Cosmosteels Private Limited Vs. Supermax International Pvt. Ltd. and ors. - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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.anoop v. mohta, j.1. the petitioner - original defendant has challenged the impugned orders dated 30/08/2008 and 05/04/2007, whereby, the courts below permitted the respondents - original plaintiffs in a suit for eviction and possession to place on record additional affidavit and documents. the courts below after considering the material placed on record, though this application was filed at the stage of evidence, permitted to file on record. the application as filed, in the suit for eviction is essential for proper adjudication of the matter. these documents could not be produced at the earlier stage. therefore, delay. but that itself cannot be the reason to discard such material. it is desirable that full opportunity required to be given to both the parties even if documents are placed at the belated stage or at the stage of appeal on certain conditions. we cannot overlook that it is the court to decide and adjudicate the issue/dispute between the parties. if for proper adjudication, the courts find and permit such material to produce on record, even at belated stage, and has given full opportunity to the other party and further to cross-examination and to oppose the contents of the same. i see there is no reason to interfere with the said orders.2. the submission with regard to the deletion of order xviii rule 17-a of the code of civil procedure has been already considered in babasaheb s/o limbaji mete and anr. v. sumanbai w/o bajarang saraf and ors. : 2008(4)bomcr895 . in which it is observed as under:5. this court has noted that the deletion of rule 17-a of order xviii is done in order to curtail abuse of the facility as a matter of right of a party to call for additional evidence often done in past.6. it does not reveal by way of inference or direct prohibition that the inherent jurisdiction and the power of the court to call for witnesses whenever on facts such permission may be justified and justice warrants it, at any stage is not curtailed.7. while right of party to call for further witnesses is brought under embargo, jurisdiction of the court to follow the very course is seen kept unaffected and consciously and deliberately so i.e. it is not barred specifically by any addition corresponding to deletion of rule 17-a supra.8. this court will have to keep in mind totality of scheme of code of civil procedure. attention of this court is drawn to rule 27 of order xvi of the code of civil procedure, 1908. this rule permits grant of permission to lead additional evidence even at the stage of appeal on certain conditions. the analogy of rule 27 of order xvi as to permissibility in circumstances of additional evidence will have to be kept in mind before employing the rigour emerging due to deletion of rule 17-a of order xviii of the code of civil procedure.9. giving reasonable opportunity to prove a case is as crucial and as vital in the process of doing justice as is an opportunity of defence to an adversary. giving such opportunity would therefore be a primary and assumed pillar and cannon of adjudication in the endeavour of search of truth. search of truth is the object, and not the part of procedural ritual.i am in full agreement with above view.3. once it is clear that the additional affidavit and documents have bearing on the matter at issue, those documents cannot be rejected on the ground of delay. haji munir ahmed mansoori v. state of maharashtra and ors. and v.p. nagar samanvay samiti 2008 (2) m.l.j. 26.4. it is also settled that rules and procedure should be used in favour of giving opportunities to the parties; in the interest of justice and not to curtail it. zolba v. keshao and ors. 2008(3) bom. c r 7.5. in j.m. constructions v. rustom p. patel (dr.) and ors. : (2008)110bomlr2806 this court has elaborately clarified that an order passed on interim notice is procedural order and, therefore, not amenable to remedy of revision under section 34(4) of the maharashtra rent control act, 1999. the revisional court decided the matter on merit also though recorded that the revision against such interim notice is not maintainable but maintained the basic order dated 5th april, 2007 which is a procedural order.6. in view of above, i see there is no case made out to interfere under article 227 of the constitution of india.7. the petition is, therefore, dismissed.