In Re: Ajmera Realty and Infra India Ltd. - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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.s.j. vazifdar, j.1. the petitioners seek an order sanctioning a scheme of arrangement entered into between them. the scheme involves the demerger of the steel division of the petitioner in company petition no. 63 of 2009, the transferor company and the merger thereof into the resulting company, i.e., the petitioner in company petition no. 64 of 2009.2. the procedure has been complied with. the regional director has filed an affidavit stating that subject to the observations in paragraph 6 thereof, the scheme does not appear to be prejudicial to the interest of the shareholders and the public.3. in paragraph 6 of the affidavit, the regional director has stated that neither the petitions nor the scheme provide details of the assets and liabilities of the steel division of the demerged company that are to be transferred to and vested in the resulting company.4. as pointed out by mr. mehta, the petitioners' scheme itself in clause 1.10 defines the steel division as under:1.10 'steel division' means the business of manufacturing, processing, distributing, importing, exporting, buying, selling, assembling, repairing, etc., all kinds of steel products and ferrous and non-ferrous metal products and includes the undertaking comprising of; 1.10.1 all assets (whether movable or immovable, real or personal, corporeal or incorporeal, present, future or contingent, tangible or intangible) wherever situated pertaining to and relatable to the steel division; 1.10.2 all present and future liabilities arising out of the activities or operations of steel business, including loans, debts, current liabilities and provisions, duties and obligations relatable to the steel division ; 1.10.3 without prejudice to the generality of the above, the steel division shall include in particular:(a) all properties required for the steel division wherever situated, including all current assets, funds, offices, furniture, fixtures, office equipment, appliances, accessories and vehicles ; (b) all permits, rights, entitlements, bids, tenders, letters of intent, expressions of interest, municipal and other statutory permissions, approvals, consents, licenses, registrations, subsidies, concessions, exemptions, remissions related to steel division, tenancies in relation to office and factory and/or residential property for the employees related to steel division, offices, goodwill, intellectual property rights (including technical know how, patents, trademarks and copy rights) related to steel division, investment, cash balances, the benefit of any deposit and financial assets related to steel division, funds belonging to or proposed to be utilised for the steel division, bank balances and bank accounts relating to the day to day operations and specific to the working of steel division, privileges, all other rights and benefits, lease rights, licenses, domain names, trade name and other intellectual property rights of any nature whatsoever and licenses in respect thereof, powers and facilities of every kind, nature and description whatsoever, rights to use and avail of telephone, telexes, facsimile connection and installations, utilities, power lines, electricity and other services, provisions, funds, benefits of all agreements, contracts and arrangements and all other interest in connection with or relating to the steel division; (c) all records, files, papers, computer programs, manuals, data, libraries, catalogues, quotations, sales and advertising materials, lists of present and former customers and suppliers, customer credit information, customer pricing information, and other records, whether in physical form or electronic form in connection with or relating to the steel division; (d) all duties and obligations which are relatable to steel division; (e) all earnest money's and/or security deposits, if any, paid or received by the ariil in connection with or relating to the steel division ; 1.10.4 for the purpose of this scheme, it is clarified that liabilities pertaining to the steel division include:(a) the liabilities, which arise out of the respective activities or operations of the steel division ; (b) specific loans and borrowings raised, incurred and utilised solely for the respective activities or operation of the steel division; (c) liabilities other than those referred to in sub-clauses (a) and (b) above, being the amounts of general or multipurpose borrowings of ariil, allocated to the steel division in the same proportion in which the value of the assets transferred under this scheme bear to the total value of the assets of ariil immediately before giving effect to this scheme; 1.10.5 all permanent employees of ariil employed in the steel division, as identified by the board of directors of ariil, as on the effective date ; 1.10.6 any question that may arise as to whether a specified asset or liability pertains or does not pertain to the steel division or whether it arises out of the activities or operations of the steel division shall be decided by mutual agreement between the board of directors of ariil and resulting company.5. further, the schedule forming a part of the provisional balance-sheet as on march 31, 2008 and the profit and loss account in the year ended on that date bifurcate the details of the steel division and the real estate division of the transferor company.6. there is no provision in law which requires the balance-sheet and profit and loss account or the scheme enumerating and setting out of each and every asset which is the subject-matter of the scheme of demerger. my attention has not been invited to any such provision.7. i do not suggest that in a given case a creditor, shareholder or any other concerned party is prohibited from calling for any particulars while examining a scheme under sections 391 to 394 including a scheme of merger or demerger. whether such an application ought to be granted or not would depend upon the facts of the case.8. it is pertinent to note that in the present case apart from stating that the details of the assets which form a part of the scheme have not been enumerated nothing adverse regarding the scheme as such is stated. nor is it even suggested that as a result thereof the interest of any concerned party has been adversely affected. further, still the entire procedure has been complied with and no objection has been raised by any party including the creditors and members.9. lastly, it is pertinent to note that the members and the creditors of the petitioners' will not be affected adversely by the scheme as there are no creditors of the transferee company. nor are there any liabilities that the transferee company is exposed to. this is so provided in the balance-sheet and the profit and loss account for the year ending march 31, 2008. the unaudited balance-sheet and the profit and loss account for the period ended on september 30, 2008, indicates the liability of only rs. 38,000. the creditors are the directors of the company themselves. the same does not warrant a refusal of an order sanctioning the scheme.10. in the circumstances, both the petitions are made absolute in terms of prayers (a) to (d).11. the transferee company shall lodge a copy of this order and the scheme with the concerned superintendent of stamps for the purpose of adjudication of stamp duty payable, if any, on the same within thirty days of obtaining the authenticated and/or certified copy of the order.12. the transferor company to pay costs of rs. 7,500 to the regional director. costs to be paid within four weeks from today.13. filing and issuance of the drawn up order is dispensed with.14. all concerned authorities to act on a copy of this order duly authenticated by the company registrar, high court, bombay.