Rasiklal S. Mardia Vs. Icici Bank 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - as has been noticed by the learned single judge that the court receiver should look into the question of theft, but, however, it failed short of directing reconfirming of the inventory. it is only the receiver's application in which he voluntarily filed an affidavit which was looked into by the court in order to examine the prima facie case as well as to protect the interest of the company as well as the bank.swatanter kumar, c.j.1. icici bank limited filed suit no. 434 of 2003 against maradi chemicals limited (hereinafter referred to as 'the company') for recovery of their dues in their capacity as debenture trustees. in the said suit, notice of motion no. 364 of 2003 was taken out for interim reliefs including for appointment of a court receiver. the court vide its order dated 13-8-2004 allowed the notice of motion and appointed the court receiver' with certain directions. in furtherance to the orders of the court, the court receiver took possession of the property on 2-3-2005. after some time, proceedings against the company were taken out and it was ordered to be wound up by the gujarat high court visits order dated 3-8-2005. there were complaints of pilferage of the movable properties of the company and the court receiver of this court held a meeting at the site on 27-4-2007 and it was noticed that certain materials were missing and even an inventory was prepared. there were large machineries, components and other items which took a considerable time in preparation of inventor)'. the court receiver filed different reports from time to time before this court. the properties were directed to be sold and two different inventory reports dated 9-11-2005 and 7-7-2006 were prepared. the present appellant, who claims to be a director of the company, filed an application for attending the meetings and proceedings of the court receiver. on 18-12-2007, the court receiver fixed an appointment at the site for verification and to comply with the directions contained in the order dated 29-11-2007. the valuer wrote a letter to the court receiver informing him of his readiness to carry out the inventory subject to such a list of missing items being supplied to him prior to the visit. the court receiver referred the said letter to the appellant. finally, after this representative visited the suit site, the court receiver submitted his report no. 172 of 2008 to the court. in the report, the court receiver gave various details and prayed before the court and sought directions in regard to the following:(a) that shri rasiklal s. mardia, ex-chairman and managing director of 1st defendant company (in liquidation), be directed to submit list of missing movables/machinery to enable the panel valuer to physically verify the same.(b) whether alternatively a fresh inventory of movables and machinery be carried out and comply the order dated 20-11-2007.(c) in the event of any theft and/or missing items are found at the time of verification of the movables machineries the court receiver and/or aggrieved parties be permitted to invoke indemnity furnished by m/s. check mate services ltd., the security agency deployed by plaintiffs to safeguard the factory premises.(d) any other directions that this hon'ble court may deem fit in the matter.(e) cost of this application and the order to be made thereon be fixed at rs. 1,000.2. the appellant also filed his reply affidavit on 27-5-2008. when the report and the affidavit came up for hearing, the court passed the order dated 19-6-2008 primarily dealing with the report of the court receiver and also observed that a specific objection was being taken that the applicant is an outsider as a past director of the company in liquidation and cannot be heard. however, the court, in the interest of justice and to see prima facie that there is indeed theft of some movable genuinely informed the court, he was heard. the court receiver had also written a letter dated 27-3-2008 to the police station at surendranagar, gujarat to obtain particulars of the alleged theft in furtherance to the fir alleged to have been registered with the police station. the court also noticed that the earlier orders of the court particularly that of 13-8-2004 had not been complied in entirety and the property need to be sold and directed 'the court receiver shall forthwith proceed with the work of sale of all the units of the 1st defendant-company'. the applicant-appellant claims that he is aggrieved by the order dated 19-6-2008 and has filed the present appeal against that order.3. we may notice at the very outset that the very locus standi of the appellant has been rightly questioned in the present appeal. the appellant is neither a party to the suit nor has been ordered to be impleaded as a party in the proceedings before the court receiver. the sale of the property had been directed by the court vide its order dated 19-6-2008 has not been complied with. for whatever reason it may be, but the fact is that the properties in question have not been put to sale as yet. despite various directions of the court and now the allegations after allegations are being made that the movable property of the company is missing and/or there has been a theft. it is not in dispute before us that at one point of time a complete inventory was prepared with the help of the valuer. whatever are the circumstances, it is in nobody's interest that the property of the company should not be protected. we are of the considered view that the appellant has no substantive right in any of the proceedings and as such cannot delay the proceedings any further. if the property and the plaint and machinery is not sold at the earliest, it will jeopardise the interest not only of the bank but even of the company as they would stand to lose in terms of value as the plant and machinery is bound to depreciate with the passage of time. as has been noticed by the learned single judge that the court receiver should look into the question of theft, but, however, it failed short of directing reconfirming of the inventory. firstly, there were no applications filed by the appellant which has been dealt with or disposed of by the impugned order. it is only the receiver's application in which he voluntarily filed an affidavit which was looked into by the court in order to examine the prima facie case as well as to protect the interest of the company as well as the bank.4. in the present appeal, the court receiver has also filed a proposed schedule of the sale of the building, plant and machinery of the company on as is where is basis. we have heard the learned counsel appearing for the parties and we are of the considered view that the schedule submitted by the court receiver needs to be modified to a limited extent that the period of inspection of the plant should be over a larger period than specified. the schedule is thus specified as under:7-9-2008 the advertisement in newspapers, viz., economic times(in english) and gujarat samachar (in gujarati) shall bepublished.11-9-2008 to inspection to be provided to the prospective purchasers14-9-2008 from 11.00 a.m. to 5.00 p.m. at the site at surendranagar.16-9-2008 the intending offerers to submit their offer along withdemand draft/pay order/or banker's cheque in thesum of rs. 5 crores in favour of court receiver, high court, bombay payable at mumbai and should reach theoffice of the court receiver on or before 4.00 p.m.by 16-9-2008.17-9-2008 the auction sale will be held in the office of the courtat 12.00 receiver, high court, mumbainoon.5. the terms and conditions of sale have been submitted by the court receiver along with the draft of public notice. in our opinion, the same is in order. there is no objection raised by the learned counsel appearing for the official liquidator, gujarat high court and as far as the appellant is concerned, he hardly has any locus in this regard and nothing material was pointed out in these proposed terms and conditions.6. in view of the above, we disposed of the present appeal with the following directions:(a) the court receiver shall ensure that the property is put to auction in terms of the orders of the court dated 13-8-2004 and 19-6-2008 which have already attained finality.(b) the court receiver shall strictly adhere to the schedule of sale mentioned in this order.(c) the court receiver shall make every effort to confirm if there are any properties of the company missing from the site in question by verifying the inventory already prepared.(d) strict arrangement shall be made henceforth by the concerned persons for employing stringent security to ensure that no damage is done to the property and no property is moved from the premises in question till it is put to sale.(e) the court receiver shall also take steps in accordance with law if any property is found to be missing and pursue the matter with the concerned police station.(f) the official liquidator of the company shall fully co-operate with the court receiver of this court and ensure compliance of the orders of the court.appeal is disposed of accordingly. parties to bear their own costs.