{"id":953,"date":"2008-10-23T00:00:00","date_gmt":"2008-10-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-puneet-malhotra-and-anr-vs-mr-r-s-gai-on-23-october-2008"},"modified":"2015-05-05T09:57:04","modified_gmt":"2015-05-05T04:27:04","slug":"mr-puneet-malhotra-and-anr-vs-mr-r-s-gai-on-23-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-puneet-malhotra-and-anr-vs-mr-r-s-gai-on-23-october-2008","title":{"rendered":"Mr Puneet Malhotra And Anr vs Mr.R.S.Gai on 23 October, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mr Puneet Malhotra And Anr vs Mr.R.S.Gai on 23 October, 2008<\/div>\n
Bench: D.K. Deshmukh, S.J. Vazifdar, J.P. Devadhar<\/div>\n
                               1\n\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                   \n                  CIVIL APPELLATE JURISDICTION\n\n                WRIT PETITION NO.4064 OF 2008\n\n\n\n\n                                           \n    Mr Puneet Malhotra and Anr.          ...Petitioners\n\n\n\n\n                                          \n    v\/s.\n\n    Mr.R.S.Gai,Sole Arbitrator & others ...Respondents\n\n                             ---\n\n\n\n\n                                   \n                        \n    Mr S.S. Kanetkar for Petitioners.\n\n    Mr Vikas Shivarkar for Respondent Nos.3 and 4.\n                       \n                             WITH\n\n             ORDINARY ORIGINAL CIVIL JURISDICTION\n         \n\n\n             ARBITRATION PETITION NO.340 OF 2007\n      \n\n\n\n                             WITH\n\n             ARBITRATION PETITION NO.341 OF 2007\n\n\n\n\n\n    The Municipal Corporation of\n    Greater Mumbai.                 ...Petitioner\n\n\n\n\n\n    v\/s.\n\n    M\/s Joint Venture Angerlehner\n    Michell Bau GMBH                ...Respondents\n\n                             ---\n\n    Mr R.D. Dhanuka with Mr R. Yadav, Mr R.Y. Shirsekar\n    and Mr H.C. Pimple for Petitioners.\n\n\n\n\n                                           ::: Downloaded on - 09\/06\/2013 14:01:16 :::\n                               2\n\n    Mr Zal Andhyarujina with Mr Rajeev Talasikar and Ms.\n    Shivani i\/b Mr Javed Gaya for Respondents.\n\n\n\n\n                                                                  \n                            WITH\n\n\n\n\n                                          \n           ARBITRATION PETITION (L) NO.590 OF 2007\n\n\n    The Municipal Corporation of\n\n\n\n\n                                         \n    Greater Mumbai.                     ...Petitioner\n\n    v\/s\n\n    M\/s Angerlehner Structural and\n\n\n\n\n                                    \n    Civil Engineering Co.                ...Respondents\n                        ig   ---\n\n    Mr R.D. Dhanuka with Mr R. Yadav, Mr R.Y. Shirsekar\n                      \n    and Mr H.C. Pimple for Petitioners.\n\n    Mr Zal Andhyarujina with Mr Rajeev Talasikar and Ms.\n    Shivani i\/b Mr Javed Gaya for Respondents.\n            \n\n\n                            WITH\n         \n\n\n\n            ARBITRATION PETITION (L) NO.591 OF 2007\n\n                            WITH\n\n\n\n\n\n           ARBITRATION PETITION (L) NO.592 OF 2007\n\n           ARBITRATION PETITION (L) NO.593 OF 2007\n\n\n\n\n\n    M\/s Angerlehner Structural and\n    Civil Engineering Co.               ...Petitioners\n\n    v\/s\n\n    The Municipal Corporation of\n    Greater Mumbai.                     ...Respondents\n\n                             ---\n\n\n\n\n                                          ::: Downloaded on - 09\/06\/2013 14:01:16 :::\n                                3\n\n    Mr Zal Andhyarujina with Mr Rajeev Talasikar and Ms\n    Shivani i\/b Mr Javed Gaya for Petitioners.\n\n\n\n\n                                                                    \n    Mr R.D. Dhanuka with Mr R. Yadav, Mr R.Y. Shirsekar\n    and Mr H.C. Pimple for Respondents.\n\n\n\n\n                                           \n                              WITH\n\n              ARBITRATION PETITION NO.2 OF 2007\n\n\n\n\n                                          \n    Mr Girish S. Khandagale               ...Petitioner\n\n    v\/s\n\n\n\n\n                                    \n    Union of India, through Deputy\n                       \n    Chief Engineer, Central Railway\n    and anr.                              ...Respondents\n                      \n                              ---\n\n    Mr U.S. Samudrala for Petitioner.\n\n    Mr Suresh Kumar for Respondents.\n            \n\n\n                              WITH\n         \n\n\n\n             ARBITRATION PETITION NO.310 OF 2007\n\n\n\n\n\n    Kotak Securities Ltd.                 ...Petitioners\n\n    v\/s\n\n    Gaurav Goel and anr.                  ...Respondents\n\n\n\n\n\n                              ---\n\n    Mr Karan Bharihoke for Petitioners.\n\n    Mr Uday Warunjikar for Respondents.\n\n\n                              ---\n\n\n\n\n                                            ::: Downloaded on - 09\/06\/2013 14:01:16 :::\n                                          4\n\n\n\n\n                                                                                    \n                                             CORAM: D.K.DESHMUKH J,&\n                                                    S.J.VAZIFDAR J. &\n\n\n\n\n                                                            \n                                                    J.P.DEVADHAR,J.\n<\/pre>\n
                                             DATED:23rd October, 2008.\n<\/p>\n
    JUDGMENT:    (PER D.K.DESHMUKH, J.)<\/p>\n
    1.          This    bench      has       been    constituted           by     the<\/p>\n
    Hon’ble The Chief Justice of the Bombay High Court<\/p>\n
    for answering the following question:-\n<\/p>\n
                “When    a   petition         is    filed   challenging              an<\/p>\n
                Award under section 34 of the Arbitration<\/p>\n
                and     Conciliation           Act,1996,        under           which<\/p>\n
                Article of the Bombay Court fees Act 1959,<\/p>\n
                the court fees would be payable ?”<\/p>\n
    2.          The necessity of constituting a larger bench<\/p>\n
    for   consideration       of    this       question       arose        in     the<\/p>\n
    following circumstances:-\n<\/p>\n
                When the Arbitration Act,1940                    (hereinafter<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                    5<\/span><\/p>\n
    referred to as “the 1940 Act”) was in force, a person<\/p>\n
    desiring to challenge an Award under 1940 Act had to<\/p>\n
    apply to the Court under Section 33 of that Act.\n<\/p>\n
    The term “Court” was defined by Section 2(c) of the<\/p>\n
    1940 Act, to mean a Civil Court having jurisdiction<\/p>\n
    to decide the questions forming the subject matter of<\/p>\n
    the   reference   if   the   same   had   been         the      subject<\/p>\n
    matter of a suit. Thus, in so far as the State of<\/p>\n
    Maharashtra is concerned, in the State of Maharashtra<\/p>\n
    excluding Bombay, an application under section 33 of<\/p>\n
    the 1940 Act was to be filed before the Civil Court<\/p>\n
    and so far as the Bombay is concerned, an application<\/p>\n
    to    be filed either before this Court or the City<\/p>\n
    Civil Court depending on the amount involved in the<\/p>\n
    Award.   When an application under Section 33 of the<\/p>\n
    1940 Act was filed in a Civil Court in the State of<\/p>\n
    Maharashtra excluding city of Bombay, court fee was<\/p>\n
    paid under Article 1(a) of the Second Schedule i.e.<\/p>\n
    Rs.5\/- and when an application was made to the City<\/p>\n
    Civil Court in Bombay, the same court fee was to be<\/p>\n
    paid under the same Article. But when an application<\/p>\n
    was to be made under Section 33 before this Court,<\/p>\n
    court fee was to be paid under Article 1(f)(iii) of<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                    6<\/span><\/p>\n
    the Second Schedule i.e. Rs.25\/-.            The court fee was<\/p>\n
    paid under the Second Schedule             because of Article 3<\/p>\n
    found in the First Schedule of the Bombay Court fees<\/p>\n
    Act which provided that when an application to set<\/p>\n
    aside   or modify an Award otherwise               than an           Award<\/p>\n
    under the 1940 Act, then court fee is payable on the<\/p>\n
    amount of value of the Award sought to be set aside<\/p>\n
    or modified, according to the scale prescribed under<\/p>\n
    Article 1.\n<\/p>\n
                   Thus, because of Article 3 of Schedule I<\/p>\n
    of the Court fees Act, an application under Section<\/p>\n
    33 of the 1940 Act challenging an Award made by an<\/p>\n
    Arbitrator    under   the    1940    Act    was     excluded           from<\/p>\n
    Article 3, and therefore, court fee on an application<\/p>\n
    filed under Section 33 of the 1940 Act was payable<\/p>\n
    under the Second Schedule.          The 1940 Act was repealed<\/p>\n
    by   the     Arbitration     and     Conciliation           Act        1996<\/p>\n
    (hereinafter referred to as “the 1996 Act”). Section<\/p>\n
    34 of the 1996 Act provides that an Award made under<\/p>\n
    that Act by an Arbitrator can be challenged by making<\/p>\n
    an application to      the    Court. The term “Court” is<\/p>\n
    defined by Section 2(e) of the 1996 Act, to mean the<\/p>\n
    principal Civil Court of original jurisdiction in a<\/p>\n
    district and includes the High Court in exercise of<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                        7<\/span><\/p>\n
    its   ordinary        original     civil    jurisdiction           having<\/p>\n
    jurisdiction to decide questions forming the subject<\/p>\n
    matter of the Arbitration if the same had been the<\/p>\n
    subject matter of a suit, but does not include any<\/p>\n
    civil court of a grade inferior to such principal<\/p>\n
    Civil court or any small causes Court.                      Thus, the<\/p>\n
    definition of the term “Court” found in the 1940 Act<\/p>\n
    and the 1996 Act is little different.              Under the 1940<\/p>\n
    Act<\/p>\n
          an Award could be challenged before any Civil<\/p>\n
    Court but now it can be challenged only before the<\/p>\n
    principal Civil Court of original jurisdiction in a<\/p>\n
    district.       Thus, now an Award made under the 1996 Act<\/p>\n
    can   be   challenged       by   making    an   application          under<\/p>\n
    section 34       of that Act either in the district Court<\/p>\n
    or in this Court on its original side.                   A question,<\/p>\n
    therefore, arose as to which provision in the Bombay<\/p>\n
    Court fees Act would apply when an application under<\/p>\n
    section 34 of the 1996 Act is made.                    That question<\/p>\n
    arose when a Division Bench of this Court had before<\/p>\n
    it an appeal filed under Section 37 of the 1996 Act<\/p>\n
    challenging an order passed by a learned Single Judge<\/p>\n
    of this Court dismissing an application filed under<\/p>\n
    Section    34    of   the   1996   Act.    On   that    appeal,         the<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                        8<\/span><\/p>\n
