Vasant Namdeo Baste and ors. Vs. Madhukar Trimbak Suryawanshi - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. 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 high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, 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. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 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. this was so because the application was to be presented to the court of 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. no entry either in the first schedule or in the second schedule was pointed out 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. therefore, it can be said that 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. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 5. the only contention that was raised in support of these two appeals was that the learned tribunal failed to consider that there was no reliable evidence in support of the claim of the respondents that the truck in question, namely mts-3195 caused the accident and for that matter injuries on the persons of the two claimants.m.k. mukherjee, c.j.1. these two appeals have been heard together as they stem from a common judgment2. facts relevant for disposal of these two appeals, are as under:on january, 31, 1982 at or about 11.30 a.m. when madhukar trimbak suryawanshi, the respondent in first appeal no. 985 of 1985 was proceeding along deola-satna road on a motor-cycle with ashok sukdeo jadhav, the respondent in the other appeal, on the pillion, a truck suddenly dashed against them, as a result of which both of them sustained severe injuries. a matador which was also coming along that road at that time stopped there and its two occupants namely, ratan vithal mahatma and ramdas trimbak shewale took the two injured to a doctor and arranged for their treatment. information about the accident was also lodged with the local police station.3. the above two injured thereafter filed two separate applications before the motor accident claims tribunal claiming compensation from the appellant no. 1, as according to them his truck bearing registration no. mts-3195 had caused the accident, appellant no. 2, who, according to them was rashly and negligently driving the said truck, and the appellant no. 3, as the truck was insured with it. in contesting the claim of the respondents-claimants, the appellants raised various pleas, one of which was that the truck in question was not in any way involved in the accident and that, in fact, the truck was at a different place altogether at the material time.4. on consideration of the evidence adduced before it, the tribunal allowed both the claims by the impugned judgment and aggrieved thereby, the appellants have filed the instant appeals.5. the only contention that was raised in support of these two appeals was that the learned tribunal failed to consider that there was no reliable evidence in support of the claim of the respondents that the truck in question, namely mts-3195 caused the accident and for that matter injuries on the persons of the two claimants. having carefully considered the materials on record, including the evidence adduced on behalf of the parties before tribunal, we find no substance in the above contention.6. to substantiate their claim that due to rash and negligent driving of the truck in question they sustained injuries, the claimants besides examining themselves, examined a doctor who attended to their injuries, a police officer who had registered the complaint of the claimants, the two occupants of the matador van who had taken the injured to the doctor for their treatment and a driver who had signed the panchnama that was prepared in respect of the seizure of the truck on the date of the incident. the evidence of the two claimants and the occupants of the matador van, who are two professors, unmistakably prove that the accident took place owing to the rash and negligent driving of the driver of the truck no. mts-3195. on perusal of their evidence we find that apart from the fact that their evidence is consistent and cogent, no suggestion was even put on behalf of the appellants to any of these witnesses that the above truck was not in any way involved in the accident.7. coming now to the evidence adduced on behalf of the appellants, we find that as many as six witnesses were examined on their behalf. the driver in question, namely, appellant no. 2 herein, while admitting that on that day he had passed through deola village - where the accident admittedly took place - he stated that the time at which he passed through that village was at about 1.30 p.m. and he further stated that his truck was not in any way involved in any accident. the other evidence on this point which was adduced on behalf of the appellants, was through chandrabhan bhika pagar, the cleaner of the truck, who also stated that their truck did not meet with the accident in the manner alleged by the claimants. having regard to the evidence of the two claimants, and, particularly the evidence of the two professors whom we do not find any reason to disbelieve, we are not inclined to place any reliance upon the evidence of the driver and the cleaner.8. in view of the above discussion and since no other point has been raised in support of these appeals, we find no hesitation in dismissing the same. there will be no order as to costs.9. the registrar of this court is directed to ensure payment of the awarded amounts, which are lying in deposit under orders of this court, to the respondents-claimants, along with interest that has accrued thereupon, within a month from date.