' WAJIHUDDIN AHMED, J.--Through this High Court Appeal, Order dated 16-1-1986 of a learned single Judge of this Court in J.M. 7/79 is assailed.
2. Before, however, this appeal was taken up for hearing on merits, objection was raised on behalf of the respondent that the appeal was barred by time should be dismissed on that ground alone. The appeal, when presented, was 'accompanied by an application under section 5 of the Limitation Act (C.M.A. 321/86). Such application was granted but subject to all just exceptions and the appeal was admitted on 17-4-1986. Now, at the stage of regular hearing, objection has been taken to the appeal being beyond time and not maintainable even though no counter-affidavit to the application under section 5 ibid. Has been filed. Mr. Rauf explains the omission by saying that the refrain from filing a counter-affidavit was an motives of delicacy as the affidavit in support of the application was sworn by Mr. S. Hamid All Rizvi, learned counsel for the appellant, in person. This may be so and quite properly because as against the word of a learned counsel counter-word of a party, in the domain of facts, unless well founded, may best be not risked. However, objections to the application, on the legal plane, if occasioned, could have been submitted but even that was not done. An oral objection of this nature, at the stage of hearing of the appeal, as regards an application which tentatively stands granted, involves an element of peremptoriness and the potential of taking the other party by surprise. This does not seem right. As such, no exception, at any material time, having been taken to the application the matter really does not emerge for re-consideration. On this basis alone we could have heard the appeal on merits treating the chapter of delay as closed. However, even on its own potential; we think the application should be allowed. As seen, the order under reference was passed on 16-1-1986. Application for certified copies was filed on the same day and the certified copy was made ready on 25-1-1986. It was delivered on 27-1-1986. Mr. Rizvi, erroneously, believing that an appeal lay to the Supreme Court of Pakistan and the period of limitation was sixty days, so intimated to the appellant in the context of the passage of the above order. On 15-2-1986, he received necessary instructions vide a letter dated 5-2-1986. Relevant correspondence, inclusive of envelope wherein letter dated 5-2-1986 was dispatched and received, have been placed on record. At the time of drawing the appeal, it is said, that the learned counsel realized that such appeal lay to a Division Bench of the Court and not to the Supreme Court. As such, this appeal was presented on 25-2-1986. Taking the period of limitation as twenty days and excluding the time involved in obtaining certified copy of the order, there is delay of some 10 days.
3. It is urged for the respondent that ignorance of law is no excuse and, further, a council is expected to know the law. If, therefore, counsel acts negligently the party must suffer. There can be no cavil with the proposition that, speaking broadly, ignorance of law is no excuse. However, there is no presumption that a person knows all the law. Even about lawmen the rule is that whereas no lawyer knows or is expected to know all the law, a lawyer only knows as to where the law is. Even the most adroit amongst lawyers, jurists and judges have no pretentions other than being students of law, for law, not unlike knowledge, is an unfathomable and boundless ocean. Therefore, even the best of counsel may make mistake as to limitation and if the mistake is a bona fide one, it can he considered for condonation under section 5 of the Limitation Act. Due diligence is, normally, sine qua non in these matters as that is how good faith has been defined in the Limitation Act. But even a degree of negligence, meaning thereby common place or negligence simplicity, as distinguished from gross negligence, has been condoned under section 5 of the Limitation Act. In this case the appeal pertains to an order on a judicial Misc. Application. Till, lately, pursuant to an amendment brought about through section 3 of the Law Reforms Ordinance, 1972, only appeals from suits lay to a Division Bench of this Court. In so far as other matters are concerned, the same inter alia, became amenable to similar appeals following upon an amendment introduced by the Code of Civil Procedure (Amendment) Ordinance, X of 1980. A counsel, not regularly in touch with filing such appeals, can be misled as, apparently, occurred in this case.
4. There is, yet, another aspect to this case. In a number of cases, incidental upon errors on the part of counsel, limitation has been condoned on preferring appeals to a wrong forum. Time thus consumed, in pursuing the appellate remedy in a wrong jurisdiction, has been excluded. Similar may well have been the situation if the present appeal had actually been filed in the Supreme Court and returned from that Hon'ble Court. If the mistake could be retracted after an erroneous step had already been taken, we cannot see as to how the position would be different where realization has dawned before the faulty leap, actually, came to pass. Surely, we are not confronted with the like of an act such as suicide where the failed attempt constitutes an offence but the completed act, at law, is not. Accordingly, we arc of the view that the mistake, on the part of counsel, was a genuine one and not a result of gross negligence. Indeed, the element of diligence, in the circumstances of the case, is not entirely wanting. As such we confirm the condo nation of delay, tentatively made at the time of admission of the appeal on 17-4-1986.
5. On merits, J.M. 7/79, on disposal of which this appeal arises, was based on section 5 of the Arbitration (Protocol and Convention) Act, 1937. It was submitted for enforcement of a "Foreign Award" by pronouncement of judgment in terms thereof. Such "Foreign Award" operated in favour of the respondent and against the present appellant. J.M. 7/79 was moved by the respondent. Inter alia, the "Foreign Award" was assailed on the grounds that the same was not stamped, that the Arbitration Agreement, where under it was rendered, was substituted by a subsequent agreement, dated 11-12-1974, and that the Arbitration clause was absolutely vague and could not be acted upon. The learned Single Judge, our learned brother S. Haider All Pir7ada, J., who decided the matter, came to the conclusion that the "Foreign Award" was not stamped, while it required to be so stamped, that no novation of the contract, where undcr the Arbitration took place, had come about but that such contract, pursuant to which the claimed amount was awarded contained a vague Arbitration clause, which could not be acted upon. We shall take up these questions seriatim.
6. It is contended by Mr. S. Hamid All Rizvi, appearing for the appellant, that the "Foreign Award", on which the Judicial Misc. Application was grounded, did not qualify as an "Award" under Article 12 of the First Schedule to the Stamp Act and therefore, no stamp duty was chargeable thereon.
Reliance is placed on the judgments of one of us namely, Saleem Akhtar, J., reported as Nan Fung Textiles Ltd. v. Sadiq Traders Lid. PLD 1982 Karachi 619 and Ralli Brothers and Concy Ltd. v. M/s. Mohammad Amccn Mohammad Bashir Ltd. 1987 CLC 83. On the other side, Mr. A. Rauf refers to M/s. Gujrals Company v. M/s. M.A. Morris AIR 1%2 Punjab 167, Ire-Land Revenue Commissioner v.
Maple & Company (Paris) Ltd. 1908 A C 22 and Oscar Faber v. Commissioner of Inland Revenue 1936 A E R 617. As regards the judgments delivered by Saleem Akhtar, J., it would be useful to reproduce some excerpts from the same. In Nan Fung Textiles Ltd. This is how the matter was approached:-- "These two instruments though of the same genus are completely different from each other having their special characteristics, particularly a "foreign award" to which a specific meaning has been given in terms of international convention. Article 12 of Stamp Act which provides for stamp duty speaks of "Award" and not "Foreign Award". It, therefore, can, safely be presumed that it is applicable to "Awards" which are not "Foreign Awards". It is a well settled principle of interpretation of fiscal statutes that if there are two possible interpretations, one which is favourable to the subject should be accepted. In my opinion Article 12 does not cover a foreign award. For the aforesaid reasons with respect I regret that, I am unable to agree with the views expressed in AIR 1962 Punjab 167. In my view "Foreign Awards", as in the present petition, are not chargeable with stamp duty."
' In Ralli Bros. The Order, impugned in these proceedings, which was since reported, came up for consideration and the following observation was occasioned:-- "Mr. Rauf the learned counsel for the defendants contended that the award is not' stamped and, therefore, it cannot he enforced. Similar objection was raised by the learned counsel in Nan Fung Textiles Ltd. v. Sadiq Traders Ltd., PLD 1982 Kar. 619, in which after exhaustive discussion I had observed that the foreign award is not chargeable with stamp duty. Mr.R auf has invited my attention to Messrs Jugotekstile Impex v. Messrs Shams Textile Mills Ltd., 1986 CLC 879, where a contrary view has been expressed by my learned brother Haider Ali Pirzada, J. I had the privilege to read this judgment, but with respect I am unable to subscribe with this view. In this judgment while relying on section 3, subsection (c) of the Stamp Act it has been observed that as the award relates to a matter or thing to be done in Pakistan it is chargeable with duty. There can be no cavil with the proposition that section 3 of the Stamp Act is the charging section and any instrument which falls under it is chargeable with duty. Section 3(c) clearly provides that to attract chargeability the instrument should be mentioned in the schedule to the Act. Unless the instrument is mentioned in the schedule it cannot be charged under section 3(c). In Nan Fung Textile Mills' case it was held that the award mentioned in the schedule does not include a "foreign award" and, therefore, a 'foreign award ' does not fall within the ambit of section 3(c). If an instrument is not mentioned in the schedule to the Act but 'relates to any matter or thing done or to be done in Pakistan and is received in Pakistan', it cannot be charged with stamp duty. With respect I may say that this aspect of the controversy has not been considered in Jugotckstilc impex's case which merely proceeded on interpretation of last portion of section 3(c). In this regard Mr. Muhammad Ali Sayeed the learned counsel has relied on AIR 1951 Pepsu 24, I L R 49 Mad. 903 and PLD 1%3 Kar.
