Intercontinental Hotels Group (india) Pvt. Ltd. & Anr. v. Waterline Hotels Pvt. Ltd.
N. V. RAMANA, CJI
1. This petition is filed under Section 11(6) r/w 11(12)(a) of the
Arbitration & Conciliation Act, 1996 for appointment of a sole arbitrator.
2. The brief facts which are necessary for adjudication of this
application are that the Intercontinental Hotels Group (India) Pvt. Ltd
(Petitioner No.1) and Intercontinental Hotels Group (Asia-Pacific) Pvt
Ltd. (Petitioner 2), are subsidiaries of Intercontinental Hotels Group PLC
(IHG Group), based out of India and Singapore respectively. The parent
company (IHG Group) is a British multi-national hotel bas ed out of
Denham, United Kingdom.
3. The respondent is an Indian company engaged in hospitalit y
sector. The Respondent had agreed to run and operate a hotel by name
Holiday Inn & Suites Bengaluru, Whitefield.
4. The respondent entered into a Hotel Management Agreement
(HMA) with the petitioners for renovating the existing infrastructure in
accordance with the brand standards established by the IHG group. The
HMA elaborated on the rights and obligations of parties from 17.09.2015
for initial ten years and further renewals were also provided thereunder.
The petitioners alleged that under the HMA, the petitioners were required
to make significant investments for setting up the hotel in accordance
with the brand standards. These investments were to be recovered
gradually from the profits made by the hotel in due course.
5. The HMA mandated that for the renovation undertaken by the
petitioners, the respondent was contractually bound to pay the fee to
petitioner no. 1, known as incentive management fee, at the end of every
month. Further, Petitioner No.2 was entitled to license fee f rom the
respondent for the use of brand and marks as well as an a greed sum
towards “System Fund Contributions”, “Technology Service Fee ” &
“Technical Service Fee”.
6. The petitioners allege that the respondent failed to pay t he
requisite fee which it was contractually bound to under the HMA since
early 2016. As of 12.10.2018, the respondent owed the petitioners a sum
amounting to USD 6,18,719, excluding interest for the late payment as
provided under Clause 21.3 of the HMA.
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7. In any case, the respondent sent an e-mail on 12.10. 2018
terminating the HMA. In the aforesaid e-mail, the respondent stated
that the hotel was rebranded as Miraya Hotels, and all guests checking
into the hotel after noon on 12.10.2018, were infor med that the
management of the hotel had been handed over to Miraya. On the same
day, the petitioners replied to the aforesaid termination letter contending
that unilateral termination of the HMA was not valid as the re was no
legal basis for the same.
8. The respondent failed to retract the email of 12.10.2018, and
the petitioners invoked Section 9 of the Arbitration Act seeking interim
relief before the High Court of Karnataka at Bengaluru in APIM No. 3/
2018. The High Court, on 23.10.2018, passed an ad-interim order directing
the respondent not to evict the petitioners from the premises without due
process of law until further orders. However, the petitioners allege that
the respondent has not been sincere in complying with the order and has
taken steps to frustrate the aforesaid order.
9. As the settlement talks between the parties failed, and the
respondent remained in persistent breach of the HMA, the pet itioners
were left with no option other than to invoke Arbitration under clause
18.2 of HMA, which reads as under:
“Clause 18.2- Dispute Resolution
(a) All disputes, controversies or claims arising ou t of or in
connection with this Agreement and/or any matters incidental
hereto and/or the interpretation and/or breach hereof, will first be
discussed by the Owner and the Manager with the objective of
resolving such dispute, controversy or claim in a fair, amicable
and friendly manner. If such efforts fail to bring a resolution within
ten (10) Business Days of receipt of a notice issued by one party
to another seeking resolution, such disputes, controversies or claims
will be finally determined by arbitration in accordance with the
Arbitration Rules of Singapore International Arbitration Centre
(“SIAC”) for the time being in force, which rules are deeme d
incorporated by reference into this clause.