    appellant had paid court fee according to Article 13<\/p>\n
    of Schedule II of the Bombay Court fees Act, which<\/p>\n
    provides that when a memorandum of appeal is filed,<\/p>\n
    challenging an order which is not                a decree and which<\/p>\n
    does not have force of decree, in the High Court,<\/p>\n
    court fee payable would be Rs.25\/-.                       The Division<\/p>\n
    Bench by its judgment in the case of “Maharashtra<\/p>\n
    Industries       Development      Corporation        Vs.      Govardhani<\/p>\n
    Constructions Company, 2007(2) Bombay Cases Reporter<\/p>\n
    835” decided on 7.3.2007 held that an appeal filed<\/p>\n
    against an order dismissing                  a petition filed under<\/p>\n
    section    34    of   the   1996       Act    will   be    governed          by<\/p>\n
    Article 3 of Schedule I of the Bombay Court fees Act.\n<\/p>\n
    The Court held that by Article 3 of Schedule I only<\/p>\n
    an application or memorandum of appeal challenging an<\/p>\n
    award     made    under     the    Arbitration         Act       1940        is<\/p>\n
    excluded.        In effect, the Division Bench held that<\/p>\n
    when an application under Section 34 of the 1996 Act<\/p>\n
    against the Award is made or an appeal is filed under<\/p>\n
    Section 37 of the 1996 Act challenging the order made<\/p>\n
    under Section 34 of the 1996 Act, payment of court<\/p>\n
    fee will be governed by Article 3 Schedule I of the<\/p>\n
    Bombay Court fees Act. The Division Bench held so<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                        9<\/span><\/p>\n
    because, according to the Division Bench, only an<\/p>\n
    application      or     appeal    challenging       the    Award           made<\/p>\n
    under the 1940 Act has been excluded from Article 3<\/p>\n
    of    Schedule     I   of   the   Bombay   Court     Fees      Act,        and<\/p>\n
    therefore, an application under Section 34 of the<\/p>\n
    1996 Act or an appeal under Section 37 of the 1996<\/p>\n
    Act would not be excluded from Article 3 of Schedule<\/p>\n
    I of the Bombay Court fees Act,               and therefore, Court<\/p>\n
    fee    will   be<\/p>\n
                           payable    according    to    Article           3    of<\/p>\n
    Schedule I of the Bombay Court Fees Act. It appears<\/p>\n
    that when a learned Single Judge of this Court had<\/p>\n
    before him petition filed under Section 34 of the<\/p>\n
    1996 Act where Court fee in accordance with Article 3<\/p>\n
    of Schedule I of the Bombay Court fees Act was not<\/p>\n
    paid, an objection was raised relying on the judgment<\/p>\n
    of the Division Bench             in the case of “Govardhani<\/p>\n
    Construction Company” referred to above. The learned<\/p>\n
    Single Judge found that he cannot agree with the view<\/p>\n
    taken by the Division Bench in the judgment in the<\/p>\n
    case of “Govradhani Construction Company”,                         because<\/p>\n
    according to him, while deciding the question, the<\/p>\n
    Division bench in           that case did not consider the<\/p>\n
    provisions of Section 8 of the General Clauses Act<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                        10<\/span><\/p>\n
    and    as   the    Division       Bench      did   not   consider           the<\/p>\n
    provisions of Section 8 of the General Clauses Act,<\/p>\n
    the view taken by the Division Bench in the case of<\/p>\n
    “Govardhani Construction Company” was not proper, and<\/p>\n
    therefore, the learned Single Judge made an order<\/p>\n
    dated 19.6.2008 directing the office to place papers<\/p>\n
    before the Hon’ble the Chief Justice for placing the<\/p>\n
    matter before a larger bench.                 The Hon’ble the Chief<\/p>\n
    Justice pursuant to the order made by the learned<\/p>\n
    Single Judge made an order on 1.8.2008 constituting<\/p>\n
    this    bench for considering the question referred to<\/p>\n
    above. It appears that                 another Division bench of<\/p>\n
    this Court in appeal no.77 of 2007 and appeal no.78<\/p>\n
    of 2007 in the case “Oil & Natural Gas Corporation<\/p>\n
    Ltd.   Vs.   Jindal       Drilling      &    Industries        Ltd.”       has<\/p>\n
    considered the question “whether to an application<\/p>\n
    filed under Section 34 of the 1996 Act and to an<\/p>\n
    appeal filed under Section 37 of the 1996 Act, the<\/p>\n
    provisions        of    Article    3    of   Schedule      I    would         be<\/p>\n
    applicable”.           The Division Bench has considered the<\/p>\n
    question with reference to the provisions of Section<\/p>\n
    8 of the General Clauses Act and has come to the<\/p>\n
    conclusion that because the scheme of 1996 Act is<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                     11<\/span><\/p>\n
    totally different from the 1940 Act, the 1996 act<\/p>\n
    cannot be said to be re-enactment of the 1940 Act and<\/p>\n
    therefore, even considering the provisions of Section<\/p>\n
    8 of the General Clauses Act, it cannot be said that<\/p>\n
    Article 3 of Schedule I of the Bombay Court fees Act<\/p>\n
    is applicable to an application made under Section 34<\/p>\n
    and an appeal filed under section 37 of the 1996 Act.\n<\/p>\n
    3.       Thus,    it\n                           \n                           is      clear   from     what       has       been\n\n<\/pre>\n
    observed above that for answering the question framed<\/p>\n
    above, first we have to consider whether Article 3 of<\/p>\n
    Schedule I of the Bombay Court fees Act applies to an<\/p>\n
    application    filed   under    Section    34   and       an     appeal<\/p>\n
    filed under Section 37 of the 1996 Act, and if we<\/p>\n
    find that Article 3 of Schedule I of the Bombay Court<\/p>\n
    fees Act does not apply then we will have to make an<\/p>\n
    enquiry to find out which is the provisions which<\/p>\n
    will be applicable ?\n<\/p>\n
    4.       In so far as the writ petition no.4064 of<\/p>\n
    2008   which   also    has     been    placed    before         us      is<\/p>\n
    concerned, it appears that a petition under Section<\/p>\n
    34 of the 1996 Act challenging an Award was filed<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                              12<\/span><\/p>\n
    before the District Judge, Pune. Before the learned<\/p>\n
    District       Judge,      an      application            was      made        by      the<\/p>\n
    respondent for direction to applicant to pay court<\/p>\n
    fee in accordance with Article 3 of Schedule I of the<\/p>\n
    Bombay Court Fees Act.                    That application has been<\/p>\n
    decided by the learned District Judge by order dated<\/p>\n
    20.2.2008. The learned District Judge held that court<\/p>\n
    fee is payable according to the provisions of Article<\/p>\n
    3 of Schedule I of the Bombay Court fees Act. That<\/p>\n
    order    was    challenged          in    writ       petition           no.4064          of<\/p>\n
    2008.    When that writ petition came                            up before the<\/p>\n
    learned Single Judge of this Court, it was contended<\/p>\n
    before the learned Single Judge that the judgment of<\/p>\n
    the     Division      Bench        in     “Govardhani              Constructions<\/p>\n
    Company”       case     needs       reconsideration.                 The       learned<\/p>\n
    Single     Judge      on     finding           that       the        question           of<\/p>\n
    correctness      or     otherwise             of    the    judgment            of     the<\/p>\n
    Division        Bench        in      the           case     of         “Govardhani<\/p>\n
    Constructions Company” has been referred to a larger<\/p>\n
    bench, has directed the office to place the paper to<\/p>\n
    the Hon’ble the Chief Justice, and accordingly, that<\/p>\n
    petition       has    also        been    placed          before         us.          The<\/p>\n
    question to be considered in that petition is also<\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                           13<\/span><\/p>\n
    the same as in the other petitions that are listed<\/p>\n
    before us.          As the question before us relates to<\/p>\n
    payment of Court fees, we issued notice to the State<\/p>\n
    of     Maharashtra.         In   response        to    the    notice,           the<\/p>\n
    learned Advocate General appeared before us, we heard<\/p>\n
    him.\n<\/p>\n
    5.          On      behalf       of   the    petitioners,              it      was<\/p>\n
    submitted that<\/p>\n
                            Article 1(f)(iii) of Schedule II of<\/p>\n
    the    Bombay       Court    Fees     Act   is        applicable         to     the<\/p>\n
    petitions filed under Section 34 of the 1996 Act and<\/p>\n
    not Article 3 of Schedule I of the Bombay Court Fees<\/p>\n
    Act. It was submitted that the Arbitration Act,1940<\/p>\n
    has been repealed and re-enacted by the Arbitration &<\/p>\n
    Conciliation Act,1996. It was submitted that remedy<\/p>\n
    to challenge an award was by way of an arbitration<\/p>\n
    petition under Section 33 of the 1940 Act, and since<\/p>\n
    the    Court     is   considering          the    issue       as    to      which<\/p>\n
    article of Bombay Court Fees Act is attracted to a<\/p>\n
    petition challenging an Award under Section 34 of the<\/p>\n
    1996 Act, the Court would have to examine whether<\/p>\n
    there is any repeal and re-enactment of the provision<\/p>\n
    relating       to     challenge       of     an       award        under       the<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                    14<\/span><\/p>\n
    Arbitration Act,1940 by another provision under the<\/p>\n
    1996 Act.     It was further submitted that remedy of<\/p>\n
    challenging an Award which was available under the<\/p>\n
    provisions of the 1940 Act is now available under<\/p>\n
    section 34 of the 1996 Act.            It was submitted that<\/p>\n
    Article 18(a) of Schedule II provided for payment of<\/p>\n
    fixed court fees on an application under Section 20<\/p>\n
    of the 1940 Act. It was submitted that though the<\/p>\n
    1940 Act has been repealed and re-enacted by the 1996<\/p>\n
    Act,   subject    legislated    upon     i.e.   arbitration              has<\/p>\n
    remained the same.      It was submitted that remedy of<\/p>\n
    challenging an award available under section 33 of<\/p>\n
    the 1940 Act is continued           under section 34 of the<\/p>\n
    1996 Act.     It was submitted that since the Court is<\/p>\n
    considering the applicability of the relevant article<\/p>\n
    of   Bombay   Court   fees   Act,   the    Court        has      to      see<\/p>\n
    whether     the   relevant     article     applicable            to      the<\/p>\n
    petition challenging an award under the provisions of<\/p>\n
    the 1940 Act has been          repealed     and     re-enacted by<\/p>\n
