Bombay High Court
Karnal Singh Gurudas Singh Saini ... vs The Secretary To The Government Of ... on 25 April, 2016
Bench: Ravi K. Deshpande
aa14.15.J.odt 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
ARBITRATION APPEAL NO.14 OF 2015
1] Karnal Singh Gurudas Singh Saini,
R/o 446, Hanuman Nagar, Nagpur,
Tah. & Dist. Nagpur.
2] Baliram Girdharilal Sahajramani,
R/o Sindhu Nagar, Jaripatka,
Nagpur, Tah. & Dist. Nagpur. ....... APPELLANTS
ig ...V E R S U S...
1] The Secretary to the Government
of India, Ministry of Road Transport
and Highways, New Delhi.
2] National Highways Authority of India,
through its Project Director,
Project Implementation Unit,
Pandhurna (M.P.) having its
Registered office at Bunglow No.2,
Shubhankar Apartment, Plot No.159,
Ambazari Hill Top, Ram Nagar,
Nagpur - 440 033.
3] The Additional Commissioner,
Nagpur and Arbitrator under the
National Highways Act, 1956,
having office at Old Secretariat
Building, Civil Lines,
Nagpur - 440 001.
4] The Deputy Collector,
(Land Acquisition - General),
Nagpur (Maharashtra) and
Competent Authority for Acquisition
of Land for National Highways,
Collectorate, Nagpur. ....... RESPONDENTS
::: Uploaded on - 23/05/2016 ::: Downloaded on - 29/07/2016 23:44:43 :::
aa14.15.J.odt 2/10
------------------------------------------------------------------------------------------------
Shri S.P. Bhandarkar, Advocate for Appellants.
Shri A.M. Ghare a/w Shri A.A. Kathane, Advocate for Respondent
No.2.
Shri M.A. Kadu, AGP for Respondent Nos.3 and 4.
------------------------------------------------------------------------------------------------
CORAM: R.K. DESHPANDE, J.
th APRIL, 2016.
DATE: 25
ORAL JUDGMENT
1]
Shri Ghare, the learned counsel appearing for the
respondent No.2 - National Highways Authority of India seeks
permission to withdraw Civil Application (CAM) No.11 of 2016 and
seeks further permission to substitute it by another application, which
he has tendered. The request is accepted. The Civil Application
(CAM) No.11 of 2016 is permitted to be withdrawn with liberty to file
fresh application which is tendered in the Court. The application is
taken on record and it be registered accordingly.
2] This appeal is filed under Section 37 of the Arbitration
and Conciliation Act, 1996 ("said Act" for short) challenging the order
dated 28.08.2015 passed under Section 34 by the learned Principal
District Judge setting aside the arbitral award dated 29.08.2015.
The preliminary objection is with regard to payment of Court fee on
the appeal. The appellant has paid Court fee of Rs.25/- in terms of
aa14.15.J.odt 3/10
Article 13 under Schedule II of the Maharashtra Court Fees Act
("Court Fees Act" for short). According to the office and the
respondent No.2, the Court fee is payable in terms of Article 4 of
Schedule I under the Court Fees Act and the Court fee payable is the
same, as was paid on the application under Section 34 of the said Act,
in terms of Article 3A under Schedule I of the Court Fees Act.
3] Article 3A of the Court Fees Act introduced by way of an
amendment w.e.f. 01.09.2009 is therefore reproduced below:
"3A Application ......... A fee of one-half of
or petition (including the ad valorem fee
memorandum of appeal) on the amount or
to set aside or modify value of the award
arbitral award under the sought to be set
Arbitration and Conciliation aside or modified,
Act, 1996. according to the
scale prescribed
under Article 1."
The application under Section 34 of the said Act for
setting aside arbitral award is governed by the aforesaid provision
and it carries the Court fee of one-half of the ad valorem fee on the
amount or value of the award sought to be set aside or modified
according to the scale prescribed under Article I of the Court Fees Act.
4] The respondent No.2 had filed applications for setting
aa14.15.J.odt 4/10
aside award under Section 34 on which a Court fee of Rs.1.5 lacs on
each of the application was paid. The applications have been allowed
and the award has been set aside. Hence, the appellants, who are the
original claimants have preferred this appeal under Section 37 of the
said Act. It is not disputed that if the Court fee is payable in terms of
Article 4 of Schedule I of the Court Fees Act, then the Court fee as
stipulated in Article 3A and as was paid in the trial court, will have to
be paid. It is also not in dispute that such Court fee has not been paid.
