Black Pearl Hotels (pvt) Ltd. v. M/S Planet M Retail Ltd.

submits that the decision that has been placed reliance upon by the appellant is distinguishable inasmuch as that the said authority deals with Section 38 of the Indian Stamp Act, 1899 and is not a judgment rendered in the context of the 1957 Act. Learned counsel would further expound that regard being had to the language employed under Section 33(2)(b) of the 1957 Act, the order passed by the High Court is absolutely impeccable. 9. At the outset, we think it appropriate to make it clear that we are not determining whether the agreement in question is a lease or licence or an agreement simplicitor as put forth by the learned counsel for the appellant. That is required to be dwelt upon and addressed by the High Court while dealing with an application under Section 11 of the Act. It is well settled in law that while delving into the appointment of an arbitrator under Section 11, regard being had to the nature of agreement as stipulated under Section 7 of the 1996 Act, the Judge designated by the learned Chief Justice is obliged to consider the nature of agreement and whether the document requires to be stamped or not, and if so, whether requisite stamp duty has been duly paid on the same. We are so stating as in the instant case there is a written instrument and there is dispute as regards the nature and character of the document. I 0. In SMS Tea Estates Private Limited vs. Cftm1dmari Tea Company Private Limited' the Court has ruled that:- "21. Therefore, when a lease deed or any other instrument is relied upon as contending the arbitration agreement, the court ------ ' (2001) 4 sec 197 2 (201IJ14 sec 66 55 56 should consider at.the outset, whether an objection in that behalf is raised or not, whether the document is properly stamped. lfit comes to the conclusion that it is not properly stamped, it should be impounded and dealt with in the manner specified in section 3 8 of Stamp Ac\. The court cannot act upon such a document or the arbitration cla~se therein. But ifthe deficit duty and penalty is paid in the manner set out in section 35 or section 40 of the Stamp Act, the document can be acted upon or admitted in evidence." 11. After so stating, the Court laid down the procedure to be adopted where the arbitration clause is contained in an agreement which is not registered but is required to be compulsorily registered and which is not duly stamped. Thereafter, the Court set out the duty of the Court in a chronological manner. The said passage is extracted below:- "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. lfthe 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. lfthe document is found to be duly stamped, or ifthe 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. 22.4. Once the document is found to be duly stamped, the court shall proceed to consider whether the document is compulsorily registerable. If the document is found to be not compulsorily registerable, the court can act upon the arbitration agreement, without any impediment. 22.5. If the document is not registered, but is compulsorily registerable, having r,gard to Section 16(l)(a) of the Act, the court can delink the arbitration agreement from the main BLACK PEARL HOTELS (PVT) LTD. v. M/S PLANET M RETAIL LTD. [DIPAK MISRA, J.] document, as an agreement independent of the other te,rms of the document, even if the document itself cannot in any way affect the property or cannot be received as evidence of any transaction affecting such property. The only exception is where the respondent in the application demonstrates that the arbitration agreement is also void and unenforceable, as pointed out in para IS above. If the respondent raises any objection that the arbitration agreement was invalid, the court will consider the said objection before proceeding to appoint an arbitrator. 22.6. Where the document is compulsorily registerable, but is not registered, but the arbitration agreement is valid and separable, what is required to be borne in mind is that the arbitrator appointed in such a matter cannot rely upon the unregistered instrument except for two purposes, that is (a) as evidence of contract in a claim for specific performance, and (b) as evidence of any collateral transaction which does not require registration." 12. There is no dispute that the present controversy is covered by the 1957 Act. However, we think it apposite to refer to Section 38 of the Indian Stamp Act, 1899. The said provision reads as follows:- "38. Instruments impounded, how dealt with.-(1) Where the person impounding an instrument under section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided · by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf. (2) In every other case, the person so impounding an instrument shall send it in original to the Collector." 13. Interpreting the said provision, this Court in Clti/akuri 57 Gangulappa (supra) has ruled thus:- G "It is clear from the first sub-section extracted above that the court has a power to admit the document in evidence if the party producing the same would pay the stamp duty together with a penalty amounting to ten times the deficiency of the stamp duty. When the court chooses to admit the document on compliance H ) 58 SUPREME COURT REPORTS (2017) 2 S.C.R. of such condition the court need forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps. But if the party refuses to pay the amount aforesaid the Collector has no other option except to impound the document and forward the same to the Collector. On receipt of the document through either of the said avenues the Collector has to adjudicate on the question of the deficiency of the stamp duty. If the Collector is of the opinion that such instrument is chargeable with duty and is not duly stamped 'he shall require the payment of the proper duty or the amount required to make up the same together with a penalty of an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof'." 14. As the factual matrix would further unfurl, there was no consent by the appellant and, therefore, even under the Stamp Act, the matter has to be sent to the competent authority. In this context, we have to analyse the anatomy of Section 33 of the 1957 Act which reads as follows:- "33. Examination and impounding of instruments.