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M/S.Sundaram Finance Limited vs M.K.Kurian on 21 January, 2006

Madras High Court
M/S.Sundaram Finance Limited vs M.K.Kurian on 21 January, 2006
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS           

Dated: 21/01/2006 

Coram 

The Hon'ble Mr.A.P.SHAH, CHIEF JUSTICE    
and 
The Hon'ble Mrs.Justice PRABHA SRIDEVAN     

O.S.A.No. 102 of 2004 


M/s.Sundaram Finance Limited  
Rep. by the Assistant Manager (Legal)
No.21, Patullos Road,
Chennai  600 002.                       ... Appellant

-Vs-

1. M.K.Kurian
    No.3, 1st Cross,
    Rainbow Nagar,
    Pondicherry.

2. Tomy Thomas,  
    S/o. Thomas Mathew, 
    Vattakunnel House,
    Anakallu Post,
    Erattupettah,
    Kottayam District.                  ...Respondent

        Prayer:  Original Side Appeal filed under clause 15 of the Letters
Patent against the order dated 18.11.2002 made in O.A.No.970 of 2001 on the
file of this Court.

!For Appellant  ::::  Mr.M.S.Krishnan

^For Respondents        ::::  Mr.A.L.Somayaji,
                        Senior Counsel as Amicus Curiae
                        Mr.R.Krishnasamy,
                        Senior Counsel
                        Mr.T.V.Ramanujan,
                        Senior Counsel

J U D G M E N T 

(The Judgment of the Court was delivered by Honourable The Chief Justice)

The only issue that arises for consideration in this appeal is, which
is the principal civil court in respect of matters arising under the
Arbitration and Conciliation Act, 1996 (Act for short) where the value of
the subject matter is less than Rs.10 lakhs. The question is, whether the
Madras High Court exercising ordinary original civil jurisdiction under the
Letters Patent or the Principal Judge of the City Civil Court constituted
under the Chennai City Civil Court Act, 1892, will exercise jurisdiction in
respect of matters under the Act involving the value of not exceeding Rs.10
lakhs? In order to appreciate the issue raised before us, it is necessary to
set out briefly the relevant facts that have given rise to this appeal.

2. An application was filed by the appellant against the respondents
under Section 9 of the Act to grant an order of interim injunction restraining
the respondents and their men from in any way alienating or encumbering the
property belonging to the second respondent more specifically described in the
schedule pending disposal of the arbitration proceedings. The claim of the
appellant against the respondents is for a sum of Rs.3,13,213.28. The
Registry raised an objection with reference to the maintainability of the
application before the learned single Judge on the ground that the claim
amount is less than Rs.10 lakhs and, as such, the application under Section 9
of the Act ought to have been filed only before the Principal Judge, City
Civil Court, Chennai and not before this Court. The learned single Judge
inter alia held that under ordinary original jurisdiction, this Court cannot
entertain the claim, which is less than Rs.10 lakhs and, as such, it has to be
filed before the City Civil Court. Consequently, the objection raised by the
Registry was upheld and the petition was directed to be returned for
presentation to proper Court.

3. Under Section 9 of the Act, a party may, before or during arbitral
proceedings or at any time after the making of the arbitral award but before
it is enforced, can move the Court to preserve the property and other matters
enumerated therein. The expression Court is defined in Section 2(1)(e) of
the Act, which reads as follows: 2(1)(e). Court means the principal civil
Court of original jurisdiction in a district, and includes the High Court in
exercise of its ordinary original civil jurisdiction, having jurisdiction to
decide the questions forming the subject-matter of the arbitration if the same
had been the subject-matter of a suit, but does not include any civil court of
a grade inferior to such principal civil Court, or any Court of Small Causes.