(b) The Tribunal shall consist of a sole Arbitrator. However, in the
event that the Parties are unable to agree on the sole Arbi trator
the tribunal shall consist of three Arbitrators, one to be appointed
by each of Manager and Owner, and the third to be appointed by
INTERCONTINENTAL HOTELS GROUP (INDIA) PVT. LTD. & ANR.
v. WATERLINE HOTELS PVT. LTD. [N. V. RAMANA, CJI]
mutual agreement of the two appointed Arbitrators. In the event
the Arbitrators appointed by the Manager and the Owner fail to
mutually agree on the third Arbitrator, such third Arbitrator shall
be appointed by a Competent Court of Law in Bangalore. The
Parties herein mutually agree to exclude the applicability of rules
of SIAC to this extent (i.e., regarding appointment of third
Arbitrator). The place of arbitration will be SIAC in Be ngaluru
and the official language of the arbitration will be Eng lish. In
reaching a decision, the Arbitrators, will be bound by the term s
and provisions of this Agreement. The decision and award of the
Arbitrator will be final and binding and shall be enforceable by the
Indian Courts…”
10. In the Notice of Arbitration, the petitioners cl aimed the
following reliefs:
a. A declaration that:
i. The Respondent is in breach of the Management
Agreement dated 7th August 2015; and
ii. The Respondent has illegally and wrongfully purported
to terminate the Management Agreement by its email
dated 12th October 2018.
b. Direct the Respondent to pay to the Claimants,
i. The outstanding dues of USD 618,719 as on 8 October
2018 owed to the Claimants under the Management
Agreement;
ii. Interest on the above outstanding amounts from the
dates the amounts became due until the filing of this
notice invoking arbitration, in accordance with Clause
21.3 of the Management Agreement;
iii. Damages due to the wrongful termination of the
Management Agreement for the remainder Term of
the Management Agreement which has as Initial
Term of 10 years from 15 September 2015 with a
potential 2 x 5 years of Renewal Term, in an amount
to be assessed later; and
865
iv. Such other future sums towards damages and as may
fall due under the Management Agreement and as
the Claimants may put forth before the Hon’ble
Tribunal in its Statement of Case.
c. Pendente Lite and future interest on all sums awarded to i t
at such rate as the Tribunal may deem fit, in accordance
with Rule 32.9 of the SIAC Rules and Arbitration &
Conciliation Act, 1996;
d. Award of costs from the Respondent and interest on the
costs awarded, till payment.
e. Any other prayer the Hon’ble Tribunal may deem fit in t he
interest of justice.,”
11. The respondent is alleged to have replied to the aforesa id
Notice of Arbitration by stating that the said notice date d 21.01.2019
was not a notice, and consequently did not require a reply.
12. Accordingly, the petitioners communicated their intention to
invoke arbitration to the Singapore International Arbitration Centre
(SIAC). They also approached the SIAC for suggesting names of sole
arbitrators or to invoke the mechanism of appointing a th ree-member
tribunal if the respondent does not agree on a single name. SIAC further
sent a notice dated 15.02.2019 to the respondent for appointment of a
suitable arbitrator. Interestingly, the respondent replied to the notice sent
by the SIAC stating that the notice of arbitration dated 21.01.2019 was
defective and was not curable. In any case, the respondent all eges as
under:
“Strictly without prejudice, we do not accept IHG’s proposal to
appoint any of the 3 Arbitrators named in its Notice, d ated
08.02.2019, as a sole arbitrator. Nor do we wish to propose and
names of a sole arbitrator. Further, there is no question of proposing
or agreeing to Arbitration by a Tribunal of 3 Arbitrators for the
same reason. The reasons have been elaborately narr ated
hereinabove and bear no repetition.
Clearly SIAC and its Associate Counsel have turned a complete
blind eye to the legal position, facts of the case and conduct of
IHG and its Advocates. It would not be out place to mention that,
in the given circumstances SIAC would not be entitled to exclusion
of liability under Rule 38, SIAC Rules.”
INTERCONTINENTAL HOTELS GROUP (INDIA) PVT. LTD. & ANR.
v. WATERLINE HOTELS PVT. LTD. [N. V. RAMANA, CJI]
13. Aggrieved by the respondent’s denial to appoint a suitab le
Arbitrator, the petitioners have filed this petition seeking appointment of
an Arbitrator.
14. When this matter was listed on 16.04.2019, this Court was
pleased to issue notice. Thereafter, the respondent entered appea rance
and filed a counter-affidavit dated 24.07.2019, pointing out that the
purported HMA, which contains the arbitration agreemen t, was an
unstamped document. It notes that this Court, in Garware Wall Ropes
Ltd. v Coastal Marine Constructions and Engineering Ltd ., (2019)
9 SCC 209 has earlier held that an agreement which is not duly stamped
cannot be relied on or acted upon unless the unstamped document is
impounded, and the applicable stamp duty and penalty is assessed and
paid.
