' It is proposed to decide Civil Revisions Nos.521/94 and 522/94 also alongwith this revision because judgment in this revision would cover all the points raised in these two revisions.
2. The relevant facts are that the petitioners a Contractor, was awarded contract for setting up of 'Technical Training Centre' at Mianwali. There was a dispute as to the payment due to the petitioner from the respondents under the Contract. The petitioner invoked arbitration clause for the resolution of the dispute and respondent No,2 vide his memo. Dated 25-3-1991 referred the disputes to Muhammad Akhtar and Rauf Ahmed, joint arbitrators, who gave their award on 8-5- 1993. The petitioner moved application under section 14/17 of the Arbitration Act for making the award rule of the Court. The application was contested by the respondents. The trial Court accordingly framed issues.
' The petitioner examined Abdul Rashid its Managing Partner and closed its side while the respondents examined Muhammad Dilshad as R.W.1 and closed their side. The respondents then moved an application to the effect that the arbitrators awarded a sum of Rs,6,45,730 but the award is written on Rs,50 stamp paper whereas in accordance with the Articles 12 and 15 of Schedule of Stamp Act, 1899 as amended by Finance Act of 1990, the stamp duty was payable at the rate of 2% on the amount. The petitioner contested this application. The trial Court after hearing the arguments allowed the same vide order dated 24-7-1994. It was held that the award should have been written on stamp paper of Rs,6,470 instead of Rs,50, therefore, it was concluded that the stamp paper on the award is deficient to the extent of Rs,6,420. The petitioner was accordingly directed to pay the amount with ten times penalty by 19-9-1994. The petitioner has assailed this order through revision petition, which was admitted to hearing and notice was issued to the respondents, who have appeared through Mr. Riaz Lone, Advocate and contested the revision.
3. The learned counsel for the petitioner in support of the revision petition argued that the award was not in respect of immovable property, therefore, stamp duty at the rate of 2% as enacted in Finance Act, 1990 was not payable on the same. The second argument is that Court could only impound the document and then it was to refer the matter to the Collector for imposing the penalty and payment of stamp duty. In this behalf, the learned counsel has referred to sections 33, 35 and 28 and relied on the decision of Mst. Kalsoom v. District Judge, Hyderabad and 2 others (1982 CLC 2484). The third argument is that since the award in C.R. No,3094/94 was admitted in the evidence, therefore, the objection could not be raised as to the same being deficiently stamped either by the respondent or by the Court. In this behalf, the learned counsel has referred to Nalluru Basavaiah Naidu v. Takkella Venkateswarulu (AIR 1957 Andh. Pra. 1022). The fourth argument is that the award unless made rule of the Court is not 'property' and does not create any right, therefore, the stamp duty was not payable. The fifth submission is that the amendment is against the intention of the Legislature because it is not clear as to who is to pay the stamp duty. If the provision is interpreted in this manner then the arbitrator has to disclose his award before its announcement because the arbitrator would ask for supply of the stamp paper of the specified amount then it would not be difficult for the parties to know what is the award. The sixth argument is that the Stamp Act is a Federal Statute, the same could not be amended by a Provincial Statute, therefore, it is ultra vires of the Constitution. In this behalf, reliance is placed on Mrs. Daphne Joseph v. Malik Eric Roshan Khan (PLD 1971 Karachi 887).
4. On the other hand, the learned counsel for the respondents argued that the order of the trial Court is perfectly legal and it is not a fit case for exercise of the revisional jurisdiction under section 115, C.P.C. It is added that the duty is to be paid on award, therefore, argument that award is not a property is utterly misconceived.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of Constitution of Islamic Republic of Pakistan and Stamp Act. I would first take up the last point that the Stamp Act is a Central Statute, therefore, could not be amended by the Provincial Act and in the words of the learned counsel for the petitioner a benefit allowed under Federal Statute cannot be withdrawn by Provincial Statute. This argument completely ignores the provisions of Article 142 of the Constitution of Islamic Republic of Pakistan. The 'arbitration' appears at Serial No,8 of the Concurrent List given in the Fourth Schedule while according to Serial No,44, the same list, deals with the fee in respect of matters in this list. It is worthwhile to refer to Article 142. The relevant portion of which reads as under : "142. Subject to the Constitution--
(a) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List;
(b) Majlis-e-Shoora (Parliament), and a Provincial Assembly also, shall have power to make laws with respect to any matter in the Concurrent Legislative List; (c)
(d) ..
