Sanjib Banerjee, J. - (1.) The legal question that has arisen herein is whether the rejection by the arbitrator of an objection as to the admissibility into evidence of the key document which is the subject-matter of the dispute between the parties would amount to an interim award capable of being challenged under Section 34 of the Arbitration and Conciliation Act, 1996.
(2.) The arbitral reference in this case was pursuant to an order of the Chief Justice or his designate on a request by the respondents under Section 11 of the Act. The arbitration agreement is contained in the very document under which, inter alia, the rights in respect of one or more immovable properties are sought to be transferred or settled in favour of the parties. The appellants had due notice of the request under Section 11 of the Act carried to the Chief Justice of this court or his designate and chose not to participate in such proceedings. Upon the arbitral reference commencing, the appellants herein objected to the primary document, which also contained the arbitration agreement, being tendered into evidence. Since the relevant document was tendered with the affidavit of evidence of the first witness called by the respondents, the appellants cross-examined such witness, obtained an answer from him to the effect that the relevant document was unstamped and immediately lodged their formal objection with the arbitrator. Such objection was overruled. The order of the arbitrator in such regard was sought to be treated as an interim award and challenged under Section 34 of the Act before the Arbitration Court. The petition pretending to be under Section 34 of the Act was dismissed by the judgment and order impugned as not maintainable since the order passed by the arbitrator could not be regarded as an interim award.
(3.) It is submitted on behalf of the appellants at the outset that in view of the Supreme Court dictum in the judgment (SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd., 2011 14 SCC 66) an arbitration clause in a compulsorily registerable document which is not registered cannot be acted upon if the document is not properly stamped and the arbitration agreement therein can only be enforced after the deficit stamp duty and penalty are paid and the defect in the document is cured. The appellants refer to Section 35 of the Stamp Act, 1899 and the command therein couched in negative words to emphasise that no court or any person having by law or consent of parties authority to receive evidence may act upon any instrument which is required to be stamped but is not duly stamped. The appellants assert that since the matter pertains to the very jurisdiction of the arbitral tribunal and its authority to adjudicate upon the disputes between the parties or to assume the role as an adjudicator, the decision rendered on the objection amounts to an interim award in view of a recent Supreme Court judgment rendered on January 23, 2018 in Civil Appeal No.824 of 2018 (Indian Farmers Fertilizer Co-Operative Limited v. Bhadra Products).;