## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN**
## **FRIDAY, THE 13TH DAY OF JANUARY 2012/23RD POUSHA 1933**
## **OPC.No. 2940 of 2011 (O)**
**-------------------------------------OS.NO.584/2011 OF 1ST ADDL.MUNSIFF COURT, ERNAKULAM --------------------------**
**PETITIONER(S)/PETITIONER:**
**-------------------------------------------**
**JOSEPH VILANGADAN,S/O. ULAHANNAN, AGED 70 YEARS, VILANGADAN HOUSE, MAMANGALAM, COCHIN-682 025.**
**BY ADVS.SRI.K.BABU THOMAS SMT.MARYKUTTY BABU**
**RESPONDENT(S):**
**---------------------------**
**M/S. AASMA TECHNO PRODUCTS PRIVATE LIMITED, REPRESENTED BY MANAGING DIRECTOR, SRI.T.MOHAMMED ASHRAF, S/O.LATE HAJI K. ASSAINAR, AGED 52 YEARS, RESIDING AT 48 B, LINK HEIGHTS, PANAMPILLY NAGAR, COCHIN-682 036.**
**BY ADV. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH**
**THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**sts**
## **OP(C)NO.2940/2011**
## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
- **P1 COPY OF THE PLAINT DATED 30/6/2011.**
- **P2 COPY OF THE PRELIMINARY WRITTEN STATEMENT DATED 11/7/2011.**
- **P3 COPY OF THE I.A.NO.4206 OF 2011 DATED 14/7/2011.**
- **P4 COPY OF THE I.A.NO.4203/2011 DATED 14/7/2011.**
- **P5 COPY OF THE ORDER IN I.A.NO.4206/2011 IN O.S.NO.584 OF 2011 DATED 01/8/2011.**
## **RESPONDENT'S EXHIBITS: NIL**
## **/TRUE COPY/**
## **P.S.TO.JUDGE**
**sts**
**S.S.SATHEESACHANDRAN, J. ----------------------------------------------O.P.(C)No.2940 of 2011-O ----------------------------------------------Dated this the 13[th] day of January, 2012**
## **JUDGMENT**
Ext.P5 order passed by the 1[st] Additional Munsiff, Ernakulam in I.A.No.4206/11 in O.S.No.584/11 is challenged in this original petition.
2. Petitioner is the defendant in the above suit, which was filed by the respondent for a decree of perpetual prohibitory injunction. Ext.P1 is copy of the plaint in the suit. Petitioner/defendant, on entering appearance, filed Ext.P2 statement raising a preliminary objection that the court has no jurisdiction to entertain the suit, since the agreement entered by the parties contained an arbitration clause to resolve the disputes
## **O.P.(C)No.2940 of 2011-O**
**:: 2 ::**
raised in the suit. Admittedly, the petitioner/defendant is the owner of the building and premises, which have been let out under a lease agreement to the respondent/ plaintiff. The suit was laid canvassing a decree of prohibitory injunction to restrain the owner/landlord from causing any obstruction to the respondent/lessee from constructing a latrine cum bath room and also installing of diesel generator in the premises. The lease arrangement which provided a term of 11 months has already expired and, at best, the tenancy enjoyed by the plaintiff was one of holding over and in view of the arbitration clause under the agreement entered between the parties disputes, if any, between them over the leased premises are to be resolved by way of arbitration was, in short, the objections
## **O.P.(C)No.2940 of 2011-O**
**:: 3 ::**
raised by the respondent/defendant filing Ext.P2 preliminary statement canvassing for orders under Section 8 of the Arbitration and Conciliation Act, 1996 {for short “the Act”}. Petitioner also filed a separate application to dismiss the suit and refer the parties to arbitration in view of the existence of the arbitration agreement, as under Section 8 of the Act. Ext.P3 is the copy of that petition. Plaintiff, thereupon, moved Ext.P4 application to direct the defendant/owner to produce the original of the lease agreement, though both parties had produced copies of the lease agreement. In the light of Ext.P4 application moved by the petitioner, the court ordered production of the original by the defendant, and in compliance thereof, the original lease agreement was produced.
