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1998 DIGILAW 1092 (RAJ)

LAXMI CINEMA v. PREM PRAKASH CINEMA

1998-10-16

A.C.SENGUPTA

body1998
ORDER Amaresh Kr. Singh, J. - Heard the learned counsel for the petitioner and the learned counsel for the non-petitioner No. 1. None appeared for the non-petitioner Nos. 2 and 3 in spite of the service. 2. The short question to be decided in this revision petition is whether an amount of Rs. 500/- is required to be paid with an application filed under Section 34 of the Arbitration and Conciliation Ordinance, 1996 for setting aside the award, by virtue of the provisions contained in para 10 of the Scheme framed by the Hon'ble the Chief Justice of the Rajasthan High Court under sub-section (10) of Section 11 of the Arbitration and Conciliation Ordinance, 1996. 3. The facts of the case so far as they are relevant for the disposal of this petition may be briefly stated as follows : The petitioner filed an application before the District Judge, Jodhpur under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award. He paid Court-fee to the tune of Rs. 250/-. The learned District Judge, vide his order dated 6-7-1998, held that in view of the para 10 of the Scheme framed by the Hon'ble Chief Justice, an amount of Rs. 500/- was to be deposited by the petitioner along with his application. The objection raised by the office was, therefore, sustained and it was ordered that further proceedings on the application of the petitioner would be commenced after the payment of sum of Rs. 500/-. Feeling aggrieved by the aforesaid order, the petitioner has filed this revision petition. 4. The learned counsel for the petitioner has submitted that para 10 of the Scheme framed by the Hon'ble Chief Justice does not apply to the applications filed under Section 34 of the Act of 1996 for setting aside the award and, therefore, the impugned order passed by the learned District Judge is not tenable in law. 5. I have carefully considered the submissions made by the learned counsel for the petitioner and the provisions contained in the Scheme notified by Notification No. 2/SRO/97 dated 6-3-1997 by the Rajasthan High Court. Para No. 10 of the Scheme reads : "Costs for processing requests : The party making a request under this scheme shall, along with the request for arbitration pay an amount of Rs. Para No. 10 of the Scheme reads : "Costs for processing requests : The party making a request under this scheme shall, along with the request for arbitration pay an amount of Rs. 250/- in case the request is made to the person designated under para 3(a) of this Scheme; Rs. 500/- in case the request is made to a person designated under para 3(b); and Rs. 1,000/- in case the request is made to a person designated under para 3(c)." 6. A bare perusal of the provisions contained in para 10 of the Scheme shows that the amounts mentioned in this para are required to be paid when the request for arbitration is made under paras 3(a), (b) or (c) of the Scheme. 7. Para 3 of the Scheme prescribes the authorities who are empowered to deal with the request made by any party under sub-section (4) of sub-section (5) or sub-section (6) Section 11 of the Arbitration and Conciliation Ordinance 1996. 8. Section 11 of the Arbitration and Conciliation (III) Ordinance, 1996 reads : (1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties. (2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. (3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. (4) If the appointment procedure in sub-section (3) applies and - (a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or (b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment. the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. (5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. (6) Where, under an appointment procedure agreed upon by the parties - (a) a party fails to act as required under that procedure; or (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or (c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party a may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. (7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice or the person or institution designated by him is final. (8) The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to - (a) any qualifications required of the arbitrator by the agreement of the parties; and (b) other considerations as are likely to secure the appointment of an independent and impartial arbitrator. (9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities. (10) The Chief Justice may make such scheme as he any deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6) to him. (11) Where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice of different High Courts or their designates the Chief Justice or his designate to whom the request has been first made under the relevant sub-section shall alone be competent to decide on the request. (12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to "Chief Justice" in those sub-sections shall be construed as a reference to the "Chief Justice of India". (12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to "Chief Justice" in those sub-sections shall be construed as a reference to the "Chief Justice of India". (b) Where the matters referred to in sub-section (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to "Chief Justice" in those sub-sections (shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in Clause (e) of sub-section (1) of Section (2) is situated and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court. 9. A perusal of sub-section (4) of Section 11 of the Ordinance shows that this sub-section deals with the appointment of the arbitrators. Sub-section (5) of Section 5 provides that failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. Sub-section (6) of Section 11 provides that whether under an appointment procedure agreed upon by the parties, a party fails to act as required under that procedure; or the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. 10. Thus, sub-sections (4), (5) and (6) of Section 11 of the Ordinance deal with the appointment of arbitrators. Sub-section (10) of Section 11 of the Ordinance empowers the Chief Justice to make such Scheme as he may deem appropriate for dealing with the matters and attested by sub-section (4) or sub-section (5) or sub-section (6) to him. 10. Thus, sub-sections (4), (5) and (6) of Section 11 of the Ordinance deal with the appointment of arbitrators. Sub-section (10) of Section 11 of the Ordinance empowers the Chief Justice to make such Scheme as he may deem appropriate for dealing with the matters and attested by sub-section (4) or sub-section (5) or sub-section (6) to him. In view of the provisions contained in sub-sections (4), (5), (6) or (10) of Section 11 of the Ordinance, the submissions that the Scheme framed by the Hon'ble Chief Justice, does not apply to applications moved under Section 34 of the Ordinance for setting aside the award appears to be correct. 11. For the reasons mentioned above, it must be held that para 10 of the Scheme dated 6-3-1997 framed by the Hon'ble Chief Justice of the Rajasthan High Court under sub-section (10) of Section 11 of the Ordinance, 1996 for setting aside the award. The impugned order is erroneous and must be set aside. The revision petition is, therefore, allowed. The impugned order dated 6-7-1998 passed by the District Judge is hereby quashed and set aside. The petitioner is not liable to pay the amount of Rs. 500/- under para 10 of the Scheme dated 6-3-1997. However, he is liable to pay the Court-fee under the Court-fee Act, 1961. The learned counsel for the petitioner has submitted that a Court-fee of Rs. 250/- has already been filed in accordance with the provisions contained in Rajasthan High Court Fees Act, 1961. A copy of the order along with the record be returned to the District Judge, Jodhpur. He is directed to deal with the application filed by the petitioner under Section 34 of the Ordinance, in accordance with law without insisting on payment of Rs. 500/- under para 10 of the Scheme dated 6-3-1997. Revision allowed.