The Cost of Justice? Maharashtra’s Stamp Duty Shake-Up and its Ripple Effect on Arbitration in India

Introduction: A new cost to consideration

Arbitration in India has long been seen as a cost-efficient and speedy alternative to litigation. However, the recent amendments to the Maharashtra Stamp Act, 1958 (the Act)¹ made by the Maharashtra Stamp (Amendment) Act, 2024 (the Amendment Act) threaten this cost efficiency.² The Amendment Act makes a shift from the earlier fixed nominal duty on arbitral awards, to an ad valorem system,³ where duty is calculated based on the monetary value of the award or value of immovable property the award deals with. However, the language of the Amendment Act, introduces uncertainty regarding the interpretation and implementation. This article highlights some key issues arising from the amendments.

Impact of the Amendment Act

Under the principal Act, the stamp duty on arbitral awards was fixed at a nominal rate of INR 500. The Amendment Act replaces this with the following structure:

(a) Awards relating to immovable property now attract stamp duty equivalent to that payable on a conveyance deed, as prescribed under clause (b) of Article 25 of Schedule I of the Act⁴ (around 5% of the property value).

(b) Awards relating to movable property attract duty based on a slab system:

(i) 0.75 per cent for awards up to INR 5 million (INR 50 lakhs);

(ii) INR 37,500 plus 0.5 per cent amount for awards in range of INR 5 million (INR 50 lakhs) to INR 50 million (INR 5 crores); and

(iii) INR 2,62,500 plus 0.25 per cent for awards above INR 50 million (INR 5 crores).

These rates make arbitration in Maharashtra significantly costlier than in most other Indian States,⁵ including Delhi, where ad valorem systems already exist but at significantly lower rates (i.e. “0.1 per cent on the arbitral award over INR 1000”).⁶ The absence of an upper limit in Maharashtra adds to undue burden placed on parties under the new regime.

The Amendment Act is applicable to arbitral awards rendered on or after 14-10-2024, impacting even ongoing arbitrations where awards have not been passed. The effects of the amendment will be felt across various stages of an arbitration i.e. from the stage of drafting an arbitral agreement to ultimately enforcing an award.

Agreement stage

The choice of a suitable seat is a crucial consideration, whilst entering into an arbitration agreement. The choice of seat determines which court would exercise supervisory jurisdiction over the arbitration as well as before whom challenges to awards would have to be filed, etc. Parties should now assess the impact of choosing a seat in Maharashtra, as this choice of seat may turn out to be more expensive compared to other States.⁷ Parties should however keep in mind other factors, such as if Maharashtra is the place of enforcement of any award. This is because, even if an award is rendered in another State in India, it will still need to be stamped as per the Amendment Act once brought into Maharashtra for enforcement (parties may have to pay differential stamp duty on the award, if any duty has already been paid in another State).⁸

Arbitral award stage

The primary financial impact of the Amendment Act is undoubtedly going to be felt at the time of passing the arbitral award.

Awards relating to immovable property now attract stamp duty equivalent to that payable on a conveyance deed, calculated based on the market value of the property.⁹ The ambiguity surrounding what constitutes “relating to immovable property” increases uncertainty, as varied interpretations may arise and expand the scope.

The amendment is failing to clearly define what falls within the ambit of “relating to immovable property”. Several questions remain open to interpretation. There are several instances where the subject-matter of the arbitration relates to immovable property, but the award itself may not result in a transfer of such immovable property. Nonetheless, the amendment could be interpreted to apply to any arbitration “relating to immovable property”, regardless of whether or not it results in an actual transfer. For instance, in an arbitration involving a development agreement where no actual transfer of immovable property takes place in the award passed, would the award now have to be stamped as if it is a conveyance? What would happen if the original agreement that is in dispute relates to transfer of immovable property and has already been duly stamped and registered? Would the award still need to be stamped as a conveyance? What would be the stamp duty if the award pertains to immovable property located abroad or within another State? Several such questions remain open to interpretation.

In any event, any award granting monetary claims are now subject to ad valorem stamp duty, calculated based on a slab system.¹⁰ The absence of an upper cap on the payable duty may discourage parties from pursuing arbitration seated in Maharashtra especially in high-stake disputes. Further, there is also no clarity on whether or not an “amount granted in the award” would include the interest element awarded.

Stakeholders are hopeful for some clarity to emerge through Government clarifications or judicial interpretation.

