Thread by @lawbarandbench

#SupremeCourt Constitution Bench led by Justice KM Joseph to hear plea regarding validity of an #arbitration agreement embedded in an unstamped contract.

#SupremeCourtOfIndia

Hearing to commence at 2pm.

#SupremeCourt #arbitration

Sr Adv Gourab Banerji: Union need not be a party to this.

SC: Very well.

Counsel speaks of an IA filed.

#SupremeCourt

SC: You are the Amicus.

Banerji: Lordships may hear me first. Have had a lot of thought about this, talked to the appellant also. I will read two judgments. Some parts i do not agree with.

#SupremeCourt

Banerji: Matter arises out of a reference in the NN global case. It has implications. Issue arising is really mainly in the Section 11 Jurisdiction. Two opposing views. One is that if someone points out that a document is insufficiently stamped, you as judge have to impound.

Banerji: Bombay HC is doing this. Delhi is .. some Arbitrators are awaiting the outcome of this reference, there is a khichdi, that is the practical aspect.

SC: Oh.

Banerji: We have filed 4 compilations. First is of reference Judgments. There are 3.

#SupremeCourt

Banerji: Second volume is in Re the Stamp Act. Arbitration appears very glamourous do focus mostly is with the Act, but not usually enough on the Stamp Act. One is the Arbitration Act and one is a Law Commission Report. One is my note showing people have disparate views ...

Banerji: make intemperate remarks. I am sorry it is voluminous i have referenced paragraph numbers to simplify.

#SupremeCourt

Justice Bose: One question Mr Banerji. Arbitration agreement is essentially an agreement within an agreement. There are two. So for the stamping purpose what is its valuation?

Banerji: I can answer that. Instrument not the agreement is vital. Value fixed under..

#SupremeCourt

Banerji: Stamp Act, it deals with this. Higher value, the agreement with more substantive value is taken.

#SupremeCourt

Banerji: In an 11 6 a situation l, there is no impediment to appoint. We have to balance both, you want to proceed quickly. On the other hand, stamp act is a fiscal tool of the State. Question is do you protect it at the stage of 11 or leave it to the Arbitrator under 35?

Banerji: Not something escaping tax bracket.

Banerji reads NN Global judgment.

#SupremeCourt

Justice Rastogi: 6 a has been deleted but not notified. It leaves no room for Judicial discretion.

Banerji: In fact 11 6 a deletion and notification will mean it will Totally do away with role of courts and leave it to institutions that are notified.

#SupremeCourt

Banerji: 85 countries have model this law, Article A. No other country has nay Jurisdiction on any aspect of this, but courts have amended it. Why?

SC: Judicial overreach?

Banerji: No it is not the court's fault. There are appeals, but we have footballed it such that S 11

Banerji: applications are before this court and long judgments are written. All that Courts need to see are if an arbitration agreement exists, nothing more nothing less.

#SupremeCourt

Justice Rastogi: What will be the effect of the exercise before us if that deletion is notified?

Justice Joseph: Same problem will be there in that body, us looking into it is agnostic.

Banerji: They will not get into stamped unstamped.

Banerji: In fact even this apointment of arbitrator was not meant to be a big thing. It was only there to break deadlocks.

#SupremeCourt

Justice Joseph: Judgment of Justice Ravindran, please see the example.

Banerji: Question is of 16, which says validity, existence and Jurisdiction wider than the other two. These are questions or evidence.

SC: Point is in such case there is no question of duality of agreement

SC: Everything has to be paid at once back.

Banerji: There is a scope for competence competence, to decide on Jurisdiction you may have separate agreements. Nobody looks at Stamp Act, even i was guilty of the same.

#SupremeCourt

Banerji: What is chargeable is the instrument not the transaction.

#SupremeCourt

Banerji: I will show the problems in NN Global. The assumption that an arbitration agreement even a standalone one is not liable to stamp duty may not strictly be correct.

#SupremeCourt

Banerji: other is the enabling of impounding.

Banerji: I am only flagging them now, my lordships will have to construe them at some point.

#SupremeCourt

Banerji: What is the legal basis of an unstamped agreement is ...

Justice Bose: Court is to see whether there is an agreement or not, which is annexed. Does it then not lead to question of evidence to be examined?

Banerji: word existence is key. All terms used differently.

Banerji: We should not fall into question of judicial vs administration. Question is if scope.

Justice Bose: Whether there is Arbitration or not.

#SupremeCourt

Banerji: Question really is whether you can even look at such documents, because then you are admitting it into evidence.

#SupremeCourt

Banerji: Existence in some cases read widely, whether there was reliance or not ...

Banerji: All these orders show that merely because a document is unstamped, it does not become invalid as per law.

Justice Roy: it was also about collection of stamp duty. How did they deal with that?

Banerji: Section 36 was not resorted to.

#SupremeCourt

Banerji reiterates that multiple judgments under reference.

#SupremeCourt

Banerji: HC and SC are not the ones mentioned in the 2 1e. They are mentioned separately in Section 11.

SC: What is the reason behind the deletion not being notified?

Banerji: Govt will be able to answer that. As in understand, Justice Hemant Gupta now heads the body that will give accreditations.

#SupremeCourtofIndia

Justice Rastogi: Arbitration is an additional, alternative window and mechanism given to those do not want traditional litigation. Now looking into stamped unstamped and rights of parties, which is at stage of adjudication, it is not a dispute but to bring to a common stand.

Banerji: It has to be stamped once substantive disputes come before the Arbitrator. Not the court.

Justice Joseph: Ultimately, court is to only decide if bar under Section 35 is attracted here, not go into validity.

Banerji: Yes. Existence can be read in whichever way.

Banerji reads from judgments under reference and other SC decisions relying on the same.

Hearing to continue hearing.

#SupremeCourtofIndia