Kerala High Court
Sundaram Finance Ltd. vs Radhamma on 6 August, 2003
Equivalent citations: 2003(3)ARBLR646(KERALA), [2004]122COMPCAS937(KER), 2003(3)KLT289
Author: J.B. Koshy
Bench: J.B. Koshy, K. Thankappan
ORDER J.B. Koshy, J.
1. Whether an appeal is maintainable against an order passed under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the 1996 Act') as an interim measure? If appeal is maintainable, what is the court fee payable? These are the two questions considered in this order.
2. The appellant, a finance company, in this case filed an application before the District Court as O.P. (Arb.) No. 22 of 2003 under Section 9(2) of the Act to have the hired vehicle (under hire purchase agreement) seized through a Commission appointed pending arbitration proceedings. It is not disputed that arbitration proceedings are in progress involving the above hired vehicle.
3. Section 9 of the 1996 Act is as follows:
"9. Interim measures by Court:- A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a Court -
(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely:-
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the Court to be just and convenient;
and the Court shall have the same power for making orders as it has for the purpose of; and in relation to, any proceedings before it", The learned District Judge dismissed the application. When the appeal was filed before this Court, Registry raised the above objections regarding maintainability of the appeal and regarding the court fee payable.
4. Section 37(1) of the new Act provides as follows:
"37. Appealable orders:- (1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decree of the Court passing the order, namely:-
(a) granting or refusing to grant any measure under Section 9;
(b) setting aside or refusing to set aside an arbitral award under Section 34. (2) An appeal shall also lie to a court from an order of the arbitral Tribunal -
(a) Accepting the plea referred to in Sub-section (2) of Sub-section (3) of Section 16; or
(b) granting or refusing to grant an interim measure under Section 17."
Section 37(1)(a) specifically provides for an appeal against granting or refusing to grant any measure under Section 9. Therefore, answer to the first question is simple. The impugned order in this appeal is an appealable order and appeal is maintainable.
5. Section 21 of the Kerala Court Fees and Suits Valuation Act, 1959 (hereinafter referred to as 'the Court Fees Act') reads as follows:-
"21. Fee how reckoned:- The fee payable under this Act shall be determined or computed in accordance with the provisions of this Chapter, Chapter VI, Chapter IX and Schedules I and II."
6. Section 52 of the Court Fees Act also provides that fee payable in the appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal. It is now well settled that court fee is determined on the basis of the relief sought as held by the Full Bench of this Court in Scaria Joseph v. Mathai George (1974 KLT 721 FB) and Sebastian v. State of Kerala, 1977 KLT 196. It is not disputed that if a specific court fee is mentioned in Schedule I or II as provided in Section 21, the court fee payable will be as the amount as is mentioned in the Schedule and Schedule to the Act is integral part of the Act itself as held by a Division Bench of this Court in Ayyappan Manuvel v. Annal Joice (1993 (2) KLT 509). A Full Bench of this Court in Kurian v. Ayyappan (1982 KLT 434), held that merely because court fee payable in the first instance in an application for the issue of a succession certificate was not ad volorem, it did not follow that Article 1 Schedule I could not apply to an appeal from that order despite the specific provision in Article 4 of Schedule 1 of the Court Fees Act. The Full Bench held that Section 52 of the Court Fees Act providing for payment of court fee on appeals as the same as that paid in the first instance, must be read and understood as a general provision subject to the special provisions in the Act and Article 4 of Schedule I of the Court Fees Act was a specific provision in regard to appeals against orders passed under the Indian Succession Act and in the appeal, court fee had to be paid in terms of Article 4 of Schedule I of the Act.
7. Articles 3 and 4 of Schedule II of the Court Fees Act provides as follows:
ARTICLE PARTICULARS PROPER FEE
3. Memorandum of appeal from an order inclusive of an order determining any question under S. 47 or S. 144 of the Code of Civil Procedure, 1908, and not otherwise provided for when presented
(i) to any Court other than the High Court or to the Board of Revenue or the Chief Executive Authority or to any Executive Officer Ten rupees
(ii) (xxxx)
(iii) to the High Court-
(A) From an order other than an order under the Kerala Agriculturists Debt Relief Act, 1958.
