The above appeal has been filed as a second appeal against the judgment and decree passed by the learned Senior Sub-Judge, Kullu, making the award passed by the arbitrator in this case on 31.12.1985 as a rule of the Court, the Appellant herein having unsuccessfully challenged the same also in C.A. No. 9 of 1988 on the file of the learned Addl. District Judge, Kullu.

2. Though the appeal has been filed as a second appeal, it is by now well settled and there is no serious dispute for the position that no second appeal as such lies in view of Section 39(2) of the Arbitration Act, 1940 which stipulates that no second appeal shall lie from an order passed in an appeal u/s 39. At the same time in Shyam Sunder Agarwal and Co. Vs. Union of India, their Lordships of the apex Court held that a revision u/s 115, CPC would lie. In view of the above, accepting the oral request made by the learned Counsel for the Appellant, the appeal is ordered to be converted into a revision and the same as a consequence thereof will be dealt with, as a revision, hereinafter.

3. Mr. Rajiv Sharma. learned Counsel appearing for the Appellant urged two substantial grounds of challenge to the decree passed by the courts below by making the award in this case the rule of the Court, the first or the grounds of challenge being that the award has not been filed within the period of limitation prescribed therefore and on that ground the courts below ought to have rejected the claim of the Respondent holding that the claim is barred. Reliance has been placed on Article 119(a) of the Schedule to the Limitation Act, 1963 in this regard which stipulated that a period of 30 days to commence from the date of notice of the making of the award. The second objection that has been raised is that the award has not been duly stamped and, therefore, the document in question cannot be used in evidence to sustain any right or give any relief on the basis of such document which is otherwise inadmissible in law having regard to Section 35 of the Indian Stamp Act, 1899.

4. The learned Deputy Advocate-General for the Respondent with equal force contended that in respect of cases where the arbitrator himself files the award into the Court Article 119(a) of the Schedule to the Limitation Act shall have no application and if at all, it is Article 137 of the Schedule to the Act which prescribes a period of three years of limitation that would apply and in that respect if the materials on record are appreciated the award has been filed in the Court well within the period of three years and, therefore, the objection raised on the ground of limitation has no merit. Argued the learned Counsel for the Respondent further that having regard to Section 3, Proviso No. I, the award having been made in favour of the Government, the duty chargeable in respect of the said instrument of award stood exempted. It was also contended that even if it is to be held by this Court that the exemption provision will not be applicable and the award is to be duly stamped the defect will not go to the root of the matter and such defect can be cured by impounding the award and collect the duty with penalty, if any, and forward the same to the competent authority under the Act with a certified copy of the document and proceed thereafter to grant the relief.

5. I have carefully considered the submissions of the learned Counsel appearing on either side. In my view, the objection taken on the ground of limitation stood answered by the decision of the apex Court reported in Patel Motibhai Naranbhai and another Vs. Dinubhai Motibhai Patel and others, wherein it has been held that it is only Article 137 that is applicable and viewed thus the award having been filed within the period of three years, no infirmity as such could be held to have vitiated either in the filing of the award or the judgment of the Court making it the rule of the Court.

6. So far as the contention that the award has not been duly stamped and, therefore, inadmissible in law and cannot be the basis of any right to be recognised or conferred in favour of the Respondent-beneficiary under the award, the learned Counsel for the Appellant after making detailed research in this regard brought to my notice two decisions of the Delhi High Court reported in ILR (1975) 2 Del 142 Union of India v. Delton Cable Company and ILR (1975) 2 Del 737 Union of India v. India Hard Metals. The decision reported in Union of India v. India Hard Metals (supra), had no occasion to consider the scope and applicability of Section 3 Proviso of the Stamp Act since the claim made by a private party against the Union Government came to be rejected by the award which was sought to be made the rule of the Court in that case. But so far as the decision in Union of India v. Delton Cable Company (supra) is concerned, the first proviso to Section 3 of the Stamp Act was specifically the subject-matter of consideration and the learned Single Judge of the Delhi High Court in spite of coming to the conclusion that an award passed by the arbitrator though may answer the description of an instrument as defined u/s 2(14) of the Stamp Act, yet it may not be an instrument "executed in favour of the Government and, therefore, it cannot be held to be exempt from stamp duty by virtue of the first proviso noticed above. The learned Counsel for the Respondent in contrast to the above, placed reliance upon the decision of a learned Single Judge of the Punjab and Haryana High Court reported in S. Sarabjit Singh Vs. State of Punjab and Another, J.V. Gupta, J., as the learned Judge then was, construed the scope of Section 3 and held as follows while expressing his dissent from the judgment of the Delhi High Court reported in Union of India v. Delton Cable Company (supra):

