Court fees for appeals against arbitral awards are governed by specific provisions in the Court Fees Act, adhering to original application fees.

1The 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 S.34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 1996 Act) in setting aside or refusing to set aside an abitral award.

2When court fee was calculated under Schedule II, Art.4(c) of the Kerala Courts 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, Art.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.

3An arbitration award was passed and the first respondent in the appeals, Larsen and Toubro Ltd., filed an application to set aside the award under S.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 2003 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.

4In Sundaram Finance Ltd. v. Radhamma, 2003 (3) KLT 289, we have held that when an appeal is filed under S.37(1)(a) of the 1996 Act against an order passed under S.9 of the Act, court fee is payable under Art.3(iii)(A)(1)(a) of Schedule II of the Courts Fees Act as there is no specific provision under the Courts Fees Act fixing court fee payable in Original Application under S.9 of the 1996 Act before the civil court or in the appeal filed under S.37(1)(a) of the 1996 Act. The above decision is not applicable to a case when an appeal is filed under S.37(1)(a) against an order setting aside or refusing to set aside an arbitral award under S.34 of the 1996 Act.

5Here, 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 Courts Fees Act for payment of court fee for filing an appeal under S.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 S.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 S.37(1)(b) is under Schedule II Item 4(ii) of the Courts Fees Act by implication. The learned Government Pleader also referred to S.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 Court