The situation is further complicated by the lack of clarity regarding which party is liable to bear the stamp duty on the award. The statutory obligation to pay stamp duty typically falls on the person executing the instrument, unless contractually agreed otherwise.¹¹ In the context of arbitral awards, the Arbitral Tribunal is ordinarily the only signatory to an award. Hence, in the first instance, it would appear that the Tribunal is the only party that can be held liable to pay the stamp duty. That said, Section 31-A of the Arbitration and Conciliation Act, 1996 empowers Arbitral Tribunals to allocate such costs, including stamp duty, to the losing party.¹² Hence arguably, when parties choose arbitration one would argue to say that parties contractually agreed to allow the Tribunal to determine which party would be required to bear the stamp duty on the award, and the Tribunal has done so in the award. However, the Tribunal will have to suitably deal with this aspect in the award, failing which it is debatable as to who will be liable for any deficient stamp duty.

Further, Sections 17 and 18 of the Act¹³ provides for payment of the stamp duty either on the date of execution or the following day if the instrument is executed within the State of Maharashtra, and within a period of three months if executed outside the State. Failure to adhere to these timelines attracts a penalty of 2% per month on the unpaid or deficient portion, which can significantly escalate the overall liability.¹⁴ Even the Draft Arbitration and Conciliation (Amendment) Bill, 2024¹⁵ proposes to amend Section 31 by inserting the requirement that arbitral awards be “duly stamped”, thereby making proper stamping a mandatory precondition from the outset.¹⁶ Even if an award is passed, and the Tribunal holds that a party is liable to pay stamp duty, such party would have at the most 24 hours to pay the same, failing which, they would have to pay penalty. As such, practically, it is likely that the winning party will have to bear the entire stamp duty initially and recover the same from the losing party in the course of execution.

As a practice, an Arbitral Tribunal would ordinarily call for parties to provide stamp papers of Rs 500 payable towards stamp duty on the award in advance from both parties i.e. before passing of the award. However, in the present scenario, any such request by the Arbitral Tribunal could well lead to parties having an indication as to what claims the Arbitral Tribunal is likely to award, even before it is passed. The situation will be even more complicated if the award partially allows some claims of one party, whilst some of the other. This uncertainty, when combined with the tiered duty structure, adds to the complexity of compliance and cost allocation.

Challenge and enforcement stage

Domestic awards

In Maharashtra, stamp duty on arbitration related documents must be paid at or before execution (i.e. at stage of issuance of award) or at the latest, on the next working day if executed within the State.¹⁷ If the document is executed outside the State, it must be stamped within three months of being received in Maharashtra.¹⁸ Where the instrument relates to property or matters situated in Maharashtra, any differential duty i.e. the difference between duty paid elsewhere and the duty payable in Maharashtra must be paid upon receipt.¹⁹ This applies to arbitration agreements and arbitral awards alike. Documents that are not properly stamped may be inadmissible for certain legal purposes, including enforcement.²⁰

Courts have clarified in M. Anasuya Devi v. M. Manik Reddy²¹, that deficiency in stamp duty does not affect a party’s right to challenge the award under Section 34²² of the Arbitration and Conciliation Act, 1996.²³ However, a duly stamped award is a prerequisite for enforcement under Section 36²⁴ of the Arbitration and Conciliation Act, 1996. Unstamped or inadequately stamped awards may be inadmissible at the execution stage.²⁵ Significantly, if one is to enforce (within Maharashtra) an award passed in a State other than Maharashtra, one would still have to pay any deficient stamp duty on the same before execution.

Foreign award

Failure to pay stamp duty is not a recognised ground for refusing enforcement of arbitral awards under the New York Convention²⁶, the United Nations Commission on International Trade Law (UNCITRAL) Model Law²⁷, or the Arbitration and Conciliation Act, 1996. The issue arises uniquely under the Stamp Act, 1899²⁸, which categorises awards as “instruments” and subjects them to stamp duty as a revenue measure. However, foreign arbitral awards are exempt from this requirement owing to position taken by Indian judiciary. Indian courts have consistently held that foreign awards do not fall within the definition of “award” under Schedule I of the Act and are therefore not subject to stamping obligations at the time of issuance. This legal position has been reaffirmed by several courts. In Shriram EPC Ltd. v. Rioglass Solar SA²⁹, the Supreme Court held that stamp duty is not applicable to foreign awards during enforcement.³⁰ Similarly, the Delhi High Court in Naval Gent Maritime Ltd. v. Shivnath Rai Harnarain (I) Ltd.³¹, ruled that foreign awards do not require registration and can be enforced directly as decrees. This view has also been supported by the Bombay High Court in Vitol S.A. v. Bhatia International Ltd.³² and by the Madhya Pradesh High Court in Narayan Trading Co. v. Abcom Trading (P) Ltd.³³

Despite this clarity, policy inconsistency remains. Article III of the New York Convention³⁴ prohibits stricter conditions or higher fees for enforcement of foreign awards compared to domestic ones.³⁵ Yet, India imposes stamp duty on domestic arbitral awards, particularly in States like Maharashtra impose ad valorem duty, while foreign awards remain exempt. This disparity not only undermines uniformity but also raises concerns over India’s alignment with international arbitration standards. For instance, if a foreign award directs transfer of immovable property in Maharashtra, it would be interesting to see how courts would ultimately interpret the amendment and if the courts would now hold that even foreign awards ought to be treated at par with a domestic award. For instance, an award passed in Delhi if dealing with immovable property in Maharashtra would be covered by the amendment, but a foreign award from an arbitration seated in Singapore relating to the very same immovable property in Maharashtra would be exempt. Only time will tell how this uncertainty will unfold.