962. In my view `foreign award' does not require stamp duty."
7. To fully appreciate the questions involved in these proceedings it seems necessary to reproduce section 3 of the Stamp Act:- "3. Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty thereof, respectively, that is to say---
(a) every instrument mentioned in that Schedule which not having been previously executed by any person, is executed in (Pakistan) on or after the first day of July 1899;
(b) every bill of exchange (payable otherwise than on demand) or promissory note drawn or made out of (Pakistan) on or after that day and accepted or paid, or presented for acceptance or payment, or endorsed, transferred or otherwise negotiated in (Pakistan); and
(c) every instrument (other than a bill of exchange, or promissory note) mentioned in that Schedule, which, not having been previously executed by any person, is executed out of (Pakistan) on or after that day, relates to any property situate, or to any matter or thing done or to be done, in (Pakistan) and is received in (Pakistan)."
8. Dealing with a similar controversy, in the referred case from the East Punjab jurisdiction namely, that of Gujrals Company, P.C. Pandit, J., decided the matter on the language of section 3(c) ibid., which is the charging provision, and observed that since the Company, under liability, shall have to pay the awarded amount in India the "Foreign Award" was one which related to a matter or thing to be done in India and, therefore, required stamping under that provision. In Ire-Land Revenue Commissioner, acting upon section 4(4) of the English Stamp Act, 1891, Lord Macnaghten observed that since the capital relevant to the shares in the instrument, which came up for construction, was situate in England, the instrument related to property situated in England and, therefore, was chargeable to stamp duty. Somewhat to the same effect was the view of Lawrence, J., in the case of Oscar Faber, referred to above. The learned single Judge, whose judgment, in this case, is itself reported in 1986 CLC 879 has also referred to the above dicta.
9. We have no hesitation in agreeing with the learned single Judge that where an instrument, executed out of Pakistan, relates to any property situated in Pakistan or to any matter or thing done or to be done in Pakistan such an instrument, if mentioned in Schedule 1 to the Stamp Act of 1899, would fall to be chargeable with duty livable under such Act. In this context, however, the first requirement is that the instrument should be specifically mentioned and included in the first Schedule to the Stamp Act. Then, to levy the charge, it is a prerequisite that the instrument, so amenable, should relate to a property situate or any matter or thing done or to be done in Pakistan.
Lastly, as a necessary incident, of chargeability, the instrument must he received in Pakistan. All these prerequisites must come to subsist before the levy can he imposed.
10. Taking the second requirement first, it seems to us that the property, if any, to which the instrument pertains, ought to he clearly mentioned in the instrument itself. Next, it should he situated in Pakistan. Likewise and in the same context, in relation to any matter or thing done or to be done in Pakistan, under the relevant instrument, such matter or thing should, also, be either expressly or by necessary intendment mentioned, as done or to be done in Pakistan. We have chosen to employ the phrase "by necessary intendment" as in the case of Negotiable Instruments etc. (as and when relevant in section 3(c) ibid.) playability is normally intended, unless excluded, at the place where the promisor or the drawer is to be found. Accordingly, where, under an instrument, short of a promise or direction, only liability is pinned in respect of a person, available or functioning in Pakistan, it is not inherently necessary that such liability is to be discharged in Pakistan. At best, it may be likely or probable that the liability would be discharged in Pakistan but such a likelihood or probability does not render the instrument one, requiring anything done or to be done in Pakistan. In such cases, where the instrument is ultimately, sought to be enforced in Pakistan against such a party and is, correspondingly, received in Pakistan, those facts alone would not make the instrument chargeable to duty under the schedule to the Stamp Act. On this very basis since the Foreign Award, in question, does not inherently require anything to be done in Pakistan and merely proceeds in relation to a person operating in Pakistan, it cannot be deemed to be chargeable with duty, as contemplated in Article 12 of the Schedule to the Stamp Act.
