Citation-2018 SCC OnLine SC 1471
Court – Supreme Court of India
Coram – J. R.F. Nariman
Date – 13-September-2018.
Issue –Whether non stamping of a foreign award would render in unenforceable in India as per the Arbitration and Indian Stamp Act.
This present appeal to the Supreme Court lies from an order of the Madras High Court where the Single Judge allowed the enforcement of a foreign award. The Single bench judge rejected the contentions of the appellant that there was no stamp duty paid on the award and hence it could not be enforced as per section 48 and 49 of the Arbitration Act, 1996.
The award was passed by the ICC in London on 12-02-2015, in which the Appellants had to pay a sum of money to Rioglass for damages for breaching the terms of the agreement.
Hence, this present appeal arises in the Supreme Court where the issue of whether stamp duty is payable on foreign awards is addressed.
There were a few contentions raised by the Appellants and Respondents. The Appellants citing the Gurjals Co. v. M.A. Morrisof the Punjab and Haryana High Court stated that the Indian Stamp Act also covers Foreign Awards and as the Article 3 of the New York Conventions recognizes and makes provisions for the fees and charges for the recognition and enforcement of foreign awards. Citing another case ofOrient Middle East Lines Ltd, Bombay and Anr, v. Brace Transport Corporation of Monrovia (1985) the Gujarat High Court stated that the New York Conventions itself states that the foreign award may have to bear the stamp duty of the country in which they are to be enforced and hence this award also requires the payment of stamp duty as per the Indian Stamp Duty Act.
The Respondent’s referred to the case of Naval Gent Maritime Ltd v. Shivanath Rai Harnarain ltd (2009) and Narayan Trading Co. v. Abcom Trading Pvt ltd. (2012), stated that the Schedule I of the Indian Stamp Act, 1899, does not include the provisions or the term of foreign award and further the requisites under section 47 of the Arbitration act, 1996 for the enforcement of a foreign award also does not include payment of stamp duty.
The Supreme Court while deciding on this case also referred to various judgments to make a clear stance on this issue-
- The case of Senior Electric Inspector and Ors. V. Laxminarayan Chopra and Anr(1961), there can be no presumption made to confine the intention of the legislature with regards to awards. As back then also the concept of foreign awards very well existed and hence the usage of the word ‘award’ as a general term to include foreign awards as well is not right. As it is clear from the actions of the legislature that they wanted to exclude the stamp duty on foreign awards.
- The case of M/S Furest day Lawson ltd v. Jindal Exports (2001)and Thyssen Stahlunion GMBH v. Steel Authority of India Ltd (1999), both the judgments is by a two bench judge and both of these judgments state that a foreign award are already stamped and there can never be a stamp duty imposed upon foreign awards. This is because of the simple reason that after the amendments made to the Arbitration Act there was no amendment or changes made to the term ‘award’ in the Indian Stamp Act to include or cover ‘foreign awards’.
The Supreme Court upheld the judgment of the Madras High Court and stated that there is no requirement for a foreign award to be stamped for it to be enforced. The two simple reasons for that is as per Section 47 of the Arbitration Act 1996, the three requirements that are required for the enforcement of a foreign award does not require it to be stamped and the definition of ‘award’ in the Indian Stamp Act does not include foreign awards.