## **O.P.(C)No.2940 of 2011-O**
**:: 4 ::**
3. After examining the original lease agreement taking note that it has not been properly and sufficiently stamped, the court found that a stamp duty and penalty of Rs.5,43,000/- is due for validating that document, and the plaintiff was directed to pay such sum within the time fixed. Since such payment was not made, the document was ordered to be impounded and sent over to the District Collector for realisation of the deficit stamp duty and penalty. Propriety, legality and correctness of Ext.P5 order is challenged in this original petition.
4. I heard the counsel on both sides.
5. What has been called upon by the court in the suit, under Ext.P2 statement and Ext.P3 application was whether it has jurisdiction to entertain the suit in view of
## **O.P.(C)No.2940 of 2011-O**
**:: 5 ::**
the arbitration clause in the agreement of lease entered. The agreement containing the arbitration clause to enter a finding on that question was tendered before the court. The larger question then comes up for consideration is whether such document, whether it be original or copy, was a material tendered in evidence before the court, in which the question of deficit stamp duty or penalty on such document even if so found due can be gone into by the court. Section 34 of the Kerala Stamp Act deals with the procedure to be followed when an insufficiently stamped instrument is produced before the court for being admitted in evidence. What the Section postulates is that the instrument which is required to be stamped under the aforesaid Act, if tendered to be admitted in evidence, at
## **O.P.(C)No.2940 of 2011-O**
**:: 6 ::**
that stage the court has to go into the question whether it has been properly stamped for being admitted in evidence. In the present case, the document was produced not for being tendered in evidence, but only to facilitate and rather to enter a decision on the question posed by the defendant that the court has no jurisdiction to entertain the suit, as the parties have to resolve the disputes in terms of the arbitration clause covered by that agreement. When that be so, Ext.P5 order passed by the learned Munsiff as if the agreement produced was tendered in evidence, invoking its powers for impounding such document as insufficiently stamped, and for sending it over to the District Collector for realisation of the stamp duty and penalty, was not only irregular, but patently unsustainable
## **O.P.(C)No.2940 of 2011-O**
**:: 7 ::**
in law. Ext.P5 order is liable to be quashed, and I do so.
6. In the context, it is also to be pointed out that for the purpose of an enquiry under Section 8(1) of the Act, the original agreement containing the arbitration clause as such need not be produced, nor be insisted upon. A copy of the agreement, if it is not disputed by both sides, can be looked into and appropriate decision can be taken in an enquiry under Section 8(1) of the Act. The Apex Court in Bharat Sewa Sansthan v. U.P.Electronic Corpn. Ltd. {2007 AIR SCW 5399} considering the aforesaid question in paragraph 21 of that case, has held that photo copy of the lease agreement could be taken on record under Section 8(1) of the Act for ascertaining the existence of an arbitration
## **O.P.(C)No.2940 of 2011-O**
## **:: 8 ::**
clause. Scope of enquiry canvassed for in such a case is very much limited as to the only question to be gone into is whether there is an arbitration clause in the agreement, governing the parties. Looking into the original or photo copy of the agreement having regard to the plaint allegations, a decision under Section 8 of the Act has to be taken in such case, and in doing so, the court is not admitting the document in evidence or not even acting on it, as contemplated under Section 34 of the Kerala Stamp Act.
7. The learned counsel for the respondent/plaintiff has contended that in spite of the arbitration clause in the agreement, still, on the facts and circumstances involved in the case, the civil court alone has jurisdiction over the disputes canvassed for and
## **O.P.(C)No.2940 of 2011-O**
**:: 9 ::**
the reliefs claimed in the suit, which, according to the counsel, is outside the domain of an arbitration tribunal. The parties on both sides can definitely canvass their case on such questions, before the court below to determine its jurisdiction to entertain the suit, in the enquiry and hearing on the merits of Ext.P3 application.
8. Ext.P5 order is set aside. The court below shall consider and dispose of Ext.P3 application taking note of the observations made above, that determination of deficit stamp duty or penalty, if any, on the agreement produced does not arise in such enquiry. Ext.P3 application shall be disposed of, after hearing both sides, as expeditiously as possible, at any rate, within a period of six weeks from the date of receipt/production of a copy of this judgment.
## **O.P.(C)No.2940 of 2011-O**
**:: 10 ::**
Original petition is disposed of as
above.
Sd/-
(S.S.SATHEESACHANDRAN) JUDGE
sk/-
//true copy//
P.S. to Judge.