    another provisions under the 1996 Act or not.                      It was<\/p>\n
    submitted that since section 33 of the 1940 Act is<\/p>\n
    repealed and re-enacted by the 1996 Act, in view of<\/p>\n
    the provisions of Section 8 of the General Clauses<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                        15<\/span><\/p>\n
    Act, the provisions applicable to challenge an Award<\/p>\n
    is Section 34 of the 1996 Act on which court fees is<\/p>\n
    to be paid, therefore, reference in Article 3 of the<\/p>\n
    Bombay Court Fees Act to 1940 Act has to be read as<\/p>\n
    reference to 1996 Act.            The learned Counsel relied on<\/p>\n
    the judgment of the Supreme Court in the case “State<\/p>\n
    Vs. A.Parthiban, (2006)11 Supreme Court Cases 473 ,<\/p>\n
    as also the judgment of the Supreme Court in the case<\/p>\n
    “New   Central     Jute<\/p>\n
                                Mills       Co.Ltd.      Vs.     The       Asstt.\n<\/p>\n
    Collector    of   Central     Excise,         Allahabad       and      other,<\/p>\n
    1970(2) Supreme Court Cases 820″.\n<\/p>\n
    6.          He further submitted that section 8 of the<\/p>\n
    General Clauses Act does not require that latter Act<\/p>\n
    repealing and re-enacting an earlier Act should be a<\/p>\n
    repealing and amendment Act but only requires that a<\/p>\n
    Central    Act    should     repeal         and    re-enact      a     former<\/p>\n
    enactment     either        with    modification            or       without<\/p>\n
    modification. He submitted that where a provision of<\/p>\n
    an   Act   omitted     by    an    Act      and    the     said      Act      is<\/p>\n
    simultaneously       re-enacts          a    new     provision           which<\/p>\n
    specially covers the filed occupied by the repealed<\/p>\n
    provision with certain modification, in that event<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                          16<\/span><\/p>\n
    such    re-enactment          is    regarded        as     having           force<\/p>\n
    continuously and the modification or changes                                    are<\/p>\n
    considered as amendment coming into force with effect<\/p>\n
    from the date of enforcement of re-enacted provision.\n<\/p>\n
    He relied on the judgment of the Supreme Court in the<\/p>\n
    Case    “Commissioner         of    Income        Tax,    Bangalore            Vs.<\/p>\n
    Venkateshwara Hatcheries (P) Ltd, AIR 1999 Supreme<\/p>\n
    Court   1225”.         He further submitted               that even the<\/p>\n
    statement<\/p>\n
                    of objects and reasons of the 1996 Act<\/p>\n
    makes it clear that the bill sought to consolidate<\/p>\n
    and amend the law relating to domestic arbitration,<\/p>\n
    international and commercial arbitration, enforcement<\/p>\n
    of   foreign     arbitral         award    and     to    define       the       law<\/p>\n
    relating    to    conciliation            taking    into      account           the<\/p>\n
    Uncitral modern law and rules.                   He further submitted<\/p>\n
    that most of the provisions of the 1940 Act are also<\/p>\n
    incorporated       in       the    1996     Act     with       or       without<\/p>\n
    modification.          It    was    submitted that some of the<\/p>\n
    provisions of 1940 Act are deleted in 1996 Act and<\/p>\n
    certain new provisions are introduced in the 1996<\/p>\n
    Act.       It    was    submitted          that     chapter         regarding<\/p>\n
    Conciliation proceedings has been introduced in the<\/p>\n
    1996 Act. It was submitted that section 8 of General<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                  17<\/span><\/p>\n
    Clauses Act applies even when any provision of                          a<\/p>\n
    former enactment is repealed and re-enacted with or<\/p>\n
    without modification. The learned Counsel then took<\/p>\n
    us   through   the   definition   of   term    “modification”\n<\/p>\n
    given in “Law Lexicon”. Then the learned Counsel took<\/p>\n
    us through the provisions of Section 85 of the 1996<\/p>\n
    Act to show that the 1940 Act has specifically been<\/p>\n
    repealed by Section 85 of the 1996 Act. The learned<\/p>\n
    Counsel then relied on the judgment of the Supreme<\/p>\n
    Court in the case “Thyssen Stahlunion Gmbh vs. Steel<\/p>\n
    Authority of India Ltd.,<\/a> (1999)9 Supreme Court Cases<\/p>\n
    334″ and submitted that the Supreme court in that<\/p>\n
    judgment has held that when an arbitration clause<\/p>\n
    entered into before 1996, the 1940 Act is referred<\/p>\n
    to, to the arbitration proceedings initiated after<\/p>\n
    the commencement of 1996 Act in relation to such an<\/p>\n
    arbitration clause, the provisions of the 1996 Act<\/p>\n
    apply. The learned Counsel submits that the Division<\/p>\n
    Bench in its judgment in the case “Jindal Drilling &<\/p>\n
    Industries Ltd.” could not have considered all the<\/p>\n
    provisions of the 1996 Act and the 1940 Act because<\/p>\n
    only the relevant provisions were to be considered in<\/p>\n
    view of Section 8 of the General Clauses Act.                        The<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                         18<\/span><\/p>\n
    learned Counsel, thus, submitted that in view of the<\/p>\n
    provisions of Section 8 of the General Clauses Act it<\/p>\n
    has to be held that reference to the provisions of<\/p>\n
    1940 Act in Article 3 of Schedule I of the Bombay<\/p>\n
    court    fees    Act     has   to      be    read    to    the      relevant<\/p>\n
    provisions of the 1996 Act.\n<\/p>\n
    7.         On    the     other      hand,     the    learned        Advocate<\/p>\n
    General submitted that Article 3 of Schedule I of the<\/p>\n
    Bombay Court fees Act carves out an exemption from<\/p>\n
    payment   of    ad-valorem           court     fee    in   case       of     any<\/p>\n
    application, petition, including memorandum of appeal<\/p>\n
    for setting aside or modifying any award under the<\/p>\n
    1940 Act.       It was submitted that the said provision<\/p>\n
    specifically       referred       to     the    1940       Act      and       the<\/p>\n
    exemption conferred thereunder is restricted to an<\/p>\n
    award made under the 1940 Act and the said exemption<\/p>\n
    cannot    be    extended       to      the     arbitration          petition<\/p>\n
    challenging the award made under the 1996 Act.                                 It<\/p>\n
    was submitted that in order to claim benefit under<\/p>\n
    section     8(1)    of     the      General         Clauses      Act,         the<\/p>\n
    following elements are required:-\n<\/p>\n
               (i) Repeal            and        re-enactment           of        any<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                    19<\/span><\/p>\n
                provision.\n<\/p><\/blockquote>\n
                (ii) With or without modification.\n<\/p><\/blockquote>\n
                (iii) Reference to the said provision in any<\/p>\n
                other enactment.\n<\/p><\/blockquote>\n
                (iv)   Unless contrary intention appears, to<\/p>\n
                be construed as reference to the re-enacted<\/p>\n
                provision.\n<\/p><\/blockquote>\n
    It was further submitted relying on the observations<\/p>\n
    of the Supreme Court in the case “Sundaram Finance<\/p>\n
    Ltd. Vs. NEPC India Ltd. (1999)2 SCC 477” that the<\/p>\n
    scheme of the 1996 Act and the 1940 Act is totally<\/p>\n
    different and the provisions of the 1940 Act cannot<\/p>\n
    be referred for interpreting the provisions of the<\/p>\n
    1996 Act.     It was, therefore, submitted that the 1996<\/p>\n
    Act is not a re-enactment of the 1940 Act. It was<\/p>\n
    submitted     that   the   1996     Act   is   entirely          a     new<\/p>\n
    enactment. It was further submitted that section 34<\/p>\n
    of the 1996 Act cannot be said to be an enactment of<\/p>\n
    Section 30 or section 33 of the 1940 Act. The learned<\/p>\n
    Advocate General took us through the provisions of<\/p>\n
    Sections 30 and 33 of the 1940 Act and the provisions<\/p>\n
    of Section 34 of the Arbitration Act and submitted<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                          20<\/span><\/p>\n
    that width and amplitude of challenge provided by two<\/p>\n
    provisions is totally different. It was submitted,<\/p>\n
    therefore, that section 34 of the 1996 Act cannot be<\/p>\n
    said   to   be    a     re-enactment         with     modification               of<\/p>\n
    Sections 30        or     33    of         the 1940          Act.              The<\/p>\n
    learned     Advocate       general         took     us      through           some<\/p>\n
    decisions    to show       what, according to him, is the<\/p>\n
    meaning of term “modification”.                      It was submitted<\/p>\n
    that although heading of section 34 of the 1996 Act<\/p>\n
    is similar to that of Section 33 or Section 30 of the<\/p>\n
    1940 Act, the substance thereof is entirely new. It<\/p>\n
    was    contended        that   the        reliance       placed        by       the<\/p>\n
    petitioners on the observations of the Supreme Court<\/p>\n
    in its judgment in the case “Thyssen Stahlunion Gmbh<\/p>\n
    vs. Steel Authority of India Ltd.<\/a>” referred to above<\/p>\n
    is also not proper because the                    question that was<\/p>\n
    considered by the Supreme Court is totally different.\n<\/p>\n
    8.          For   the     purpose     of     considering          the       first<\/p>\n
    question that is “whether the provisions of Article 3<\/p>\n
    of Schedule I of the Bombay Court Fees Act apply to a<\/p>\n
    petition filed under Section 34 of the 1996 Act or an<\/p>\n
    appeal filed under Section 37 of that Act”, we have<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                         21<\/span><\/p>\n
    first to see Article 1 and Article 3 of Schedule I of<\/p>\n
    the Bombay Court fees Act. Perusal of Article 1 of<\/p>\n
    Schedule I shows that on a plaint or memorandum of<\/p>\n
    appeal presented to any civil or revenue Court, the<\/p>\n
    Court   fee     is   liable    to       be       paid   according           to     the<\/p>\n
    subject        matter   involved         in        such       a      plaint          or<\/p>\n
    memorandum of appeal.              Thus, according to Article 1<\/p>\n
    court fee is payable on ad-valorem basis.                               Article 3<\/p>\n
    of Schedule I reads as under:-\n<\/p>\n
    3.   Plaint, application or                  —        A fee on the
\n    petition (including                                     amount or value of
\n    memorandum of appeal), to                               the award sought<\/p>\n
    set aside or modify any                                 to be set aside or<\/p>\n
    award otherwise than under                              modified,according
\n    the Arbitration Act,1940.                               to the scale