11. However, what is said above is only ancillary and the question does not conclude with it. As observed earlier, in order to attract the charging provision in section. 3(c) of the Stamp Act, the first and preliminary requirement is that the instrument, in respect of which stamp duty is sought to be levied, clearly finds mention and is specified in the Schedule to the Stamp Act. Now, all that Article 12 in such Schedule deals with is an "Award". The word "Award", figuring in the Article, is to be understood in the context of Pakistan laws, as are or have been in force in this country and these laws consist of the Arbitration Act, 1940, and the various statutes which covered the field prior to that enactment. An "Award", under the laws in reference has definite connotations and does not include a "Foreign Award", as envisaged in the Arbitration (Protocol & Convention) Act, 1937, which Act, by itself defines as to what a "Foreign Award" is. Unless all the requirements qualifying an instrument to be a "Foreign Award", within such defined limits, are satisfied it does not operate as such under the Act of 1937. It need hardly be stated that the Act last mentioned is a complete code in relation to "Foreign Awards".
12. There is another aspect to this matter which strengthens our conclusions. Even if by virtue of sections 46 and 47 of the 'Arbitration Act, 1940, certain provisions thereof apply to arbitrations resulting upon a "Foreign Award" that circumstance in itself does not make the "Foreign Award" enforceable in Pakistan. Only such an "Award" is enforceable in Pakistan, by being made rule of the Court, as qualifies to be termed an "Award", within the meanings assigned to that term in the Arbitration Act, 1940, or in the enactments preceding that statute. But for the existence of the Arbitration (Protocol and Convention) Act, 1937, which codified the law pertaining to Foreign Awards, such Foreign Awards could not be filed in the Courts, functioning in Pakistan, or be made rule thereof. The best that in such a situation could have been done was, perhaps to file a suit on the basis of such a "Foreign Award", in order to support a claim relative thereto. Then, if all the parties consented, the same could be taken into consideration by virtue of the proviso to section 47 of the Arbitration Act as a compromise or adjustment in the Suit. Ire would thus appear that the concept of "Award", as understood in Pakistan law, did not inherently include a "Foreign Award" or what goes specifically by that name, rights and liabilities in relation to which, are to be determined under the Arbitration (Protocol and Convention) Act, 1937. Such "Foreign Award", therefore, does not seem to qualify as an "Award" either under the Arbitration Act, 1940, or can be termed liable to stamp duty under Article 12 ibid.
13. As is now settled by consistent and unexceptionable authority and taken recourse to, also, in Ralli Bros. Fiscal Laws are to be strictly construed and where doubt is encountered it has to be resolved in favour of the subject. With great respect, therefore, to the views expressed by the learned single Judge, on this point, at least, we are unable to bring ourselves to agree with his conclusion.
14. It has, also, been pointed out by Mr. Syed Hamid Ali Rizvi and with some force that even if the conclusion was that the instrument was chargeable to stamp duty, and could, for the lack of it, be impounded the same on reference and penalty being imposed could still be acted upon. This, on principle, is correct. The document, not being a negotiable instrument or otherwise excepted could not irretrievably be impounded and consigned. It could, on due procedure being followed, in consonance with section 35 etc. Of the Stamp Act, be subjected to G levy of penalty, if that was applicable and yet be acted upon. Indeed in Union Insurance Co. Of Pakistan v. Hafiz Mohammad Siddique PLD 1978 SC 279, a case, also, involving want of stamps on an award, a very broad view of the matter was taken, by Dorab Patel, J., the Hon'ble Judge holding that the object of the Stamp Act was not to invalidate instruments but merely to assure revenue and that steps to cure defects in stamping were more in line with legislative intendment than any technical approach tending to by-pass a document. On this approach, as well, omission to stamp, though on our reasoning not necessary, could, obviously, be cured.
15. Taking up, now, the question of substitution of the original Arbitration Agreement or novation thereof the factual position is that the parties to these proceedings entered into three successive Agreements namely, those dated 22-11-1973, 5-4-1974 and 11-12-1974. In relation to the "Foreign Award" in the proceedings the Tribunal was constituted under the first two agreements and the contention of the appellant is that the third Agreement viz. Dated 11-12-1974 never became effective as the pre-condition in regard thereto remained unsatisfied inasmuch as no approval in such context was granted by the State Bank of Pakistan, the Chief Controller of Imports and Exports, Government of Pakistan and the Pakistan Customs Authorities, which expressly was a prerequisite.