4. From a bare perusal of the definition, it is clear that the
expression Court as defined in Section 2(1)(e) of the Act would include a
Court having jurisdiction to decide the question forming the subject matter of
arbitration if the same had been the subject matter of a suit. High Courts
are included in the definition, but not any civil court of a grade inferior to
the principal civil court or any Court of Small Causes. This definition of
Court is narrower as compared with Section 2(c) of the Arbitration Act, 1940.
Under the 1940 Act, it was every civil Court, but now it is the principal
civil court of original jurisdiction, which is empowered to deal with the
matters arising under the Act. A particular expression is often defined by
the Legislature by using the word means or the word includes. Sometimes, the
words means and includes are used. The use of the word means indicates that
definition is hard and fast definition, and no other meaning can be assigned
to the expression than is put down in that definition. The word includes when
used, enlarges the meaning of the expression defined so as to comprehend not
only such things as they signifies according to their natural import, but also
those things to which the clause declares that they shall include. The words
means and includes on the other hand, indicate an exhaustive explanation of
the meaning which, for the purpose of the Act, must invariably attach to those
words or expression (see Dilwerth v. Commissioner of Stamps, 1899 AC 99 at
pp 105-106 and Mahalakshmi Oil Mills vs. State of Andhra Pradesh, (1989) 1
SCC 164 at page 169.). The Legislature, by using the words means, includes
and does not include in clause (e) of Section 2 of the Act, has exhaustively
explained the meaning of the term Court, in that, the word means is a term of
restriction, while the word includes is a term of enlargement and when both
the words means and includes are used together to define a thing, the
definition is intended to be exhaustive and not extensive and would cover only
the principal civil court as defined and other Courts are not comprehended.
Again the Legislature has used the word principal thereby meaning the first
in importance or chief or main and the word grade used in Section 2(e) of
the Act is suggestive of status and importance and it does not refer to a
class or particular class inasmuch as the grade of a court depends on the
pecuniary or other limitations of the jurisdiction of the particular court.

5. So far as the city of Chennai is concerned, the ordinary original
civil jurisdiction is vested in the High Court and not in the City Civil
Court. The very preamble of the Chennai City Civil Court Act speaks of
establishment of an additional Civil Court for the city of Chennai. It is the
civil court of limited pecuniary jurisdiction having power to deal with the
matters involving the value of less than Rs.10 lakhs, whereas under Clause 12
of the Letters Patent, the High Court has unlimited original jurisdiction and
this jurisdiction was expressly saved under Section 16 of the Chennai City
Civil Court Act. Competency embodied by this section is pecuniary competency
and it has been held that this Section lays down a rule of procedure and not
of jurisdiction. While it enjoins the institution of a suit in the court of
the lowest grade competent to try it, it does not oust the jurisdiction of the
Court of a higher grade. Even if the Court of a higher grade tries and
disposes of a suit which could have been instituted in a Court of a lower
grade, the decision rendered is not without jurisdiction (see Ramamirtham v.
Rama Film Service (FB), AIR
(38) 1951 Madras 93). It is thus clear that as
far as the City of Chennai is concerned, the words principal civil court of
original jurisdiction, as defined in Section 2(1)(e) of the Act, would mean
the High Court exercising jurisdiction on the original side and not the City
Civil Court. More over, the interpretation suggested by the learned single
Judge would mean that there would be two principal civil courts, i.e. the
High Court and the City Civil Court and such an interpretation is clearly
ruled out by the words but does not include any civil court of a grade
inferior to such principal civil court.”

6. A reference may also be made to a decision of the Supreme Court in Raja
Soap Factory v. S.P.Shantharaj, AIR
1965 SC 1449, wherein the Supreme Court,
while construing the definition of the District Court under Section 2(e) of
the Trade and Merchandise Marks Act, 1958, has observed in para 3 as follows:
3. .. The expression District Court has by virtue of S. 2(3) of Act
43 of 1958 the meaning assigned to that expression in the Code of Civil
Procedure, 1908. Section 2(4) of the Code defines a district as meaning the
local limits of the jurisdiction of a principal civil Court called the
District Court and includes the local limits of the ordinary original civil
jurisdiction of a High Court. If, therefore, a High Court is possessed of
ordinary original civil jurisdiction, it would, when exercising that
jurisdiction be included, for the purpose of Act 43 of 1958, in the expression
District Court. (emphasis supplied)

7. Similar is the view taken by the Division Bench of this Court in
D.C.S.Bureau v. United Concern, AIR 1967 Madras 381, wherein it has been held
that the term District Court, as defined in Section 62(1) of the Copyright
Act, should be given the same meaning as in Section 2(4) of the Code of Civil
Procedure and that as far as the area of the Presidency Town of Madras is
concerned, the High Court exercising its original civil jurisdiction over the
city limits and not the City Civil Court.

8. Therefore, the view taken by the learned single Judge that the
City Civil Court should be regarded as the principal court of civil
jurisdiction under Section 2(1)(e) of the Act in matters involving value of
less than Rs.10 lakhs is clearly erroneous and cannot be sustained.

9. In the result, the appeal is allowed. The order of the learned
single Judge is set aside. The petition filed by the appellant is restored to
file. The learned single Judge is requested to decide the petition
expeditiously.

10. Registry is directed to call for the papers in similar cases
which have been transferred to the City Civil Court by following the judgment
of the learned single Judge of this Court, and place them before the
appropriate Court for disposal in accordance with law.

Index:Yes
Internet:Yes

Js/pv

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