5] Hence, the question for determination is as under:
Whether in an appeal under Section 37 of the Arbitration
and Conciliation Act, 1996 the Court fee is payable in
terms of Article 13 in Schedule II or Article 4 in Schedule
I of the Maharashtra Court Fees Act ?
6] Sections 35 and 36 of the Arbitration and Conciliation
Act, 1996 are reproduced below :
"35. Finality of arbitral awards.-- Subject to this Part an arbitral
award shall be final and binding on the parties and persons claiming
under them respectively.
36. Enforcement.-- Where the time for making an application to set
aside the arbitral award under section 34 has expired, or such
application having been made, it has been refused, the award shall be
enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the
same manner as if it were a decree of the Court."
aa14.15.J.odt 5/10
Section 35 under the said Act deals with the finality of
the arbitral award which shall be binding on the parties and persons
claiming under them respectively, subject to the other provisions in
Part I of the said Act. Section 36 under the said Act deals with the
enforcement and it states that where the time for making an
application to set aside the arbitral award under section 34 has
expired, or such application having been made, it has been refused,
the award shall be enforced under the Code of Civil Procedure, 1908
(5 of 1908) in the same manner, as if it were a decree of the Court.
It is thus, apparent that Section 34 makes the order passed either
refusing to set aside the award or setting aside the award
enforceable, as if it is a decree of the Court.
7] The reliance is placed upon Article 13 in Schedule II
under the Maharashtra Court Fees Act to justify the stand that the
Court fee of Rs.25/- paid on the appeal under Section 37 of the said
Act is correct. Hence, the provision of Article 13 in Schedule II under
the Court Fees Act is reproduced below:
"13. Memorandum of appeal (a) to any Civil Court other [Five rupees].
when the appeal is not from than the High Court,
a decree or an order having or to any Revenue Court
the force of a decree, and or Executive Officer other
is presented -- than the High Court or
Chief Controlling Revenue
or Executive Authority;
(b) to the Chief Controlling [Ten rupees].
aa14.15.J.odt 6/10
Executive or Revenue
Authority;
(c) to the High Court [Twenty five
rupees]".
Article 13 deals with memorandum of appeal to the High Court when
the appeal is not from a decree or an order having the force of a
decree. In view of Section 36 of the said Act, reproduced above, the
order passed by the trial court under Section 34 of the said Act has
the force of a decree and hence the provision of Article 13 in
Schedule II of the Maharashtra Court Fees Act is not at all applicable.
The reliance is totally misplaced.
8] Article 4 under Schedule I of the Maharashtra Court Fees
Act reads as under:
"4. Plaint, application ......... The same fee as is
or petition (including leviable on a plaint in a
memorandum of appeal) suit to obtain the relief
which is capable of being granted in the decree or
treated as a suit, to set order, as the case may
aside a decree or order be."
having the force of a decree.
The provision of Article 4 of Court Fees Act is clearly
attracted in case of memorandum of appeal under Section 37 of the
Arbitration and Conciliation Act filed to set aside order passed under
Section 34 of the said Act which has a force of a decree and the Court
aa14.15.J.odt 7/10
fee is payable in the present appeal shall be in accordance with this
provision. In terms of Article 4 of the Court Fees Act, the applicant is
required to pay Court Fee in appeal under Section 37 of the said Act
as was paid in the trial court on the application under Section 34 of
the said Act.
