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In the High Court of Bombay at Goa
R.M. SAVANT, J.
M/s Resources International & Others
Versus
Mrs. Ana Bertha do Regoe Fernandes & Another
Writ Petition Nos.852 of 2012, 853 of 2012 & 854 of 2012
Decided On : 22-10-2013
Arbitration and Conciliation Act, 1996 - Section 34. - See Civil Procedure Code, 1908, Sections 149, 151, Order VII, Rule 11, Order XVIII, Rule 4, Order XIX, Rules 1 and 2.
Civil Procedure Code, 1908 - Sections 114, 149 and 151 - Arbitration & Conciliation Act, 1996, Section 34 - Review application. - In absence of any omission, mistake or error apparent on face of record which could affect decision dismissing writ petitions, Review application liable to be dismissed. - Applicants filed applications under Section 34 of Arbitration and Conciliation Act. Respondent filed replied along with application under Order VII, Rule 11 and Section 151 of CPC, for rejection of said Arbitration Applications on grounds that Court fee paid was not adequate and that Arbitration Applications were not filed within prescribed time limit. Applicants filed applications under Section 149/151 of CPC. Respondent filed their replies and prayed for opportunity to cross-examine deponents. Permission was granted to respondents to cross-examine person who sworn affidavit in application under Section 149/151 of CPC. Against said order writ petitions were filed which came to be dismissed by Common judgment dated 22.10.2013. Said order of dismissal is under review in present matter.
Writ petitions were filed against order dated 16.11.2012, whereby prayers made in replies filed by respondents for being permitted to cross-examine person who had sworn affidavit in applications filed under Section 149/151 of CPC came to be allowed. The said application under Section 149/151 CPC, which are filed by applicant are still pending for adjudication. Question which was involved in said writ petitions was whether District Judge was right in allowing applications filed by respondents for cross-examination of person, who has verified contents of applications under Section 149/151 of CPC. Question whether Registrar of District Court ought to have given opportunity to petitioners to make good deficit Court fee or not, has not been decided by Single Judge of this Court. Hence there is no merit in present review application.
Civil Procedure Code, 1908 - Sections 149 and 151, Order VII, Rule 11, Order XVIII, Rule 4, Order XIX, Rules 1 and 2 - Arbitration and Conciliation Act, 1996, Section 34 - Cross-examination of witnesses/deponents. - Court, whilst adjudicating upon applications of petitioners under Section 149/151 of Code, rightly permitted cross-examination of witnesses/deponents of petitioners. - The Court is required to exercise its judicial discretion keeping the facts and circumstances of each case in mind and not automatically and it is not for the mere asking, indulgence can be shown to the parties to make good the Court fee. The cross-examination of the witnesses/deponents of the petitioners would, therefore aid the Court in arriving at a conclusion whether the reasons mentioned by the petitioners in their applications under Section 149/151 of the CPC commend acceptance. It is also required to be borne in mind that the deficit Court fee is in respect of the applications filed under Section 34 of the Arbitration Act, 1996 for which the limitation is prescribed by the Arbitration Act, 1996 itself.
Hence, having regard to the principles governing the exercise of jurisdiction under Section 149 of the CPC, and considering the fact that the issue of deficit Court fees has arisen in respect of the applications filed under Section 34 of the Arbitration Act, 1996, it cannot be said that the said issue is only between the petitioners and the Government. Therefore, the Court, whilst adjudicating upon the applications filed by the petitioners under Section 149/151 of the CPC, is required to consider as to whether on the touchstone of the reasons mentioned by the petitioners, discretion is required to be exercised in favour of the petitioners. The impugned order permitting the cross-examination of the witnesses/deponents of the petitioners cannot be found fault with. The same can only aid the Court in arriving at a decision as to whether to exercise discretion in favour of the petitioners or not.
Rule in all the petitions. With the consent of the learned Counsel for the parties, made returnable forthwith and heard.
2. The writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the identical orders dated 16/11/2012 passed by the Principal District Judge, South Goa, Margao, by which order, the applications filed by the respondents for being permitted to cross-examine the person, who had sworn the affidavit in the applications filed under Section 149/151 of the C.P.C. i.e. one Dipak Rajani, came to be allowed and the said person i.e. Shri Dipak Rajani was directed to submit himself to cross-examination.
2. The facts necessary to be cited for the adjudication of the above petitions can be stated thus :
The petitioners herein and the respondents were involved in Arbitration Proceedings, which culminated in the declaration of the Award dated 29/03/2008. The petitioners invoked Section 34 of the Arbitration and Conciliation Act, 1996 ('the Arbitration Act, 1996' for short) by filing Applications to challenge the said Award passed by the majority of the Arbitrators. The said Arbitration Applications, inter alia, contain an averment that the applications were filed within limitation and have been affixed with fixed Court fee of Rs.20/-. The said Arbitration Applications were presented to the registry of the District Court, South Goa and were admitted to the registry and were numbered as Arbitration Applications No.18, 19 and 20 of 2008.
3. The notice of the Arbitration Applications came to be issued to the respondents herein. On receipt of the said notice, the respondents filed their replies to the said applications on 25/09/2008 and along with the replies, the respondents also filed the applications under Order VII, Rule 11 of the C.P.C. or the provisions analogous thereto for rejection of the applications, inter alia, on various grounds mentioned in the said applications, including the ground that the Court fee paid was not adequate. One of the other grounds was that the said Arbitration Applications were not filed within limitation. To the said applications filed under Order VII, Rule 11 of the C.P.C., the petitioners filed their replies. Insofar as the ground of nonpayment of proper Court fee is concerned, the said ground was dealt with in paragraph 10 of the replies filed by the petitioners. In the said paragraph 10, it was averred that the filing clerk of the District Court, on the Arbitration Applications being presented, had informed the Advocate for the petitioners that the requisite Court fee for an application/ petition under Section 34 of the Arbitration Act, 1996 is Rs.20/-. It is further averred that subsequently, it was learnt that the requisite Court fee was Rs.25/- and not Rs.20/-and, therefore, an attempt came to be made to pay the deficit Court fee. However, the filing clerk refused to accept the deficit Court fee without the order of the Court.
4. To the said replies, the respondents herein filed rejoinders dated 25/11/2008. In the said rejoinders, the respondents reiterated their case in the applications filed by them under Order VII, Rule 11 of the C.P.C. It appears that, thereafter, the said applications filed under Order VII, Rule 11 of the C.P.C. were partly argued on 04/12/2009 and, thereafter, were kept for further arguments on 07/01/2010. It appears that on 05/01/2010, the petitioners herein served upon the respondents an application filed under Section 149/151 of the C.P.C. or the principles analogous thereto. Similar applications were filed in the other two Arbitration Applications. The said applications filed under Section149/151 of the C.P.C. once again contain the statements, which were mentioned in the replies to the applications filed under Order VII, Rule 11 of the C.P.C. The said applications came to be filed on 07/01/2010. Along with the applications, the affidavits of the Advocate on record Mr. Vledson L. Braganza, who had filed the Arbit
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