Research › Search › Judgment

Kerala High Court · body

2015 DIGILAW 1576 (KER)

Syndicate Bank v. Nishad Mathew

2015-11-17

ANIL K.NARENDRAN, P.R.RAMACHANDRA MENON

body2015
ORDER : P.R. Ramachandra Menon, J. 1. Dispute is mainly with regard to the actual court-fee that is payable in respect of the appeal preferred under Section 37 of the Arbitration and Conciliation Act, 1996, against an order passed by the Additional District Court-V, Ernakulam under Section 9 of the Act. The case of the appellant/Bank is that, the appellant is required to satisfy only the court-fee which was originally paid in the Court of the first instance, which is ` 50/- by virtue of Section 52 of the Kerala Court Fees and Suits Valuation Act. But a defect has been noted by the Registry of this Court, pointing out that 'ad valorem' court-fee has to be satisfied in terms of Schedule II, Article 4, sub-clause (ii) and that it cannot be with reference to Schedule II Article 3(iii)(A)(1)(a). Hence the matter stands listed for consideration before the Court to pass orders on judicial side. 2. For the purpose of easy understanding, a reference to Section 52 of the Act as well as the relevant articles in the concerned schedule as aforesaid is necessary and hence they are re-produced below: "52. The fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject-matter of the appeal. Provided that, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the Court of first Instance or by the Court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree; Provided further that one third of the fee payable in an appeal shall be paid at the stage of admission of first appeal or second appeal as the case may be and the balance shall be paid within such period, not less than fifteen days from the date of such admission as may be specified by the Court, in case the appeal is admitted. Provided also that the Court may, for sufficient reasons to be recorded in writing extend the period upto thirty days." SCHEDULE II Article Particulars Proper fee 1. xxxx xxxx 2. xxxx xxxx 3. Provided also that the Court may, for sufficient reasons to be recorded in writing extend the period upto thirty days." SCHEDULE II Article Particulars Proper fee 1. xxxx xxxx 2. xxxx xxxx 3. Memorandum of appeal from an order inclusive of an order determining any question under Section 47 or Section 144 of the Code of Civil Procedure, 1908, and not otherwise provided for when presented- (i) xxxx xxxx (ii) xxxx xxxx (iii) to the High Court- (A) From an order other than an order under the Kerala Agriculturists Debt Relief Act, 1958. Ten Rupees (1) Where the order was passed by a Subordinate Court or other authority- (a) If the order relates to a suit or proceeding, the value of which exceeds one thousand rupees Twenty Five Rupees xxxx xxxx xxxx xxxx 4. Memorandum of appeal (under the Arbitration and Conciliation Act, 1996)- (i) Where the appeal is from an order of a Munsiffis Court or an order of a superior court in a case where the value for the purpose of jurisdiction does not exceed rupees fifteen thousand. Fifty Rupees (ii) in other cases where the amount or value of the subject-matter- (a) does not exceed rupees one lakh, for every hundred rupees, or part thereof upto rupees one lakh. Two Rupees (b) exceeds rupees one lakh for every hundred rupees,or part thereof, in excess of rupees one lakh upto rupees five lakhs. Four Rupees (c) exceeds rupees five lakhs, for every hundred rupees, or part thereof, in excess of rupees five lakhs One Rupee 3. Learned counsel for the appellant submits that, insofar as Section 52 of the Act is quite categoric, there cannot be any added or higher liability than the necessity to satisfy court-fees paid in the Court of first instance. Reliance is also sought to be placed on the decision rendered by a Division Bench of this Court reported in Jaisu Shipping Co. (P) Ltd. v. OILCORP Oil Marketing Corporation 2001 KHC 501 : 2001 (2) KLT 772 : ILR 2001 (3) Ker. 100, clearly holding that the court-fee payable under such circumstance can only be under Schedule II Article 3(A)(1)(a) and not Schedule II Article 4(ii). The relevant portions as contained in paragraph Nos. 5 and 6 of the said judgment are reproduced below. "5. 