In Re: Reliance Communications Infrastructure 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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.a.m. khanwilkar, j.1. heard learned counsel for the parties.2. the sanction of the court is sought under sections 391 - 394 read with sections 78 and 100 - 103 of the companies act, 1956, to the scheme of arrangement between reliance communications infrastructure ltd. ('the demerged company') and reliance telecom ltd. ('the resulting company') and their respective shareholders and creditors.3. counsel appearing on behalf of the petitioners has stated that they have complied with all the requirements as per directions of this court and they have filed necessary affidavits of compliance in the court. moreover, the petitioner-companies also undertake to comply with all the statutory requirements, if any, as required under the companies act, 1956 and the rules made thereunder.4. the regional director has filed an affidavit stating therein that the scheme is not prejudicial to the interest of the creditors, shareholders and the public. however, in paragraph 6 of his affidavit, he has stated that the petitioner-companies may be directed to furnish an undertaking that no employees would be adversely affected from or due to the implementation of the scheme.5. accordingly, mr. hari nair, authorised signatory of the petitioner/demerged company has filed an affidavit dated june 17, 2009, wherein he has stated that the demerged company does not have any staff and the employees engaged in or in relation to the treasury activities, and has given an undertaking that all the existing employees of the demerged company would continue to remain so as per the terms of their employment with the demerged company and hence the employees of the demerged company would not be adversely affected from or due to the implementation of the scheme. this assurance is accepted.6. upon perusal of the entire material placed on records, the scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to any public policy. none of the parties concerned have come forward to oppose the scheme. moreover, the regional director has stated that the scheme as proposed is not prejudicial to the interest of the shareholders, creditors and the public.7. since all the requisite statutory compliances have been fulfilled and objections raised by the intervenor have been answered by counsel for the petitioners, company petitions nos. 375 of 2009 and 376 of 2009 filed by the petitioner-companies are made absolute in terms of prayer clauses (a) to (d) and (a) to (c), respectively.8 the petitioner-companies to 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 30 days of obtaining the certified copy and/or an authenticated copy of the order.9. the income-tax department will be free to examine the aspect of any tax payable as a result of the scheme by either of the two entities. the petitioners undertake that they will not urge before the income-tax authorities that the issue of taxability cannot be gone into by reason of the order passed by this hon'ble court.10. the petitioners in all the company petitions to pay costs of rs. 7,500 each to the regional director in the company petitions nos. 375 of 2009 and 376 of 2009. costs to be paid within four weeks from today.11. filing and issuance of the drawn up order is dispensed with.12. all concerned authorities to act on a copy of this order along with the scheme duly authenticated by the company registrar, high court, bombay.13. there are two applications which are on lodging nos. 672 of 2009 and 673 of 2009 filed by rajkot saher/jilla grahak suraksha mandal and another, the intervenor in the present company petitions. since the main petitions have already been disposed of, nothing survives in the company applications hence dismissed and disposed of.