Arindam Sinha, J. - (1.) The Court : This arbitration petition is for appointment of arbitrator. Mr. Nag, learned Advocate appears on behalf of petitioner and submits, arbitration agreement is article XVII in development agreement dated 26th May, 2010. In this development agreement, owners constitute several persons as described therein, some of whom were represented by others in executing the agreement on behalf of and by the owners. His client is developer. He refers to paragraph 28 in the petition to show that agreement of development dated 26th May, 2010 had been said to have been executed in between his client and respondents. Inter alia, this paragraph was dealt with in paragraph 15 of affidavit-in-opposition. There is no denial regarding owners having executed the agreement.
(2.) He next submits, there was adjournment granted on prayer made by him, as in order dated 1st October, 2018, to enable his client to deposit stamp duty and penalty payable. His client approached office of Collector of Stamp Revenue, Kolkata. He hands up memo dated 29th January, 2019 to submit, assessment is pending. Nevertheless, it is his submission today that the development agreement carries prescribed stamp duty. Referring to Schedule 1A in West Bengal Stamp Duty Manual, entry 5 he submits, more than prescribed stamp duty of Rs.10/- was paid on the document executed on 26th May, 2010. Insertion by West Bengal Finance Act, 2012, with effect from 1st April, 2012, is, inter alia, clause (f) in exemption under explanation to clause (e) in entry 5. That inserted clause requiring stamp duty to be paid on development agreement depending on market value of the property is not applicable to the development agreement as executed prior to 1st April, 2012 and not related to matters otherwise provided for, to come under residuary clause (e) in entry 5 attracting Rs.10/- stamp duty. On disputes arisen, his client issued notice dated 28th March, 2017, inter alia, requesting respondents to agree to sole arbitration of nominee notified thereby. By letter dated 12th April, 2017 appearing respondents disapproved of his client's nominee. As such, there be appointment of arbitrator since agreed procedure for appointment of sole arbitrator has failed. Hence, his client's request for Court to take necessary measure for appointment of arbitrator.
(3.) He relies on judgment of Supreme Court in SMS Tea Estate Pvt. Ltd. Vs. Chandmari Tea Co. Pvt. Ltd., reported in (2011) 14 SCC 66 to submit, Supreme Court declared that arbitration agreement contained in document compulsorily regisgtrable but not registered could be acted upon on payment of stamp duty and penalty. However, he reiterates, arbitration agreement is contained in development agreement duly stamped. Mr. Haque, learned Advocate appears on behalf of respondent nos.1 to 7, and submits, his clients dispute that the agreement was executed by all respondents. That goes to root of the matter of existence of it. He relies on judgments of Supreme Court in - (a) Naina Thakkar Vs. Annapurna Builders reported in (2013) 14 SCC 354 , paragraphs 5 to 7; and (b) Black Pearl Hotels Pvt. Ltd. Vs. Planet M. Retail Ltd. reported in (2017) 4 SCC 498 , paragraph 16. Dispute raised by appearing respondents regarding execution of the agreement by all parties named in the agreement is without substance. Record of submissions made on behalf of petitioner with reference to pleadings demonstrate that there can be no such dispute raised. Appearing respondents include those respondents who in the agreement have been described as representing others and have undisputedly signed the same. Record of submissions made on behalf of petitioner regarding prescribed stamp duty having been paid are also accepted. As on date of the development agreement, it did not find description in any of the entries in Schedule 1A on or before 1st April, 2012 thereby making it an agreement or memorandum of agreement covered by clause (e) in entry 5 of said schedule attracting stamp duty of Rs.10/-. This conclusion is irresistible even though insertion by W.B. Finance Act, 2012 is under "Exemptions" because, exemption can be from payment of prescribed stamp duty of Rs.10/- while the insertion requires payment of 'proper' stamp duty. The document on the face of it carries stamp value of Rs.100/-. As such, nature and character of the document is, in view of this Court, a document being an agreement that required prior to 1st April, 2012 stamp duty of Rs.10/-. Document of similar nature but executed thereafter, stamp duty relatable to market value of the property that is subject-matter of such an agreement is payable. Supreme Court in Black Pearl Hotels Pvt. Ltd. (supra), in paragraph 16 said as follows : "It is evident from the impugned order that the learned Judge has left both the aspects, that is, determination of the nature and character of the document and impounding of the same to the Registrar. Therefor, the sentinel question that arises for consideration is whether the learned Single Judge for the purpose of determining the character of the instrument could have delegated the authority to the Registrar. A judicial functioning has to be done in a judicial manner. The duty of determination of an instrument or, to explicate, to determine when there is a contest, a particular document to be of specific nature, the adjudication has to be done by the Judge after hearing the counsel for the parties. It is a part of judicial function and hence, the same cannot be delegated. Be it noted, under the High Court Rules, in certain High Courts, the computation is done by the authorities in the Registry with regard to the court fees but that also is subject to challenge before the Court when the applicability of a particular provision of the Court Fees Act, 1870 is concerned. Thus analysed, we are inclined to think that the authority is not empowered to determine the nature and character of the document. He may at the best send a report to the court expressing his views on a document which is subject to final determination by the court". ;