Karishma Consultant and Vs. Om Prakash Agarwal and - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - it was also stated in the reply notice that the intimation was duly given to the bank about the death of devang desai, yet the bank had wrongly endorsed that the cheques could not be honoured due to insufficiency of the funds in the account. he invited my attention to the explanation given below section 138 of the negotiable instrument act as well as 141 of the negotiable instrument act.v.r. kingaonkar, j.1. the group of above noted applications filed by original accused persons for quashing of criminal complaint case under section 482 of criminal procedure code is being decided together in as much as identical questions of law and facts are involved therein:2. the applicants are the proprietary business concern and proprietor, respectively who had certain transactions with the respondent no. 1 (complainant). devang desai was husband of the applicant no. 2 and was duly authorized to issue cheques for and on behalf of the applicants. there is no dispute about the fact that he issued five cheques in question towards discharge of financial liability which the applicants were supposed to discharge. there is also no dispute about the fact that the said five cheques were dishonoured by the uco bank when they were presented for encashment. the uco bank returned the cheques to the respondent no. 1 (complainant) with intimation that the cheques could not be honoured due to insufficiency of the funds in the account of the applicants. there is also no dispute about the fact that the cheques were issued on bank account of the applicants.3. the respondent no. 1 had issued demand notice in the context of the five criminal cases. that notice was replied by the applicants. the tenor of the reply was that the signatory of the cheques i.e. devang desai had died on 1st may 1996 before the presentation of the cheques in the bank and as such, the cheques were no more valid instruments. it was also stated in the reply notice that the intimation was duly given to the bank about the death of devang desai, yet the bank had wrongly endorsed that the cheques could not be honoured due to insufficiency of the funds in the account.4. the applicants seek quashing of the criminal complaint cases mainly on the ground that the cheques were no more valid one and, therefore, the dishonor of such cheques could not have incurred any criminal liability against them. they filed applications before the metropolitan magistrate, for discharge, which were rejected. the learned metropolitan magistrate held that the contention raised by the applicants could not be considered at the pre-emptory stage.5. heard the learned counsel.6. mr. prakash naik, learned counsel for the applicant submits that the respondent no. 1 was duly intimated about the death of devang desai, the authorized signatory of the cheques and therefore, the complaint cases should not have been initiated at all. he would submit that the intimation was given to the bank but incorrect endorsement was made by the bank and therefore mere dishonor of the cheques cannot be a ground to proceed with the criminal cases. he contended that the cheques became invalid in the eye of law before the date of the presentation thereof. he invited my attention to the explanation given below section 138 of the negotiable instrument act as well as 141 of the negotiable instrument act. he seeks to rely on certain observations in : jt 2001 (10) sc 345 in vinod tanna and anr. v. zaheer siddiqui and ors. as against this, mr. s.v. marwadi, learned counsel for respondent no. 1, submits that the complaint cases need not be quashed when the disputed question of facts are involved. he would point out that there is no record to indicate that the bank was informed by the applicants about the death of said devang desai before presentation of the cheques in question. he contended that the cheques were issued by the authorized person for and on behalf of the applicants and therefore, the applicants are the drawers of the cheques. he seeks to rely on certain observations in 2000 all. mr. (cri) 1476 in car mart pvt. ltd v. apollow finvest india ltd. and ors.7. clinching question is whether the cheques in question lost validity due to the death of the authorized signatory and therefore, the applicants, who are the drawers of the cheques in the eye of law, can prima facie escape the criminal liability.8. admittedly, the cheques were drawn on account of the applicants and there is no dispute about the fact that the applicants were liable to pay the amount shown under the cheques in question. the deceased (devang desai) was only authorized signatory of the cheques in question. the plain reading of section 138 of the negotiable instrument act would show that the criminal liability would arise when cheuqe is dishonoured though presented to the bank within the period of six months from the date it was drawn or within the period of its validity, whatever is earlier. according to mr. naik, the expression 'period of its validity' does imply that it was the period which could be upto the date of death of said devang desai. the cheques in question could not regarded as invalid instruments as on date of death of the signatory qua the payee bank unless the death was duly intimated to the bank. take for example, that 'a' has issued a cheque and died period to presentation thereof in the bank. no intimation about the death is given to the bank and the amount is available in the account, the bank is then legally bound to honour the cheuqe as and when it is presented. the cheque cannot be dishonoured unless it is communicated to the bank that the signatory of the cheque was no more alive. obviously, unless there is tangible evidence to infer that the bank was duly intimated about death of said devang desai, prior to presentation of the cheques in question, it cannot be said that the instruments became invalid.9. in vinod tanna and anr. v. zaheer siddiqui and ors in : jt 2001 (10) sc 345 (supra), the apex court held that when the dishonor of the cheque was on the ground that the drawer's signature was incomplete, it would not give rise to the criminal liability under section 138 of the negotiable instrument act. for, the dishonor of the cheque would fall outside the ambit of section 138 of the negotiable instrument act. in such a case, the cheque cannot be said to have been returned unpaid by the bank because of insufficiency of the funds standing to the credit of the account holder or it exceeds the amount alleged to be paid. in the present case, the bank refused to honour the cheques in question, because there was no appropriate amount at the credit of the applicants to satisfy the demanded amount shown under the cheques in question. had the cheques been dishonoured on account of death of the authorized signatory, then probably the impact would have been something different.10. though the applicant no. 2 is not a signatory of the cheques in question, yet she and the applicant no. 2 are the account holders and the chqeus were issued on their accounts. in somewhat similar fact situation, this court in car mart pvt. ltd v. apollow finvest india ltd. and ors. 2000 in all. mr. (cri) 1476 held that the drawer of the cheque cannot escape the liability on the ground that the signatory of the cheque died prior to the date mentioned in the cheuqe. it is pertinent to note that herein the question whether the signatory of the cheques, died prior to the dates of the presentation of the cheques, is a disputed question of fact. the question whether the applicants gave due intimation about the death of the authorized signatory of the cheques to the bank is also disputed question of fact. there is nothing on record to say that such prior intimation was given to the bank soon after death of the said signatory of the cheques, namely, devang desai and request was made to treat the cheques in question as a invalid instruments. considering these aspects of the matter, it is difficult to countenance the contentions raised by mr. naik. the applicants being drawers of the cheques in question, are prima facie liable to face the criminal prosecution. the applications are, therefore, without much merit.11. in the result, the applications are dismissed.12. the trial court shall expedite the trials of the criminal complaints.