Kotak Mahindra Bank Ltd., a Banking Company Incorporated of the Banking Regulation Act, 1949 Vs. Sharma Crane Service and Shree Transport Service - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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.anoop v. mohta, j.1. heard finally, by consent of the parties.2. the petitioner has invoked section 9 of the arbitration and conciliation act, 1996 (for short, the arbitration act) as respondents defaulted in making timely installments though agreed and that events of defaults are the basic cause of action for these petitions.3. the petitioner is common party to all these petitions and as respondents are also common and interlinked, though they entered into four separate agreements. respondentrajkumar sharma, is the sole proprietor of haryan road carriers and mrs. sarita sharma is a proprietor of shree transport service for whom rajkumar sharma holds the power of attorney. therefore, this common judgment/order.4. the petitioner is in the business of providing financial facilities such as personal loan, home loan, commercial vehicle loan etc.. some time in the year 2005 and 2006, the respondents approached the petitioner for loan to purchase the vehicles. the petitioner agreed to lend loan and accordingly respondents submitted separate application for the same. the relevant documents have been signed accordingly at nagpur.5. the respondents resisted the petition, basically on the ground of jurisdiction.6. the relevant clause of jurisdiction as relied by the parties are as under.10.16 unless the same falls within the jurisdiction of the debts recovery tribunal established under the recovery of debts due to banks and financial institutions act, 1993, any and all claims and disputes arising out of or in connection with this agreement or its performanc e shall be settled by arbitration by a single arbitrator to be appointed by the bank. the arbitration shall be held, either in mumbai or new delhi or chennai or kolkata or in the place of execution of this agreement, sole discretion to be exercised by the bank at the time such arbitration is to commence, in accordance with the provisions of the arbitration and conciliation act, 1996.10.17. in the event that the claim or dispute does not fall within the jurisdiction of the debts recovery tribunal established under the recovery of debts due to banks and financial institutions act, 1993, for the purposes of arbitration mentioned in clause (10.16), the courts aforesaid shall, subject to the provisions of law, have exclusive jurisdiction, if any law does not permit the same, the courts of the city in which the concerned branch is situated, shall subject to the provisions of law have exclusive jurisdiction in relation to this agreement, the arbitration and all matters arising in connection herewith and therewith.7. in arbitration petition no. 193 of 2009, the principal outstanding loan/claim amount is rs. 2,05,608/.8. in arbitration petition no. 191 of 2009, the principal outstanding loan/claim amount is rs. 2,38,263/.9. in arbitration petition (l) no. 393 of 2009, the principal outstanding loan/claim amount is rs. 4,34,362.47/.10. in arbitration petition (l) no. 394 of 2009, the principal outstanding loan/claim amount is rs. 13,07,196.67/.11. the basic preliminary submission in view of section 1(4) read with section 34 of the recovery of debts due to banks and financial institutions act 1993, (for short, the act) provides that the peculiar jurisdiction of the debts recovery tribunal (for short, the drt) is more than 10 lacks.12. the petitioner is admittedly a financial institution/bank. therefore, any claim and/or debt recovery for the amount more than rs. 10 lacs, the drt has exclusive jurisdiction. if the amount is less than rs. 10 lacs, the said tribunal has no jurisdiction to entertain such dispute/claims. this submission/contention/issue is not in much dispute. both the learned counsel consider this position in view of clear provision of law. their notes of arguments also supports the same.13. the point is, the agreed arbitration clause were permitted the petitioner to file such petition under section 9 of the arbitration act in the jurisdiction of this court at mumbai and/or jurisdiction is elsewhere.14. in view of above, it is clear that the petitioner can invoke section 9 of the arbitration act only if, the amount so claimed or dispute is less than rs. 10 lacs. therefore, if the amount is more than rs. 10 lacs as per the clause itself, the drt has only jurisdiction to entertain and consider the dispute of the position of the petition. therefore, there is no need to discuss further in view of specific agreement between the parties that such act should prevail in case of conflict. in my view there is no conflict in view of above agreed clause itself.15. out of these 4 matters, the claim in 3 matters is less than rs. 10 lacs. the submission that the total amount in all these 4 matters are above rs. 10 lacs and as the respondents