Chandan Mulji Nishar (Smt.) and ors. Vs. Union of India (Uoi) 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - however, the income-tax authorities failed to put him in possession. 4. the learned trial court framed several issues and after hearing the evidence led by the parties, held that the plaintiff had failed to prove that the defendant nos. the proclamation issued by the income-tax authorities clearly shows that the business, goodwill and the tenancy rights of the defendant no. the learned single judge held that the transfer of tenancy is not permitted under the law and, therefore, the object of the auction being the sale of tenancy rights was unlawful and, therefore, auction as well as the sale certificate are void and unenforceable.j.h. bhatia, j.1. legal representatives of original plaintiff have preferred this appeal against dismissal of the suit no. 214 of 1978 by the learned single judge. defendant nos. 1 to 12 are the respondent nos. 1 to 12 respectively in this appeal. for the sake of convenience, the parties shall be referred to as plaintiffs or defendants.2. to state in brief, the defendant no. 2 is a private ltd. company and because of non-payment of income-tax to the tune of rs. 12,54,144/- from the year 1963-64 onwards, for the recovery of the tax, the tax recovery officer issued a proclamation on 1st june, 1974, which was published in government gazette on 20th june, 1974 for sale of the property of the defendant no. 2. the property included the business along with the tenancy rights of the defendants over the disputed premises situated at 2nd floor of the united india building, sir phirozshah mehta road, fort, bombay. the original plaintiff had participated in the auction and his bid for rs. 1,05,000/-, being the highest, was accepted. at the time of auction, he paid 25% of the auction money and later on, he deposited 75% of the amount. nobody had taken any objection nor had applied for setting aside the same within 30 days from the date of auction. the defendant no. 1, through income-tax officer, issued sale certificate in favour of the original plaintiff on 27th august, 1974. the suit premise is actual property of life insurance corporation of india and the defendant no. 2 was a tenant over the same. as per the auction, the tenancy rights of the defendant no. 2 over the said premises along with his business were put to sale and they were purchased by the plaintiff. the plaintiff requested the income-tax authorities to put him in possession of the suit premises along with its business including movable articles. however, the income-tax authorities failed to put him in possession. therefore, the plaintiff filed the suit for possession of the business with moveable articles, goodwill and the tenancy rights of the defendant no. 2 over the suit premises.3. the defendant no. 1 being the union of india did not file any written statement but made a submission in writing and also participated in the trial of the suit. defendant nos. 2 and 3 contested the suit. according to them, the defendant no. 2 being a tenant was entitled to sub-let the premises and accordingly, in the year 1967 or so, the defendant no. 2 had put a charitable trust in possession of the same as tenant. the defendant no. 3 was in turn put in possession of the same. the estate officer of the life insurance corporation had also commenced eviction proceedings against the defendant nos. 2 and 3 but after enquiry it was held that the defendant no. 3 was in lawful possession. it is further contended that under the relevant rent act, the defendant no. 3 is in lawful possession of the premises since prior to 1973 and is protected under the rent act. therefore, he cannot be dispossessed from the same without following the procedure of law. it was further contended that as per the rent act, the tenancy rights could not have been put to sale and, therefore, the alleged auction and sale of the tenancy rights of the defendant no. 2 is illegal and void.4. the learned trial court framed several issues and after hearing the evidence led by the parties, held that the plaintiff had failed to prove that the defendant nos. 3, 4, 5 and 7 are illegal sub-tenants or transferees of the suit premises. the learned single judge also held that the sale certificate in favour of the plaintiff is illegal, null, void and unenforceable in law and that he is not entitled to be put in possession of the property sold to him under the sale certificate. in the result, the suit came to be dismissed.5. heard the learned counsel for the parties. after some arguments before this court in appeal, the learned counsel for the plaintiff contended that if the sale is illegal, void and sale certificate is unenforceable, the union of india is liable to pay compensation to him or at least to refund the consideration amount, which it had received from the plaintiff as a consideration of sale in the said auction. he did not press for damages but claimed refund with interest. he contended that the income-tax authorities generally charge 24% penal interest on the arrears of the income-tax from the defaulters and if the excess payment of income-tax is made by the assessee, it is refunded with interest at the rate of 18% per annum. this contention is not seriously disputed by the learned counsel appearing for the income-tax authorities.6. during the arguments before the court, it is conceded that the defendant no. 2 was not in actual possession of the suit premises even though he is the tenant of the l.i.c. and he had sub-letter the premises to other defendants and the other defendants, including the defendant no. 3 were in possession of the suit premises even before 1973 and, therefore, even the sub-tenants are protected under the rent act applicable to mumbai. the proclamation issued by the income-tax authorities clearly shows that the business, goodwill and the tenancy rights of the defendant no. 2 were being put to auction and it was but natural for the plaintiff, who participated in the auction to believe that on successful bid, he would be entitled to get possession of the tenanted premises along with the business and the goodwill of the defendant no. 2. however, after going through the evidence, the learned single judge gave a clear finding that the defendant nos. 3, 4, 5 and 7 being lawfully in possession cannot be dispossessed by virtue of the said certificate and also held that the sale certificate is illegal, null and void and unenforceable in law. in view of this finding, in spite of having made the payment of consideration amount, the plaintiff is not in a position to get possession of the suit premises along with the business, etc.7. section 23 of the indian contract act provides that the consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law. section 24 provides if the consideration is for an object, which is unlawful, the agreement is void. the learned single judge held that the transfer of tenancy is not permitted under the law and, therefore, the object of the auction being the sale of tenancy rights was unlawful and, therefore, auction as well as the sale certificate are void and unenforceable. this finding is not challenged by any of the parties during the arguments in the appeal. section 65 of the indian contract act provides that when an agreement is discovered to be void, or when a contract becomes void, any person, who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it. in view of this clear legal position, income tax authorities, who had received the consideration amount from the plaintiff for the contract of sale, which turned out to be void, is liable to restore and refund the said amount to the plaintiff. the plaintiff had made the alternative prayer for damages. however, no proper evidence has been led to prove the damages but he is entitled to refund of the consideration amount. the fact remains that the plaintiff has been deprived of use of the amount of rs. 1,05,000/- since 1974. he filed the suit in the year 1978. in our considered opinion, the defendant no. 1 union of india is liable to refund that amount to the plaintiff with interest at the rate of 18% per annum from the date of suit till the realisation of the amount to the plaintiff. the learned single judge does not appear to have considered this aspect of the matter. in our view, the appeal deserves to be allowed to that extent.order8. appeal partly allowed. the defendant no. 1 shall pay the amount of rs. 1,05,000/- to the plaintiff with interest at the rate of 18% p.a. from the date of suit till realisation of the amount.