100, clearly holding that the court-fee payable under such circumstance can only be under Schedule II Article 3(A)(1)(a) and not Schedule II Article 4(ii). The relevant portions as contained in paragraph Nos. 5 and 6 of the said judgment are reproduced below. "5. We are of the view Article 4 of Schedule II of the Court Fees Act is not applicable to this case. Evidently Article 4 of the Court Fees Act refers to memorandum of appeal under Section 39 of the Arbitration Act, 1940. Arbitration Act, 1940 has already been repealed by Arbitration and Conciliation Act, 1996. There is nothing to show that Article 4 of Schedule II of the Court Fees Act would still be made applicable. There is no amendment in the Court Fees Act incorporating new Act as part of Schedule II of Court Fees Act. Under such circumstance we are of the view the contention that Article 4 of Schedule II of the Act would be applicable cannot be sustained. 6. We are of the view counsel for the appellant is right in his contention since Arbitration and Conciliation Act, 1996 has not been incorporated under Article 4 of Schedule II of Court Fees Act, the provision which is applicable is Article 3 of Schedule II of the Court Fees Act which deals with memorandum of appeal from an order to the High Court. An order was passed by the Subordinate Court or any other authority and if the order relates to a suit or proceeding the value of which exceeds one thousand rupees court-fee need be paid is only Rs. 10/-. We are of the view it is that article which applies. We may further add even before the Court below only Rs. 10/- has been paid towards court-fee in a petition filed under Section 9 of the Arbitration and Conciliation Act, 1996. Under such Circumstance going by Section 52 of the Court Fees Act the appellant cannot be called upon to pay more than that was paid by the first respondent herein before the Court below. Under such circumstance objection raised by the registry is overruled. We are of the view the court-fee paid by the appellant is sufficient. Under such Circumstance going by Section 52 of the Court Fees Act the appellant cannot be called upon to pay more than that was paid by the first respondent herein before the Court below. Under such circumstance objection raised by the registry is overruled. We are of the view the court-fee paid by the appellant is sufficient. Number the M.F.A. and post for admission." It was held by the Bench that the stipulation under Schedule II Article 4(ii) was with reference to appeal under Section 39 of the Arbitration Act, 1940 and not with reference to the Arbitration and Conciliation Act, 1996. It was accordingly held that, insofar as no reference is there to the Arbitration and Conciliation Act, 1996, the 'ad valorem' court-fee under Schedule II Article 4(ii) cannot be applied in the said case and hence the issue was answered accordingly with reference to the actual court-fee payable under Schedule II Article 3(A)(1)(a). In the above context, it is necessary to go into the amendment brought about in the statute, particularly with regard to the schedule, wherein a new provision has been added by virtue of Article 4(ii) of the 2nd schedule, specifically making a reference to the Arbitration and Conciliation Act, 1996, as per the Kerala Finance Act, 2013. The said provision (which has already been extracted above) clearly deals with the memorandum of appeal under the 'Arbitration and Conciliation Act, 1996' and the fees stipulated on slab, so as to meet the different circumstances mentioned therein, on an 'ad valorem' basis. Section 52 of the Act deals with the appeals on a general basis and not in respect of appeals arising from orders, though wider interpretation could have been possible till amendment of the provision. With effect from 01/04/2013, the position took a different turn, by virtue of the conscience decision taken by the law makers amending the schedule (though it could be said that appropriate modification should have been there, under Section 52 as well, to have clarity). But insofar as the cases like the one involved in the present case have to be separately dealt with, based on the specified court-fee to be satisfied under 2nd Schedule, Article 4(ii), this Court does not require any second thought to hold that the defect noted by the Registry is quite in order. But insofar as the cases like the one involved in the present case have to be separately dealt with, based on the specified court-fee to be satisfied under 2nd Schedule, Article 4(ii), this Court does not require any second thought to hold that the defect noted by the Registry is quite in order. The objection is sustained and the proceedings will stand returned to the appellant for curing the defect and to be re-presented, satisfying the court-fee in terms of Schedule II Article 4(ii), if the matter is intended to be pursued any further.