15. On 02.03.2020, this Court, at the request of the petitioners,
allowed four weeks to file an application. In line with the aforesaid
permission, the petitioners filed an application for permi ssion to file
additional documents dated 23.06.2020 which reads inter alia as under:
“ ………..
3. Without prejudice to the above, the Petitioner No.1 has taken
the necessary step to pay the stamp duty applicable to the HMA.
In accordance with Section 2(6) of the Indian Stamp Act, 1899,
the stamping of the HMA would be governed by the Karnataka
Stamp Act, 1957 (“Karnataka Stamp Act”) because the HMA
was first executed in Bengaluru, the place of perform ance is
Bengaluru and the subject matter of the HMA is situate d in
Bengaluru.
4. The Schedule of the Karnataka Stamp Act enumerates different
types of instruments that attract stamp duty and the corresponding
duty that is payable. Article 5 of the Schedule provides the duty
applicable to different types of agreements, The HMA is a services
agreement which is not specifically provided for in Article 5, and
therefore, it would be covered under the residuary provisions,
Article 5(j), “ Agreement or [its records or] Memorandum of
an Agreement if not otherwise provided for”. The corresponding
stamp duty is INR 200. In order to establish its bona fide and to
avert any argument regarding the adequacy of the stamp duty
paid, Petitioner No. 1 has also paid the maximum penalty i.e., ten-
867
times that duty amounting to INR 2,000 in accordance with the
proviso to Section 34 of the Karnataka Stamp Act.
5. The Petitioners further submit that since they have pa id the
requisite stamp duty along with the maximum penalty prescribed
under the Karnataka Stamp Act, this Hon’ble Court may proceed
to appoint a sole Arbitrator who has the jurisdiction to deal with all
disputes that arise between the parties.”
16. The respondent, while objecting to the aforesaid application
filed by the petitioners, stated as under:
“4. I state that at the time of hearing of the above cited Petition on
the 02.03.2020, the learned Sr. Counsel appearing for the Petitioner
had tendered a Letter dated 28.02.2020 annexing therewith a single
e-Stamp paper bearing Unique Doc. Reference No.
SUBINKAKABACSL0850557522508599R dated 29.07.2020 for
Rs.2,200/- classifying the HMA as “Bond” under Article 12 of
the Schedule to the Karnataka Stamp Act, 1957 and t he
Consideration Prices as Zero….
5. That this Hon’ble Court, had by its Order dated 02.03.2020
directed the Petitioners to file the said single e-Stamp paper, dated
29.07.2019 along with a proper Application.
6. I state that, the Petitioners have not filed the said s ingle e-
Stamp Paper, dated 29.07.2019, classifying the HMA as “Bond”.
Instead, purportedly in furtherance of this Hon’ble Court’s Order
dated 02.03.2020, the Petitioners have filed a completely different
set of 11 e-Stamp Papers of Rs.200/- each all dated 10.06.2020
this time classifying the agreement under Article 5(j ) of the
Schedule to the Karnataka Stamp Act, 1957 and annexing the
HMA dated 07.08.2015 therewith, under the above cit ed
Application seeking permission to file Additional Documents being
I.A D. No. 60764 of 2020.
7. I state that it is not true that, vide this Hon’ble Court’s Order,
dated 02.03.2020, the Petitioners were granted permission to file
the 11 e-Stamp Papers, for Rs.200/- each, all dated 10.06.2020,
that have been filed along with the above cited Application seeking
permission to file Additional Documents being I.A D. No. 60764
of 2020.
INTERCONTINENTAL HOTELS GROUP (INDIA) PVT. LTD. & ANR.
v. WATERLINE HOTELS PVT. LTD. [N. V. RAMANA, CJI]
8. I submit that the Petitioners have not paid the prop er Stamp
Duty and penalty under the Karnataka Stamp Act, 1957 nor has
the procedure of adjudication of proper stamp duty and penalty
payable been followed by the Petitioner as per law. The Petitioners
have, in fact, arrogated to themselves the power of adjudication
under the Karnataka Stamp Act, 1957.
9. I state that there is no procedure whereby a par ty self
adjudicates and self certifies the proper stamp duty and the penalty
payable on a Document as sought to be done twice by the
Petitioners as under:
SELF ADJUDICATION BY THE PETITIONERS WITH
THE MAXIMUM PENALTY OF 10 TIMES
17. We have heard learned counsel for the parties and perused
the documents available on record.