It is clear from sub-Article (b) that the Provincial Government has powers to legislate in respect of the matters in the Concurrent List, therefore, Provincial Assembly validly amended the Stamp Act in respect of stamping of the award by Finance Act, 1990. The case of Mrs. Daphne Joseph (supra) is not relevant.
6. Now coming to the stamp duty on award. The same is dealt by Article "12 of the Schedule of Stamp Act, 1899. Before the Finance Act, 1990 the duty was assessable under Article 15 but subject to maximum of Rs,50. Now in this article the words "subject to a maximum of fifty rupees" have been omitted. The amended Article reads as under :-- "12. AWARD, that is to say any decision in writing by an arbitrator or umpire, to being an award directing a partition, on a reference made otherwise than by an order of the Court in the course of a suit.
' The same duty as on a Bond (No,15) for the amount or value of the property to which the award relates as set forth in such award."
' In the same sequence it was argued on behalf of the petitioner that since the subject-matter of the award was not immovable property, therefore, 2% stamp duty was not payable on the same.
This argument completely ignores the words "for the amount" which have been underlined to make prominent, therefore, this Article covers award pertaining to money as well as property. This disposes arguments Nos.1 and 4.
7. This brings us to the main objection of the leaned counsel that the trial Court after having once admitted the document in evidence could not impound the same. The learned counsel, in this behalf, has referred to the case of Mst. Kalsoom (supra), wherein with reference to earlier case of Ghulam Farid v. Board of Revenue, Lahore (PLD 1960 Lahore 211), it was held that once a document is admitted in evidence then the same cannot be excluded from consideration in view of the provisions of section 35 of the Stamp Act except as provided under section 61 of the Stamp Act. The relevant provisions are interpreted in Chapter IV and provides for-- ' Section 33.--According to it every person having authority by law or by consent of parties to receive evidence, is of the opinion that instrument produced before him is not duly stamped shall impound the same.
' Section 34.--It deals as a special provision as to unstamped receipts.
' Section 35.--It provides that no instrument chargeable with duty shall be admitted in evidence for any purpose or acted upon registered or authenticated unless it is duly stamped; ' Section 36.--It provides that where instrument has been admitted in evidence such admission shall not be called in question at any stage of the suit or proceedings on the ground that instrument was not properly stamped except as provided for in section 61.
' Section 37.--It deals with the instrument generally which bears stamp of sufficient amount but of improper description; and ' Section 38.--It lays down the procedure for dealing with the instruments impounded. Subsection
(1) deals with the situation where instrument is admitted in evidence upon payment of penalty as provided by section 35 or of duty as provided under section 37 and then he shall send to the Collector an authenticated copy of such instrument together with certificate in writing stating the amount of duty and penalty levied in respect thereof and send such amount to the Collector. While subsection (2) deals with the other cases and provides that the impounded instrument shall be sent in original to the Collector.
It is clear from the reading of section 36 that once the document was admitted in evidence then the trial Court had no jurisdiction to impound the same. This is the position in the civil revision in hand while in other two the admitted position is that the award has not so far been included in the evidence.
8. It is clear from the above resume of the provisions of the Stamp Act that the impugned order of the Civil Judge has not been passed in accordance with law. This is not end of the matter especially after holding that the award should have been written on 2% duty of the amount awarded. The same is, therefore deficiently stamped. This is admitted by the learned counsel for the petitioner that the stamp was to be supplied by the petitioner. Now question is that how the award especially in the present case, which has been included in evidence should be processed.
Before proceeding any further I may refer to section 61 of the Stamp Act, which reads as under:--
61. Revision of certain decisions Courts regarding the sufficiency of stamps.-
(1) When any Court in the exercise of its civil or revenue jurisdiction or any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898, makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under section 35, the Court to which appeals lie from, or references are made by, such first mentioned Court may of its own motion or on the application of the Collector, take such order into consideration.
(2) If such Court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under section 35, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is to produce the same and may impound the same when produced.
(3) When any declaration has been recorded under subsection (2), the Court recording the same shall send a copy thereof, to the Collector and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument.
