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2016 Supreme(Bom) 1066
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.K. Deshpande, J.
RISHABHKUMAR S/o BABULAL JEJANI – Petitioner
Vs.
SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, NEW DELHI – Respondent
Arbitration Appeal No. 6 of 2015
Decided On : 25-04-2016
For the Petitioner: R.P. Joshi.
For the Respondents: A.M. Ghare, A.A. Kathane, M.A. Kadu.
The court fee payable on an appeal under section 37 of the Arbitration and Conciliation Act should be in accordance with Article 4 of the Maharashtra Court Fees Act, as it is filed to set aside an order with the force of a decree.
Headnote:
Court Fee - Arbitration and Conciliation Act - 35, 36, 37 - Summary of Acts and Sections
Fact of the Case:
The appeal was filed under section 37 of the Arbitration and Conciliation Act, 1996, challenging the order setting aside the arbitral award. The issue was the payment of court fee on the appeal.
Finding of the Court:
The court held that the court fee payable on the appeal under section 37 of the Arbitration and Conciliation Act should be in accordance with Article 4 of the Maharashtra Court Fees Act, as it is filed to set aside an order with the force of a decree.
Issues: The main issue was whether the court fee on the appeal under section 37 should be payable in terms of Article 13 in Schedule II or Article 4 in Schedule I of the Maharashtra Court Fees Act.
Ratio Decidendi: The court fee payable on the appeal under section 37 should be in accordance with Article 4 of the Maharashtra Court Fees Act, as it is filed to set aside an order with the force of a decree.
Final Decision: The office was directed to determine the court fee payable as per Article 4 in Schedule I read with Article 3A of the Court Fees Act, and upon such determination, the court fee so determined should be paid within a specified period, failing which the appeal would stand dismissed.
R.K. DESHPANDE, J.
1. Shri Ghare, the learned counsel appearing for the respondent No. 2-National Highways Authority of India seeks permission to withdraw Civil Application (CAM) No. 4 of 2016 and seeks further permission to substitute it by another application, which he has tendered. The request is accepted. The Civil Application (CAM) No. 4 of 2016 is permitted to be withdrawn with liberty to file fresh application which is tendered in the Court. The application is taken on record and it be registered accordingly.
2. This appeal is filed under section 37 of the Arbitration and Conciliation Act, 1996 (“said Act” for short) challenging the order dated 28-8-2015 passed under section 34 by the learned Principal District Judge setting aside the arbitral award dated 29-8-2015. The preliminary objection is with regard to payment of Court fee on the appeal. The appellant has paid Court fee of Rs. 25/- in terms of Article 13 under Schedule II of the Maharashtra Court Fees Act (“Court Fees Act” for short). According to the office and the respondent No. 2, the Court fee is payable in terms of Article 4 of Schedule I under the Court Fees Act and the Court fee payable is the same, as was paid on the application under section 34 of the said Act, in terms of Article 3A under Schedule I of the Court Fees Act.
3. Article 3-A of the Court Fees Act introduced by way of an amendment w.e.f. 1-9-2009 is therefore reproduced below:
“3-A. Application or petition (including memorandum of appeal) to set aside or modify arbitral award under the Arbitration and Conciliation Act, 1996.…... A fee of one-half of the ad valorem fee on the amount or value of the award sought to be set aside or modified, according to the scale prescribed under Article 1.”
The application under section 34 of the said Act for setting aside arbitral award is governed by the aforesaid provision and it carries the Court fee of one-half of the ad valorem fee on the amount or value of the award sought to be set aside or modified according to the scale prescribed under Article I of the Court Fees Act.
4. The respondent No. 2 had filed applications for setting aside award under section 34 on which a Court fee of Rs. 1.5 lakhs on each of the application was paid. The applications have been allowed and the award has been set aside. Hence, the appellants, who are the original claimants have preferred this appeal under section 37 of the said Act. It is not disputed that if the Court fee is payable in terms of Article 4 of Schedule I of the Court Fees Act, then the Court fee as stipulated in Article 3A and as was paid in the trial Court, will have to be paid. It is also not in dispute that such Court fee has not been paid.
5. Hence, the question for determination is as under:
Whether in an appeal under section 37 of the Arbitration and Conciliation Act, 1996 the Court fee is payable in terms of Article 13 in Schedule II or Article 4 in Schedule I of the Maharashtra Court Fees Act?
6. Sections 35 and 36 of the Arbitration and Conciliation Act, 1996 are reproduced below:
“35. Finality of arbitral awards. — Subject to this Part an arbitral award shall be final and binding on the parties and persons claiming under them respectively.
36. Enforcement. — Where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court.”
Section 35 under the said Act deals with the finality of the arbitral award which shall be binding on the parties and persons claiming under them respectively, subject to the other provisions in Part I of the said Act. Section 36 under the said Act deals with the enforcement and it states that where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, t
