Board of Trustees of the Port of Bombay Vs. Uco Bank 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - they failed to file an affidavit before the learned single judge. it is however, a fact that the appellant committed a serious lapse and they failed to bring the facts and the above documents to the notice of the court. in the case of a plaintiff, it entails in the dismissal of the suit and, therefore, an order for dismissal ought not be made under order xi, rule 21, unless the court is satisfied that the plaintiff was wilfully withholding information refusing to answer interrogatories or by withholding the documents which he ought to discover. 15. it is well settled that the stringent provisions of order xi, rule 21 should be applied only in extreme cases, where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established.bobde s.a., j.1. other side is served.2. this appeal is filed by the board of trustees of the port of bombay, against the order dated 10th march, 2005 passed by a single judge dismissing the appellant's suit for non-compliance of discovery of inspection of documents.3. on the defendant no. 5's notice of motion, the learned single judge of this court, passed an order recording the appellant's no objection to grant of inspection within certain time. thereafter, inspection was given, except two documents (a) bill of lading; and (b) invoice and packing list of the consignee. since these two documents were mentioned in the respondents/defendants' notice of motion for inspection, they were included in the order for inspection. the said defendant no. 5 took out a notice of motion for dismissal of the appellant's suit under order xi, rule 21 of the code of civil procedure. the learned single judge who heard the motion noticed the plaintiff/appellant's contention that inspection of the documents was not given because those documents were not in their possession. however, since this fact was not stated in an affidavit, the learned single judge apparently declined to take cognizance of this contention. the learned single judge also noticed that even after the defendant no. 5 had written a letter dated 15th february, 2003 pointing out that the inspection had not been given, the appellant did not apply for modification of the order on the ground that they were not in possession. the appellant did not file an affidavit stating that documents were not in its possession. in these circumstances, the learned single judge was constrained to dismiss the suit under order xi, rule 21 of the code of civil procedure. order xi, rule 21 reads as follows:21. non-compliance with order for discovery.- (1) where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the court for an order to that effect, and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.(2) where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.4. we find that, in the circumstances of the case, the learned single judge's order cannot be said to be vitiated by any illegality.5. the learned counsel for the appellant, however, points out that there were two documents of which inspection was allegedly not given. one of them i.e. the invoice and packing list was a document which was not relied on by the appellant in the plaint at all. infact, the learned counsel pointed out that inspection had been demanded of the documents mentioned in paragraph 4 of the plaint and no invoice and packaging list was mentioned in paragraph 4 of the plaint. as far as the bill of lading is concerned, the learned counsel fairly submitted that, it is a fact that at no point of time the appellant was in possession of the documents. they failed to file an affidavit before the learned single judge. the appellant has however filed an affidavit of one santosh vasant dighe dated 21st march, 2009 before us. in the affidavit the appellant deponent has stated that the appellant was never in possession of the bill of lading and the invoice and packing list in their possession and till date they do not have those documents. the reason is stated to be the fact that a consignee or importer produces the bill of lading at the time of asking delivery. in the present case, since the consignment was not cleared at all, there was no reason for the appellant to come in possession of the document. in the circumstances, it appears that the appellant's plea that the documents (a) and (b) namely, bill of lading and invoice packing list were never in their possession. so also according to the deponent, the plaintiff was never in possession of the invoice and packing list.6. it appears that the contention on behalf of the appellant is genuine and in all probability the bill of lading and invoice and packing list never came into possession of the appellant. it is however, a fact that the appellant committed a serious lapse and they failed to bring the facts and the above documents to the notice of the court. having however, pointed out the facts to this court in appeal, we consider it appropriate to take into account said explanation.7. it is settled law that power under order xi, rule 21 of the code of civil procedure ought not to be exercised lightly. in (babbar sewing machine co. v. tirlok nath mahajan) reported in : 1978 dgls (soft) 183 : a.i.r. 1978 s.c. 1436, the supreme court observed as follows:14 even assuming that in certain circumstances the provisions of order xi, rule 21 must be strictly enforced, it does not follow that a suit can be lightly thrown out or a defence struck out, without adequate reasons. the test laid down is whether the default is wilful. in the case of a plaintiff, it entails in the dismissal of the suit and, therefore, an order for dismissal ought not be made under order xi, rule 21, unless the court is satisfied that the plaintiff was wilfully withholding information refusing to answer interrogatories or by withholding the documents which he ought to discover. in such an event, the plaintiff must take the consequence of having his claim dismissed due to his default i.e. by suppression of information which he was bound to give; (denvillier v. myers) 1883 wn 58. in the case of the defendant, he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he had not defended the suit. the power of dismissal of a suit or striking out of the defence under order xi, rule 21, should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party.15. it is well settled that the stringent provisions of order xi, rule 21 should be applied only in extreme cases, where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established.16. an order striking out the defence under order xi, rule 21 of the code should, therefore, not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful attempt to disregard the order of the court. the rule must be worked with caution and may be made use of as a last resort; mulla's c.p.c. 13th ed., vol. 1, p. 581, (khajah assenoolla joo v. khajah abdool aziz) 1883 i.l.r. 9 cal. 923; (banshi singh v. palit singh) (1908)7 cal.l.j. 295; (allahabad bank ltd. v. ganpat rai) i.l.r. 11 lah. 209 : a.i.r. 1929 lah. 750; (haigh v. haigh) (1885)31 ch.d. 478 and (twyeroft v. grant) 1975 wn 201.17. in haigh v. haigh (supra) pearson, j., observed:i have no hesitation in saying that i have the strongest disinclination, as i believe every other judge has, that any case should be decided otherwise than upon its merits. but this order was introduced to prevent plaintiffs and defendants from delaying causes by their negligence or wilfulness. so great was my anxiety to relieve this lady from the consequence of her wrong headedness if, by any possibility, i could on proper terms, that i hesitated to refuse to make the order asked for, and i have looked into all the cases i could find on the subject to see what the practice of the court has been on this order. and i can find no case in the books where it has been applied, where a man knowingly and wilfully has allowed judgment to go by default.18. in twyerofi v. grant 1875 wn 201 (supra) lush, j. interpreting corresponding order xxxi, rule 20 of the judicature act, held that he would only exercise the powers conferred by the rule in the last resort. in england, the party against whom such an order is made would, it seems, be entitled to come in and ask that the order might be set aside on showing sufficient grounds for such an application.the supreme court has further observed as under:20. it is settled law that the provisions of order xi, rule 21, should be applied only in extreme cases where obstinacy or contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established. as pointed out by lord russell, c.j. in (reg. v. senior) (1899)1 qbd 283 and affirmed by cave l.c. in (a.b. tamboli v. g.i.p. railway) i.l.r. 52 bom. 169 : a.i.r. 1928 p.c. 24 'wilfully' means that:the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it.8. in the circumstances of the case, though the learned trial judge cannot be said to have committed an error in dismissing the suit because the plaintiff did not grant inspection of two documents even though there was an order to that effect, it appears the circumstances in which this has happened it was inadvertent, having regard to the affidavit filed before us. we, therefore, allow the appeal, set aside the order in appeal and restore the suit for trial before the learned single judge. there will be no order as to costs.