- (1.) BEING aggrieved against the Award dated 25. 8. 2005 the Ap pellant before this Court preferred an application under Section 34 of the Arbitra tion and Conciliation Act, 1996, (hereinafter to be referred as 'new Act') before the District Judge, Lucknow, for setting aside the arbitral Award. The Munsarim sub mitted a report that a Court fee of Rs. 200 was payable on the said application. An objection was raised by the Appellant that no Court fee was leviable as such the report of Munsarim was incorrect. The District Judge vide its order dated 21. 6. 2006 confirmed the report and overruled the objections raised by the Appel lant and directed it to pay Court fee of Rs. 200 within the time stipulated in the said order. It is against the said order that the Appellant approached this Court through the present F. A. F. O.
(2.) WE have heard Sri Virendra Mishra, learned Counsel for the Appellant and Sri Brijesh Saxena in opposition. Sri Mishra submitted that the Court Fees Act, 1870 provided payment of Court fee of Rs. 200 on an application under the Arbitration Act, 1940 (Old Act) for setting aside an Award, when value exceeded Rs. 10,000/ -. He drew the atten tion of this Court towards Section 18 (1) of Schedule II of the Court Fees Act, 1870 which contemplates that for an application under Section 14 or Section 20 of the Arbitration Act, 1940 or any application to set aside an Award, under the said Act the Court fee payable is Rs. 200/- when such value exceeds an amount of Rs. 10,0007 -. Shri Mishra submitted that in view of the fact that the old Act now stands repealed and in the New Act there is no such provision for imposition of Court fee on the application for setting aside the Award, therefore, the report of Munsirim to that effect on the face of it was incorrect and as such the learned District Judge committed a manifest illegality in accepting the said report and overruling the objections of the Appellant and directing it to pay Court fee to the extent of Rs. 200/- on the application for setting aside the Award. He further argued that almost 11 years have already elapsed from the date of repeal of Old Act and introduction of the New Act, still neither any notification nor any order to the effect that upon an application for setting aside Award, payment of Court fee is required as provided under the old Act has been issued. According to him the intention of the legislature clearly appears to be that under the New Act no Court feels leviable if an application for setting aside the Award is preferred. Sri Brijesh Saxena, in opposition, argued that Section 34 of the New Act provides for an application to set aside an Award, analogous provision under the Old Act being Sections 30 and 33. According to him even if there is no amend ment in the Court Fee Act, still the intention of the legislature throughout had been for payment of Court fee on the application to set aside an Award. As per his submission since the Court Fee Act also does not lay down any provision for exemption of Court fee on any of the application, therefore, it cannot be said that the legislature intended to exempt application for setting aside an Award under the New Act from payment of Court fee.
(3.) SECTION 30 and SECTION 33 of the Old Act reads as follows: "30. Grounds for setting aside award.-An award shall not be set aside on one or more of the following grounds, namely: (a) That an arbitrator or umpire has misconducted himself or the proceed ings; (b) That an award has been made after the issue of an order by the Court superseding the arbitration or after the arbitration proceedings have become invalid under SECTION 35; (c) That an award has been improperly procured or is otherwise invalid. 33. Arbitration agreement or award to be contested by application.-Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavit: Provided 'that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit. " Perusal of the aforesaid provision reveals the grounds for setting aside an Award. Similar provision has been introduced under the New Act under SECTION 34 which is reproduced hereunder: "34. Application for setting aside arbitral award.- (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub- section (3 ). (2) An arbitral award may be set aside by the Court only if- (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the par ties have subjected it or, failing any indication thereon, under the law for the time being in force; or (Hi) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains deci sions on matters beyond the scope of the submission to arbitration : Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or Explanation,-Without prejudice to the generality of sub-clause (ii) of clause (b), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of SECTION 75 or SECTION 81. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under SECTION 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. (4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceed ings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award. " Upon reading of the provisions of Sections 30 and 33 of the Old Act as well as Section 34 of the New Act, it is apparent that in the event a party intends to get an Award set aside, he has to make an application for setting aside the Award on the grounds enumerated under the relevant Sections. The relevant provision, i. e. 18 (1) of Schedule II of the Court Fee Act also mentions about an application to set aside an Award. Even if the Court Fee Act as well as the provisions of the 1940 Act have not been amended still the intention of the legislature appears to be that whenever an application for setting aside an Award is to be preferred the Court fee is leviable. There is also no exemption in the Court Fee Act that under the New Act no Court fee would be leviable in the event such an application is preferred, pfpy plausible interpretation being that in case an application to set aside an Award is preferred under the New Act Court fee as prescribed under 18 (1) of the Schedule II of Court Fee Act 1870 for setting asideaward is leviable.;