It is not disputed that an award given by the Arbitrator is an instrument as defined in Section 2(14) of the Stamp Act, Second Proviso to Section 3 of the said Act provides that no duty shall be chargeable in respect of any instrument executed by or on behalf of or in favour of, the Government in cases where, but for this exemption, the Government would be liable to pay the duty chargeable in respect of such instrument. Article 12 of Sch. 1-A added by Punjab Act No. VIM of 1922 and later on replaced by new Schedule 1-A by Punjab Act 13 of 1958, provides that an award, that is to say, any decision in writing by an Arbitrator or umpire, not being an award directing a partition, on a reference made otherwise than by an order of the Court in the course of a suit, shall bear the same stamp duty as a 'bond' for such amount as per Article 15 of the Schedule. Of course, the contention raised on behalf of the Appellant is supported by the judgment of the Delhi High Court referred to above, yet, with due respect to the learned Judge, I do not subscribe to the view taken by him. It is not denied, rather conceded, that an award does fall within the definition of the term "instrument" as defined in Section 2(14) of the Stamp Act. The term 'execution' has been further defined in Section 2(12) of the said Act, which means 'signed' and 'signature'. Thus, for the purposes of stamp duty, the award in the present case is de jure an instrument executed by the Arbitrator in favour of the Government and hence exempted under the second proviso to Section 3 of the Stamp Act. Accordingly, I do not find any illegality in the finding of the learned Senior Sub-Judge under issue No. 4. In any case, an unstamped arbitration award contravenes Article 12 of the Schedule to the Stamp Act but will only be defective and not invalid within the meaning of Section 30 of the Arbitration Act, as held in Pradip Trading Co. Vs. The State of Bihar, Hence this objection is of no consequence at this stage.

7. I am in entire agreement with the view taken by the learned Judge as above since it commends for my acceptance in preference to the one laid down by the learned Judge of the Delhi High Court in Union of India v. Deiton Cable Company (supra) for the reasons to be set out hereinafter.

8. Section 3 of the Stamp Act while enacting that subject to the provisions of the Act and exemption contained in Schedule I the instruments enumerated therein shall be chargeable with the duty of the amount indicated in the schedule, also provides in the form of a proviso to the very provision that no duty shall be chargeable in respect of any instrument executed by, or on behalf of, or in favour of, the Government in cases where, but for this exemption, the Government would be liable to pay the duty chargeable in repect of such instrument. In the absence of the said proviso being attracted to a case, an award normally is liable to stamp duty under Article 12 of the Schedule to the Stamp Act. To make the proviso I to Section 3 applicable to a case it requires to be found as to whether the document concerned is an instrument executed by or on behalf of or in favour of the Government. Section 2(14) of the Stamp Act defines an instrument to mean and include every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or record. Even the learned Single Judge of the Delhi High Court who ultimately came to the conclusion that the proviso I to Section 3 will have no application could not hold that an award by the arbitrator does not answer the description of an instrument as defined u/s 2(14), but the learned Judge was of the view that it cannot be said to be an instrument in favour of the Government. As long as the award is an instrument by or under which any right or liability is or purported to be created, I fail to see any reason to deny the benefit of the first proviso to Section 3 to such an instrument which in this case happens to be an award by an arbitrator in favour of the Government. In appreciating the scope and meaning to be given to the first proviso to Section 3, in my view, a purposeful construction has to be adopted. The Indian Stamp Act, 1899 has been enacted with the object of obviously raising revenue by imposing tax/duty on certain instruments of transaction and documents under which rights/liabilities are created. If that be the object of the enactment with which we are concerned, a provision which extends an exemption in favour of an instrument executed by or on behalf of or in favour of the Government, requires to be liberally construed to avoid duplicity of work by making the Government pay under one head and render it to go to the very coffers of the State under a different heading. In AIR 1969 SC 1238, Hindustan Steel Ltd. v. Dilip Construction Co., while

dealing with the consequence flowing from an instrument not duly stamped, their Lordships of the apex court observed that the Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments and it is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponents. These observations of their Lordships also would, in my view, lend support to the liberal approach to be made in construing the first proviso to Section 3 of the Stamp Act. In view of the above, I am of the view that the ratio of the decision-laid down by the learned Single Judge of the Punjab and Haryana High Court in Sarabjit Singh v. State (supra) appeals to me and commends for my acceptance. Consequently the challenge made in this regard also fails and shall stand rejected. For all the reasons stated above, the second appeal filed which has been ordered to be converted into a revision and considered as such revision, fails and shall stand dismissed. CMP No. 46 of 1993. In view of the dismissal of the matter, this application shall also stand dismissed and the stay order 18.2.1993 shall stand vacated.