indusind Bank Ltd. Vs. Quality Fabricators and Erectors Through Its Proprietor Mr. Deoshankar Ramlachhan Mourya and Ram Adhiya Mourya - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. heard finally.2. the petitioner has invoke section 9 of the arbitration and conciliation act, 1996 (hereinafter referred as the act) as the respondents committed defaults in payment based upon loan agreement dated 15th october, 2007 of which the arbitration clause as under:law, jurisdiction, arbitration(a) all disputes, differences and/or claim arising out of or touching upon this agreement whether during its subsistence or thereafter shall be settled by arbitration in accordance with the provisions of the arbitration and conciliation act, 1996, or any statutory amendments thereof and shall be referred to the sole arbitration of an arbitrator nominated by the lender. the award given by such an arbitrator shall be final and binding on the borrower and coborrower to this agreement.(b) dispute for the purpose of arbitration includes default committed by the borrower as per clause 14 of this agreement.it is a term of this agreement that in the event of such an arbitrator to whom the matter has been originally referred to dying or being unable to act for any reason, the lender, at the time of such death of the arbitrator or of his inability to act as arbitrator, shall appoint another person to act as arbitrator. such a person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor.(c) the venue of arbitration proceedings shall be at chennai.(d) the arbitrator so appointed herein above, shall also be entitled to pass an award on the hypothecated asset and also on any other securities furnished by or on behalf of the borrower/coborrower.(e) all notices and other communications on the lender and the borrowers shall be to the following address:for lender : corp. off. retail: induslnd bank ltd., 86sudarsan building, chamiers road, chennai600 018.for borrower : the residential address stated in the schedule or the property address described in the schedule.3. by an affidavit dated 7th september, 2009 a preliminary objection is raised about the maintainability of the present petition.4. there is no serious dispute about the defaulted amount except general denial. the objection is also raised that as amount is more then 10 lakhs, the petitioner needs to approach the d.r.t. and not this court.5. admittedly, there is no such clause in the agreement. the petitioner is a financial institution that itself cannot be the reason that the petition under section 9 of the act is not maintainable to secure the amount, unless prohibited expressly or impliedly. in the present case, admittedly, there is no such expressed or implied clause to prevent the petitioner from filing such petition under section 9 of the act.6. clause 23 is referred above nowhere provides any clause of exclusive jurisdiction. however, provides that the venue of arbitration shall be at chennai that in no way sufficient to debarred the petitioner from filing the present petition at mumbai. the petitioner's state office is at mumbai. the respondents are resident of navi mumbai. the vehicle was handed over in mumbai. the respondents is not in position to state whether the crane/machinery is in use and is at what site. the respondents issued cheques from mumbai to the petitioner's nariman point office at mumbai.7. therefore, in absence of any exclusive clause, for the purpose of section 9 petition, it is sufficient to consider the averments made by the petitioner for the interim protection or the relief as prayed. this court has jurisdiction to grant protection/interim relief.8. admittedly, an arbitrator is appointed at chennai. the arbitration proceedings is pending.9. considering the averments made, and as there is admitted default and as the defence so raised in the reply, that in my view is not sufficient to deny the case as made out by the petitioner, for the interim protection, as already granted in terms of prayer clause 'c'.10. the various disputed facts though raised in the reply that are necessary to be dealt with by the arbitrator tribunal.11. as noted the vehicle is a movable property. the respondents have been using the same without making due payments. therefore, i am of the opinion that the case is made out by the petitioner to grant relief in terms of prayer clause 'f' also . however, time is granted to respondents to furnish solvent security subject to the satisfaction of the petitioner, to secure the amount, within eight weeks instead of, bank guarantee.12. i do not deny the right of the respondents to settle the matter and raise the appropriate defence before the tribunal. in the result, the petition is allowed in terms of prayer clause 'c' and 'f'. no cost.