Kerala High Court
Elsie Felix And Ors. vs Larsen And Toubro Ltd. And Ors. on 15 October, 2003
Equivalent citations: AIR2004KER184, 2004(2)ARBLR328(KERALA), AIR 2004 KERALA 184, ILR(KER) 2004 (1) KER 288, 2004 (2) ARBI LR 328, (2004) 2 ARBILR 328, (2004) 2 ICC 97, (2004) 1 KER LT 619
Author: K. Thankappan
Bench: K. Thankappan
JUDGMENT J.S. Koshy, J.
1. The question to be considered in these appeals is regarding the quantum of court-fees payable when an appeal is filed against an order passed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the 1996 Act") in setting aside or refusing to set aside an arbitral award.
2. When court-fee was calculated under Schedule II, Article 4(c) of the Kerala Court-fees and Suits Valuation Act, 1959 (hereinafter referred to as "the Court-fees Act"), in the unnumbered appeal as Rs. 97,447/-(1/3 court-fee of Rs. 32,483/- was paid at the time of filing), objection was raised by the Registry. When the very same order was challenged by another appellant in Arbitration Appeal No. 10 of 2003, court-fee paid was only Rs. 250/- as according to the registry court-fee payable is under Schedule II, Article 3(iii)(A)(1)(a) in view of the decision reported in Sundaram Finance Ltd. v. Radhamma, 2003 (3) KLT 289. The Registry also took the objection in the unnumbered appeal that two appeals should have been filed as it was a common order. Before dealing with the above question. We shall briefly state the facts of the case.
3. An arbitration award was passed and the first respondent in the appeals, Larson and Toubro Ltd. filed an application to set aside the award under Section 34 of the Act. 'C' party filed a petition to modify the award. The civil Court set aside the award allowing the application filed by the first respondent and dismissed the petition filed by 'C' party. The 'C' party filed two appeals, one of which is Arbitration Appeal No. 10 of 2003 and "A" party filed the unnumbered appeal against the order passed by the Additional District Court, Ernakulam in O.P. No. 51 of 2002 setting aside the award. It is submitted that since they are not aggrieved by the increase in compensation requested by 'C' party, they are not interested in challenging the order passed in O.P. No. 117 of 2002, even though it was a common order. Therefore, one appeal alone need be filed against an order setting aside the award. They are prepared to take the risk of filing one appeal. Therefore, the question to be considered is regarding the court fees payable in filing an appeal against an order setting aside the arbitral award.
4. In Sundaram Finance Ltd. v. Radhamma, 2003 (3) Ker LT 289, we have held that when an appeal is filed under Section 37(1)(a) of the 1996 Act against an order passed under Section 9 of the Act, court fee is payable under Article 3(iii)(A)(1)(a) of Schedule II of the Court Fees Act as there is no specific provision under the Court Fees Act fixing court fee payable in Original Application under Section 9 of the 1996 Act before the Civil Court or in the appeal filed under Section 37(1)(a) of the 1996 Act. The above decision is not applicable to a case when an appeal is filed under Section 37(1)(a) against an order setting aside or refusing to set aside an arbitral award under Section 34 of the 1996 Act.
5. Here, the question being one of payment of court fee, we had given notice to the learned Advocate General. The learned Government Pleader submitted that no specific provision is incorporated under the Court Fees Act for payment of court fee for filing an appeal under Section 37(1)(b) of the 1996 Act. But specific provisions are made for paying court fees (Schedule II item 4(ii) for appeal filed under Section 39(1)(vi) of the Arbitration Act, 1940 against similar orders. Therefore, according to the Government Pleader court fee payable when an appeal is filed under Section 37(1)(b) is under Schedule II item 4(11) of the Court Fees Act by implication. The learned Government Pleader also referred to Section 85 of the Act which reads as follows :
"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;
(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."
But 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 is of no help.