are same and are interconnected though 4 different agreements have been signed, yet 4 separate petitions under section 9 of arbitration act, are filed and, therefore, not maintainable in this court at mumbai, is unacceptable. the authorities so relied by the learned counsel appearing for the respondents are distinct on the facts and circumstances. there was no such agreed arbitration clause in these matters. there is no dispute that the parties have entered into 4 different agreements/contracts and singed accordingly for different vehicles/ properties. therefore, for all the purposes there are 4 different agreements and as there are defaults committed by the respondents, and as different cause of action arose and therefore, such 4 petitions as filed are maintainable. such petitions cannot be clubbed together only to remove from the jurisdiction of this court and specially under section 9 of the arbitration act. the submission of clubbing together all these matters and treating the same having valuation of more than 10 lacs and therefore falls within the ambit/ jurisdiction of drt is unsustainable. in all these matters, respondents are different and they signed these agreements in their respective capacity separately. accordingly, separate vehicles/ machineries have been provided by the petitioner to the respondents.16. the petitioner, therefore, in view of the agreed clause and as there are defaults, in my view, all the arbitration clauses under the arbitration act separated by issuing/ serving separate notices. therefore, submissions that this amount to a single cause of action and/or consolidated application ought to have been filed before the drt for the alleged claims, have no force.17. admittedly, the agreements took place at raipur. the respondents are residing and doing their business at raipur, the vehicles/ equipments are also lying in the area. the prayers are for injunction and appointment of court receiver. the respondents have no branch office at mumbai. the petitioners main office/ registered office is in mumbai. the termination notice though sent through mumbai office, that itself cannot be the reason to invoke and file section 9 petition in the court of mumbai. clause 10.16 provides discretion to be exercised by the petitioner to invoke/commence the arbitration proceedings under the act. it may either in mumbai or delhi or chennai or kolkata or in the place of execution of agreement. in the cases, where the amount so claimed is less than 10 lacs, the petitioner can file such proceedings in the appropriate court. clause 10.17 provides that the courts above shall, subject to the provisions of law, have exclusive jurisdiction, unless the law does not permit the same. the court of the city in which the concerned branch is situated shall subject to the provisions of law, have exclusive jurisdiction in relation to this agreement including the arbitration and all matters arising in connection there with. in my view, there is no exclusive jurisdiction of this court at mumbai as sought to be contended of any court, referred above. it is the discretion of the petitioner which has to be taken note of. in view of above clauses, 10.16 and 10.17, i am inclined to observe that the general provisions of code of civil procedure (c.p.c.), need to be considered to give full opportunity to both the parties and basically to the respondents. i am of the view, in absence of clear exclusive jurisdiction clause of courts and as peculiar clauses which provides sole discretion to be exercised by the bank and as agreement so executed at raipur and as the respondents office and place of business is at raipur and as the concerned branch of the petitioner is also situated at raipur, the court of city of the concerned branch at raipur shall have jurisdiction for seeking such interim relief/ protection under section 9 of the arbitration act and not in the court of mumbai as done in the present case.18. therefore, all the petitions, as filed under section 9 of the arbitration act, in this court at mumbai, are not maintainable, except before the court/tribunal, as per the agreed clause itself.19. the apex court recently in shree baidyanath ayurved bhawan private limited v. praveen bhatia and ors. (2009) 8 s.c.c. 779 and prior to that in rajasthan state electricity board v. universal petrol chemicals ltd. : (2009) 3 s.c.c. 107, considering the various facets of such submission referring to arbitration act, 1996, has observed that such agreement/ arbitration clauses need to be respected.20. in view of above, the petition in which the claim amount is below rs. 10 lacs, is dismissed for want of jurisdiction. however, the liberty is granted to the petitioner to file or initiate proceedings before the appropriate forum/court.21. all the petitions are therefore, dismissed with exemplary costs of rs. 10,000/ (rupees ten thousand only) to be paid to the respondents.22. rule discharged. all the interim orders, granted earlier, also stand vacated.