In Re: Imp Powers 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - but, it has been submitted that the effect of the scheme involves precisely such a consequence, since the scheme contemplates certain concessions to be granted by lending institutions, including a reduction in the rate of interest to be charged. one of the points which arose for consideration was whether the act would override the provisions of sections 442, 443 and 537 of the companies act, 1956. the supreme court held that a 'superior purpose' underlies the rdb act, something more important that the object which underlies sections 442, 446 and 537 of the companies act, 1956. the intention of parliament was, it is emphasised, that there should be a speedy and summary remedy for recovery of thousand of crores which were due to the banks and to the financial institutions, so that the delays occurring in winding up proceedings could be avoided' (page 81). the supreme court held that the exclusiveness of jurisdiction covered matters of adjudication as well as issues relating to the execution of orders and section 19(19) of the rdb act, empowers the debts recovery tribunal to order distribution of sale proceeds amongst secured creditors in accordance with the provisions of section 529a of the companies act, 1956. the supreme cou fourthly, the exercise of powers of the company court in matters which fall within the ambit of the jurisdiction of the debts recover)' tribunal, would clearly amount to curtailing the jurisdiction of the tribunal to adjudicate upon the claim of recovery submitted before the tribunal. though the learned senior counsel for the appellant has argued that in this case we are concerned with an application filed under section 391(6) of the companies act and that question was not under the consideration of the supreme court, we do not think that we will be justified in accepting that contention as according to us, the position is not better for the company when even in winding up proceedings the company court has no jurisdiction to stay the proceedings before the debts recovery tribunal. in order to enable the objector to take appropriate steps to safe-guard their interest.d.y. chandrachud, j.1. in this proceeding, the consent of the court is sought to a scheme of an arrangement in exercise of powers conferred by sections 391 to 394 of the companies act, 1956.2. as on september 30, 2005, 47.2 per cent, of the issued and subscribed share capital of the petitioner was held by promoters, 21.20 per cent, by financial institutions and 31.60 per cent, by members of the public. as on june 30, 2005, according to the petitioners, there was an outstanding of nearly rs. 68 crores due to the secured creditors. the petitioners proposed a scheme of compromise and arrangement with the secured creditors. on december 23, 2004, the corporate debt restructuring cell granted its approval to the proposal made by the petitioners and appointed a monitoring committee in order to sort out the outstanding issues and for monitoring the implementation of the reconstruction package.3. in pursuance of the orders passed by this court, a meeting was convened of the secured creditors on may 20, 2006. the report of the scrutinizer sets out that out of the eight secured creditors who attended the meeting, seven who had a total outstanding of rs. 6204.62 lakhs voted in favour of the scheme of compromise/arrangement. induslnd bank ltd. which is also a secured creditor voted against the scheme. according to the petitioners, the outstandings, due and payable to induslnd bank were rs. 409.53 lakhs. this has been contested by the bank and according to the bank, the correct amount due as on june 30, 2005, stood at rs. 625.63 lakhs. induslnd bank ltd. has instituted proceedings before the debts recovery tribunal under the provisions of the recovery of debts due to banks and financial institutions act, 1993 for the recovery of its dues. the proceeding initiated by the bank (o.a. no. 253 of 2005) is pending before the debts recovery tribunal, mumbai.4. the principal objection which has been urged on behalf of induslnd bank ltd. is that in view of the judgment of the supreme court in allahabad bank v. canara bank : [2000]2scr1102 the exclusive jurisdiction on question of adjudication, execution and working out the priorities vests with the debts recovery tribunal constituted under the plenary provisions of the enactment of 1993. the supreme court, it is urged, held that whereas the companies act, 1956, is a general statute, the rdb act is a special statute which would overrule the former. alternatively, even if both the statutes were regarded as special enactment, the rdb act being a later enactment of 1993 would govern. it is submitted that while sanctioning a scheme of compromise/arrangement under section 394 of the companies act, 1956, this court would have no jurisdiction to adjudicate upon the claim of induslnd bank ltd. or to foreclose an adjudication on the application for recovery instituted in the debts recovery tribunal. but, it has been submitted that the effect of the scheme involves precisely such a consequence, since the scheme contemplates certain concessions to be granted by lending institutions, including a reduction in the rate of interest to be charged. moreover, it is submitted that the scheme contemplates the restoration of working capital facilities, a consequence that would be imposed even on a financial institution which is not prepared to be a part of a restructuring package propounded by the cdr cell. at this stage, it would be material to note that the objector before this court is a company by name of pegasus assets reconstruction pvt. ltd. which claims under an agreement of assignment entered into between the induslnd bank ltd. and the objector on august 30, 2006.5. on the other hand it has been urged on behalf of the petitioners that section 391 of the companies act, 1956, makes no distinction between a creditor who is a financial institution or otherwise. the submission was that in exercise of the power conferred by section 394, the court can affect the rights of all creditors and in that process modify existing contracts. consequently, it has been urged that if an existing contract is modified by the court in exercise of the power conferred by section 394 all the creditors and the debts recovery tribunal as a judicial forum constituted under the rdb act will be bound to be sanctioned, it is submitted that the scheme has a force of law and the scheme as it stands will have to be enforced by the debts recovery tribunal.6. the objection to the sanction of the scheme in so far as it comprehends the debts due to induslnd bank will have to be upheld in view of the judgment of the supreme court in allahabad bank v. canara bank [2000] 101 comp cas 64. the recovery of debts due to banks and financial institutions act, 1993 was enacted in pursuance of the report of the narsimham committee in order to provide expeditious adjudication and recovery of debts due to banks and financial institutions. sub-section (1) of section 17 provides that the tribunal shall exercise, on and from the appointed date, the jurisdiction, powers and authority to entertain and decide applications from banks and financial institutions for recovery of debts due to them. section 18 bars the jurisdiction, power or authority (except of the supreme court and a high court exercising jurisdiction under articles 226 and 227 of the constitution) relating to matters specified in section 17. section 34 centers overriding effect upon the provisions of the act, notwithstanding anything inconsistent contained in any other law for the time being in force. in the decision in allahabad bank v. canara bank [2000] 101 comp cas 64 the supreme court held that the jurisdiction of the tribunal in matters of adjudication is exclusive. one of the points which arose for consideration was whether the act would override the provisions of sections 442, 443 and 537 of the companies act, 1956. the supreme court held that a 'superior purpose' underlies the rdb act, something more important that the object which underlies sections 442, 446 and 537 of the companies act, 1956. the intention of parliament was, it is emphasised, 'that there should be a speedy and summary remedy for recovery of thousand of crores which were due to the banks and to the financial institutions, so that the delays occurring in winding up proceedings could be avoided' (page 81). the supreme court held that the exclusiveness of jurisdiction covered matters of adjudication as well as issues relating to the execution of orders and section 19(19) of the rdb act, empowers the debts recovery tribunal to order distribution of sale proceeds amongst secured creditors in accordance with the provisions of section 529a of the companies act, 1956. the supreme court held thus (page 82):thus, on questions of adjudication, execution and working our priorities, the special provisions made in the rdb act have to be applied.7. the supreme court upheld the view taken by the several high courts that the companies act, 1956, must be treated as a general statute and the rdb act as a special statute has overriding effect over the general statute. the supreme court held that alternatively even if both the statutes were regarded as special enactments the later enactment will prevail over the earlier.8. the submission of learned counsel for the petitioner is that the powers of the high court under sections 391 and 394 are untrammelled by the provisions of the rdb act because section 391 does not make a distinction between classes of creditors. hence, it is urged that under section 394, the high court has the power to sanction a compromise or arrangement which has the effect of modifying any contract and once the contract with the secured creditors is so modified, the debts recovery tribunal would necessarily be bound to enforce the terms of the modified arrangement. the submission cannot be accepted for more than one reasons. first and foremost, in the judgment in allahabad bank v. canara bank [2000] 101 comp cas 64 the supreme court affirmed the view taken by several high courts which was to the effect that the companies act, 1956 is a general enactment which will give way to the special provisions contained in the rdb act which is enacted to ensure speedy and expeditious adjudication and realisation of debts due to banks and financial institutions. secondly, in the exercise of powers conferred by section 17 of the rdb act, the debts recovery tribunal have a plenary jurisdiction to enter upon and determine all the issues pertaining to adjudication, execution and working out priorities. thirdly, the process of adjudication into the debt due to induslnd bank has already been set in motion by the institution of the proceedings under the rdb act. the sanctioning of the scheme under sections 391 to 394 will unquestionably dilute the full and plenary powers conferred under the tribunal under the rdb act to adjudicate upon the claim of the bank as presented. fourthly, the exercise of powers of the company court in matters which fall within the ambit of the jurisdiction of the debts recover)' tribunal, would clearly amount to curtailing the jurisdiction of the tribunal to adjudicate upon the claim of