Judgment:
1. A contract was entered into between the parties on 6-3-1992 for executing certain construction in respect of relocation of Crusher Plant III at Kudremukh. However, the disputes arose between the parties. Ultimately, the matter was referred to arbitration by the parties as per the terms of the agreement. The Arbitral Tribunal passed an award under Arbitration Act, 1940 on 31-5-2007 as per Annexure-N. The operative portion of the award reads thus:
“In the result, I make an award in favour of the claimant for a sum of RS.2,40,00,000/- (Rupees Two crores forty lakhs only) being the sum awarded in respect of the claim Nos.2 and 3 with the interest thereon at 10% from 1-1-1996 till the date of the award. Further interest from the date of this award till payment also shall be 10%. Each party shall bear their respective costs incurred before me.
Cost of the stamp duty and Court fee, if any, shall be borne by the claimant”.
It is also noted in the award that the Arbitrator while handing over the award and all the papers to the claimants, had instructed to file the same before the Court, if necessary, and get the award made into the decree etc., as per the Arbitration Act, 1940. It was also instructed that the claimant shall bear the expenses, including the stamp duty and the Court fee in connection with the same. The respondent herein presented the award to get the award converted into judgment and decree before the City Civil Court, Bangalore, in A.C.No.2 of 2007 on 7-12-2007. The petitioner herein questioned the award under Section 30 of the Arbitration Act, 1940. The matter is pending before the concerned Court.
2. During the interregnum, the petitioner herein filed an application under Section 151 of the Civil Procedure Code, 1908 before the court below to call for the original award which is kept in the safe custody of the Court and to peruse the same as to whether it is stamped or not, and if not, to proceed in accordance with law. The respondent herein filed statement of objections to the said application. However, the respondent herein filed another application under Section 151 of CPC on 16-11-2007 as per Annexure-U (numbered as I.A.2) to return the original award dated 31-5-2007 for having it duly stamped and to represent the same after stamping it. The petitioner herein has filed statement of objections to the said application. Thereafter, one more memo was filed by the respondent herein praying for return of the original award copy for getting it stamped in the office of District Registrar after determination of stamp duty. It is mentioned in the said memo that the stamp duty was not paid on the strong belief that only on confirmation of award, the stamp duty has to be paid. However, the application and memo filed for return of Award for getting it stamped were withdrawn later. The Trail Court on hearing the application filed by the petitioner, has passed the impugned order holding that it is not necessary to pay the stamp duty for the present and the stamp duty may be paid after the award gets converted itself into a judgment and decree.
3. The arbitral proceedings were under Arbitration Act, 1940. Thus, the new Arbitration Act is not applicable to the facts of this case. Under Section 17 of the Arbitration Act, 1940, the award has to be presented before the Court and after following the due procedure, the Court may proceed to pass the judgment in accordance with the award and upon such judgment, the decree will follow. Thus, it is clear that the award has to be presented before the Court for getting itself converted into a judgment and decree. Article 11 of the Karnataka Stamp Act, 1957, deals with the award. The said article will have to be read along with Section 33 of the Karnataka Stamp Act. If Article 11 is read with Section 33 of the Karnataka Stamp Act., it is clear that the award in question will have to be treated as an instrument and the same needs to be duly stamped. Therefore, it is incumbent on the respondent to get the award duly stamped in accordance with law. In view of the said article, the respondent himself had made an application before the Court below praying for return of the document for getting the award stamped. He had also filed a memo to that effect. However, subsequently they were withdrawn. The Court below should have directed the award to be duly stamped even prior to passing of the judgment in view of Section 33 of the Karnataka Stamp Act read with Article 11 of the Stamp Act. Even learned Arbitrator has suggested that the petitioner should bear the stamp duty.
4. Sri Holla, learned Counsel appearing for the respondent submits that stamping can be done after the award is made as a judgment of the Court. He relies upon the judgment of the Apex Court in the case of M. Anasuya Devi and Another v. M. Manik Reddy and Others ((2003) 8 SCC 565), in support of the said contention. The said judgment of the Apex Court may not be applicable to the facts of this case, inasmuch as, the said matter arises under the provisions of Arbitration and Conciliation Act, 1996. Under the provisions of Arbitration and Conciliation Act, 1996, the award need not be presented before the Court for getting itself converted into a judgment and decree. Under Section 36 of the Arbitration and Conciliation Act, 1996, the award can be directly enforced, unless the award is set aside.
5. Looking to the totality of the facts and circumstances, there cannot be any dispute that the petitioner has to pay stamp duty. Accordingly, the Court below is directed to get the award duly stamped in accordance with law and thereafter proceed further.
Writ petition is disposed accordingly.