\n                                                            prescribed under<\/p>\n
                                                            Article 1.\n<\/p>\n
    According       to   Article   III           of    Schedule          I,     on      any<\/p>\n
    plaint,    application        or    petition            or     memorandum            of<\/p>\n
    appeal for setting aside or modifying an award, same<\/p>\n
    court fee is payable as is payable on a plaint or<\/p>\n
    memorandum of appeal under Article 1.                           Thus, when an<\/p>\n
    award     is     challenged        by        a     plaint,        application,<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                        22<\/span><\/p>\n
    petition    or   memorandum        of     appeal,      court         fee      is<\/p>\n
    payable     on   ad-valorem        basis.             But     from         this<\/p>\n
    requirement of payment of court fee on ad-valorem<\/p>\n
    basis, Article 3 excludes an application or petition<\/p>\n
    or memorandum of appeal filed in civil or revenue<\/p>\n
    Court     challenging       any         award    made        under          the<\/p>\n
    Arbitration      Act,1940.          Thus,       the    provisions              of<\/p>\n
    Article    III   of   Schedule      I     do    not    apply       when       an<\/p>\n
    application is filed or appeal is filed challenging<\/p>\n
    an award made under the Arbitration Act,1940.                                The<\/p>\n
    question, therefore, that arises for consideration is<\/p>\n
    “whether    reference    to    the       provisions         of    1940       Act<\/p>\n
    found in Article III of Schedule I of the Bombay<\/p>\n
    Court fees Act can be said to include reference to<\/p>\n
    the 1996 Act.”        The petitioners have relied on the<\/p>\n
    provisions of section 8 of the General Clauses Act to<\/p>\n
    contend that reference to the provisions of the 1940<\/p>\n
    Act in Article III of Schedule I has to be taken as<\/p>\n
    reference to the relevant provisions in the 1996 Act.\n<\/p>\n
    It   is   sub-section   1     of   Section       8    of    the      General<\/p>\n
    Clauses Act which has been relied on.                        Sub-section<\/p>\n
    (1) of Section 8 of the General Clauses Act reads as<\/p>\n
    under:-\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                    23<\/span><\/p>\n
             “8. Construction of references to repealed
\n             enactments.-        (1)    Where     this      Act,       or     any<\/p>\n
             [Central Act] or Regulation made after the
\n             commencement of this Act, repeals and re-
\n             enacts, with or without modification, any<\/p>\n
             provision      of    a      former     enactment,              then
\n             references in any other enactment or in any
\n             instrument     to     the    provision          so      repealed<\/p>\n
             shall, unless a different intention appears,<\/p>\n
             be construed as references to the provision
\n             so re-enacted.”\n<\/p><\/blockquote>\n
    Perusal of the above provisions shows that where by a<\/p>\n
    central enactment any provision of a former enactment<\/p>\n
    is   repealed    and     re-enacted           with       or        without<\/p>\n
    modification then reference in any other enactment to<\/p>\n
    the provision so repealed shall, unless a different<\/p>\n
    intention appears, be construed as references to the<\/p>\n
    provisions so re-enacted.          In the present case, it is<\/p>\n
    common ground that the former enactment is the 1940<\/p>\n
    Act, the new enactment is the 1996 Act and any other<\/p>\n
    enactment is the Bombay Court Fees Act.\n<\/p>\n
    9.       Now    first   we    have     to     see     which        is     the<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                       24<\/span><\/p>\n
    provision of 1940 Act (former enactment) which has<\/p>\n
    been referred to in the Bombay Court Fees Act (any<\/p>\n
    other enactment).      Perusal of Article 3 of Schedule I<\/p>\n
    quoted above shows that the provision of 1940 Act<\/p>\n
    which relates to making of an application or petition<\/p>\n
    providing for setting aside or modifying an Award is<\/p>\n
    referred to.        It may be pointed out here that for<\/p>\n
    considering the effect of Section 8 of the General<\/p>\n
    Clauses     Act,<\/p>\n
                        primarily     it     is   not      necessary            to<\/p>\n
    consider the scheme of entire new enactment and the<\/p>\n
    former enactment, what is primarily to be considered<\/p>\n
    is the provisions of the former enactment which is<\/p>\n
    referred to in the other enactment.                    Therefore, in<\/p>\n
    this case, primarily, it is not necessary for us to<\/p>\n
    consider the entire scheme of the 1940 Act (former<\/p>\n
    enactment)    and    the   1996    Act    (the    new      enactment).\n<\/p>\n
    What   we    have    to,     primarily,          consider         is      the<\/p>\n
    provision relating to challenge to an Award contained<\/p>\n
    in the 1940 Act and the provisions contained in the<\/p>\n
    1996 Act relating to challenge to an Award made under<\/p>\n
    that Act, and to decide whether it can be said that<\/p>\n
    those provisions which were contained in the 1940 Act<\/p>\n
    have been repealed and re-enacted with or without<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                         25<\/span><\/p>\n
    modification in the new Act.\n<\/p>\n
    10.          It   was      not    disputed    before         us      that       by<\/p>\n
    section 85 of the 1996 Act one of the enactments<\/p>\n
    which has been repealed is the 1940 Act, therefore,<\/p>\n
    there is no debate that all the provisions of the<\/p>\n
    1940 Act including the provisions which are referred<\/p>\n
    to in Article 3 of Schedule I of the Bombay Court<\/p>\n
    Fees   Act    have    been
\n                                 ig  repealed    by   the       new     Act.      The<\/p>\n
    entire debate before us was whether those provisions<\/p>\n
    have been re-enacted with or without modification in<\/p>\n
    the new enactment.           For that purpose, first we have<\/p>\n
    to see which are the provisions contained in the 1940<\/p>\n
    Act    relating       to    challenging       an       award        made        by<\/p>\n
    Arbitrator under the 1940 Act.                The first provisions<\/p>\n
    which is relevant in that regard is Section 33 of the<\/p>\n
    1940 Act which reads as under:-\n<\/p>\n
                 “33.          Arbitration agreement or award to<\/p>\n
                 be contested by application. – Any party to<\/p>\n
                 an     arbitration      agreement         or      any       person<\/p>\n
                 claiming under him desiring to challenge the<\/p>\n
                 existence       or    validity       of    an     arbitration<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:01:16 :::<\/span>
\n                                       26<\/span><\/p>\n
              agreement or an award or to have the effect<\/p>\n
              of    either     determined       shall       apply      to     the<\/p>\n
              Court      and    the    Court        shall     decide          the<\/p>\n
              question on affidavits:\n<\/p><\/blockquote>\n
                            PROVIDED THAT where the Court deems<\/p>\n
              it just and expedient, it may set down the<\/p>\n
              application for hearing on other evidence<\/p>\n
              also,      and    it    may    pass    such      orders          for<\/p>\n
              discovery and particulars as it may do in a<\/p>\n
              suit.”\n<\/p><\/blockquote>\n
    Perusal of the above quoted provision shows that any<\/p>\n
    award   made    by   Arbitrator         under    that     Act      can       be<\/p>\n
    challenged by making an application to the Court. The<\/p>\n
    term “Court” is defined by Section 2(c) of the 1940<\/p>\n
    Act which reads as under:-\n<\/p>\n
              “2.(c)        “Court” means a Civil Court having<\/p>\n
              jurisdiction to decide the questions forming<\/p>\n
              the subject-matter of the reference if the<\/p>\n
              same had been the subject-matter of a suit,<\/p>\n
              but    does      not   except    for    the      purpose          of<\/p>\n
              arbitration        proceedings        under     Section         21,<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                        27<\/span><\/p>\n
                 include a Small Cause Court;”\n<\/p><\/blockquote>\n
    Thus,   an    award   made    under       the   1940   Act       can      be<\/p>\n
    challenged by making an application under section 33<\/p>\n
    to a civil Court which would have jurisdiction had<\/p>\n
    the subject matter of             the    Award been the subject<\/p>\n
    matter of a suit. Section 30 of the 1940 Act lays<\/p>\n
    down as to on what ground an Award can be set aside<\/p>\n
    by the Court.\n<\/p>\n
                        Section 30 reads as under:-\n<\/p>\n
                 “30. Grounds for setting aside award.-                       An<\/p>\n
                 award shall not be set aside except on one<\/p>\n
                 or more of the following grounds, namely:\n<\/p>\n
                       (a) that an arbitrator or umpire has<\/p>\n
                 misconducted himself or the proceedings:\n<\/p>\n
                       (b) that an award has been made after<\/p>\n
                 the   issue     of     an    order   by      the        Court<\/p>\n
                 superseding      the        arbitration       or        after<\/p>\n
                 arbitration proceedings have become invalid<\/p>\n
                 under Sec.35:\n<\/p>\n
                       (c) that an award has been improperly<\/p>\n
                 procured or is otherwise invalid.”\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                       28<\/span><\/p>\n
    Thus,   an    award   made   under       the   1940     Act      could        be<\/p>\n
    challenged by making an application under section 33<\/p>\n
    to the Court and that Award could be set aside by the<\/p>\n
    Court   on    the     grounds     which    are     mentioned             under<\/p>\n
    section 30.\n<\/p>\n
    11.          So far as the 1996 Act is concerned, the<\/p>\n
    relevant provisions is Section 34. It is sub-section<\/p>\n
    (1) and (2) of Section 34 which are relevant for the<\/p>\n
    present purpose which reads as under:-\n<\/p>\n
                 “34. Application for setting aside arbitral<\/p>\n
                 award- (1) Recourse to a Court against an<\/p>\n
                 arbitral     award    may    be     made      only        by     an<\/p>\n
                 application for setting aside such award in<\/p>\n
                 accordance    with    sub-section          (2)      and        sub-\n<\/p><\/blockquote>\n
                 section (3).\n<\/p><\/blockquote>\n
                     (2) An Arbitral award may be set aside<\/p>\n
                 by the Court only if –\n<\/p><\/blockquote>\n
                     (a) the     party       making    the       application<\/p>\n
                 furnishes proof that –\n<\/p><\/blockquote>\n
                            (i) a      party       was         under           some\n\n                 incapacity, or\n\n\n\n\n                                                          ::: Downloaded on - 09\/06\/2013 14:01:17 :::<\/span>\n                            29<\/span>\n\n                 (ii) the       arbitration      agreement           is\n\n\n\n\n                                                                     \n<\/pre>\n
     not valid under the law to which the parties<\/p>\n
     have subjected it or, failing any indication<\/p>\n
     thereon, under the law for the time being in<\/p>\n
     force; or<\/p>\n<\/blockquote>\n
                 (iii)      the      party        making           the<\/p>\n
     application was not given proper notice of<\/p>\n
     the appointment of an arbitrator or of the<\/p>\n
     arbitral proceedings or was otherwise unable<\/p>\n
     to present his case; or<\/p>\n<\/blockquote>\n
                 (iv) the arbitral award deals with<\/p>\n
     an   dispute    not        contemplated       by      or       not<\/p>\n
     falling within the terms of the submission<\/p>\n
     to arbitration, or it contains decisions on<\/p>\n
     matters beyond the scope of the submission<\/p>\n
     to arbitration;\n<\/p><\/blockquote>\n
          (b) the Court finds that –<\/p>\n<\/blockquote>\n<\/blockquote>\n
                 (i) the        subject-matter            of       the\n\n\n\n\n\n     dispute   is   not     capable    of      settlement            by\n\n<\/pre>\n
     arbitration under the law for the time being<\/p>\n
     in force, or<\/p>\n<\/blockquote>\n
                 (ii) the       arbitral      award         is       in<\/p>\n
     conflict with the public policy of India.\n<\/p><\/blockquote>\n
                                             ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                      30<\/span><\/p>\n
              Explanation.-         Without         prejudice           to      the<\/p>\n
              generality of sub-clause (ii) it is hereby<\/p>\n
              declared, for the avoidance of any doubt,<\/p>\n
              that an award is in conflict with the public<\/p>\n
              policy of India if the making of the award<\/p>\n
              was     induced       or        affected     by       fraud         or<\/p>\n
              corruption or was in violation of section 75<\/p>\n
              or    section 81.”\n<\/p><\/blockquote>\n
    Perusal of sub-section (1) and                  (2)    of Section 34<\/p>\n
    shows that Arbitral award can be challenged by making<\/p>\n
    an application before a Court. The term “Court” is<\/p>\n
    defined by Section 2(e) of the 1996 Act.                     It reads as<\/p>\n
    under:-\n<\/p>\n
              “2.(e)      “Court” means the principal Civil
\n              Court     of        original         jurisdiction            in       a
\n              district,      and    includes        the    High      Court        in
\n              exercise       of    its        ordinary    original           civil<\/p>\n
              jurisdiction, having jurisdiction to decide
\n              the questions forming the subject-matter of
\n              the arbitration if the same had been the
\n              subject     matter         of    a   suit    but       does        not
\n              include any civil court of a grade inferior
\n              to such principal Civil Court, or any Court<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                    31<\/span><\/p>\n
               of Small Causes;”\n<\/p><\/blockquote>\n
    A comparison of definition of term “Court” in the<\/p>\n
    1940 Act and the 1996 Act which are both quoted above<\/p>\n
    shows that the definitions are substantially the same<\/p>\n
    except that in the 1940 Act an application could be<\/p>\n
    made to the Civil Court but now as per the 1996 Act<\/p>\n
    an application can be      made only to          the      Principal<\/p>\n
    Civil Court of original jurisdiction in a district.\n<\/p>\n
    So far as this Court on original side is concerned,<\/p>\n
    there is no change made. Thus, a comparison of the<\/p>\n
    provisions of sub-section (1) of section 34 of the<\/p>\n
    1996 Act with the provisions of Section 33 of the<\/p>\n
    1940 Act shows that by virtue of the provisions of<\/p>\n
    Section 85 of the 1996 Act, section 33 of the 1940<\/p>\n
    Act has been repealed and has been re-enacted in the<\/p>\n
    form of sub-section (1) of section 34 of the 1996 Act<\/p>\n
    with a slight modification in the definition of the<\/p>\n
    term “Court”.    As observed above, in so far as the<\/p>\n
    original   jurisdiction   of    this   Court     is     concerned,<\/p>\n
    even that difference does not exist.           In other words,<\/p>\n
    in so far as the original jurisdiction of this Court<\/p>\n
    is concerned, in the matter of challenge made to an<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                         32<\/span><\/p>\n
    award made by Arbitrator, the provisions of section<\/p>\n
    33 of of the 1940 Act has been repealed and re-\n<\/p>\n
    enacted with hardly any modification. A comparison of<\/p>\n
    the provisions of sub-section (2) of section 34 of<\/p>\n
    the 1996 Act          with the provisions of section 30 of<\/p>\n
    the 1940 Act shows that the grounds on which an award<\/p>\n
    could be set aside by the Court under the 1940 Act<\/p>\n
    are different than the ones on which an award can be<\/p>\n
    set aside under sub-section (2) of section 34 of the<\/p>\n
    1996   Act.      But,    in   our    opinion,      so       far       as     the<\/p>\n
    provisions of Article 3 of Schedule I of the Bombay<\/p>\n
    Court Fees Act is concerned, the grounds on which<\/p>\n
    the Court can set aside an Award is not relevant,<\/p>\n
    because    the    subject      matter     of     the    provisions             of<\/p>\n
    Bombay Court Fees Act is payment of Court fees on<\/p>\n
    plaint, application, petition or memorandum of appeal<\/p>\n
    and not the grounds on which the Court can grant<\/p>\n
    reliefs to the applicant, plaintiff, petitioner or<\/p>\n
    appellant.       In     our   opinion,     therefore,             the       only<\/p>\n
    provision of the 1940 Act referred to in Article 3 of<\/p>\n
    Schedule   I     of     the   Bombay     Court    Fees       Act      is      the<\/p>\n
    provisions of Section 33 of the 1940 Act and bare<\/p>\n
    comparison of that provision with the provisions of<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                            33<\/span><\/p>\n
    sub-section (1) of Section 34 of the 1996 Act shows<\/p>\n
    that the provision of section 33 of the 1940 Act is<\/p>\n
    repealed and re-enacted in sub-section (1) of Section<\/p>\n
    34     of    the      1996      Act    with       slight       modification.\n<\/p>\n
    Therefore, reference to the                  provisions of section 33<\/p>\n
    of the 1940 Act in Article 3 of Schedule-I of the<\/p>\n
    Bombay Court fees Act has to be construed, in view of<\/p>\n
    the provisions of Section 8 of the General Clauses<\/p>\n
    Act, as reference to the provisions of Section 34 of<\/p>\n
    the    1996      Act.      So    far   as        an   appeal     filed        under<\/p>\n
    Section 37 of the 1996 Act is concerned, perusal of<\/p>\n
    section 37 shows that an appeal is provided to the<\/p>\n
    appellate Court against an order setting aside the<\/p>\n
    arbitral award or refusing to set aside an arbitral<\/p>\n
    award under Section 34.                Thus, as we have found that<\/p>\n
    the provisions of “Article 3 of Schedule-I” do not<\/p>\n
    apply       to   an     application         or    petition      filed         under<\/p>\n
    section 34 of the 1996 Act, they will also not apply<\/p>\n
    to the memorandum of appeal filed to set aside or<\/p>\n
    modify an award made by the Arbitrator under the 1996<\/p>\n
    Act.        In other words nothing contained in Article 3<\/p>\n
    of Schedule-I of the Bombay Court fees Act applies to<\/p>\n
    an application, petition or memorandum of appeal to<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                    34<\/span><\/p>\n
    set aside or modify any Award made under the 1996 Act<\/p>\n
    as it does not apply to an application or petition or<\/p>\n
    memorandum of appeal to set aside or modify an Award<\/p>\n
    made under the Arbitration Act,1940.         Perusal of the<\/p>\n
    provisions of Section 8 of the General Clauses Act<\/p>\n
    shows that     “references in any other enactment to a<\/p>\n
    provision in a former enactment” is to be construed<\/p>\n
    as   ‘reference   to   re-enacted    provision    in     the       new<\/p>\n
    enactment” unless a different intention appears.                   The<\/p>\n
    different    intention   may   appear   either    in     the       new<\/p>\n
    enactment    or   in   the   other   enactment.    Nobody         has<\/p>\n
    pointed out to us any provision either in the 1996<\/p>\n
    Act or in the Bombay Court fees Act which can be<\/p>\n
    construed as a different intention or which will show<\/p>\n
    that it was not the intention of the Maharashtra<\/p>\n
    legislature to exclude an application or petition or<\/p>\n
    memorandum of appeal filed in Court to set aside or<\/p>\n
    modify an award made under the 1996 Act, from the<\/p>\n
    provisions of “Article 3 of Schedule-I” of the Bombay<\/p>\n
    Court Fees Act. It appears that the intention behind<\/p>\n
    excluding an application made, challenging the Award<\/p>\n
    made under the 1940 Act, from requirement of payment<\/p>\n
    of ad-valorem court fee which is required to be paid<\/p>\n
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\n                                   35<\/span><\/p>\n
    if the same litigant files a suit on the same subject<\/p>\n
    matter,   was    to   encourage    a    litigant     to     go        for<\/p>\n
    arbitration instead of filing a suit.                 Nothing has<\/p>\n
    been pointed out to us that there is any change in<\/p>\n
    that legislative policy. On the contrary, from the<\/p>\n
    preamble of the 1996 Act it is clear that the policy<\/p>\n
    of the legislature is to encourage people to adopt<\/p>\n
    the mode of arbitration for resolving disputes.\n<\/p>\n
    12.       So far as the judgment of the Division bench<\/p>\n
    in    “Govardhani      Construction        Company”        case         is<\/p>\n
    concerned, it is obvious from the judgment that the<\/p>\n
    provisions of Section 8 of General Clauses Act were<\/p>\n
    not   pointed    out    to   the       Court   and     the       Court,<\/p>\n
    therefore, on reading the language of Article 3 of<\/p>\n
    Schedule I of the Bombay Court Fees Act held that in<\/p>\n
    that Article there is no reference to an Award made<\/p>\n