In Pasl Wind Solutions (P) Ltd. v. GE Power Conversion (India) (P) Ltd. (Pasl Wind Solutions)³⁶, the Supreme Court upheld party autonomy, allowing even two Indian parties to choose a foreign seat of arbitration. This decision could in the meantime be seen as relief to the ad valorem stamp duty applicable to domestic awards in jurisdiction such as Maharashtra. It may also result in a preference among Indian parties to have foreign seats, not only for their efficient legal frameworks and global enforceability, but also because they do not levy stamp duty on arbitral awards, as reflected in:

(i) The United Kingdom (UK) Stamp Act, 1891³⁷ and the Arbitration Act, 1996,³⁸ which governs the stamping requirements on arbitral award in UK, which is nil.

(ii) Articles 1442-1527 of the French Code of Civil Procedure³⁹ and the Code Général des Impôts⁴⁰, which governs the stamping requirements on arbitral award France which is nil.

(iii) The Singapore’s International Arbitration Act, 2002, Chapter 143-A (Revised Edition)⁴¹, the Arbitration Act, 2002, Chapter 10 (Revised Edition)⁴² and the Stamp Duties Act, 1929⁴³ which governs the stamping requirements on arbitral award in Singapore, which is nil.

Whilst ordinarily, the cost of participating in foreign seated arbitrations are higher than domestic arbitrations, as more Indian States diverge in their treatment of arbitral awards, foreign seats may gain more appeal even for two Indian parties.

Refunds

In cases where an arbitral award is set aside under Section 34 of the Arbitration and Conciliation Act, 1996, a refund of the stamp duty paid may be sought under Section 48 of the Arbitration and Conciliation Act, 1996.⁴⁴ Such refund applications must be filed within 6 (six) months from the date of the setting aside order for instruments executed on or after the 2010 Amendment⁴⁵, and within 2 (two) years for instruments executed prior to 2010.⁴⁶ Notably, courts have generally adopted a liberal approach in these matters and have refrained from rejecting the refund applications solely on procedural or technical grounds, especially where reasonable justification for delay is provided.⁴⁷

Practical considerations

Litigation vis-à-vis arbitration

The recent change in the Act has eroded some of arbitration’s cost advantage over litigation. The Court decrees are generally exempt from stamping requirements, with exceptions like consent decrees involving immovable property, where the judiciary has clarified that decrees related to pre-existing rights are also exempt.⁴⁸ Further, any stamping requirements, if applicable, are deducted from the court fees, with only the difference in liability being payable.⁴⁹ However, similar transactions through arbitral awards may require full stamp duty to be paid once again, as neither the Amendment Act nor the Arbitration and Conciliation Act, 1996 addresses stamping of awards adequately. This disproportionate cost structure may deter parties particularly small and medium enterprises (SMEs) or individuals from opting for arbitration, despite its other procedural advantages. In high-stakes disputes, parties may choose to initiate court litigation purely due to the additional financial burden imposed.

Concluding remarks

Maharashtra’s ambitious move to revise its stamp duty framework has triggered a crucial conversation around the true cost of justice and the future of arbitration in Maharashtra. While the amendment may succeed in augmenting state revenue in the short term, it risks alienating stakeholders from arbitration. To sustain the momentum towards a robust arbitration regime, it is imperative that both State and Central Legislatures work together to streamline stamp duties, ensure proportionality, and preserve arbitration’s core promises of efficiency, accessibility and neutrality. At a time, when parties are already faced with an overburdened judicial system with inherent delays and huge backlogs, a move of this nature will also impact a party’s ability to get early justice, enforce its rights and contracts. The amendments have a potential to adversely impact parties and risk long-term harm to India’s arbitration friendly image.

It is hoped that the Central Government considers working towards a uniform stamp duty policy for arbitral awards at a national level. In the meantime, we can only hope that Maharashtra will have a relook at the amendment and provide clarity and even consider placing an upper cap on the maximum stamp duty payable on arbitral awards instead of ad valorem duty.

Annexure A

The amendment to the Maharashtra Stamp Act, 1958 significantly increases the cost of arbitration through the following, as outlined in table hereinbelow: