Shaffique, J.

By a reference order dated 16/10/2017, a Division Bench of this Court had doubted the correctness of the judgment in Elsie Felix v. Larsen and Toubro [2004 (1) KLT 619] which was followed in Asya v. Sundaram Finance Limited [2016 (3) KLT 195].

2. The issue involved is relating to the court fee payable for an appeal u/s 37(1)(a) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 1996 Act).

3. The court fee payable is stipulated under Kerala Court Fees and Suits Valuation Act. Art. 4 of Schedule II deals with the court fee payable for filing appeal u/s 37(1)(a) of 1996 Act. As far as the appellant is concerned, he sought for arbitration under the National High Ways Act, 1956 and the arbitration proceedings commenced on 12/7/2010. The procedure for arbitration under the National Highways Act, 1956 is in accordance with the provisions of the 1996 Act which enables the claimant/petitioner to challenge an award by invoking S.34 of the 1996 Act. Petitioner filed an application u/s 34 which came to be rejected against which the present appeal has been filed before this court. Article 4 of Schedule II was amended by Kerala Finance Act, 2013. w.e.f. 01/04/2013 by which it read:

“4. Memorandum of appeal under the Arbitration and Conciliation Act 1996.”

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Prior to the said amendment, it read as under :-

“4. Memorandum of appeal under section 39 of the Arbitration Act 1940.”

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4. The contention urged by learned counsel for appellant was that there was no specific provision for payment of court fee for filing an appeal under the 1996 Act and therefore, the court fee payable was the court fee which was paid before the court below to set aside an award under the Act where the maximum fee is only Rs. 400/-. As far as the appellant/petitioner is concerned, the law as on the date when the arbitration commenced regarding payment of court fee has to be considered and since the amendment in Article 4 has come into effect only on 01/04/2013, obligation of the petitioner is to pay court fee only at the pre-amended stage when there was no specific provision at all for payment of court fee.

5. The Division Bench while referring the question however observed that in the light of Section 7 of the Travancore Cochin Interpretation of General Clauses Act, 1125, even without a corresponding amendment to Article 4, the petitioner will be under obligation to pay the court fee on the basis of the court fee payable under the pre-amended position.

6. S.7 of the Kerala Interpretation of General Clauses Act, 1125 reads as under :-

“7. Construction of reference to repealed enactments-Where any Act repeals and re-enacts, with or without modification any provision of a former enactment, then, references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.”

7. In fact, there is no dispute about the fact that the court fee payable for preferring an appeal would be the court fee applicable at the time of initiation of proceedings. In so far as the arbitration commenced on 12/7/2010, the liability to pay court fee will be with reference to the court fee payable as on that date.

8. The only question that arises in this reference is in regard to the interpretation of S.7 read with Art.4 of Schedule II of the Kerala Court Fees and Suits Valuation Act. In Elsie Felix, (supra), the Division Bench had considered the very same issue and had observed that S.7 can be invoked only when the legislature has omitted to take note of the incorporation of the new Act while amending the Court Fees Act. It is held that Art.11(m) shows that the legislature was aware of the 1996 Act and did not incorporate a similar provision in Art.4 of Schedule II for memorandum of appeals filed from an order setting aside the arbitral award under the 1996 Act. It was therefore held that Art.4 of Schedule II of the Kerala Court Fees and Su