A.K.SARKAR - (1.)IN this case an arbitration agreement had been filed in court under S. 20 of the ARBITRATION AND CONCILIATION ACT, 1940, and an order of reference made thereon. The arbitrator in due course entered upon the reference and made and filed his award in court on 14/07/1955. The award concerned partisan of certain properties between the wife and children of one Bhairon Bux.
(2.)THE award was however unstamped and unregistered: An objection was taken to a judgment being passed on such an award. On such objection, the trial court passed an order remitting the award to the arbitrator for re-submitting it to the court on a duly stamped paper and after getting it registered.
Against this order the High Court at Nagpur was moved in revision. The learned Single Judge hearing the revision application took the view that the award required to be stamped. But he felt that it could not be remitted to the arbitrator under S. 16 of the Arbitration Act which is the only provision under which an award can be remitted to an arbitrator. It appears that there was an earlier judgment of the Nagpur High Court in the case of Ramkumar v. Kushalchand, AIR 1928 Nag 166, in which it had been held that where the award was unstamped it could under paragraph 14 of schedule I to the Code of Civil Procedure be remitted to the arbitrator with a direction to re-write it on a stamped paper and re-submit it to court. The provisions of that paragraph of the Code have now been substantially reproduced in S. 16 of the Arbitration Act. The trial judge had based himself on this earlier judgment of the High Court. The learned Single Judge was apparently not satisfied with the correctness of the decision in Ramkumar's case AIR 1928 Nag 166, and he referred three questions for decision by a larger bench of that High Court. The questions referred were ;

(a) Is the award made on a reference by the Court on an application under S. 20 of the Arbitration Act chargeable to stamp duty?

(b) Is such an award compulsorily registrable when it relates to partition of immovable property of the value of one hundred rupees and upwards?

(c) Has the Court powers under S. 16 (c) of the Arbitration Act of 1940 or otherwise to remit an award to the arbitrator or umpire to get it stamped and/or registered?

The matter was thereupon heard by a Division Bench of the High Court constituted by two learned Judges. Before them it was agreed by both the parties that the award required to be stamped. This disposed of the first question. The learned Judges felt that it was not necessary at that stage of the proceeding to answer the second question, namely, whether the award required registration. In the result they only answered the third question as to whether an award could be remitted under S. 16 (c) of the Arbitration Act to the arbitrator to get it stamped and they answered that question in the affirmative. They held that a want of stamp would be an illegality apparent on the face of the award and therefore the case would fall under S. 16 (1) (c) of the Arbitration Act. They also held, following the case of Lakhmichand v. Kalloolal, 1958 Nag LJ 504, that the copying of the award on a stamped paper was purely ministerial, and making of an award did, not deprive the arbitrator of the authority to copy an award on the requisite stamp paper. They approved of the decision in AIR 1928 Nag 166. The present appeal is against this judgment of the Division Bench. The only question argued at the bar was whether the answer of the Division Bench to the third question was correct.

(3.)NOW S. 16 (1) (c) of the Act is in these terms :
S. 16 (1) : "The Court may from time to time remit the award or any matter referred to arbitration to the arbitrators or umpire for reconsideration upon such terms as it thinks fit-

(c) where an objection to the legality of the award is apparent upon the face of it."

We think that the Division Bench of the High Court was clearly in error. Under S. 16 of the Arbitration Act an award can be remitted to the arbitrators only for reconsideration. When it is remitted for rewriting it on a stamped paper, it is not remitted for reconsideration. Reconsideration by the arbitrators necessarily imparts fresh consideration of matters already considered by them. Now they can only consider and give a decision upon matters which are referred to them under the arbitration agreement. It follows that the reconsideration can only be as to the merits of the award. They reconsider nothing when they re-write the award on a stamped paper. We think the matter was correctly put by Mitter J. in Nani Bala Saha v. Ram Gopal Saha, AIR 1945 Cal 19, at p. 22, in the following observation :

"That cl. (c) means this and nothing; more : namely, that where the court finds an error of law in the award itself or in some document actually incorporated thereto on which the arbitrator had based his award that is to say, finds the statement of some erroneous legal proposition which is the basis of the award, it can remit the award to the arbitrator for reconsideration" and "Want of registration is a defect de hors the award or the decision of the arbitrator, and so in our judgment is not covered by cl. (a) of S. 16 (1), Arbitration Act of 1940".

What was said there about a want of registration is clearly equally applicable to a want of stamp.