18. At the outset, we need to state that this Court’s jurisdiction
to adjudicate issues at the pre-appointment stage has b een the subject
matter of numerous cases before this Court as well as High Courts.
The initial interpretation provided by this Court to exa mine issues
extensively, was recognized as being against the pro-arbitration stance
envisaged by the 1996 Act. Case by case, Courts restricted themselves
in occupying the space provided for the arbitrators, in line with party
869
autonomy that has been reiterated by this Court in Vidya Drolia v.
Durga Trading Corporation, (2021) 2 SCC 1, which clearly expounds
that Courts had very limited jurisdiction under Section 1 1(6) of the
Act. Courts are to take a ‘ prima facie’ view, as explained therein, on
issues relating to existence of the arbitration agreement. Usually, issues
of arbitrability/validity are matters to be adjudicated upon by arbitrators.
The only narrow exception carved out was that Courts could adjudicate
to ‘cut the deadwood’ . Ultimately the Court held that the watch word
for the Courts is ‘when in doubt, do refer’ . This Court concluded as
under:
“225. From a study of the above precedents, the followin g
conclusion, with respect to adjudication of subject -matter
arbitrability Under Section 8 or 11 of the Act, are pertinent:
225.1 In line with the categories laid down by the earlier judgment
of Boghara Polyfab [National Insurance Co. Ltd. v. Bogha ra
Polyfab (P) Ltd., (2009) 1 SCC 267] the Courts were examining
‘subject-matter arbitrability’ at the pre-arbitral stage, prior to the
2015 amendment.
225.2 Post the 2015 amendment, judicial interference at the
reference stage has been substantially curtailed.
225.3 Although subject matter arbitrability and public polic y
objections are provided separately Under Section 34 of the A ct,
the Courts herein have understood the same to be interchangeable
under the Act. Further, subject matter arbitrability is inter-linked
with in-rem rights.
225.4 There are special classes of rights and privileges, whic h
enure to the benefit of a citizen, by virtue of constitutional or
legislative instrument, which may affect the arbitrability of a subject-
matter.”
Following is the opinion of one of us (N. V. Ramana, J., as Hi s
Lordship then was):-
“244. Before we part, the conclusions reached, with respect to
question No. 1, are:
244.1 Sections 8 and 11 of the Act have the same ambit with
respect to judicial interference.
INTERCONTINENTAL HOTELS GROUP (INDIA) PVT. LTD. & ANR.
v. WATERLINE HOTELS PVT. LTD. [N. V. RAMANA, CJI]
244.2 Usually, subject matter arbitrability cannot be decided a t
the stage of Sections 8 or 11 of the Act, unless it’s a clear case of
deadwood.
244.3 The Court, Under Sections 8 and 11, has to refer a matter
to arbitration or to appoint an arbitrator, as the case may be, unless
a party has established a prima facie (summary findings) case of
non-existence of valid arbitration agreement, by sum marily
portraying a strong case that he is entitled to such a finding.
244.4 The Court should refer a matter if the validity of the
arbitration agreement cannot be determined on a prima facie basis,
as laid down above, i.e., ‘when in doubt, do refer’.
244.5 The scope of the Court to examine the prima facie validity
of an arbitration agreement includes only:
244.5.1 Whether the arbitration agreement was in writing? or
244.5.2 Whether the arbitration agreement was contained in
exchange of letters, telecommunication etc?
244.5.3 Whether the core contractual ingredients qua the
arbitration agreement were fulfilled?
244.5.4 On rare occasions, whether the subject-matter of dispute
is arbitrable?”
