N. Global Mercantile Pvt. Ltd. Vs. M/s Indo Unique Flame Ltd. & Others reported in 2021 SCC Online SC 13 and in particular, the finding of the Court in paragraph 12 thereof, which reads as under:-
"12. We are of the considered view that the finding in SMS Tea Estates and Garware that the non-payment of stamp duty on the commercial contract would invalidate even the arbitration agreement, and render it non-existent in law, and un-enforceable, is not the correct position in law.
In view of the finding in paragraph 92 of the judgment in Vidya Drolia by a co-ordinate bench, which has affirmed the judgment in Garware, the aforesaid issue is required to be authoritatively settled by a Constitution bench of this Court.
We consider it appropriate to refer the following issue, to be authoritatively settled by a Constitution bench of five judges of this Court :
"Whether the statutory bar contained in Section 35 of the Indian Stamp Act, 1899 applicable to instruments chargeable to Stamp Duty under Section 3 read with the Schedule to the Act, would also render the arbitration agreement contained in such an instrument, which is not chargeable to payment of stamp duty, as being non-existent, unenforceable, or invalid, pending payment of stamp duty on the substantive contract / instrument?"
5. Although, the Hon'ble Supreme Court has referred the issue for settlement of a Constitution Bench of five judges, it was (Downloaded on 12/03/2021 at 08:35:59 PM) (3 of 3) [ARBAP-48/2020] at the same time held that SMS Tea Estates and Garware Wall Ropes Limited cases cited (supra) have not laid down the correct position of law.
6. Accordingly, following the latest judgment of Hon'ble Supreme Court in the case of M/s N.N. Global Mercantile Pvt. Ltd. referred hereinabove, this Court proceeds to appoint Hon'ble Mr. Justice P.S. Asopa (Retd.) R/o 7-Dha-6, Jawahar Nagar, Jaipur to act as an Arbitrator to decide all issues without prejudice to the rights and contentions raised by the either side. The arbitration fees shall be in accordance with fourth schedule of the Act of 1996.
7. The parties are at liberty to raise all such objections before the Arbitrator.
8. Registry is directed to intimate Hon'ble Mr. Justice P.S. Asopa (Retd.) of his appointment as Arbitrator and parties are at liberty to call upon reliable date for necessary directions.
9. The application is accordingly allowed.
(INDRAJIT MAHANTY),CJ N.Gandhi/Harshit/19 (Downloaded on 12/03/2021 at 08:35:59 PM) Powered by TCPDF (www.tcpdf.org)