Armstrong Builders and Developers Vs. Vishvanath Naik - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - the complainant sent the notice dated 6-7-2004, which according to the complainant, the accused received on 7-7-2004 but failed to comply with the same within a period of fifteen days and therefore the complainant prosecuted the accused by filing the complaint on 20-8-2004. 3. in support of the complaint, the complainant examined himself and produced the necessary documents including the cheque, the memorandum of dishonour, copy of the registered notice along with the a. 6. the learned magistrate has come to the conclusion that the complaint filed on 20-8-2004 was filed after the expiry of one month since the statutory notice was received by the accused on 7-7-2004. there is no doubt that section 142(b) of the act provides that a complaint is required to be filed within one month of the date on which the cause of action arises under clause(c) of the proviso to section 138. it is now well settled that the cause of action arises not from the date of the notice but from the date of the failure of the accused to make the payment as demanded. it is therefore very clear that once the notice was received at the address at which it was dispatched, the presumption under section 27 of the general clauses act was clearly available in favour of the complainant. the accused is given time of eight weeks to pay the said compensation and upon failure, the accused should surrender before the learned j.n.a. britto, j.1. this is a complainant's appeal against the acquittal of the accused under section 138 of the negotiable instruments act, 1881 (act, for short).2. the case of the complainant was that he was the proprietor of armstrong builders and developers and that on 22-1-2004 the accused had taken a cash loan from the complainant for a period of three months and in part discharge of the said liability the accused had issued a cheque bearing no. 112888 dated 22-4-2004 drawn on the bicholim urban co-op. bank limited for a sum of rupees one lakh and when the cheque was presented for payment, the same was returned dishonoured with remark dated 2-7-2004 that the funds were insufficient. the complainant sent the notice dated 6-7-2004, which according to the complainant, the accused received on 7-7-2004 but failed to comply with the same within a period of fifteen days and therefore the complainant prosecuted the accused by filing the complaint on 20-8-2004.3. in support of the complaint, the complainant examined himself and produced the necessary documents including the cheque, the memorandum of dishonour, copy of the registered notice along with the a.d.4. the case of the accused in his statement recorded under section 313 of the code of criminal procedure, 1973 (code, for short) was one of denial simpliciter so much so that when the accused when questioned as to whether he had anything to say regarding the case, the accused stated that he had nothing to say.judgment / orderdated 28-4-2006 has acquitted the accused and this in spite of the fact that the law provides, in favour of the complainant, several presumptions including under sections 118, 138 and 139 of the act.6. the learned magistrate has come to the conclusion that the complaint filed on 20-8-2004 was filed after the expiry of one month since the statutory notice was received by the accused on 7-7-2004. there is no doubt that section 142(b) of the act provides that a complaint is required to be filed within one month of the date on which the cause of action arises under clause(c) of the proviso to section 138. it is now well settled that the cause of action arises not from the date of the notice but from the date of the failure of the accused to make the payment as demanded. the accused was required to make the payment within fifteen days of the receipt of the notice. the notice was received on 7-7-2004. the cause of action would have arisen in favour of the complainant after expiry of fifteen days of 7-7-2004 and therefore it is but obvious that the complaint filed was within time. the learned magistrate was wrong in acquitting the accused on that count.7. as per the complainant, the notice was received by the accused on 7-7-2004. it appears that the complainant was cross-examined in relation to the signature seen on the a.d. card produced by the complainant and the complainant stated that the signature on the a.d. card and the signature on the cheque did not tally. this fact was presumably taken by the learned magistrate against the case of the complainant observing that the complainant had not identified the signature on the a.d. card. it has been submitted on behalf of the accused, by ms. r. kamath, the learned counsel, that in the absence of the complainant proving the signature on the a.d. card, no presumption of service is available in favour of the complainant. there is no dispute that the statutory notice was sent by the complainant upon the correct address of the accused and was received at the given address. it is therefore very clear that once the notice was received at the