(1) Where the order was passed by a Subordinate Court or other authority
(a) If the order relates to a suit or proceeding, the value of which exceeds one thousand rupees.
Twenty five rupees
(b) In any other case Ten rupees (2) Where the appeal is under S. 5 of the Kerala High Court Act, 1958 Ten rupees
(a) From an order passed in exercise of appellate jurisdiction Twenty five rupees
(b) From an order passed in exercise of original jurisdiction which would be appealable under the Code of Civil Procedure, 1908, had it been passed by a Subordinate Court.
Twenty five rupees
(c) In any other case per appellant.
Two hundred rupees
(i) Where the appeal is from an order of a Munsiff 's Court or an order of a superior Court in a case where the value for the purpose of jurisdiction does not exceed rupees fifteen thousand Fifteen rupees
(ii) in other cases where the amount or value of the subject-matter-
(a) does not exceed rupees one lakh for every hundred rupees or part thereof upto rupees one lakh Two rupees
(b) exceeds rupees one lakh for every hundred rupees or part thereof in excess of rupees one lakh upto rupees five lakhs Four rupees
(c) exceeds rupees five lakhs, for every hundred rupees, or part thereof, in excess of rupees five lakhs.
One rupee."
The above shows that Article 4 deals with appeal filed under Section 39 of the Arbitration Act, 1940 (hereinafter referred to as 'the 1940 Act') only and it is not dealing with the provisions in the 1996 Act. Therefore, the contention of the appellant is that there is no specific provision fixing court fees payable in the memorandum of appeal filed under Section 37(1)(a) of the 1996 Act. Hence, the appropriate court fee payable is the fee that is mentioned in Article 3(iii)(A)(1)(a) of Schedule II, that is, Rs. 25/-.
8. Learned counsel for the appellant also referred to the Division Bench decision of this court in Chacko v. Catholic Bank of India Ltd., (1963 KLT 1088). In that case, the appeal was under Section 45 N of the Banking Companies Act against an order under Schedule 45D(4) of that Act. There was a specific provision in Schedule II Article 3 (iii)(A)(3) providing for payment of Rs. 100/- where the appeal is under Section 45B of the Banking Companies Act, 1949. The Division Bench noticed that the amendment to the Banking Companies Act and the alteration of the section conferring right of appeal was unfortunately omitted to be noticed by the Kerala Legislature when it enacted the Court Fees Act in the year 1960 and since the appeal was one under Section 45N of the Banking Companies Act and not under Section 45B of the Banking Companies Act, Schedule II, Article 3 (iii)(A)(3) could not be applied and since that could not be applied, court fee was payable under Schedule II Article 3(iii)(A) (2)(c) of the Court Fees Act. The Division Bench specifically stated that in the absence of a specific provision applicable to appeals of the kind then before them, they have to hold that the appeal filed under Section 5 of the High Court Act and Section 45N of the Banking Companies Act, had to bear court fee under Article 3(iii)(A)(2)(c) of Schedule II of the Act.
9. Contention of the learned Government Pleader is that even though court fee payable on appeal under Section 39 of the Arbitration Act, 1940 is only provided in Article 4 of Schedule II of the Court Fees Act, in view of Section 85 of the 1996 Act, reference to 1940 Act is applicable to the new Act also and the decision in Chacko's case (supra) needs reconsideration. But, according to us, on the facts of this case, that is unnecessary. Schedule 85 of the 1996 Act reads as follows:
"85. Repeal and Saving: - (1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.
(2) Notwithstanding such repeal,-
(a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force; and
(b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act".
The above section relates only to savings of Arbitration proceedings commenced before the 1996 Act came into force as well as rules made and notifications published under the 1940 Act. The Court Fees Act and its Schedules are not rules made and notifications published under the Arbitration Act, 1940 and the above provision will not apply. However, from Section 7 of the Kerala Interpretation and General Clauses Act, 1125 as amended by Act 3 of 1957, an inference can be made that Article 4 of Schedule 11 of the Court Fees Act is applicable to appeals filed under the corresponding provisions in the new Act. Section 7 of the Kerala Interpretation and General Clauses Act, 1125 reads as follows:
"7. Construction of References to Repealed Enactments:-Where any Act repeals and re-enacts, with or without modification any provision of a former enactment, then, reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provision so re-enacted."