19. While holding as above, this Court by majority opinion speaking
through Justice Sanjiv Khanna held as under:
“147.1. In Garware Wall Ropes Ltd. [Garware Wall Ropes
Ltd. v. Coastal Marine Constructions & Engg. Ltd. , (2019) 9
SCC 209 : (2019) 4 SCC (Civ) 324] , this Court had examined the
question of stamp duty in an underlying contract with an arbitration
clause and in the context had drawn a distinction between the
first and second part of Section 7(2) of the Arbitration Act, albeit
the observations made and quoted above with referen ce to
“existence” and “validity” of the arbitration agreement be ing
apposite and extremely important, we would repeat the same by
reproducing para 29 thereof : (SCC p. 238)
“29. This judgment in Hyundai Engg. case [United India
Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd. ,
(2018) 17 SCC 607 : (2019) 2 SCC (Civ) 530] is important in that
871
what was specifically under consideration was an arbitration clause
which would get activated only if an insurer admits or acce pts
liability. Since on facts it was found that the insurer repudiated the
claim, though an arbitration clause did “exist”, so to speak, in the
policy, it would not exist in law, as was held in that judgment,
when one important fact is introduced, namely, that the ins urer
has not admitted or accepted liability. Likewise, in the facts of the
present case, it is clear that the arbitration clause that is contained
in the sub-contract would not “exist” as a matter of law until the
sub-contract is duly stamped, as has been held by us above. The
argument that Section 11(6-A) deals with “existence”, as opposed
to Section 8, Section 16 and Section 45, which deal with “validity”
of an arbitration agreement is answered by this Cou rt’s
understanding of the expression “existence” in Hyundai Engg.
case [United India Insurance Co. Ltd. v. Hyundai Engg. &
Construction Co. Ltd., (2018) 17 SCC 607 : (2019) 2 SCC (Civ)
530] , as followed by us.”
Existence and validity are intertwined, and arbitration agreement
does not exist if it is illegal or does not satisfy mandat ory legal
requirements. Invalid agreement is no agreement.”
20. In any case, again in N.N. Global Mercantile Private Limited
v. Indo Unique Flame Limited, (2021) 4 SCC 379, this Court doubted
the above proposition as held in Garware Wall Ropes (supra), and was
of the opinion that the utility of the doctrine of separability overrides the
concern under the respective Stamp Acts. Any concerns of non-stamping
or under stamping would not affect the validity of the arbitration
agreement. However, this Court considered it appropriate to refe r the
issue for authoritative settlement by a Constitution Bench in the light of
Vidya Drolia (supra), citing the ratio in Garware Wall Ropes (supra).
The relevant observations made in N.N. Global (supra) read as under:
“56. We are of the considered view that the finding in SMS
Tea Estates [SMS Tea Estates (P) Ltd. v. Chandmari Tea Co.
(P) Ltd., (2011) 14 SCC 66] and Garware [Garware Wall Ropes
Ltd. v. Coastal Marine Constructions & Engg. Ltd. , (2019) 9
SCC 209] 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.
INTERCONTINENTAL HOTELS GROUP (INDIA) PVT. LTD. & ANR.
v. WATERLINE HOTELS PVT. LTD. [N. V. RAMANA, CJI]
57. In view of the finding in paras 146 and 147 of the judgment
in Vidya Drolia [Vidya Drolia v. Durga Trading Corpn., (2021)
2 SCC 1 by a co-ordinate Bench, which has affirmed the judgment
in Garware [ Garware Wall Ropes Ltd. v. Coastal Marine
Constructions & Engg. Ltd. , (2019) 9 SCC 209], the aforesaid
issue is required to be authoritatively settled by a Con stitution
bench of this Court.
58. 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?”
59. In light of the same, the Registry may place this mat ter
before the Hon’ble Chief Justice of India for appropriate orders/
directions.”
21. The reasoning for the above was provided in the caption ed
judgment as follows:
“24. The arbitration agreement contained in the Work Order is
independent and distinct from the underlying commercial contract.
The arbitration agreement is an agreement which provides the
mode of dispute resolution. Section 3 of the Maharashtra Stamp
Act does not subject an arbitration agreement to payment of Stamp
Duty, unlike various other agreements enlisted in the Schedule to
the Act. This is for the obvious reason that an arbitration agreement
is an agreement to resolve disputes arising out of a commer cial
agreement, through the mode of arbitration. On the basis of the
doctrine of separability, the arbitration agreement being a separate
and distinct agreement from the underlying commercial contract,
would survive independent of the substantive contract . The
arbitration agreement would not be rendered invalid , un-
enforceable or non-existent, even if the substantive contrac t is
873
not admissible in evidence, or cannot be acted upon on account of
non-payment of Stamp Duty.”
22. Although we agree that there is a need to constitute a larger
Bench to settle the jurisprudence, we are also cognizant of time-sensitivity
when dealing with arbitration issues. All these matters are still at a pre-
appointment stage, and we cannot leave them hanging until the larger
Bench settles the issue. In view of the same, this Court – until the larger
Bench decides on the interplay between Sections 11(6) and 16 – should
ensure that arbitrations are carried on, unless the issue before the Court
patently indicates existence of deadwood.