address at which it was dispatched, the presumption under section 27 of the general clauses act was clearly available in favour of the complainant. a similar situation was considered by the apex court in the case of k. bhaskaran v. sankaran vaidhyan balan and anr. 2000 (1) mh.lj. 193 : (1997) 7 scc 510. the principle incorporated in section 27 of the act, observed the supreme court, can profitably be imported where the sender has dispatched the notice by post with the correct address written on it and then it can be deemed to have been served on the sender unless he proves that it was not really served and that he was not responsible for such non-service. it was not for the complainant to prove that the signature on the a.d. card was not that of the complainant. on the contrary, it was for the accused to have proved that he had not received the said statutory notice. in this case, the accused did not even make an attempt to dislodge the presumption of service. scribbling a signature different from his own could be a strategy adopted with a view to deny the signature. mere suggestion that the accused had not received the notice was not sufficient to displace the presumption. the accused chose not to examine himself nor the postman to prove the non-receipt of the notice.8. the complainant was also cross-examined on the aspect of money lending. in fact in the cross-examination of the complainant it was impliedly admitted that the amount which was advanced to the accused was not connected with the business of the accused, the complainant's business being that of a builder and developer. the complainant had categorically stated that he was not a money lender nor did he have license to lend money. picking up the expression from para 3 of the complaint, that the complainant had given a loan to the accused, learned counsel on behalf of the accused, submits that such a loan was not recoverable in the light of the provisions of the goa money lenders act, 2001. the learned counsel on behalf of the accused has particularly referred to the expression activity in sub-clause (a) of clause (1) of section 2 of the said act and has submitted that even a single loan would come within the purview of the expression 'activity' appearing in the said sub-clause (a) of clause (1) of section 2 of the act. apart from the denial by the complainant that he is the money lender, the accused produced no evidence to bring on record to show that the complainant was carrying on business of money lending or any activity of lending of any finance. the expression 'activity' is not defined under the said act and the ordinary dictionary meaning as per black's law dictionary activity is an occupation or pursuit in which a person is active, and, as per oxford english dictionary, it is the condition in which things are happening or being done. in other words, the very subject of activity suggests continuity and therefore a single act of giving a loan would not come within the definition of sub-clause (a) of clause (1) of section 2 of the said act. in this context, reference to the case of rotakonda raghu naidu v. kolla s. prasad 2004 (4) crimes 295 could be made. the learned single judge of the andhra pradesh high court referring to another decision of the division bench of that court observed that 'money lender' envisages only those persons whose regular business is to advance monies and not those who advance monies casually. a solitary instance of giving a loan does not make a person a money lender. that being the position, the provisions of the goa money lenders act, 2001 would be of no assistance to the case of the accused.9. the complainant having examined himself in support of the case and having produced all the necessary documents, the learned j.m.f.c. ought to have considered the presumptions available in his favour as tantamounting to proof and in the light of the said presumptions ought to have held that the complainant had proved his case. the acquittal of the accused was not at all justified.10. the appeal therefore succeeds. thejudgment / orderdated 28-4-2006 is hereby set aside. the accused is convicted under section 138 of the act.11. by consent, for imposition of sentence s. o. to wednesday, 15th instant.12. the accused has remained present along with his advocate shri usgaonkar. shri usgaonkar has submitted that the accused is a paralytic person. it appears that he has some difficulty in talking. learned advocate shri lobo submits that the complainant's interest is in recovering the amount due to the complainant and the complainant would not insist on the accused being imprisoned.13. considering the facts stated aforesaid, the accused is hereby sentenced under section 138 of the act to one day s.i. (till rising of the court), which the accused shall undergo before this court and to pay compensation of rs. 1,20,000/-, in default to undergo s.i. of six months. the accused is given time of eight weeks to pay the said compensation and upon failure, the accused should surrender before the learned j.m.f.c. to undergo the sentence in default of payment of compensation.