Similar provisions are there in the General Clauses Act, 1897 (Central Act). Section 8 is similar to Section 7 of the Kerala Act quoted above. (See also Sections 6, 6A and 24 of the General Clauses Act, 1897.) Corresponding provision of Section 37 of the 1940 Act is Section 43 in the new Act. There is no provision like Section 9 in the 1940 Act and no hence appeal was provided also under the 1940 Act against granting or refusing to grant interim measure. We have already extracted Section 37 of the 1996 Act. (See para 4). Section 39(1) of the 1940 Act is as follows:
"39. Appealable orders:- (1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order:
An order -
(i) superseding an arbitration;
(ii) on an award stated in the form of a special case;
(iii) modifying or correcting an award;
(iv) filling or refusing to file an arbitration agreement;
(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;
(vi) setting aside or refusing to set aside an award:
Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court".
There is no corresponding provision in the 1940 Act like Section 37(1)(a) enabling to file an appeal against an order granting or refusing to grant any measure under Section 9. Therefore, even if the interpretation given by the learned Government Pleader is accepted, Article 4 of Schedule II of the Court Fees Act is not applicable to memorandum of appeal filed under Section 37(1)(a) of the 1996 Act against an order granting or refusing to grant any measure under Section 9.
10. In Paul v. Susan, 1999 (2) KLT 848), a Division Bench of this Court held that Article 3 of Schedule II of the Court Fees Act would be attracted to the application filed in the High Court if there is no specific provision prescribing court fees in the Court Fees Act in filing such appeals. In that case, appeal was filed under Succession Act and Article 4 of Schedule I was a specific provision for filing Succession Act and hence it was held that Article 3 of Schedule II was not attracted. Here, in this case, we have seen that there is no specific provision in the Court Fees Act prescribing fees in filing appeals to the High Court from an order passed under Section 9 of the 1996 Act. Therefore, we are of the view that court fee is payable as per Article 3(iii)(A)(1)(a) of Schedule II of the Court Fees Act.
11. It is true that under Article 11 (m) of Schedule II, court fee is fixed for an application to set aside an award under the Arbitration and Conciliation Act, 1996 and under Article 11(n) of Schedule II, court fee is fixed for an application for enforcing foreign awards. Article 11(m) of Schedule II is as follows:
(i)
(ii)
(iii) ARTICLE PARTICULARS PROPER FEE 11(m) Application to set aside an award under the Arbitration and Conciliation Act, 1996 (Central Act 26 of 1996);-
(i) if the value of the subject-matter of the award does not exceed Rs. 5,000/-
Fifty rupees
(ii) if such value exceeds Rs. 5,000/- but does not exceed Rs. 10,000/-
One hundred and fifty rupees
(iii) if such value exceeds Rs. 10,000/-
Four hundred rupees".
But, that is only an application to set aside an award or allowing an application under the new Act and not an application filed under Section 9 of the Act. Therefore, there is no specific provision under the Kerala Court Fees and Suits Valuation Act, 1959 for filing an application under Section 9 of the 1996 Act before the original court or for filing an appeal under Section 37(1)(a) against orders passed under Section 9 of the Arbitration Act. It is very unfortunate that even though the Kerala Court Fees and Suits Valuation Act, 1959 was amended by Amendment Act 2 of 2003, no provision was incorporated for payment of court fee for filing an appeal under Section 37 of the 1996 Act. Court fee payable on appeals filed to the High Court against orders passed are provided under Article 3(iii) of Schedule II of the Court Fees Act. The present appeal is not filed under Section 5 of the Kerala High Court Act; but, under Section 37(1)(a) of the 1996 Act and hence Article 3(iii)(A)(2) is also excluded. Since there is no other specific provision regarding the court fee payable for an appeal filed under Section 37(1)(a) to the High Court against the order passed under Section 9 of the new Act, court fee is payable in this case is as provided under Article 3(iii)(A)(1)(a) of Schedule II of the Court Fees Act.
Since appropriate court fee is already paid, number the appeal.