    under the 1996 Act.      The relevant observations are to<\/p>\n
    be found in paragraph 10 of that judgment which read<\/p>\n
    as under:-\n<\/p>\n
              “10.         It was also sought to be contended
\n              that in the Article 3 of Schedule I of the<\/p>\n
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\n                                36<\/span><\/p>\n
     said Act, the Legislature in its wisdom has<\/p>\n
     excluded the award passed under Arbitration
\n     Act,1940 and the same principle should apply<\/p>\n
     in     case     of        award        passed        under          the
\n     Arbitration and Conciliation Act,1996.                                We
\n     are     afraid,      the         contention           cannot          be<\/p>\n
     accepted      for    the       simple        reason      that       the
\n     Arbitration and Conciliation Act came into
\n     force in the year 1996,specifically w.e.f.\n<\/p>\n
     22nd    August,1996.              Prior        to     that,         the
\n     Arbitration and Conciliation Ordinance, 1996<\/p>\n
     was promulgated on 16th January,1996.                               The
\n     Arbitration         and        Conciliation           Act,        1996<\/p>\n
     replaced       the        said        Ordinance          and        the
\n     Arbitration Act,1940.                 Yet no amendment has
\n     been    made    since          1996    till     this       date       to<\/p>\n
     Article 3 of Schedule I of the said Act<\/p>\n
     which clearly restricts the exclusion from
\n     its     applicability            the        Award     under         the
\n     Arbitration Act,1940.                  In other words, the<\/p>\n
     award    passed      under            the    Arbitration            and
\n     Conciliation Act,1996 is not excluded under
\n     Article 3 of Schedule I and for the same
\n     reason, the said Article which specifically<\/p>\n
     deals    with     the      subject-matter             of     setting
\n     aside or modifying any award either at the
\n     original stage by filing an application or a
\n     petition in that regard, and also at the
\n     appellate stage by presenting memorandum of
\n     appeal, would naturally be applicable to all<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                               37<\/span><\/p>\n
     such proceedings.             Needless to say that the<\/p>\n
     appeal is a continuation of the proceedings
\n     at the original stage.                   The provision under<\/p>\n
     Article 3 of Schedule I clearly speaks of
\n     plaint,    application             or    petition          including
\n     memorandum of appeal to set aside or modify<\/p>\n
     any award.           A memorandum of appeal to set
\n     aside or modify any award spoken of under
\n     Article    3     of    Schedule          I    is    obviously           in<\/p>\n
     relation        to      an      order          passed          on       an
\n     application or a petition to set aside or<\/p>\n
     modify     an        award.         The       Arbitration              and
\n     Conciliation Act,1996 nowhere provides any<\/p>\n
     appeal    against        the       award       itself.         On      the
\n     contrary,       it     specifically            provides          for      a
\n     petition under section 34 for setting aside<\/p>\n
     the     arbitral       award       and        section        37(1)(b)<\/p>\n
     entitles       the     aggrieved         party        to     file       an
\n     appeal     against           the    order          passed         under
\n     section 34 either to set aside or to refuse<\/p>\n
     to set aside the arbitral award.                         Once it is
\n     apparent       that     Article          3     of      Schedule           I
\n     nowhere excludes from its applicability any
\n     award     passed        under       any        other         statutes<\/p>\n
     including the Arbitration and Conciliation
\n     Act,1996        and     further          it     relates           to      a
\n     petition as well as an appeal to set aside
\n     or modify “any award”, it would obviously
\n     include         an      award           passed         under           the
\n     Arbitration and Conciliation Act,1996 or any<\/p>\n
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\n                                          38<\/span><\/p>\n
                  order     in     relation        thereto.             In       our<\/p>\n
                  considered view, therefore, the appellant is
\n                  liable to pay Court fee on the appeal in<\/p>\n
                  hand in terms of Article 3 of Schedule I of
\n                  the said Act.”\n<\/p>\n
    So far as the judgment of the Division Bench in the<\/p>\n
    case “Jindal Drilling & Industries Ltd.”, it is clear<\/p>\n
    that    the    provisions      of    section     8    of     the      General<\/p>\n
    Clauses Act were pointed out to the Court and they<\/p>\n
    have been       considered by the Court.                  The    Court has<\/p>\n
    indicated       the     question          it   was    considering              in<\/p>\n
    paragraph (9) of the judgment in the case “Jindal<\/p>\n
    Drilling & Industries Ltd.” as follows:-\n<\/p>\n
                  “The    question,      however,        which      arises         is<\/p>\n
                  whether the New Act can be said to be a<\/p>\n
                  statute    of    the   nature     of    re-enactment             on<\/p>\n
                  repeal of the Old Act.”\n<\/p><\/blockquote>\n
    The     Division      Bench,    thereafter,          referred         to      the<\/p>\n
    judgment of the Supreme Court in the case “Sundaram<\/p>\n
    Finance Ltd. Vs. NEPC India Ltd., (1999)2 Supreme<\/p>\n
    Court    Cases       479”,    then    judgment       in    the      case        of<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                     39<\/span><\/p>\n
    “Konkan Railway Corpn. Ltd. and others. Vs. Mehul<\/p>\n
    Construction Co., (2000)7 Supreme Court Cases 201,<\/p>\n
    then judgment of the Supreme Court in the case “Union<\/p>\n
    of   India   Vs.    Popular     Construction           Co.,      (2001)8<\/p>\n
    Supreme Court cases 470” and has, in paragraph (14)<\/p>\n
    and (15), held thus:-\n<\/p>\n
                   “14.        The Apex Court having already<\/p>\n
                   considered       and declared that the New
\n                   Act is different from the Old Act, the
\n                   contention that the New Act is a re-\n<\/p><\/blockquote>\n
                   enactment       within     the    meaning         of     the
\n                   said expression under Section 8 of the
\n                   General         Clauses      Act,        cannot            be<\/p>\n
                   accepted. The New Act has been enacted<\/p>\n
                   not merely by way of an amendment to
\n                   the Old Act but the entire scheme of
\n                   the New Act has been totally different<\/p>\n
                   and this has been elaborately discussed
\n                   and clearly held by the Apex Court in
\n                   the matters of Sundaram Finance, Mehul<\/p>\n
                   Construction          as   well    as     in      Popular
\n                   Construction                 and                  Olympus
\n                   Superstructures (supra).\n<\/p><\/blockquote>\n
                   15.         In the facts and circumstances
\n                   as     stated     above,     therefore,            it      is
\n                   difficult to accept the contention on<\/p>\n
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\n                                      40<\/span><\/p>\n
                      behalf of the appellants that Article 3<\/p>\n
                      in    Schedule      I    of    the      BCF       Act       is
\n                      required to be read as referred to the<\/p>\n
                      New     Act   in    place      of     the       Old       Act
\n                      consequent     to enforcement of the New
\n                      Act.”\n<\/p><\/blockquote>\n
    It is, thus, clear that the Division Bench has held<\/p>\n
    that because the Supreme Court has observed in the<\/p>\n
    above referred three judgments that the Scheme of<\/p>\n
    1996 Act is totally different from the scheme of 1940<\/p>\n
    Act in many respect the 1996 Act cannot                           called a<\/p>\n
    re-enactment of the 1940 Act within the meaning of<\/p>\n
    the said expression found in Section 8 of the General<\/p>\n
    Clauses Act.\n<\/p>\n
    13.         In our opinion, in order to find out whether<\/p>\n
    because of the provisions of Section 8 of the General<\/p>\n
    Clauses Act, the expression “Arbitration Act,1940”\n<\/p>\n
    found in Article 3 of Schedule I of the Bombay Court<\/p>\n
    Fees Act can be taken to mean Arbitration Act,1996,<\/p>\n
    it    was   not   necessary     for       the   Division         bench         to<\/p>\n
    consider the scheme of the entire 1996                          Act. What<\/p>\n
    should have been seen was whether the provision in<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                   41<\/span><\/p>\n
    the 1940 Act   relating       to     challenging            an      Award<\/p>\n
    is    re-enacted with or without modification in the<\/p>\n
    new   enactment.   Because,    it    appears     that        when       the<\/p>\n
    Division Bench delivered the judgment in the case of<\/p>\n
    “Jindal   Drilling   &   Industries       Ltd.”,      the     question<\/p>\n
    ‘whether the 1996 Act is a re-enactment of 1940 Act<\/p>\n
    with modification was no more res integra because of<\/p>\n
    the judgment of the Supreme Court in the case “Steel<\/p>\n
    authority of India Ltd.” referred to above.                      In the<\/p>\n
    case of “Steel authority of India Ltd.”, the Supreme<\/p>\n
    Court was considering the provisions of Section 85 of<\/p>\n
    the 1996 Act which reads as under:-\n<\/p>\n
                   \"85. Repeal         and    savings.-         (1)        The\n                   Arbitration     (Protocol        and       Convention)\n<\/pre>\n
                   Act,1937 (6 of 1937), the Arbitration<\/p>\n
                   Act, 1940 (10 of 1940) and the Foreign
\n                   Awards     (Recognition         and    Enforcement)
\n                   Act,1961     (45      of    1961)       are        hereby<\/p>\n
                   repealed.\n<\/p>\n
                   (2) Notwithstanding such repeal,-\n<\/p>\n
                         (a) the       provisions        of     the       said
\n                   enactments shall apply in relation to
\n                   arbitral    proceedings         which        commenced
\n                   before this Act came into force unless
\n                   otherwise      agreed      by   the    parties          but<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                     42<\/span><\/p>\n