recovery submitted before the tribunal.9. the judgment of the supreme court in allahabad bank v. canara bank [2000] 101 comp cas 64 was sought to be distinguished in the proceedings which arose before the kerala high court on the ground that the high court was dealing with issues leading to an application filed for stay of a proceeding under section 391(6). in bpl ltd. v. bnp paribas company appeal no. 9 of 2005 decided on 19-7-2005, a division bench of hon'ble mr. justice r. bhaskaran and hon'ble mr. justice k.p. balachandran observed thus:the supreme court in allahabad bank v. canara bank : [2000]2scr1102 has held that a company court has no jurisdiction over the debts recovery tribunal and the recovery officers even in cases where winding up petitions are pending or winding up order has been made. this court has only to follow the same. though the learned senior counsel for the appellant has argued that in this case we are concerned with an application filed under section 391(6) of the companies act and that question was not under the consideration of the supreme court, we do not think that we will be justified in accepting that contention as according to us, the position is not better for the company when even in winding up proceedings the company court has no jurisdiction to stay the proceedings before the debts recovery tribunal.10. in a subsequent decision in uco bank v. bpl ltd. company appeal no. 1 of 2006 decided on 20-12-2006, a division bench of the kerala high court held that it was not within the jurisdiction of the company judge to give positive directions that all legal proceedings that were pending would stand terminated.the scheme of arrangement which has been proposed before the court would have to be modified with reference to the claim submitted before the debts recovery tribunal in regard to the debts due to induslnd bank ltd. clause b of the scheme contains the following heading:(b) working capital:(terms of restructuring of assistance for working capital bankers, viz. state bank of hyderabad, state bank of saurashtra, bank of india, karnataka bank limited, induslnd bank, nsd, sdici).the reference to induslnd bank ltd. shall stand deleted. consequently, it is clarified that the effect thereof would be that the proceedings pending before the debts recovery tribunal shall not stand affected as a result of the sanction of the scheme of arrangement by the court.11. in so far as the other lending institutions are concerned, it has emerged from the proceedings from the court that the secured creditors representing 90.73 per cent. of the total debts have consented to the scheme. greater bombay co-operative bank ltd. which represents 3.38 per cent. in value of the total outstandings abstained from voting. the report of the scrutinizer, dated june 13, 2006, has set out that more than 3/4th in value of the secured creditors of the company present at the meeting voted in favour of the scheme of compromise/arrangement. even if, due consideration is given to the fact that the claim of induslnd bank ltd. is asserted by the bank at rs. 625.63 lakhs (as opposed to rs. 409.53 lakhs as stated in the scheme of compromise/arrangement) that would not affect the question as to whether 3/4th in value of the secured creditors had affirmed the scheme. the regional director has appeared before the court through counsel to state that there is no objection to the scheme. amongst the secured creditors, those who opted for the scheme are industrial bank of india, state bank of india, state bank of hydarabad, bank of india and karnataka bank ltd. those lending institutions have agreed to the scheme, having taken a considered decision in their commercial interest. the scheme contemplates various additional conditions. a monitoring committee has been constituted by a letter dated december 21, 2006. amongst the conditions imposed is a condition to the effect that the company shall not dispose of any of its fixed assets without the permission of the lenders. sale of assets will be carried out through an assets sale committee. the restructuring package is subject to annual review and the financial institutions have reserved to themselves the right to review the package and to stipulate additional conditions. the institutions have reserved the right to reset the interest rates after three years from the date of approval of the restructuring package and to seek recompense for their sacrifices in the event of a profitable financial position of the company.12. in these circumstances, having considered the fact that other lending institutions have taken a commercial decision in their own interests, there is no reason as to why the scheme should not be sanctioned, subject to the modification which has already been adverted to hereinabove, relating to the proceedings initiated before the debts recovery tribunal for the recovery of the debt due to the induslnd bank.in the circumstances, the company petition is made absolute in terms of prayer clause (a) subject to the following conditions:1. the scheme as proposed shall stand modified by deleting from the scheme, any reference to induslnd bank ltd., which has not accepted the scheme and has instituted proceedings before the debts recovery tribunal for realisation of its dues.2. in the event that the petitioner seeks to carry out any sale of assets under the scheme which would affect any securities of induslnd bank, prior notice of two weeks shall be furnished to the objectors pegasus assets reconstruction pvt. ltd. in order to enable the objector to take appropriate steps to safe-guard their interest.the company petition is deposed of accordingly.