JUDGMENT: (PER D.K.DESHMUKH, J.)

1. This bench has been constituted by the Hon'ble The Chief Justice of the Bombay High Court for answering the following question:- “When a petition is filed challenging an Award under section 34 of the Arbitration and Conciliation Act,1996, under which Article of the Bombay Court fees Act 1959, the court fees would be payable ?”

2. The necessity of constituting a larger bench for consideration of this question arose in the following circumstances:-

When the Arbitration Act,1940 (hereinafter referred to as “the 1940 Act”) was in force, a person desiring to challenge an Award under 1940 Act had to apply to the Court under Section 33 of that Act. The term “Court” was defined by Section 2(c) of the 1940 Act, to mean a Civil Court having jurisdiction to decide the questions forming the subject matter of the reference if the same had been the subject matter of a suit. Thus, in so far as the State of Maharashtra is concerned, in the State of Maharashtra excluding Bombay, an application under section 33 of the 1940 Act was to be filed before the Civil Court and so far as the Bombay is concerned, an application to be filed either before this Court or the City Civil Court depending on the amount involved in the Award. When an application under Section 33 of the 1940 Act was filed in a Civil Court in the State of Maharashtra excluding city of Bombay, court fee was paid under Article 1(a) of the Second Schedule i.e. Rs.5/- and when an application was made to the City Civil Court in Bombay, the same court fee was to be paid under the same Article. But when an application was to be made under Section 33 before this Court, court fee was to be paid under Article 1(f)(iii) of the Second Schedule i.e. Rs.25/-. The court fee was paid under the Second Schedule because of Article 3 found in the First Schedule of the Bombay Court fees Act which provided that when an application to set aside or modify an Award otherwise than an Award under the 1940 Act, then court fee is payable on the amount of value of the Award sought to be set aside or modified, according to the scale prescribed under Article 1. Thus, because of Article 3 of Schedule I of the Court fees Act, an application under Section 33 of the 1940 Act challenging an Award made by an Arbitrator under the 1940 Act was excluded from Article 3, and therefore, court fee on an application filed under Section 33 of the 1940 Act was payable under the Second Schedule. The 1940 Act was repealed by the Arbitration and Conciliation Act 1996 (hereinafter referred to as “the 1996 Act”). Section 34 of the 1996 Act provides that an Award made under that Act by an Arbitrator can be challenged by making an application to the Court. The term “Court” is defined by Section 2(e) of the 1996 Act, to mean the principal Civil Court of original jurisdiction in a district and includes the High Court in exercise of its ordinary original civil jurisdiction having jurisdiction to decide questions forming the subject matter of the Arbitration if the same had been the subject matter of a suit, but does not include any civil court of a grade inferior to such principal Civil court or any small causes Court. Thus, the definition of the term “Court” found in the 1940 Act and the 1996 Act is little different. Under the 1940 Act an Award could be challenged before any Civil Court but now it can be challenged only before the principal Civil Court of original jurisdiction in a district. Thus, now an Award made under the 1996 Act can be challenged by making an application under section 34 of that Act either in the district Court or in this Court on its original side. A question, therefore, arose as to which provision in the Bombay Court fees Act would apply when an application under section 34 of the 1996 Act is made. That question arose when a Division Bench of this Court had before it an appeal filed under Section 37 of the 1996 Act challenging an order passed by a learned Single Judge of this Co

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