Get weekly latest news and updates in your e-mail. They are: Production of documents in court Admission and exhibition Proof (or truth of contents). Recently, the Supreme Court in Dharmaratnakara Rai Bahadur Arcot Narainswamy Mudaliar Chattram and other Charities v. Bhaskar Raju and Bros.[11] again reiterated the settled law of SMS Tea Estates[12] and held: if the court comes to a conclusion that the instrument is not properly stamped, it should be impounded and dealt with, in the manner specified in Section 38 of the Stamp Act, 1899. 82 by the Court, it does not bear any endorsement as envisaged under Order XIII Rule 4 of the CPC. An example of the same could be an insufficiently stamped document. In this case NCLT though admitted the application but impounded the loan agreement and sent it to the appropriate authority for due adjudication of the stamp duty payable. There shall. The Case Of Unstamped And/Or Insufficiently Stamped Documents Perused the, 3. Therefore,where a contract is subject to Indian laws and is subject to enforcement in India, the Indian party will be required to ensure adequate stamping of the document as per the relevant stamplawto save time and penalties should the requirement to submit such document to evidence arise in future. ]-For the purposes of this article, where in the case of agreement to sell an immovable property, the possession of any immovable property is transferred [or agreed to be transferred] to the purchaser before the execution, or at the time of execution, or after the execution of, such agreement [***] then such agreement to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly. As noted herein above, aggrieved by the said order, the petitioner has filed the present petition. 9. : The content of this A loan agreement and a mortgage deed were executed. 82 by the Trial Court, in absence of the compliance under Order XIII Rule 4 of the CPC, it cannot be said that the said document has been admitted in the evidence. Subsequently, the respondent entered into a sub-contract with N.N. Ltd. and do not constitute legal advice. firstly an authentication to the arbitrators to decide the jurisdiction without the help of the court and secondly, the Arbitral Tribunal gets an upper hand to decide the issue first before the Court interferes. As I noted herein above, it is not in dispute that the document marked at Exh. 25. Know all about E-Challans -Definition, Filing, Procedure, etc. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. I have given due consideration to the submissions made on behalf of the learned Counsel appearing for the parties. It, however, appears that before the Trial Court, the arguments were made on behalf of defendant No. By virtue of the said, amendment, a memorandum regarding past partition also amounts to instrument of, partition requiring same duty as a bottomry bond for the amount or the market, value of the separated share or shares. SC: Validity of an Unstamped/Insufficiently Stamped It is further observed by the Trial Court that the plaintiff was thereafter, cross-examined by the learned Counsel for defendant Nos. Now, the question arises whether an objection can now be raised about admissibility of the said document in the evidence on the ground that the said instrument has not been duly stamped. This, contention cannot be acceded, having regard to the fact that it is an absolute, bar engrafted under Section 35 of the Stamp Act. Acknowledgement Of Debt - Contracts and Commercial Law - India I am, however, not convinced with the submission so made. 88 filed by the petitioner before the Trial Court, in the prayer clause of the said application, an order is sought from the Trial Court that the agreement of sale dated 04.05.2009, be impounded in accordance with Sections 33 and 34 of the Stamp Act. * Principal Associate, Hammurabi and Solomon Partners. As per Clause 9 of the sub-contract, the appellant furnished a bank guarantee in favour of the respondent. Sample 1 Sample 2 Sample 3. The learned Counsel submitted that once the document has been exhibited, admissibility of the said document for insufficiency of stamp cannot be questioned. The plaintiff as well as partner of the defendants who had put their signatures on the said document admitted their respective signatures and contents of the document. 16-08-1986. Chapter IVof the Act covers the aspects related to Instruments not duly stamped. We appreciate you contacting us at India Law Offices. Unstamped & Unregistered Documents and Collateral Purpose 33. As has been held by this Court in the aforesaid Judgment, Section 35 of the Stamp Act only gives finality to the decision in regard to the admissibility of the said document in evidence, it however does not operate as a bar for impounding of the said document. Stamping of Substantive Agreement: Better Late Than Never A document which is inadequately stamped will be set aside on a single objection of the opposite party in a court case unless appropriate measures to duly pay the duties are taken. The Stamp Act, 1899[3] (hereinafter referred as the Stamp Act) requires stamp duty to be collected on the execution of specific documents. The NCLT held that even if the documents in question were not sufficiently stamped, the same would not render the application under Section 9 of the IBC as non-maintainable. By the said consent terms, the petitioners (original defendants) agreed and undertook to offer to the respondent (original plaintiff) a self contained Flat of 600 sq. Whether a party can adduce secondary evidence of photocopy of - Law Web The learned Counsel placed reliance on the following Judgments:-, a) Javer Chand and Ors. 2. The contents are intended, In other matters, the Court need not exercise discretion to impound the document and a Magistrate or a Judge of a criminal Court is not required to . The Bar Council of India does not permit advertisement or solicitation by advocates in any form or manner. The Curious Case Of An Unstamped Agreement: Reference To Unknown vs Sanjib Kr. Roy & Ors on 29 June, 2017 Aggrieved by the order dated 24.01.2019 passed by the 8th Joint Civil Judge, Senior Division, Aurangabad below application Exh. After the, evidence of the D.W.1 was sought to be reopened, the defendants produced the, be a partition list. It further purports to state that the document is now executed by way, of a record of prior partition. Without receiving the document, in evidence, it cannot be used even for the limited purpose. The decision of the High Court allowing the application for seeking arbitration was appealed against before the Supreme Court. However, the Supreme Court in the present case revisited the law on the issue of validity, existence and enforceability of an arbitration agreement in an unstamped document and overruled two major judgments i.e. In Olympus Superstructures (P) Ltd. v. Meena Vijay Khetan[21], it was observed that under the Act, 1996 the Arbitral Tribunal is vested with powers under Section 16(1) to rule on its own jurisdiction including ruling on any objection with respect to its existence or validity of arbitration agreement and for that purpose the arbitration clause which forms part of the contract shall be treated as an agreement independent of any terms of the contract and any decision of the Arbitral Tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. The learned Counsel further submitted that the record of the case undoubtedly shows that the procedure as aforesaid has not been followed and as such though the alleged document has been exhibited by the Court, it possess no value in the eyes of law and consequently the said document cannot be read in the evidence. The learned Counsel for the petitioner brought to my notice that though the agreement of sale has been marked at Exh. 4. It embraces that the arbitration clause is separable from the rest of the contract and an assertion that the latter is invalid does not prevent the arbitrators from ruling on the validity of the former. 34. Therefore, the Supreme Court in the aforesaid precedents laid down the principle that if a contract containing an arbitration clause is not duly stamped as per the provisions of Sections 33 and 35 of the Stamp Act, then such contract shall be unenforceable till the payment of the requisite stamp duty and the arbitration clause contained in the said contract cannot be invoked by the parties. 4 to the extent of impounding of the said document. The document is, therefore, inadmissible in, evidence both in view of the bar contained under Section 35 of Indian Stamp Act, as being insufficiently stamped, and also in view of Section 49 of the, 15. [10]In other words, objection for an insufficiently stamped document is different in comparison to other types of objections which are recorded and only brought in discussion when the evidence has been verified. Under circumstances where Parties are faced with difficulties in stamping documents, the practical solution to overcome the issue would be to procure stamp paper as soon as possible even though the document may already be executed by the parties. 4 i.e. The debtor contended that the Receivable Purchase Facility and the Factoring Agreement were not duly stamped and therefore could not be acted upon by the Creditor. 1 requested for staying the effect of the order passed by this Court for next eight weeks so as to facilitate the respondents to approach the Hon'ble Apex Court. 22. The NCLT relied on the other documents produced on record which established that the debtor had committed default in payment of the debt and hence the application was held to be maintainable and was ultimately admitted. 44/- deficit.admitted in evidence, unless, such instrument is duly stamped, proviso (a) makes it clear that such an insufficiently stamped documents could be admitted in evidence on payment of a duty . A document that is used in court has to pass through three steps. Even for that the bar contained under Section, In the present case also, the document is both insufficiently stamped and, unregistered. Unstamped arbitration agreements: referral to arbitration This is based on the premise that when parties enter into a commercial contract containing arbitration clause, they are entering into two separate agreements viz. Referring to the provisions under Sections 35 and 36 of the Stamp Act, the learned Counsel submitted that the Trial Court has rightly rejected the application filed by the present petitioner (original defendant No. Such kind of a defect in instruments is curable in nature which can be rectified on payment of requisite amount of penalty under the Maharashtra Stamp Act, 1958. No material/information provided on this website should be construed as legal advice. Aggrieved by the same, the plaintiffs preferred the, 4. document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); This site uses Akismet to reduce spam. 88 was filed by the petitioner after the examination-in-chief of PW-1 and her cross-examination by defendant Nos. XLVI 411], e) Mahendra s/o Mahadeo Deshbratar and others Vs. Kailash s/o Bhauraoji Chandankhede [MANU/MH/0673/2014 : 2014 (5) Mh.L.J. [19] It has been noted over the years that the doctrine of kompetenz-kompetenz has evolved to minimise judicial intervention at the pre-reference stage and reduce challenges raised on the issue of jurisdiction of the Arbitral Tribunal. Chandrachud, Justice Indu Malhotra and Justice Indira Banerjee in N.N. The learned counsel for respondents/defendants would contend that, even an unregistered partition deed is admissible in evidence for the purpose of, proving a collateral purpose like division of the status and nature and, character of possession and in that connection he relied on a decision in. :- No instrument, chargeable with duty shall be admitted in evidence for any purpose by any person, having by law or consent of parities, authority to receive evidence, or shall be, acted upon, registered or authenticated by any such person or by any public. A reference to sections 35 and 58 of the Stamp Act shows that section 35 only gives finality to the decision in regard to the admissibility of the document in evidence. Ltd.VsIndo Unique Flame Ltd.[15](NN Global Case). being a partition deed in view of the other recitals contained in the document. Vs. Pukhraj Surana [MANU/SC/0036/1961 : AIR 1961 SC 1655], b) Suresh Nanda Vs. C.B.I. [13], As regards the critical question pertaining to the power of a court to grant any interim or ad interim relief under Section 9 of the Arbitration and Conciliation Act, 1996 (Arbitration Act) in the case of unstamped or insufficiently stamped documents, was answered in the affirmative based on the reasoning that the rationale of Section 9 of the Arbitration Act is to protect the matters set out specifically therein, and denial of interim relief on ground of inadequacy of stamp duty would defeat the purpose of interim reliefs. This would amount only to a deficiency curable on the payment of the requisite stamp duty and would not invalidate the main contract. These documents are identifiable by ".pdf" at the end of the document name. The Bombay High Court in Mulheim Pipecoatings GmbH v. Welspun Fintrade Ltd.[17] formulated the principles of the doctrine of separability and held that for an arbitration agreement to be null and void, requires a direct impeachment of the arbitration agreement and not simply a parasitical impeachment based on a challenge to the validity or enforceability of the main agreement. Is Insufficiently Stamped Document Admissible in Evidence? [19]Dr Mukesh Kumar Malviya, Jurisdictional Issues in International Arbitration with Special Reference to India, Bharati Law Review, Jan-March 2017,