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Gaddam China Kondaiah Vs. Gaddam Pedda Kondaiah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Petn. No. 610 of 1972
Judge
Reported inAIR1974AP238
ActsStamp Act, 1899 - Schedule - Article 12
AppellantGaddam China Kondaiah
RespondentGaddam Pedda Kondaiah
Appellant AdvocateA. Venkataramana, Adv.
Respondent AdvocateB. Srinivasa Murti, Adv.
Excerpt:
.....any written reference - document taken as evidence by petitioner - respondent contended that document is award and required to be stamped - being not stamped liable to be penalized - from contents of document it appeared to be a family arrangement reached with help of some elders of village - cannot not be considered as award within the meaning of section 12 and not required to be stamped. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is..........the respective contentions of the parties, it is necessary to refer to article 12 of the indian stamp act.'award, that is to say, any decision in writing by an arbitrator or umpire , not being an award directing a partition, on a reference made otherwise than by an order of the court in this course of a suit.'the expression 'award' is not defined under the indian stamp act, we have, therefore , to look to the arbitration act , 1940. section 2(a) of the arbitration act defines 'arbitration agreement' as 'a written agreement to submit present or future differences to arbitration. whether an arbitrator is named therein or other an arbitrator is named therein or not.' under section 2(b) , 'award' means 'an arbitration award'. section 47 read with sections 2(a) and 2(b) defining.....
Judgment:
ORDER

1. This civil revision petition gives rise to a short question of law, whether a decision in writing by the arbitrators without a written reference, directing the allotment of a family business asset to one of the two brothers and in lieu of it, ordering the payment of a sum of Rs. 10,000/- to the other brother is an 'award' within the meaning of Article 12 of the Indian Stamp Act.

2. In order to appreciate the scope of the question it is necessary to state the material facts which lie in a short compass. The petitioner filed O. S. No. 22 of 1967 on the file of the Sub-Court, Kavali, now renumbered as O. S. No. 45/1971 Sub-Court, Kandukur , against the respondent , his elder brother , for the recovery of Rs. 10,828/- on the foot of a family arrangement evidenced by an unstamped and unregistered document dated October 2 , 1965. When the document was filed into the Court, it was treated as an agreement and stamp duty as well as penalty were levied on that basis. But, however , in the course of the trial and when the document was sought to be marked and exhibited, the defendant took an objection that it is an award passed by arbitrators and, therefore, liable to stamp duty and penalty. The contention advanced on behalf of the plaintiff that the suit document relates to only a family arrangement, but it is not an award did not find favour with the trial Court. It was found that the document is a decision given by the elders chosen by the parties to the suit and, therefore ,it is an award within the meaning of Article 12 of the Indian Stamp Act and it is liable to Stamp duty and penalty. Hench this civil Revision Petition.

3. Mr. A. Venkata Ramana, the learned counsel for the petitioner, contended that the suit document is not an award within the meaning of Article 12 of the Stamp Act , as it is not a decision of the arbitrators on a reference in writing and, in any event , it comes under the exception as it is award directing the partition of family trade or business (an item of property of the joint family). This claim of the petitioner is resisted by Mr. B. Srinivasa Murty, the learned counsel for the defendant , contending interalia that the document is not an award directing partition of any family property but it is only a decision directing one party to pay a decision directing one party a specified sum of money on relinquishment by the other party of his right in the defendant's business and, therefore , the Court below has rightly held the document to be an award libale to stamp duty and penalty.

4. In order to appreciate the respective contentions of the parties, it is necessary to refer to Article 12 of the Indian Stamp Act.

'Award, that is to say, any decision in writing by an arbitrator or umpire , not being an award directing a partition, on a reference made otherwise than by an order of the court in this course of a suit.'

