ORDER
K.S. Radhakrishnan, J.
1. This appeal has been preferred by the first respondent in I.A. 1563 (A)/01 in Arbitration o.p. 86 of 2001 of the First additional District Court, Ernakulam. Disputes arose out of a charterparty agreement dated 29.7.2000. Appellant herein contended for carrying out dredging operations in the West Coast of India, the appellant had entered into an agreement with the 1st respondent for the availment of a dredger, `Duke of S.A.’ on a time charter basis. In the event of any dispute or difference arising between the parties there was a subsequent understanding between the parties that they would respondent however moved a petition under S.9 of the arbitration and Conciliation Act, 1996 before the Additional District Court, Ernakulam seeking interim injuction restraining the second respondent-Cochin Port Trust from making any further payment to the appellant pending award in the arbitration dispute in Arbitration O.P. 86/2001. The Court after hearing the parties passed a modified interim order directing the second respondent to withhold US$ 403595 from the amount payable to the appellant and ordered that the said amount would be released on furnishing bank guarantee. Aggrieved by that order passed by the court below this appeal has been preferred under S. 37 of the Arbitration and Conciliation Act, 1996.
2. Appellant paid an amount of Rs. 10/- towards court fee under Art. 3A(1)(a) of Schedule II of the Court Fees Act. Registry has raised an objection that the Court fee has to be paid as per Schedule II Art. 4 of the Court Act. Counsel for the appellant submitted that the appeal is only against an interim order passed by the District Court under S. 9 of Arbitration and Conciliation Act and the subject matter is a prohibitory order. Hence Schedule II Art. 4 has no application. Registry however maintained their earlier objection and stated as follows:
“This M.F.A. is filed against the order in I.A. in Arbitration O.P. Payment of C.F. in Arbitration cases is enumerated in Schedule II Art. 4 of C.F. and Suit Valuation Act. Valuation in Arbitration O.P. to be mentioned for the purpose of calculation of C.F. in M.F.A.”.
In view of the objection raised by the registry request was made by the counsel to post the matter before the Court.
3. When the matter came up for hearing we heard counsel for the appellant Sri. Jayasankar and counsel appearing for the State Sri. P.M. Paulose. S. 37(1)(a) enables a party to file appeal against an order passed by the Court below either granting or refusing to grant any measure under S.9. Counsel, for the appellant submitted this appeal has been preferred under S.37 of the arbitration and Conciliation Act, 1996. Art. 4 of Schedule II of the Court Fees Act is not applicable. According to the counsel the Article which is applicable is Art. 3 (iii)(A)(a). Consequently only Rs.10/- need be remittee towards Court fee. Before the Court below first respondent herein paid only Rs. 10/-. Therefore placing reliance on S.52 of the Court Fees Act counsel submitted fee payable in 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. Counsel also placed reliance on the decision of this Court in Chacko v. Catholic Bank of India Ltd., 1963 KLT 1068. In that case the Bench held an appeal filed under S.5 of the Kerala High Court Act 1958 and S. 45N of the Banking Companies Act, 1949 has to bear court fee under Art. 3(iii)(A)(2)(c) of Schedule II of the Kerala Court Fees and Suits Valuation Act 10 of 1960.
4. Learned Government Pleader on the other hand placing reliance on the saving clause of S. 85 of the Arbitration and Conciliation Act, 1996 submitted that all rules made and notifications published, under the Arbitration Act, 1940 shall, to the extent to which they are not repugnant to the present Act be deemed respectively to have been made or issued under the present Act. He has got a further contention that S.37 of the present Act is similar to S. 39 of the 1940 Act and therefore court fee has to be paid under Art. 4 of Schedule II of the Court Fees Act.
5. We are of the view Art.4 of Schedule II of the Court Fees Act is not applicable to this case. Evidently Art. 4 of the Court Fees Act refers to memorandum of appeal under S. 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 Art. 4 of Schedule II of the Court Fees Act would still be made applicable. There is no amendment in the Court Fess Act incorporating new Act as part of Schedule II of Court Fees Act. Under such circumstance we are of the view the contention that Art. 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 Art. 4 of Schedule II of Court Fees Act, the provision which is applicable is Art. 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 S. 9 of the arbitration and Conciliation Act, 1996. Under such circumstance going by S 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 in overruled. We are of the view the court fee paid by the appellant is sufficient. Number the M.F.A. and post for admission.