ASHIS KUMAR CHAKRABORTY,J. - (1.) This is an application, at the instance of the respondents in an arbitral proceeding under Section 34 of the Arbitration and Conciliation Act , 1996 (hereinafter referred to as "the Act of 1996") for setting aside the order dated July 4, 2017 passed by the learned sole arbitrator rejecting their application to recall the decision to admit the Memorandum of Understanding dated December 14, 2010 in evidence. At the very outset, Mr. Banerjee appearing for the respondents raised a strong objection with regard to the maintainability of this application under Section 34 of the Act of 1996. Shorn of details, the facts relevant for the decision in this application are that on December 4, 2010 a Memorandum of Understanding (hereinafter referred to as "the said agreement") was entered into between the present petitioners and the respondent no. 1 herein providing, inter alia, that the petitioners would transfer their undivided one-half share in the property situate at premises no. 3, S.N. Banerjee Road, Kolkata- 700013 (hereinafter referred to as "the said property") to the respondent no. 1 for Rs. 3.50 crores. According to the respondent no. 1, although he discharged his obligations under the said agreement, the petitioners refused to discharge their obligations to perform the said agreement and sought to contend that the said agreement between the parties stood annulled. Clause 10 of the said agreement provided that all disputes and differences between the parties relating to the agreement would be referred to an arbitrator appointed with mutual consent of the parties and the decision of the said arbitrator shall be binding on the parties. Accordingly, the disputes raised by the respondent no. 1 against the present petitioners, with the intervention of this Court under Section 11(6) of the Act of 1996, have been referred to the sole arbitrator, a former Judge of this Court. In the arbitral proceeding before the learned arbitrator the respondents herein were the claimants and the present petitioners were the respondents. The respondents herein, as the claimants filed their statement of claim before the learned arbitrator, claiming the following reliefs: "a. Specific performance of the terms and conditions of the Memorandum of Understanding/ Family Settlement Agreement dated December 14, 2010, by the respondents and each one of them; b. An award for specific delivery of the original Title Deed of Smt. Meera Kumari in respect of her share of the property located at premises no. 3, Surendra Nath Banerjee Road, Kolkata - 700013, a description of the said property is provided in Annexure "A" of this Statement of Claim; c. Alternatively, an award of Mandatory Injunction upon the respondents to forthwith deliver the original Title Deed of Smt. Meera Kumari in respect of her share of the property located at premises No. 3, Surendra Nath Banerjee Road, Kolkata - 700 013, a description of the said property is provided in Annexure "A" of this Statement of Claim; d. An award directing the respondents to transfer and convey their respective shares in the premises No. 3, Surendra Nath Banerjee Road, Kolkata - 700 013, though a registered conveyance, upon payment of the balance consideration of INR 2,29,00,000/- (Indian Rupees Two Crores Twenty Nine Lakhs only) by the Claimants to the respondents, on the terms provided in the Memorandum of Understanding dated December 14, 2010; e. An award of perpetual injunction restraining the respondents from dealing with and/or disposing of and/or encumbering and/or transferring in any manner their joint undivided fifty per cent share in the premises No. 3, Surendra Nath Banerjee Road, Kolkata - 700 013, a description of the said property is provided in Annexure "A" of this Statement of Claim; f. An award of perpetual injunction restraining the respondents from executing any conveyance in respect of any part or portion of the premises No. 3, Surendra Nath Banerjee Road, Kolkata - 700 013 in favour of any person other than the Claimants, a description of the said property is provided in Annexure "A" of this Statement of Claim; g. An award directing the respondents to perform their obligations in terms of the Memorandum of Understanding dated December 14, 2010 entered into between the parties; h. Receiver; i. Injunction; j. Attachment; k. Costs; l. Such further relief and/or reliefs as this Learned Tribunal deem fit and proper."
(2.) The petitioners, as the respondents in the arbitral proceeding filed their statement of defence denying the material allegations made against them in the statement of claim. They did not dispute the existence and execution of the said agreement but alleged that the same stands annulled. After the pleadings were filed, the parties exchanged their statements as to the admission and denial of the documents disclosed by the respective parties. The respondents disclosed the said agreement while the petitioners admitted the existence of the said agreement. The respondent no. 1 in his affidavit of evidence disclosed the original of the said agreement and sought to exhibit the same. In the arbitral sitting held on May 15, 2017 the respondent no. 1 proved his affidavit of evidence along with the documents disclosed therein. Since the documents disclosed by the respondent no. 1, including the said agreement were all admitted by the petitioner, the arbitrator in presence of the learned advocate appearing for the respective parties admitted the same in evidence and marked the said documents, including the agreement as exhibits with serial members. Thereafter, the cross- examination of the respondent no. 1 by the petitioner's advocate commenced. During the cross-examination of the respondent no. 1 by the petitioners various questions were put to him on the said agreement and in answer to the same he admitted that the said agreement to be not stamped nor registered. The next date of the arbitral sitting was fixed on June 12, 2017 for further cross-examination of the respondent no. 1. On June 12, 2017 the petitioners filed an application before the arbitrator claiming that the said agreement is an agreement for sale but, inasmuch as the same is not stamped for full value as a conveyance as required by the provisions of the Indian Stamp Act as applicable to the State of West Bengal, Section 35 of the Indian Stamp Act, puts an embargo to the adminisiability of the said agreement as evidence in the arbitral proceeding. In the said application, filed before the learned arbitrator the petitioners prayed for the following reliefs: "(a) An order be made recording that the Memorandum of Understanding dated 14th December, 2010 cannot be admitted as evidence for any purpose or be acted upon, registered or authenticated. (b) An order be made recording that the claimants will not be permitted to rely on the said Memorandum of Understanding for any purpose whatsoever and that no notice of the same can or will be taken by the learned Arbitral Tribunal; (c) An order be made directing all references to the said Memorandum of Understanding in the Affidavit Evidence of the respondent no. 1 to be deleted or formally expunging the same before proceeding with the trial; (d) An ad interim order be made staying all further proceedings in the present reference pending the disposal of the instant application; (e) Such further or other order orders be made and or direction or directions be given as to this learned Tribunal may seem fit and proper."
