Separability of Arbitration Agreement and Stamp Duty Requirement

The recent legal case delves into the intricate realm of arbitration law, focusing on the separability of arbitration agreements from commercial contracts and the requirement of stamp duty. The court’s thorough legal analysis sheds light on the crucial role played by statutory provisions and the doctrines of separability and kompetenz in promoting arbitration autonomy. Stay tuned to explore the nuances of the case and its implications for arbitration disputes.


  • Indo Unique applied for work of beneficiation/washing of coal to KPCL in an open tender.
  • Indo Unique entered into a sub-contract with Global Mercantile for transportation of coal.
  • Disputes arose under the principal contract with KPCL, leading to the invocation of the Bank Guarantee by KPCL.
  • Indo Unique then invoked the Bank Guarantee furnished by Global Mercantile under the Work Order.
  • Global Mercantile filed a suit against Indo Unique and banks for declaration that the guarantee was not rightfully encashed.
  • Indo Unique sought arbitration reference under Section 8 of the Arbitration Act in the suit.
  • The case raises issues regarding separability of arbitration agreement from the contract, validity of unstamped contracts, and arbitrability of fraudulent invocation of bank guarantees.
  • Judgment by the High Court was challenged by Global Mercantile in a Special Leave Petition.
  • Indo Unique filed a Writ Petition before the Bombay High Court to quash the Order passed by the Commercial Court restraining the invocation of the bank guarantee.
  • The High Court held that the arbitration clause in the Work Order covered the Bank Guarantee, making the application under Section 8 maintainable.
  • The High Court allowed the Writ Petition, setting aside the Commercial Court’s Order.
  • The operation of the High Court’s Order was suspended for a month upon request.
  • The Review Petition filed by the Appellant was later withdrawn.
  • The Civil Revision Petition was withdrawn with liberty to file a petition under Articles 226 and 227.
  • Allegations of fraud regarding the Bank Guarantee invocation were deemed insufficient to constitute a criminal offense.
  • It was noted that neither party had performed any part of the Work Order, leading to the jurisdiction of the Commercial Court not being ousted by the arbitration agreement.

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  • Whether an arbitration agreement is enforceable even if the Work Order is unstamped and un-enforceable under the Stamp Act.
  • Whether fraudulent invocation of a bank guarantee is arbitrable.
  • Whether a Writ Petition under Articles 226 and 227 of the Constitution can challenge an Order rejecting an application for arbitration under Section 8 of the Arbitration Act.

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  • The judgment in N. Radhakrishnan (supra) is based on an outdated view of the law propounded in Russel v. Russel.
  • Counsel for the Appellant relied on paragraph 22 of the judgment to argue that the arbitration clause would be non-existent and unenforceable until Stamp Duty is adjudicated and paid on the substantive contract.
  • The court held that this finding is erroneous and does not lay down the correct position in law.

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  • Arbitration agreement is distinct and separate from the substantive commercial contract.
  • Non-payment of Stamp Duty on the Work Order does not invalidate the main contract.
  • Separability of the arbitration agreement from the underlying commercial contract is emphasized.
  • Non-payment of stamp duty on the substantive contract does not render the arbitration agreement unenforceable.
  • The arbitration agreement is independent and can be acted upon irrespective of the alleged invalidity of the commercial contract.
  • Dismissal of the view that fraud allegations are not arbitrable due to complexity.
  • Statutory provisions of the Maharashtra Stamp Act, 1958 play a crucial role.
  • The doctrines of separability and kompetenz are central to promoting arbitration autonomy.
  • Adherence to statutory remedies and maintainability considerations in the context of arbitration disputes.
  • In the context of arbitration agreements, the court must ascertain the true nature of the defense taken to avoid arbitration on void grounds.
  • Allegations of fraud, forgery, and fabrication do not automatically preclude arbitration at the pre-reference stage.
  • The court should only decline reference to arbitration in cases where serious allegations of fraud are made, especially if criminal in nature or involving complexity.
  • Arbitration agreements are separable from the main contract and can be enforced independently.
  • Arbitrators are competent to handle civil fraud allegations.
  • The court’s role is to determine the existence of a valid arbitration agreement before referring parties to arbitration.
  • Allegations of fraud do not automatically render an arbitration agreement invalid.
  • The court should minimize interference and only examine the existence of the arbitration agreement at the pre-reference stage.
  • Actions in rem create legal statuses and are typically adjudicated by courts, while actions in personam involving rights and interests of parties can be subject to arbitration.
  • Voidable agreements may be arbitrable if the issues of consent being procured by coercion, fraud, or misrepresentation can be decided through arbitration.
  • Section 33 requires every person empowered by law to examine instruments for proper stamping
  • Section 34 prohibits the use of unstamped instruments as evidence
  • Section 37(1)(a) allows for an appeal against an order refusing to refer parties to arbitration
  • Both parties admitted the existence of the arbitration agreement as recorded in the High Court judgment.
  • The non-payment of stamp duty on the commercial contract does not invalidate the arbitration agreement.
  • The issue of the impact of non-payment of stamp duty on the arbitration agreement needs authoritative settlement by a Constitution Bench.


  • The impugned judgment and order dated 30.09.2020 by the Bombay High Court is set aside.
  • The Work Order dated 28.09.2015 is to be impounded by the Secretary General of the Court and forwarded to the concerned Collector in Maharashtra for assessment of Stamp Duty within 45 days.
  • The Appellant/Plaintiff must pay the assessed Stamp Duty within four weeks of receiving the communication of the Order.
  • The Stamp Duty assessed by the Collector can be subject to revision/appeal under the Maharashtra Stamp Act.
  • Parties can agree on appointing a sole arbitrator, or an application for appointment of the arbitrator can be made before the High Court.


Case Number: C.A. No.-003802-003803 / 2020

Click here to read/download original judgement

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