23. This brings us to the only issue at hand: whether the issue of
insufficient stamping raised by the respondent is deadwood and clearly
indicative of an unworkable arbitration agreement, or there are deeper
issues which can be resolved at a later stage. The co unsel for the
petitioners has sought to draw our attention to Clause 22(1)(b) of the
HMA, to contend that the respondent has presented a warranty to ensure
the said HMA would be valid and legally enforceable. Clause 22.1 (b) of
the HMA reads as follows:
“22.1. Owner represents and warrants to Manager upon execution
of this Agreement and again on the Commencement Date that:
…
b) it has obtained or shall obtain (with Manager’s assistance as it
is reasonably able to provide) all necessary govern mental
permissions, licenses and permits (including but not l imited
construction, occupancy, liquor, bar, restaurant, sign and hotel
accommodation licenses) to enable Manager to operate the Hotel
in accordance with the Brand Standards and to ensur e this
Agreement is fully valid and enforceable in the Country.”
24. Having perused Clause 22.1, it is necessary to note that the
respondent is under an obligation to ensure that the agreement would be
legally valid in India. If such an obligation was undertake n by the
respondent, the extent to which the petitioners can rely on the
respondent’s warranty, is clearly a debatable issue. Further, it is also a
matter of adjudication whether the respondent could have raised the
issue of validity of the arbitration agreement/substantive contract in view
of the warranty. This aspect clearly mandates that the aforesaid issue is
INTERCONTINENTAL HOTELS GROUP (INDIA) PVT. LTD. & ANR.
v. WATERLINE HOTELS PVT. LTD. [N. V. RAMANA, CJI]
not deadwood. The issues whether the respondent is estopped f rom
raising the contention of unenforceability of the HMA or the issue whether
the HMA is insufficiently or incorrectly stamped, can be finally decided
at a later stage.
25. Moreover, the petitioners have reiterated that without prejudice,
they have paid the required stamp duty, including the penalty that may
be accruable and sought appointment of a sole arbitrator in light of the
same. On the contrary, the respondent, in rebuttal to the paym ent of
stamp duty, has challenged the same, contending that payment of stamp
duty has been wrongly classified and stamp duty has been paid against
Article 5(j) under the schedule of the Karnataka Stamp Act, 1957, which
is erroneous. Therefore, the respondent contends that the HMA has not
been properly stamped.
26. Upon reading Vidya Drolia (supra), the issue of ‘existence’
and/or ‘validity’ of the arbitration clause, would not be nee ded to be
looked into herein, as payment of stamp duty, sufficient or ot herwise,
has taken place herein. In order to ascertain whether adeq uate stamp
duty has been paid in terms of the Karnataka Stamp Act , this Court
needs to examine the nature of the substantive agreement, the nature of
the arbitration agreement, and whether a separate stamp fee would be
payable for the arbitration agreement at all. It may be noted that the
petitioners, have themselves attempted to self-adjudicate the required
stamp duty and have paid, on 29.07.19, a stamp duty of Rs 2,200/-,
describing the HMA as a “bond”. On 10.06.2020, the petitioners further
purchased 11 e-stamps for Rs. 200/- each, describing the HMA as an
‘agreement’ under article 5(j). Therefore, it falls upon the Court, under
the stamp act to review the nature of the agreement in order to ascertain
the stamp duty payable. From the above it is clear, that stamp duty has
been paid, whether it be insufficient or appropriate is a question that
maybe answered at a later stage as this court cannot revi ew or go into
this aspect under Section 11(6). If it was a question of com plete non
stamping, then this court, might have had an occasion to exam ine the
concern raised in N. N. Global (supra), however, this case, is not one
such scenario.
27. Therefore, we deem it appropriate for this matter to be referred
to arbitration, in terms of Clause 18.2 of the arbitration agreement.
875
28. Accordingly, we appoint Mr. Justice A.V. Chandrashekara, a
former Judge of the High Court of Karnataka as a sole a rbitrator to
adjudicate the issues. The parties are directed to take st eps to convey
this order to the SIAC to proceed in terms of the SIAC rules .
29. The arbitration petition is allowed in the above terms.
Ankit Gyan Petition allowed.
(Assisted by : Rahul Rathi, LCRA)
INTERCONTINENTAL HOTELS GROUP (INDIA) PVT. LTD. & ANR.
v. WATERLINE HOTELS PVT. LTD. [N. V. RAMANA, CJI]