                    this    Act   shall    apply    in    relation          to<\/p>\n
                    arbitral proceedings which commenced on
\n                    or after this Act comes into force;\n<\/p>\n
                           (b) all         rules          made            and
\n                    notifications published, under the said
\n                    enactments      shall,    to    the      extent         to<\/p>\n
                    which they are not repugnant to this
\n                    Act,    be    deemed   respectively          to      have
\n                    been made or issued under this Act.”\n<\/p>\n
    Perusal of the provisions of above quoted section 85<\/p>\n
    of the 1996 Act shows that by sub-section (1) among<\/p>\n
    other   Acts,   the     Arbitration      Act    1940       has       been<\/p>\n
    repealed, and by virtue of clause (a) of sub-section<\/p>\n
    (2) the provisions of the 1940 Act continued to apply<\/p>\n
    to arbitral proceedings which commenced before the<\/p>\n
    commencement of 1996 and in so far as the arbitral<\/p>\n
    proceedings     which     commence       on    or      after          the<\/p>\n
    commencement of the Act, the provisions of the 1996<\/p>\n
    Act apply to such proceedings.                The Supreme Court<\/p>\n
    has decided several cases by its judgment in the case<\/p>\n
    of “Steel Authority of India Ltd.” One of the cases<\/p>\n
    was that of “Rani Constructions (P) Ltd.               The Supreme<\/p>\n
    Court in that case was considering the provisions of<\/p>\n
    Section 85(2)(a) of the 1996 Act with reference to<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                        43<\/span><\/p>\n
    the     arbitration           clause     in     the        case          “Rani<\/p>\n
    Constructions (P) Ltd.”. That arbitration clause has<\/p>\n
    been quoted by the Supreme Court in paragraph (9) of<\/p>\n
    that judgment, which reads as under:-\n<\/p>\n
                        “Subject     to     the    provisions           of      the
\n                        contract to the contrary as aforesaid,
\n                        the       provisions        of        the          Indian<\/p>\n
                        Arbitration Act,1940 or any statutory<\/p>\n
                        modification        or    re-enactment
\n                        and the rules made thereunder and for
\n                                                                         thereof<\/p>\n
                        the time being in force shall apply to
\n                        all arbitration proceedings under this
\n                        clause.”\n<\/p>\n
    The question in “Rani Constructions (P) Ltd.” which<\/p>\n
    the Supreme Court in the above quoted arbitration<\/p>\n
    clause was considering is “whether the 1996 Act can<\/p>\n
    be    stated   to    be   a    statutory      modification           or      re-\n<\/p>\n
    enactment of the 1940 Act.”              Perusal of the judgment<\/p>\n
    of the Supreme Court in the case “Steel Authority of<\/p>\n
    India Ltd” shows that the Supreme Court has referred<\/p>\n
    to its judgment in the case “Sundaram Finance Ltd.”\n<\/p>\n
    and has held that the term               “statutory modification<\/p>\n
    or re-enactment for the time being in force” used in<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                      44<\/span><\/p>\n
    the   arbitration      clause     in      the     case       of       “Rani<\/p>\n
    Constructions (P) Ltd.” includes                 reference to the<\/p>\n
    1996 Act. The observations of the Supreme Court in<\/p>\n
    paragraphs (35), (36), (37) and (38) are relevant,<\/p>\n
    they read as under:-\n<\/p>\n
             “35.          Parties        can        agree        to         the<\/p>\n
             applicability of the new Act even before the<\/p>\n
             new Act comes into force and when the old<\/p>\n
             Act is still holding the field. There is<\/p>\n
             nothing in the language of Section 85(2)(a)<\/p>\n
             which    bars    the    parties        from    so    agreeing.\n<\/p>\n
             There is, however, a bar that they cannot<\/p>\n
             agree to the applicability of the old Act<\/p>\n
             after the new Act has come into force when<\/p>\n
             arbitral proceedings under the old Act have<\/p>\n
             not commenced though the arbitral agreement<\/p>\n
             was under the old Act. Arbitration clause in<\/p>\n
             the      contract       in     the       case        of        Rani<\/p>\n
             Constructions (Civil Appeal No.61 of 1999)<\/p>\n
             uses the expression “for the time being in<\/p>\n
             force”     meaning      thereby      that      provision          of<\/p>\n
             that    Act     would    apply     to    the     arbitration<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                            45<\/span><\/p>\n
     proceedings which will be in force at the<\/p>\n
     relevant time when arbitration proceedings<\/p>\n
     are   held.    We    have    been    referred         to     two<\/p>\n
     decisions – one of the Bombay High Court and<\/p>\n
     the other of the Madhya Pradesh High Court<\/p>\n
     on the interpretation of the expression “for<\/p>\n
     the time being in force” and we agree with<\/p>\n
     them that the expression aforementioned not<\/p>\n
     only refers to the law in force at the time<\/p>\n
     the arbitration agreement was entered into<\/p>\n
     but also to any law that may be in force for<\/p>\n
     the   conduct       of     arbitration      proceedings,<\/p>\n
     which would also include the enforcement of<\/p>\n
     the award as well.           The expression “unless<\/p>\n
     otherwise agreed” as appearing in Section 85<\/p>\n
     (2)(a) of the New Act would clearly apply in<\/p>\n
     the   case    of    Rani    Constructions         in      Civil<\/p>\n
     appeal no.61 of 1999.            Parties were clear in<\/p>\n
     their minds that it would be the old Act or<\/p>\n
     any statutory modification or re-enactment<\/p>\n
     of    that    Act        which    would      govern          the<\/p>\n
     arbitration.        We accept the submission of<\/p>\n
     the    appellant         Rani     Constructions            that<\/p>\n
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\n                              46<\/span><\/p>\n
     parties       could     anticipate            that        the        new<\/p>\n
     enactment      may     come    into      operation           at      the<\/p>\n
     time    the      disputes       arise.         We      have        seen<\/p>\n
     Section    28     of    the    Contract          Act.           It    is<\/p>\n
     difficult        for      us       to     comprehend               that<\/p>\n
     arbitration agreement could be said to be in<\/p>\n
     restraint of legal proceedings. There is no<\/p>\n
     substance        in     the         submission             of        the<\/p>\n
     respondent<\/p>\n
                      that        parties      could         not       have<\/p>\n
     agreed to the application of the new Act<\/p>\n
     till they knew the provisions thereof and<\/p>\n
     that would mean that any such agreement as<\/p>\n
     mentioned in the arbitration clause could be<\/p>\n
     entered into only after the new Act had come<\/p>\n
     into    force.       When     the    agreement           uses        the<\/p>\n
     expression       “unless       otherwise            agreed”          and<\/p>\n
     “law in force” it does give an option to the<\/p>\n
     parties    to     agree      that       the   new      Act      would<\/p>\n
     apply       to         the      pending              arbitration<\/p>\n
     proceedings. That agreement can be entered<\/p>\n
     into    even     before      the    new       Act    comes        into<\/p>\n
     force and it cannot be said that agreement<\/p>\n
     has to be entered into only after the coming<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                               47<\/span><\/p>\n
     into force of the new Act.\n<\/p>\n
     36.           Mr.Desai had referred to a decision<\/p>\n
     of    the     Bombay      High     Court        (Goa        Bench),<\/p>\n
     rendered       by    a    Single        Judge        in       Reshma<\/p>\n
     Constructions v. State of Goa.                    In<\/a> that case<\/p>\n
     the    arbitration            clause    in      the       contract<\/p>\n
     provided as under:-\n<\/p>\n
     ”\n<\/p>\n
           Subject as aforesaid, the provisions of<\/p>\n
     the Arbitration Act,1940 or any statutory<\/p>\n
     modification or re-enactment thereof and the<\/p>\n
     rules made thereunder and for the time being<\/p>\n
     in    force    shall      apply    to     the       arbitration<\/p>\n
     proceeding under this clause.”\n<\/p>\n
     37.           The Court held that these terms in<\/p>\n
     the clause disclosed that the parties had<\/p>\n
     agreed to be governed by the law which was<\/p>\n
     in force at the time of execution of the<\/p>\n
     arbitration         agreement      as    well        as     by     any<\/p>\n
     further       statutory         changes       that         may       be<\/p>\n
     brought about in such law.                   This is how the<\/p>\n
     High Court considered the issue before it;\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                              48<\/span><\/p>\n
           “Considering           the       scheme         of    the       Act,<\/p>\n
     harmonious       reading          of    the      said       provision<\/p>\n
     contained in sub-section (2) of Section 85<\/p>\n
     thereof would disclose that the reference<\/p>\n
     ‘otherwise agreed’ necessarily refers to the<\/p>\n
     intention        of    the    parties            as   regards          the<\/p>\n
     procedure to be followed in the matter of<\/p>\n
     arbitration proceedings and not to the time<\/p>\n
     factor      as
\n                       ig  regards           execution             of       the<\/p>\n
     agreements.           It provides that though                          the<\/p>\n
     law provides that the provisions of the old<\/p>\n
     Act would continue to apply to the pending<\/p>\n
     proceedings       by    virtue         of     the      said        saving<\/p>\n
     clause      in    Section         85,       it    simultaneously<\/p>\n
     provides that the parties can agree to the<\/p>\n
     contrary.         Such a provision leaving it to<\/p>\n
     the    discretion            of    the       parties           to      the<\/p>\n
     proceedings to decide about the procedure to<\/p>\n
     be followed – other in terms of the new Act<\/p>\n
     or the old Act – is certainly in consonance<\/p>\n
     with the scheme of the Act, whereunder most<\/p>\n
     of    the    provisions           of     the      new       Act,        the<\/p>\n
     procedure regarding various stages of the<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                              49<\/span><\/p>\n