(4) The Collector may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under section 42, or in section 43, prosecute any person for any offence against the Stamp-law which the Collector considers him to have committed in respect of such instrument: Provided that:--
(a) no such prosecution shall be instituted where the amount (including duty and penalty) which, according to the determination of such Court, was payable in respect of the instrument under section 35, is paid to the Collector, unless he thinks that the offence was committed within an intention of evading payment of the proper duty,
(b) except for the purposes of such prosecution, no declaration made under this section shall affect the validity of any order admitting any instrument in evidence, or of any certificate, granted under section 42."
Now if this provision is read with the section 61, then it becomes clear that this Court, even suo motu direct the impounding of the award and send it to Collector for realizing the necessary stamp duty with the requisite penalty under section 40 of the Stamp Act. I am fortified in my view by Division Bench judgment reported as Hafiz Syed Mobarak Ali Shah v. Chaudhry Muhammad Sadiq (PLD 1961 (W.P.) Karachi 265), Benoy Bhusan Saha v. Md. Abdul Samad alias Ladai Miah (6 DLR 50), Biswa nath-Bhattacharyya and others v. Govinda Chandra Das and others (AIR 1919 Cal. 35), Rang Lal Kalooram v. Kedar Nath Kesriwala (AIR 1921 Cal. 613), Nath Chakravarty v. Basanta Kumari Devi (AIR 1936 Cal. 556), Nallajerla Satyavati and others v. Vijapu Pallaya (AIR 1937 Mad. 431), Venkatesvara lyer v. Ramanatha Dheekshitar (AIR 1929 Mad. 622), Jagdib Singh and others v.
Firangi Singh and others (AIR 1928 Pat.155), Jagan Nath v. Mt. Chauli (AIR 1933 Lahore 271) and Vavarthar Abdul Wahab Saheb v. Pallapoatha Kanaka Anjaneyau and others (AIR 1935 Mad. 888).
The learned counsel for the petitioner seems to be under misconception as to the scope of section 36, which only provides that once an instrument is admitted in evidence the same shall not be questioned subsequently. In plain words if an instrument is once admitted in evidence in any proceedings then it is available for all purposes and it would be considered to have been properly stamped. The same cannot be challenged for deficiency in stamp duty while, on the other hand, Legislature has also protected the revenue of the Government by enacting section 61. I am fortified in my view by the judgment reported as Abul Hassan v. Serajul Haque and others (PLD 1961 Dacca 596). The important fact is its admission in evidence. It is immaterial whether it has been admitted with or without objection or after hearing or without hearing such objection.
9. The next argument that there are practical difficulties in giving effect to the amendment. The first in the series is that who would supply the stamp paper. Secondly, that when the arbitrator, at the conclusion of the arbitration proceedings, would requisition the stamp paper then the parties would come to know of award before it is announced. These are not insurmountable difficulties rendering the law impracticable because the stamp for the purpose of award is to be supplied in accordance with the agreement between the parties or as per direction of the arbitrator.
10. Now coming to the second objection that direction of the arbitrator to supply the stamp paper of given denomination would disclose the award before it is announced. The argument is without any merit because the arbitrator could announce the award and direct the party or parties to supply the requisil e stamp within specified time and append the same and give note to that effect on the award. If the order is not complied then award would be impounded by the Court and matter referred to the Collector for recovery of stamp duty and imposition of penalty.
11.. It is clear from the above discussion that the recovery of the amount and imposition of penalty are within exclusive jurisdiction of Collector except the cases where penalty as provided under section 35 or duty as provided under section 37 are paid by the concerned party.
' In view of the above legal position it is declared that the stamp on the award, in the case in hand, was deficient by Rs,6,420, therefore, the same should not have been admitted in evidence.
However, the trial Court thereafter had no jurisdiction to impound the same, impose the penalty and direct its payment. The order is, therefore, patently illegal while. In the other two cases as the awards have not yet been admitted in evidence so the orders as to their impounding are upheld but the imposition of penalty and direction to pay the amount are again illegal.
12. The upshot of the above discussion is that this revision is disposed of with the above observations and the trial Court is directed to send the award impounded through this judgment to the Collector for payment of deficient stamp duty and penalty, if any, while the Collector is directed to decide the matter expeditiously and in any case by 31-7-1995. There is no order as to costs.