It is true that novation, rescission and material alteration are some of the ways in which a contract may be discharged. However, in order that substitution or novation, which is what is involved here takes (words missing) subsequent contract should have the sanction of law or, where required, satisfies all the conditions subject to which it is to operate. It is only then that section 62 of the Contract Act shall operate. If, therefore, any of the essential terms, which are cited as pre- conditions, arc not satisfied, the subsequent contract, claimed to be operating in substitution or by way of novation of the earlier one would be rendered ineffective. In such a situation, unless parties provide to the contrary, the earlier contract, if otherwise still effective, would continue to occupy the field. In this case the referred conditions remaining un-satisfied and the earlier contracts, still holding ground, remained operative and could be acted upon.
' Learned Single Judge has reached similar conclusions and we duly endorse the same.
16. No novation having thus taken place, this leaves the parties with the referred agreements dated 22-11-1973 and 5-4-1974. Lastly, therefore, on such basis, it is urged by Mr. A.Rauf, that the Arbitration clause, as contained in the agreement dated 5-4-1974, providing two alternative or concurrent or even coordinate forums and the terms of the clause, being thus rendered vague, could not be acted upon. We reproduce such clause hereunder:- "Any dispute or difference will he referred to the Federation of Pakistan Chamber of Commerce and Industry, Karachi (Pakistan) of Manchester Chamber of Commerce, Manchester."
17. The word "of" in the clause is manifestly meaningless as the Pakistan Chamber of Commerce and Industry is not a part of the Manchester Chamber. In all probability, such word is a misprint for the word "or". Even on this beneficial construction, if the referred Arbitration Tribunals are treated to be in the alternative or even in conjunction, there being little scope for the latter possibility, the Arbitration Clause still remains vague and unworkable, since a choice would be involved and how or by whom and under what circumstances, that choice was to he made is anybody's guess. In its very nature an Arbitration Forum is to he definite and certain or, at least, capable of being made so, indefinite, ambiguous and uncertain arbitration clauses, found to be inherently unworkable, not unlike ordinary contracts having similar failings, cannot be given effect to. Reference in this context may he made to Barkai Ram v. Anant Ram AIR 1915 Lah. 328, Nakshetarmali v. Brajasundcr A 1 R 1933 Patna 647, G. Scammel and Nephew Ltd. v. H.C. And J.G. Oust on 1941 A C 251, Delhi and Finance Housing Ltd. v. Brig. Mohan Shah AIR 1956 Punjab 205, and Jamshed Alam Khan v . Haq Nawaz PLD 1973 Kar.
31. The learned Single Judge, on the basis of an erudite discourse, also, found the clause to be vague and refused to give effect to the same. We are afraid that we cannot reach any other conclusion.
18. Mr. Rizvi in this background, alternatively, urged that the choice was, in fact, made and the Manchester Chamber of Commerce was opted for by the parties, the respondents appeared and submitted to the forum and a decision, in due course, was given. It is also contended relying on Hasham Issaq v. Karachi Gas Co. Ltd. PLD 1969 Kar. 1($) that once a party, though initially protesting, submits to the jurisdiction of a Tribunal and a finding thereupon is given, such party cannot, subsequently, turn round and question that, jurisdiction. Even on this view absolute lack of jurisdiction cannot he cured. The record does not show that the choice of the Manchester Chamber of Commerce was based on any consensus between the parties. The "Foreign Award" which is without reasons, for section 26-A of the Arbitration Act, 1940, did not apply to the 'forum', does speak of parties' evidence but that, like the format of the entire decision, appears to be mechanical and is not supported by due material. In fact that "Foreign Award" in question is so perfunctory that even the dates of the Agreements, on which it proceeds, are wrongly mentioned therein. Such correspondence as has been brought on record neither shows acceptance of participation by the respondent nor its actual participation in the proceedings. We arc, thus, unable to see any consensus in the reference or unqualified submission to or acceptance of jurisdiction. This argument, therefore, also fails.
19. Since the Arbitration Clause was vague and incapable of being given effect to, the "Foreign Award", which follows upon the same, has emanated from a Tribunal that lacked jurisdiction and, as such, cannot he enforced. We, therefore, agree with the learned Single Judge that such "Foreign Award" cannot be made rule of the Court. In the result this appeal is dismissed, though, without costs.