6. Learned Government Pleader further submitted that Section 7 of the Kerala Interpretation and General Clauses Act, 1125 as amended by Act 3 of 1957 shows that Article 4 of Schedule II of the Court Fees Act is applicable to appeals filed under the corresponding provisions in the new Act. Section 7 of the General Clauses Act reads as follows :
"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 incorporated under the General Clauses Act, 1897 (Central Act). According to the learned Government Pleader, Section 37(1)(b) of the 1996 Act is similar to Section 39(1)(vi) of the Arbitration Act, 1940. But, we are of the view that such a contention cannot be taken because the above provision of the General Clauses Act can be taken only when the legislature has omitted to take note of the incorporation of the new Act while amending the Court Fees Act. Article 11 (m) further shows that the legislature was aware of the 1996 Act and they did not incorporate a similar Article as Article 4 of Schedule II for memorandum of appeals filed from an order setting aside the arbitral award. Intention of the legislature is clear. Article 4 of Schedule II of the Court Fees Act mentions memorandum of appeal under Section 39 of the 1940 Act only. Therefore, court fee payable under that schedule is applicable only if the appeal is filed under Section 39 of the Arbitration Act, 1940 and not under the subsequent Act. A Division Bench of this Court in Chackov. Catholic Bank of India Ltd., 1963 Ker LT 1068 held that the Court cannot look into the previous Act for the purpose of payment of court fees. We also note that in Cafe Brandy Syndicate v. Inland Revenue Commissioners, (1921) 1 KB 64, Rowlatt, J. held that in a Taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity. There is no presumption. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. Here the language is very specific.
7. Article 11(m) of Schedule II of the Court Fees Act provides fees for application to set aside an award under the 1996 Act in the following manner :
"Application to set aside an award under the Arbitration and Conciliation Act, 1996 (Central Act 26 of 1996)."
(1) if the value of the subject-matter of the award does not exceed Rs. 5,000/- Fifty rupees
(ii) if such value exceeds One hundred Rs. 5,000/- but does and fifty not exceed Rs. 10,000/- rupees
(iii) if such value exceeds Four hundred Rs. 10,000/- rupees."
In Sundaram Finance Ltd. v. Radhamma, 2003 (3) Ker LT 289, we have held that in the absence of any specific provision for payment of court fee under Section 9 of the Act as well as Section 37(1)(a) of the Act, resort has to be made to Article 3(iii)(A)(1)(a) of Schedule II of the Court Fees Act. Here, specific provisions are mentioned with regard to filing of application for setting aside an arbitral award before the original court, Section 52 of the Court Fees Act provides as follows :
"Appeals.-- The fee payable in an 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."
Explanation (1) to Section 52 says that whether the appeal is against the refusal of a relief or against the grant of the relief, the fee payable in the appeal shall be the same as the fee that would be payable on the relief in the Court of first instance. In the Court Fees Act, specific provision is provided under Article 11(m) of the IInd Schedule prescribing fee payable in filing an application to set aside an arbitral award under Section 34 of the 1996 Act. Therefore, the same court fee as provided under Article 11(m) of Schedule II is payable when an appeal is filed under Section 37(b) against an award passed in an application under Section 34. In Jaisu Shipping Co. (P) Ltd. v. Oil Corp. Oil Marketing Corporation, 2001 (2) Ker LT 772 : (AIR 2002 Kerala 255), a Division Bench of this Court already held that in view of Section 52 of the Act, the appellant cannot be compelled to pay more than what was paid as court fee before the Court below. We respectfully follow the above decision. In the absence of any specific provision prescribing the court fee payable in an appeal filed under Section 37(1)(b) setting aside or refusing to set aside an arbitral award under Section 34 of the 1996 Act, court fee payable is the same as that of the Court fee payable before the court below. In this connection, we also refer to the decision of the Division Bench of this Court in Thomas Martin v. Terasa Martin, 2002 (3) Ker LT 888 : (AIR 2003 Kerala 29). At the time of filing the appeal court fee payable under Article 11(m) as amended by the Kerala Court Fees and Suits Valuation (Amendment) Act, 2003 was Rs. 400/- if value exceeds Rs. 10,000/-. At the time when the application in this case to set aside the award was filed, the court fee payable was Rs. 250/- only when the value of the subject matter was above Rs. 10,000/-. More onerous condition cannot be put to impair the right of appeal in the absence of specific provision and therefore, the court fee payable in the appeal is the same as the court fee payable at the time of filing the original proceedings. In this connection, we refer to the decisions in State of Bombay v. Supreme General Films Exchange, AIR 1960 SC 980, Usha v. Food Corporation of India, 1997 (1) Ker LT 264, Procurator R. C. Diocese, Calicut v. State of Kerala, 2003 (1) Ker LT 618 : (AIR 2003 Kerala 143) and Abdulla v. State of Kerala, 2003 (1) Ker LT 961.
8. Here the court fee paid by the first respondent for filing the original application to set aside the award was Rs. 250/-. Hence, in view of Section 52 of the Court Fees Act, court fee payable will be only Rs. 250/-which is the court fee payable under Article 11(m) of IInd Schedule at the time of filing the application under Section 34 of the 1996 Act. Excess court fee paid has to be refunded. The Registry is, therefore, directed to number the appeal. The deficit Court fee in Arbitration Appeal No. 10 of 2003 shall be paid within one month from today.