The expression 'award' is not defined under the Indian Stamp Act, We have, therefore , to look to the Arbitration Act , 1940. Section 2(a) of the Arbitration Act defines 'arbitration agreement' as 'a written agreement to submit present or future differences to arbitration. Whether an arbitrator is named therein or other an arbitrator is named therein or not.' Under Section 2(b) , 'award' means 'an arbitration award'. Section 47 read with Sections 2(a) and 2(b) defining 'arbitration agreement' and 'award' respectively, makes it abundantly clear that any arbitration proceeding is governed by the provisions of the Act. There can be no award within the meaning of Section 2(b) without an agreement in writing, any decision given by the arbitrators cannot strictly be termed as an arbitration award within the meaning of Section 2(b). To put it differently, for any decision of the arbitrators or umpire to be called an arbitration award, there must have been an agreement in writing referring the matter in dispute between the contending parties, to the arbitrators , in other words, every decision of an arbitrator or umpire would not become an arbitration award.

5. I shall not advert to the provisions of Article 12 of the Indian Stamp Act. The expression 'award' used in Article 12 must be given the same meaning as under the Arbitration act . In order to hold a particular document to be an award within the meaning of Article 12 of the stamp Act, the following requisite conditions must be satisfied (I) there should be a decision by an arbitrator or umpire , (ii) Such decision must be in writing but not oral, (iii) It should not be an award directing a partition , (iv) The decision of the arbitrator of umpire must be on a reference made in writing by the parties outside the court. Any decision in writing made by an arbitrator or umpire on a reference made by an order of the court in the course of a suit, is not an award within the meaning of Article 12. The submission of Mr. Srinivasa Murthy that the expression 'on a reference made other wise than by an order of the Court' used in Article 12 does not apply to a decision in writing by an arbitrator or umpire, but it governs only 'an award directing a partition', cannot be acceded to. The submission of the counsel that no reference is contemplated in the case of a decision in writing of an arbitrator or umpire and it is enough if the document in question is a decision in writing by an arbitrator is without substance. In my considered opinion, the latter part of Article 12 is applicable to 'any decision in writing by an arbitrator or umpire' but not only to 'an award directing a partition' is referable to 'any decision in writing by an arbitrator or umpire' as well as 'an award directing a partition.' The reference that is contemplated is one made otherwise than by an order of the Court in the course of a suit. I do not find any difficulty to reject the interpretation sought to be placed by Mr. Srinivasa Murthy.

6. The further contention of Mr. Srinivasa Murthy that the reference contemplated under Article 12 need not necessarily be in writing and it is enough, if there is oral reference to an arbitrator or an umpire for the settlement of the dispute, cannot be given effect to. The Stamp Act being a Special Act, the definition of the word 'award' used in Section 2(b) apply according to the respondent's counsel. As pointed out earlier, there is no definition of the word 'award' as given in the Arbitration Act .

7. In the light of the foregoing discussion, I shall examine the contents of the documents , in order to find out whether it is an award within the meaning of Article 12 of the Stamp Act or not. For construing any document, the terms thereof have to be looked into. Normally, no extraneous or oral evidence can be entertained in construing the nature of he document. The document in question reads that the plaintiff and the respondents have agreed to accept the meditation of the seven named elders of the village for the partition of their family property and the mediators have effected the partition of the family properties four months prior to the date of that document and the parties have been following and the parties have been following the settlement arrived at by the mediators. As the respondent herein has been carrying on ghee and butter business and other business at Madras since 25 years and the plaintiff has no capacity to carry on business, the mediators have settled that the respondent should have the business and in lieu of it, the plaintiff should be paid a consolidated sum of Rs. 10,000/- by the respondent. The mediators have advised for the registration of the partition deed at the expense of both the individuals. A reading of the document shows that the dispute was referred for arbitration, but it does not disclose that the reference was made by the parties in writing. It may be an oral reference. I am unable to agree with the submission of Mr. Venkata Ramana that as the document has been signed by the parties, it cannot be held to be an award. There may be awards passed by arbitrators in which parties affixed their signatures or thumb impressions to show their acceptance of the terms of the awards. Hench, the mere signing of the document by the parties does not destroy the effect of an award. If it is otherwise, a valid award. For all the reason stated , I hold that the document in question in only a family arrangement, but not an award within the meaning of Article 12 of the Indian Stamp Act and it is not liable to stamp duty and penalty.

8. In the result, the revision petition is allowed but, in the circumstances, without costs.

9. Revision allowed .


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