- (I) 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, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, ifit appears to him that such instrument is not duly stamped, impound the same. (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 in force in the State of Karnataka 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 XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; BLACK PEARL HOTELS (PVT) LTD. v. MIS PLANET M 59 RETAIL LTD. [DIPAK MISRA, J.] (b) in the case ofaJudge of the High Court. the dutv of examining A and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt, the Government may determine,- (a) what offices shall be deemed to be public offices; and (b) who shall be deemed to be persons in charge of public offices." [underlining is ours] 15. On a plain reading of the aforesaid provision, it is manifest that sub-section (1) of Section 33 stipulates that for the purpose-of finding out as to whether the instrument is 'duly stamped' ornot and consequently as to whether such instrument liable to be impounded or not, examination of the instrument is necessary. Thus, Section 33 fundamentally pertains to the examination and. impounding of an instrument. To appreciate the sweep and purport of Section 33(2)(b ), it is necessary to refer to the dictionary clause. The definition "duly stamped" as contained in Section 2( I )(e) of 1957 Act postulates that unless the context otherwise requires "Duly Stamped" as applied to an instrument, means that the instrument bears an adhesive stamps of not less than the proper amount and that such stamp has been affixed or used in accordance with law for the time being in force in the territories of the State ofKarnataka. Thus, the "Duly Stamped" instrument should comply with three requirements, namely, (i) the stamp must be of a proper amount; (ii) should bear proper description of stamp; and (iii) the stamp must have been affixed and used according to law for the time being in force in the State of Karnataka. 16. In this context, proviso (b) to Sub-Section (2) of Section 33, has to be appreciated. It is quite plain that it empowers the Judge of the High Court to delegate the duty of examination and impounding the instrument to such officer as the Court appoints in that behalf. The question arises where the nature of document is disputed, the same can be done ·by the delegated authority. For example, if a document tendered is a sale deed and dispute arises with regard to its character, namely, sale deed or deed of mortgage, .can it be done by the officer concerned. The stamp duty payable on a lease deed or a licence may be different. The delegation by a Judge of the High Court will not clothe the officer the jurisdiction of A . determining the nature and character of the instrument inasmuch as such fact needs to be detennined by the Judge while exercisingjudicial function. Such judicial function is not to be delegated to an officerofthe Court by the Judge of the High Court. What is delegated under the proviso (b) of sub-section (2) of Section 33 is only to examine the instrument for the purpose of determining as to whether the instrument is duly stamped or not and for impounding the same. We are disposed to d1inl(that Section 33(2)(b) does not contemplate or pennit any adjudication as regards the nature and character of the instrument. The delegated power has to be restricted to cover the area, that is, whether the instrument bears the proper stamp and thus complies with the requirement of being "duly stamped", and the stamp duty payable on the same must be detennined only with reference to the terms of the instrument. Proviso (b) to sub-section 33(2) does not empower the Judge of the High Court to direct the officer of the High Court to enquire and to find out the nature and character of the qocument. The word "examination" used in proviso (b) to Section 33(2) of the Act cannot be allowed to have such wide amplitude as the context does not so envisage. It has to be conferred restricted meaning which is in consonance with the provision and the scheme of the 1957 Act. And the narrow meaning, as we find, is examination by the officer of the Court is only to determinate as to the adequacy or inadequacy of the stamp duty paid and to impound the instrument. 17. It is evincible from the impugned order that the learned Judge has left both the aspects, that is, detennination of the nature and character of the document and impounding of the same to the Registrar. Therefore, the sentinel question that arises for consideration is whether the learned Single Judge for the purpose of determining the character of the instrument could have delegated the authority to the Registrar. A judicial functioning has to be done in a judicial manner. The duty of detennination of an instrument or, to explicate, to detennine when there is a contest a particular document to be of specific nature, the adjudication lias to be done by the Judge after hearing the counsel for the parties. It is a part of judicial function and hence, the same cannot be delegated. Be it noted, under the High Court Rules, in certain High Courts, the computation is done by the authorities in the Registry with regard to.the court fees but that also is subject to challenge before the Court when the applicability of a particular provision of the Court-fees Act, 1870 is concerned. Thus analysed, we are inclined to think that the authority is BLACK PEARL HOTELS (PVT) LTD. v. MIS PLANET M 61 RETAIL LTD. [DIPAK MISRA, J.] not empowered to detem1ine the nature and character of the document. A He may at the best send a report to the Court expressing his views on a document which is subject to final deteffilination by the Court. 18. In view of the aforesaid analysis. we allow the appeals, set aside the order passed in the main case as well as in the review and remit the matter to the High Court requiring the learned Single Judge to B determine the nature and character of the document and thereafter proceed with the matter in accordance with law. There shall be no order as to costs. Kalpana K. Tripathy Appeals allowed.