9] Shri Bhandarkar, the learned counsel appearing for the
appellants has relied upon the following portion appearing in the
paragraph 15 of the decision of the Full Bench in the case of Puneet
Malhotra and another v. R.S. Gai, Sole Arbitrator and others reported
in (2008)6 Mh.L.J. 867, which reads as under:
"15. Insofar as an appeal filed before this Court under
section 37 of the Arbitration and Conciliation Act, 1996 against an
order made in a petition filed under section 34 of the 1996 Act is
concerned, it will be governed by Article 13 of Second Schedule which
read as under:-
13. Memorandum of appeal (a) --- (Twenty Five Rupees)
when the appeal is not from
a decree or an order having
the force of a decree, and is
presented ---
When a petition under Section 34 is to be filed before a Principal
Civil Court of original jurisdiction which is not a High Court, the
question arises which Article of either First Schedule or Second
Schedule would apply. Insofar as the challenge to an Award made
under the 1940 Act is concerned, an application under section 13 of
that Act could be made to a Civil Court and therefore, payment of
court fee was governed by Article 1(a) of Schedule II which read as
under:-
1. Application or petition (a) ------- Five Rupees
or when presented
to any Civil Court
aa14.15.J.odt 8/10
other than a principal
Civil Court of original
jurisdiction;
This was so because the application was to be presented to the Court
or Civil Judge which was not a principal Civil Court of original
jurisdiction. But now because of change of definition of term "Court"
in the 1996 Act, a petition has to be presented challenging an Award
made under the 1996 Act in terms of the provisions of section 34
thereof, before the Principal Civil Court of original jurisdiction. We
have not been pointed out any entry either in the first Schedule or in
the Second Schedule which applies to an application or petition to be
made before the Principal Civil Court of original jurisdiction, and
therefore, when a litigant wants to file petition before a Principal
Civil Court having original jurisdiction which is not High Court,
challenging an Award made under the 1996 Act, no Court fee under
Bombay Court Fees Act is payable because of absence of a general or
specific provision. Whereas on an appeal filed under section 37 of the
1996 Act against an order made in that petition, court fee would be
payable as observed above under Article 13 of Schedule II of the
Bombay Court Fees Act, because the appeal will lie to the High Court.
The question, therefore framed for our consideration is answered
thus:-
(i) Article 3 of Schedule I of the Bombay Court fees Act does not
apply to a petition, application or memorandum of appeal filed for
challenging an Award made under the 1996 Act, and Court fee on a
petition filed under section 34 of the 1996 Act challenging an Award
in this Court is payable according to Article 1 (f)(iii) of Schedule II.
(ii) No Court fee under the Bombay Court fees Act is payable
when a petition under section 34 challenging an Award is filed before
any Principal Civil Court of original jurisdiction which is not High
Court.
(iii) On an appeal filed in this Court under 37 of the 1996 Act
challenging an order passed in a petition filed under section 34 of the
1996 Act court fee is payable according to Article 13 of Schedule II of
the Bombay Court Fees Act."
10] No doubt that the Full Bench has observed that the
appeal under Section 37 of the Arbitration and Conciliation Act, 1996
against an order made in the petition under Section 34, will be
governed by Article 13 of Schedule II, which is reproduced above.
aa14.15.J.odt 9/10
According to Shri Bhandarkar, the learned counsel for the appellants,
the Court fee as required in view of the aforesaid position of law, is of
Rs.25/- which has been paid and that satisfies the requirement as has
been observed by the Full Bench.
11] The Full Bench was essentially dealing with the question
of payment of Court fee on the application under Section 34 of the
Arbitration and Conciliation Act. After the decision of the Full Bench
on 23.10.2008, the provision of Article 3A under the Schedule I of the
Maharashtra Court Fees Act has been introduced requiring the
payment of Court fee on such application at the rate of one-half of the
ad valorem fee on the amount or value of the award sought to be set
aside or modified, according to the scale prescribed under Article 1.
In view of this, the decision of the Full Bench is not applicable to the
application under Section 34 of the said Act filed after introduction of
Article 3A in Schedule I of the Court Fees Act. In the present case not
only an award was passed, but an application under Section 34 of the
said Act was also filed after introduction of Article 3A. Hence, there is
no question of prospective or retrospective operation of Section 3A of
the Court Fees Act.
12] It was not a case before the Full Bench raising the
question of payment of Court fee on the appeal preferred under
aa14.15.J.odt 10/10
Section 37 of the Arbitration and Conciliation Act. The Court
therefore, did not consider the impact of the provisions of Section 35
and 36 of the Arbitration and Conciliation Act, 1996 along with the
provision of Article 4 under Schedule I of the Maharashtra Court Fees
Act. The decision of the Full Bench is not an authority for the
proposition that the Court fee payable on the appeal filed under
Section 37 of the Arbitration and Conciliation Act, 1996 shall be
governed by Article 13 in the Schedule II.
13] In view of above, the office to decide the Court fee
payable as per Article 4 in Schedule I read with Article 3A of the
Court Fees Act and upon such determination, the Court Fee so
determined be paid within a period of eight days, failing which the
appeal shall stand dismissed.
Put up after Summer Vacation, 2016.
JUDGE
NSN
