Ramjan Raheman Tadvi and ors. Vs. Sou. Sarla Ramjan Tadvi - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - the point for consideration is whether any of the ingredients of section 415 or section 420 are satisfied. for making out an offence punishable under section 420 following ingredients must be satisfied, namely the deceived person is dishonestly induced, (1) to deliver any property to any person or;s.p. kukday, j.1. rule. mr. s.p. brahme, learned counsel waives service for respondent. by consent of the parties, rule made returnable forthwith.2. this petition under section 482 of the code of criminal procedure is for quashing the proceedings of regular criminal case no. 492 of 2004.3. facts relevant for the purpose of deciding this petition are that, petitioner no. 1 married respondent about 20 to 22 years back at bhusawal. on 19.1.2004 an agreement was executed on a stamp paper under which the respondent is purported to have given permission to petitioner no. 1 for marrying a second wife. subsequently the petitioner no. 1 married a second wife on 22.2.2004. after the second marriage there were disputes between petitioner no. 1 and respondent, who were living together for 22 years since their marriage. as a consequence of this dispute, respondent filed complaint with police. as no cognizance was taken she approached the court and filed regular criminal case no. 492/2004 against the petitioners. on the basis of this complaint, learned 3rd joint judicial magistrate, first class, jalgaon issued process against original accused nos. 1, 3, 4 and 5 in respect of offence punishable under section 498-a read with section 34 of the indian penal code. process was issued against all accused in respect of offence punishable under sections 323 and 506 read with section 34 of the indian penal code. the process for offence punishable under section 420 of the indian penal code was issued only against petitioner no. 1. the petitioners have challenged the entire proceedings.4. the respondent appeared and filed affidavit-in-reply contending that there is sufficient material on record for issuance of process under section 204 of the code of criminal procedure. her verification was also recorded.5. heard both sides. during the course of argument, learned counsel for the petitioners restricted his challenge to the issuance of process in respect of offence punishable under section 420 of the indian penal code. the allegations in this respect are that respondent was pressurised to execute an agreement for granting permission to petitioner no. 1 for marrying a second wife on condition that he would pay maintenance of rs. 2,000 per month to the respondent throughout her life. according to the respondent, her consent was obtained by fraud and coercion. learned counsel for the petitioners has rightly pointed out that the parties are governed by mohammedan law under which petitioner no. 1 can marry four wives. therefore, it was not necessary to obtain consent from the respondent. on the other hand, learned counsel for the respondent contends that the respondent was pressurised and deceived for obtaining this consent. the point for consideration is whether any of the ingredients of section 415 or section 420 are satisfied. for making out an offence of cheating punishable under section 415 it has to be averred and proved that there is deception of any person by inducing that person fraudulently or dishonestly, (1) to deliver any property to any person; (2) to consent that any person shall retain any property; or (3) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.section 420 is aggravated form of cheating. for making out an offence punishable under section 420 following ingredients must be satisfied, namely the deceived person is dishonestly induced, (1) to deliver any property to any person or; (2) to make, alter or destroy; (a) the whole or any part of a valuable security, or (b) anything which is signed or sealed and which is capable of being converted into a valuable security. bare reading of the complaint shows that there are no allegations which satisfy these ingredients.6. learned counsel for the petitioners has rightly pointed out that mohammedan law is applicable to the parties. therefore, no consent was required. there was no need for obtaining such a consent by fraud or deception. there is no allegation that the respondent was induced to do anything which she could not have done or omitted to do. considering the averments in the complaint and the statement recorded at the time of verification of complainant it can be seen that there is no justification for issuing process in respect of offence punishable under section 420 of the indian penal code against petitioner no. 1. this portion of the order dated 16.8.2004 passed by the learned magistrate cannot be sustained. thus, order for issuing process in respect of offence punishable under section 420, indian penal code against the petitioner, therefore, deserves to be quashed and set aside. however the proceeding shall continue in respect of other offences for which the process is issued by the learned magistrate in accordance with the provisions of law.7. the petitioner is, therefore, partly allowed. rule is made absolute in the above terms.