Shivanath Baburao Walke Vs. Miss Flora D'Souza (23.09.2005 - BOMHC) - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 388/89/a and was admitted on several substantial questions, one of which reads as follows :3. whether the appellate court committed illegality in overlooking that failure of the respondent to prove issue no. the said letter dated 26-9-1988 was written by the defendant to the plaintiff in response to the plaintiff letter dated 4-7-1988 calling upon the defendant to hand over the possession of the property within 15 days failing which he would be compelled to file a civil suit as well as a criminal case. the defendant contested the suit and the learned trial judge framed 3 issues, namely, (a) whether the plaintiff was entitled to the specific performance of the said agreement dated 26-5-86, (b) whether the defendant proved that the suit was bad for non-joinder of necessary parties and (c) whether the defendant proves that the suit was barred by limitation. in reversing the findings of the trial court, the learned additional district judge observed, and in my view rightly, that the defendant had failed to establish that the documents, namely, the agreement, the power of attorney and the affidavit were documents executed by the plaintiff by exercise of coercion or fraud and if that is so, the learned additional district judge was certainly not, justified in further observing that the entire transaction of getting power of attorney and affidavit was quite irregular if not fraudulent. the defendant had clearly stated in the agreement for sale as well as in the affidavit that the plot to be sold was owned by her pursuant to a deed of exchange executed by her uncle the said aphy d'souza in her favour and which was by virtue of a registered document and if that is so, one fails to understand as to how the defendant could forward a plea in her written statement that the plot to be sold was also owned by her sisters. the defendant had clearly represented to the plaintiff that she was exclusive owner of the plot which was agreed to be sold by virtue of deed of exchange executed by her uncle in her favour and being so, the learned trial court had rightly rejected her plea that her other sisters had any claim over the plot to be sold. once, the learned trial judge had held that the defendant had failed to prove that her sisters had also any right or interest in the said plot agreed to be sold there was no other option but to have decreed the suit which the learned trial judge had rightly done and which finding the learned additional district judge reversed on mere surmises and conjectures.n.a. britto, j.1. this is plaintiff's second appeal arising from special civil suit no. 388/89/a and was admitted on several substantial questions, one of which reads as follows :3. whether the appellate court committed illegality in overlooking that failure of the respondent to prove issue no. 2 which was in rebuttal would pave way for suit being decreed based on the documentary evidence?2. some facts are required to be stated to dispose of this second appeal and the parties hereto shall be referred to in their names as they appear in the cause title of the said civil suit.3. there is no dispute that the plaintiff entered into an agreement with the defendant dated 26-9-1986 agreeing to sell to the plaintiff the defendant's property known as 'aradi of pedem grande' having chalta no. 17 of p.t. sheet no. 78 of city survey of mapusa on terms and conditions mentioned in the said agreement. in addition to the said agreement of sale, the defendant also executed a general power of attorney on 17-10-1986 in favour of the plaintiff. this power of attorney was executed to enable the plaintiff to get all relevant documents ready for execution of sale deed. the defendant also executed an affidavit on 17-10-1986 reiterating that she was the lonely (only?) heir. inspite of agreeing to sell the property and further reiterating that the plot agreed to be sold was allotted to her by her uncle one mr. aphy d'souza by virtue of deed of exchange dated 10-3-1981 registered with the sub registrar of bardez at mapusa under no. 274, it appears that thereafter there were differences between the plaintiff and the defendant and probably the defendant represented to the plaintiff that the was unable to execute the sale deed because her sisters had also an interest in the said property. the defendant again reiterated the said stand by her letter dated 26-9-1988 stating that the said property was jointly owned by her along with her sisters and that she could not sell her undivided share to any outsider. the defendant also showed her willingness to refund the earnest money of rs. 2,300/-advanced by the plaintiff to the defendant. the said letter dated 26-9-1988 was written by the defendant to the plaintiff in response to the plaintiff letter dated 4-7-1988 calling upon the defendant to hand over the possession of the property within 15 days failing which he would be compelled to file a civil suit as well as a criminal case. the plaintiff then filed the civil suit for specific performance of the agreement of sale dated 26-9-1986 and also for permanent injunction to the defendant from selling the said plot to others. the defendant contested the suit and the learned trial judge framed 3 issues, namely, (a) whether the plaintiff was entitled to the specific performance of the said agreement dated 26-5-86, (b) whether the defendant proved that the suit was bad for non-joinder of necessary parties and (c) whether the defendant proves that the suit was barred by limitation.4. after the parties led evidence, the learned trial court by his judgment/order dated 31-10-1998 came to the conclusion that issue no. 1 was proved, issue no. 2 was not proved and issue no. 3 was also not proved and proceeded to decree the suit with costs.5. the defendant having carried out an appeal to the district court, the learned additional district judge by her judgment/ order dated 6-1-2000 reversed the findings of the learned trial court and dismissed the suit filed by the plaintiff and ordered the refund of earnest money to the plaintiff with interest at the rate of 6% till payment. in reversing the findings of the trial court, the learned additional district judge observed, and in my view rightly, that the defendant had failed to establish that the documents, namely, the agreement, the power of attorney and the affidavit were documents executed by the plaintiff by exercise of coercion or fraud and if that is so, the learned additional district judge was certainly not, justified in further observing that the entire transaction of getting power of attorney and affidavit was quite irregular if not fraudulent. the defendant had clearly stated in the agreement for sale as well as in the affidavit that the plot to be sold was owned by her pursuant to a deed of exchange executed by her uncle the said aphy d'souza in her favour and which was by virtue of a registered document and if that is so, one fails to understand as to how the defendant could forward a plea in her written statement that the plot to be sold was also owned by her sisters. in fact, none of the sisters had come forward to support the case of the defendant that they had any share in the plot to be sold and once the learned trial court had rendered a finding regarding issue no. 2 in the negative, namely, that there was no evidence that the suit plot to be sold belonged to the defendant along with her sisters or the sisters were required to be joined in the suit there was no question of denying the plaintiff the relief sought by him. in fact, the learned additional district judge has proceeded on surmises and conjectures. the defendant had clearly represented to the plaintiff that she was exclusive owner of the plot which was agreed to be sold by virtue of deed of exchange executed by her uncle in her favour and being so, the learned trial court had rightly rejected her plea that her other sisters had any claim over the plot to be sold. once, the learned trial judge had held that the defendant had failed to prove that her sisters had also any right or interest in the said plot agreed to be sold there was no other option but to have decreed the suit which the learned trial judge had rightly done and which finding the learned additional district judge reversed on mere surmises and conjectures.6. the substantial question reproduced hereinabove has to be answered in favour of the plaintiff. consequently, this second appeal succeeds and as a result, the judgment/order of the learned additional district judge dated 6-1-2000 is set aside and that of the learned civil judge dated 31-10-1998 is restored. considering the facts, there will be no order as to costs.