M/s. N.N. GLOBAL MERCANTILE PVT. LTD v. M/s. INDO UNIQUE FLAME LTD & Ors.

Maintainability of the Writ Petition

This Court is of the view that the Writ Petition filed by the Respondent No. 1 to challenge the Order dated 18.01.2018 passed by the Special Commercial Court / District Judge-I in Commercial Dispute No. 62/2017 was not maintainable, since a statutory remedy under the amended Section 37 of the Arbitration Act is available. [Para 9.1][993-B-C]

Since the judgment and order of the Commercial Court dated 18.01.2018 refusing to refer the parties to arbitration was an appealable order under Section 37(1)(a) of the Arbitration Act, the Writ Petition was not maintainable. The appeal would lie before the Commercial Appellate Division of the High Court under Section 13(1A) of the Commercial Courts Act, 2015. [Para 9.2][993-E-F]

This Court considers it appropriate to refer the following issue, to be authoritatively settled by a Constitution bench of five judges of this Court : “Whether the statutory bar contained in Section 35 of the Indian Stamp Act, 1899 applicable to instruments M/s. N.N. GLOBAL MERCANTILE PVT. LTD. v. M/s. INDO UNIQUE FLAME LTD. & OTHERS 941 chargeable to Stamp Duty under Section 3 read with the Schedule to the Act, would also render the arbitration agreement contained in such an instrument, which is not chargeable to payment of stamp duty, as being non-existent, un-enforceable, or invalid, pending payment of stamp duty on the substantive contract/instrument?’’ [Para 12][995-C- E] Vidya Drolia & Ors. v. Durga Trading Corporation [2019] SCR 465; Garware Wall Ropes Limited v. Coastal Marine Constructions and Engineering Limited (2019) 9 SCC 209 : [2019] 5 SCR 579 – referred to Constitution Bench. SMS Tea Estates Pvt. Ltd. v. M/s. Chandmari Tea Co. Pvt. Ltd. (2011) 14 SCC 66 : [2011] 9 SCR 382 – partly overruled.