IN RE: INTERPLAY BETWEEN ARBITRATION AGREEMENTS UNDER THE ARBITRATION AND CONCILIATION ACT 1996 AND THE INDIAN STAMP ACT 1899 versus .

Citation: [2023] 15 S.C.R. 1081 · Decided: 13-12-2023 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Directions issued

Cited by 22 judgment(s) · cites 43 · see the full citation network in Lexace

Judgment (excerpt)

[2023] 15 S.C.R. 1081 : 2023 INSC 1066
1081
CASE DETAILS
IN RE: INTERPLAY BETWEEN ARBITRATION AGREEMENTS 
UNDER THE ARBITRATION AND CONCILIATION ACT 1996 
AND THE INDIAN STAMP ACT 1899
(Curative Petition (C) No. 44 of 2023)
In 
(Review Petition (C) No. 704 of 2021 )
In 
(Civil Appeal No. 1599 of 2020)
DECEMBER 13, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI, 
SANJAY KISHAN KAUL, SANJIV KHANNA, 
B R GAVAI, SURYA KANT, J B PARDIWALA AND 
MANOJ MISRA, JJ.]
HEADNOTES
Issue for consideration: The issue at hand arose in the context of 
three statutes; the Arbitration and Conciliation Act 1996, the Indian Stamp 
Act, 1899, and the Indian Contract Act, 1872. The Stamp Act imposes duty 
on “instruments”. Arbitration agreements are often embedded in underlying 
instruments or substantive contracts. The primary issue for consideration was 
whether such arbitration agreements would be non-existent, unenforceable, 
or invalid if the underlying contract is not stamped. The challenge before 
the Supreme Court was to harmonize the provisions of the Arbitration and 
Conciliation Act, 1996 and the Stamp Act, 1899.
Arbitration and Conciliation Act 1996 – ss.8 and 11 – Arbitration 
agreements embedded in underlying instruments or substantive 
contracts – Whether such arbitration agreements would be non-existent, 
unenforceable, or invalid if the underlying contract is not stamped – 
Interplay between Arbitration Agreements under the Arbitration and 
Conciliation Act, 1996 and the Indian Stamp Act, 1899 – Unstamped or 
insuffi  ciently stamped instruments – If admissible in evidence – Non-
stamping or inadequate stamping – If curable.
Ed. Note. Hon’ble Dr Dhananjaya Y Chandrachud, CJI pronounced the judgment on behalf 
of himself, Hon’ble Mr Justice Sanjay Kishan Kaul, Hon’ble Mr Justice B R Gavai, Hon’ble 
Mr Justice Surya Kant, Hon’ble Mr Justice J B Pardiwala and Hon’ble Mr Justice Manoj 
Misra. Hon’ble Mr Justice Sanjiv Khanna pronounced a separate but concurring judgment.
1082 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, Sanjay 
Kishan Kaul, B.R Gavai, Surya Kant, J B Pardiwala and Manoj Misra, 
JJ.): Agreements which are not stamped or are inadequately stamped are 
inadmissible in evidence u/s.35 of the Stamp Act – Such agreements are 
not rendered void or void ab initio or unenforceable – Non-stamping or 
inadequate stamping is a curable defect – The Stamp Act itself provides for 
the manner in which the defect may be cured and sets out a detailed procedure 
for it – An objection as to stamping does not fall for determination u/ss.8 or 
11 of the Arbitration Act – The concerned court must examine whether the 
arbitration agreement prima facie exists – Any objections in relation to the 
stamping of the agreement fall within the ambit of the arbitral tribunal. [Paras 
48 and 224] – Held (per Sanjiv Khanna, J.) (Concurring): Unstamped 
or insuffi  ciently stamped instruments inadmissible in evidence in terms of 
s.35 of the Indian Stamp Act, 1899, are not rendered void and void ab initio 
– An objection as to the under-stamping or non-stamping of the underlying 
contract will not have any bearing when the prima facie test, “the existence of 
arbitration agreement”, is applied by the courts while deciding applications 
under Sections 8 or 11 of the Arbitration and Conciliation Act, 1996 – An 
objection as to insuffi  cient stamping of the underlying agreement can be 
examined and decided by the arbitral tribunal. [Para 1]
Evidence – Admissibility of documents – Diff erence between 
inadmissibility and voidness – Contract Act, 1872 – s.2(g).
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, Sanjay Kishan 
Kaul, B.R Gavai, Surya Kant, J B Pardiwala and Manoj Misra, JJ.): 
The admissibility of an instrument in evidence is distinct from its validity 
or enforceability in law – An agreement can be void without its nature as 
a void agreement having an impact on whether it may be introduced in 
evidence – Similarly, an agreement can be valid but inadmissible in evidence 
– When an agreement is void, one is speaking of its enforceability in a court 
of law – When it is inadmissible, one is referring to whether the court may 
consider or rely upon it while adjudicating the case – This is the essence 
of the diff erence between voidness and admissibility. [Paras 44, 45 and 46]
Indian Stamp Act, 1899 – Purpose of.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, Sanjay Kishan 
Kaul, B.R Gavai, Surya Kant, J

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