(3.) The respondents contested the said application filed by the petitioners and filed their objection. In their objection, the present respondents alleged, inter alia, that when the petitioners themselves have admitted the said agreement and the same was exhibited and admitted in evidence, without any objection from the petitioners' side, they are deemed to have waived their right to object to the admissibility of the said agreement in evidence. In the arbitral sitting held on July 4, 2017 the learned arbitrator took up the said application of the present petitioners for hearing. In support of their contention that a document with regard to the transfer of an immovable property which is not adequately stamped as per the provisions of the Indian Stamp Act , 1899 (hereinafter referred to as "the Stamp Act ") cannot be admitted in evidence, the petitioners relied on the various decisions of the Supreme Court as well as a decision of this Court. The learned arbitrator, however, found that in the present case the existence of the said agreement has been admitted by all the parties to the arbitral proceeding and they have built up their respective cases by relying upon the said agreement, as well as the terms and conditions enumerated thereof. Therefore, according to the learned arbitrator, the question as to the admission of the said agreement in evidence has become redundant. On these findings, on July 04, 2017 the learned arbitrator rejected the said application filed by the present respondents. It is the said decision of the learned arbitrator which has been challenged by the petitioners in this application under Section 34 of the Act of 1996. Appearing in support of this application Mr. Jishnu Saha, learned senior advocate submitted that the said agreement is an agreement for sale of an immovable property and as per the provisions of the Stamp Act in its application to the State of West Bengal, the same is required to be stamped for full value as a conveyance. He contended that admittedly the said agreement relating to an immovable property has not been duly stamped and in view of the provisions of Section 35 of the Stamp Act, the learned arbitrator could not have admitted the same in evidence of the arbitral proceeding. It was argued that in the present case, as per Section 35 of the Stamp Act the learned arbitrator ought to have impounded the said agreement on the ground of not being duly stamped. In support of such contention, Mr. Saha relied on the decisions of the Supreme Court in the cases of Avinash Kumar Chauhan vs. Vijay Krishna Mishra reported in (2009) 2 SCC 532, SMS Tea Pvt. Ltd. vs. Chandmari Tea Co. Pvt. Ltd . reported in (2011) 14 SCC 66 and the Division Bench decision of this Court in the case of Darothi Mukherjee (Karmakar) vs. Sri Ajay Kumar Ghosh and Ors . reported in (2017) 1 WBLR (Cal) 688. With regard to the maintainability of the this application under Section 34 of the Act of 1996 it was argued for the petitioners that in the arbitral proceeding a specific issue was raised by them with regard to the maintainability of the claim for specific performance of the said agreement on the ground that the said agreement cannot be admitted in evidence for not being duly stamped under the Stamp Act and since by the impugned decision the learned arbitrator has decided such issue in the negative, the same amounts to an 'award' within the meaning of the said term, as defined in Section 2(c) , read with the provisions contained in Section 31 of the Act of 1996. Therefore, according to the petitioner, this application under Section 34 of the Act of 1996 to challenge the impugned decision of the learned arbitrator is well maintainable. In this connection,, the petitioners relied on a decision of the House of Lords in the case of Cargill Srl Milan vs. P. Kadinopoulos S.A. reported in (1992) 1 Lloyd's Rep 1(HL), as well as the decisions of the Supreme Court in the cases of National Thermal Power Corpn. Ltd. vs. Siemens Atkeingesesellschaft reported in (2007) 4 SCC 451 and Centrotrade Minerals & Metal INC. vs. Hisdustan Copper Limited reported in (2017) 2 SCC 228. They also cited an unreported Division Bench decision of the Delhi High court dated March 02, 2017 passed in FAO(OS)(COMM)47/2017 and C.M. Nos. 7153/2017 ( National Highways Authority of India vs. Baharampore Farakka Highways Ltd .) and a Single Bench decision of the same Court in the case of Noida Toll Bridge Co. Ltd. vs. Mitsui Marubeni Corporation reported in 2005(3) Arb. LR 234 (Delhi). Referring to the said unreported Division Bench judgment of the Delhi High Court Mr. Saha submitted that in the said decision the Division Bench of the Delhi High Court has categorically held that a decision of an arbitral tribunal under sub-section (4) of Section 13 of the Act of 1996, rejecting the application of a party under sub-section (2) of Section 13 of the same Act is an award which can be challenged in an application filed under Section 34 before the Court. In the case of Noida Toll Bridge Co. Ltd. (supra), a learned Single Judge of the Delhi High Court held that a decision of an arbitrator rejecting an application for dismissal of the claim in the arbitral proceeding on the ground that the claimant is an unregistered partnership firm is an interim award which can be challenged under Section 34 of the Act of 1996. On the strength of the said decisions it was contended that in the present case the impugned decision of the learned arbitrator rejecting the petitioners' application also amounts to an interim award and the present application under Section 34 of the Act of 1996 is maintainable. In this regard, reliance was placed on behalf of the petitioner on para 9.08 under Chapter 9 of Redfern Hunter on International Arbitration (6th Edition).;