     arbitration proceedings is made subject to<\/p>\n
     the agreement to the contrary between the<\/p>\n
     parties, thereby giving ample freedom to the<\/p>\n
     parties to decide about the procedure to be<\/p>\n
     followed in such proceedings; being so, it<\/p>\n
     is but natural that the legislature in its<\/p>\n
     wisdom has left it to the option of the<\/p>\n
     parties in the pending proceedings to choose<\/p>\n
     the procedure for such pending proceedings.\n<\/p>\n
     The     reference       ‘otherwise     agreed         by     the<\/p>\n
     parties’ in Section 85(2)(c) of the new Act,<\/p>\n
     therefore,        would      include      an      agreement<\/p>\n
     already      entered     into   between        the    parties<\/p>\n
     even prior to enforcement of the new Act as<\/p>\n
     also     the     agreement      entered        into        after<\/p>\n
     enforcement       of     the    new    Act.           Such       a<\/p>\n
     conclusion        is     but    natural        since         the<\/p>\n
     expression ‘otherwise agreed’ does not refer<\/p>\n
     to     the     time    factor   but    refers         to     the<\/p>\n
     intention         of      the    parties          regarding<\/p>\n
     applicability of the provisions of the new<\/p>\n
     or old Act.”\n<\/p>\n
     We     agree     with     the   High    Court         on     the<\/p>\n
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\n                                 50<\/span><\/p>\n
     interpretation put to the arbitration clause<\/p>\n
     in the contract.\n<\/p>\n
     38.            Section        28      of    the      Contract           Act<\/p>\n
     contains provision regarding agreements in<\/p>\n
     the      restraint              of        legal        proceedings.\n<\/p>\n
     Exception 1 to Section 28 of the Contract<\/p>\n
     Act does not render illegal a contract by<\/p>\n
     which    the
\n                      ig parties        agree     that        any       future<\/p>\n
     dispute shall be referred to arbitration.\n<\/p>\n
     That being so parties can also agree that<\/p>\n
     the provisions of arbitration law existing<\/p>\n
     at that time would apply to the arbitral<\/p>\n
     proceedings.          It   is        not    necessary          for      the<\/p>\n
     parties to know what law will be in force at<\/p>\n
     the     time     of     the        conduct        of     arbitration<\/p>\n
     proceedings.          They       can       always        agree        that<\/p>\n
     provisions that are in force at the relevant<\/p>\n
     time     would        apply.         In    this        view      of      the<\/p>\n
     matter, if the parties have agreed that at<\/p>\n
     the     relevant        time         provisions          of      law      as<\/p>\n
     existing       at     that      time       would       apply,        there<\/p>\n
     cannot     be       any      objection         to        that.         Thus<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                     51<\/span><\/p>\n
               construing clause 25, in Rani Constructions<\/p>\n
               (CA No.61 of 1999) the new Act will apply.”\n<\/p>\n
    It is     clear from the observations of the Supreme<\/p>\n
    Court quoted above that the 1940 Act and the 1996 Act<\/p>\n
    are legislation on the same subject and the 1996 Act<\/p>\n
    is a re-enactment of 1940 Act with modification. In<\/p>\n
    our opinion, therefore, the Division Bench in “Jindal<\/p>\n
    Drilling    &<\/p>\n
                    Industries    Ltd.”    was   not     justified            in<\/p>\n
    holding that the 1996 Act cannot be termed as re-\n<\/p>\n
    enactment of the 1940 Act within the meaning of that<\/p>\n
    explanation under section 8 of the General Clauses<\/p>\n
    Act as observed above.\n<\/p>\n
    14.        Now having found that Article 1 of Schedule<\/p>\n
    1 of the Bombay Court Fees Act does not apply to an<\/p>\n
    application or petition or memorandum of appeal filed<\/p>\n
    to challenge an Award made under the 1996 Act, the<\/p>\n
    question arises       which would be the Article which<\/p>\n
    will govern payment of court fees on a petition filed<\/p>\n
    under     Section     34     firstly     before       this          Court<\/p>\n
    challenging the Award         made under 1996 Act.                    Bare<\/p>\n
    perusal    of   the   Bombay     Court    Fees      Act       and      the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                           52<\/span><\/p>\n
    Schedules of that Act shows that payment of court<\/p>\n
    fees on a petition filed on the original side of this<\/p>\n
    Court challenging an Award made under Section 34 of<\/p>\n
    the 1996 Act would be governed by Article 1(f)(iii)<\/p>\n
    of Schedule II of the Bombay Court Fees Act, which<\/p>\n
    reads as under:-\n<\/p>\n
    1.Application or          (a)----\n\n\n\n\n                                                   \n    petition                  (f) when presented\n                            ig   to the High Court-\n                                 (i) ----\n                                 (ii) ----\n                          \n                                 (iii) in any other                          (Twenty\n                                           case not                          rupees)\n                                           otherwise\n            \n\n                                           provided for\n                                           by this Act.\n         \n\n\n\n<\/pre>\n
    15.        In so far as an appeal filed before this<\/p>\n
    Court   under     Section        37        of   the        Arbitration             and<\/p>\n
    Conciliation    Act,1996         against        an     order        made       in     a<\/p>\n
    petition filed under Section 34 of the 1996 Act is<\/p>\n
    concerned,   it    will     be    governed            by    Article          13     of<\/p>\n
    Second Schedule which reads as under:-\n<\/p>\n
    —————————————————–<\/p>\n
\n    13.Memorandum of          (a) -----                    (Twenty Five\n    appeal when the           (c) to the                       Rupees)\n\n\n\n\n                                                                ::: Downloaded on - 09\/06\/2013 14:01:17 :::<\/span>\n                                         53<\/span>\n\n    appeal is not from             High Court\n    a decree or an\n\n\n\n\n                                                                                \n    order having the\n\n\n\n\n                                                        \n    force of a decree,\n    and is presented---\n\n\n<\/pre>\n
    —————————————————–\n<\/p>\n
    When   a   petition    under     Section      34   is    to    be      filed<\/p>\n
    before      a   Principal        Civil      Court        of      original<\/p>\n
    jurisdiction which is not a High Court, the question<\/p>\n
    arises     which   Article     of    either    First      Schedule           or<\/p>\n
    Second     Schedule    would    apply.        In    so    far      as      the<\/p>\n
    challenge to an Award made under the 1940 Act is<\/p>\n
    concerned, an application under Section 33 of that<\/p>\n
    Act could be made to a Civil Court and therefore,<\/p>\n
    payment of court fee was governed by Article 1(a) of<\/p>\n
    Schedule II which reads as under:-\n<\/p>\n
    —————————————————–<\/p>\n
\n\n\n\n\n\n    1.Application or      (a) ------                         Five Rupees\n    petition               or when presented\n                           to any Civil Court\n                           other than a\n                           principal Civil\n                           Court of original\n                           jurisdiction;\n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 14:01:17 :::<\/span>\n                                              54<\/span>\n\n<\/pre>\n
    —————————————————–\n<\/p>\n
    This     was    so    because       the           application          was       to     be<\/p>\n
    presented to the Court of Civil Judge which was not a<\/p>\n
    principal Civil Court of original jurisdiction. But<\/p>\n
    now because of change of definition of term “Court”\n<\/p>\n
    in the 1996 Act, a petition has to be presented,<\/p>\n
    challenging an Award made under the 1996 Act in terms<\/p>\n
    of the provisions of Section 34 thereof, before the<\/p>\n
    Principal Civil Court of original jurisdiction.                                         We<\/p>\n
    have not been pointed out any entry either in the<\/p>\n
    first     Schedule       or    in    the           Second       Schedule           which<\/p>\n
    applies to an           application           or petition to be made<\/p>\n
    before     the       Principal           Civil          Court       of       original<\/p>\n
    jurisdiction, and therefore, when a litigant wants to<\/p>\n
    file petition before a Principal Civil Court having<\/p>\n
    original       jurisdiction          which             is   not      High        Court,<\/p>\n
    challenging an Award made                     under the 1996 Act, no<\/p>\n
    Court    fee    under Bombay Court Fees Act is payable<\/p>\n
    because        of    absence        of        a        general      or       specific<\/p>\n
    provision.          Whereas on an appeal filed under Section<\/p>\n
    37 of the 1996 Act against an order made in that<\/p>\n
    petition,       court    fee    would             be    payable       as     observed<\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n                                        55<\/span><\/p>\n
    above under Article 13 of Schedule II of the Bombay<\/p>\n
    Court Fees Act, because the appeal will lie to the<\/p>\n
    High Court. The question, therefore, framed for our<\/p>\n
    consideration is answered thus:-\n<\/p>\n
    (i)        Article 3 of Schedule I of the Bombay Court<\/p>\n
    fees Act does not apply to a petition, application or<\/p>\n
    memorandum of appeal filed for challenging an Award<\/p>\n
    made under the 1996 Act, and Court fee on a petition<\/p>\n
    filed under Section 34 of the 1996 Act challenging an<\/p>\n
    Award in this Court is payable according to Article 1<\/p>\n
    (f)(iii) of Schedule II.\n<\/p>\n
    (ii)       No Court fee under the Bombay Court fees Act<\/p>\n
    is     payable    when      a   petition       under    section           34<\/span><\/p>\n
    challenging an Award is filed before any Principal<\/p>\n
    Civil Court of original jurisdiction which is not<\/p>\n
    High Court.\n<\/p>\n
    (iii)      On    an   appeal    filed     in    this   Court         under<\/p>\n
    Section    37    of   the   1996    Act   challenging        an      order<\/p>\n
    passed in a petition filed under section 34 of the<\/p>\n
    1996 Act court fee is payable according to Article 13<\/p>\n
    of Schedule II of the Bombay Court Fees Act.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span>
\n            56<\/span><\/p>\n
                 (D.K.DESHMUKH, J.)<\/p>\n
                 (S.J.VAZIFDAR,J.)<\/p>\n
                 (J.P.DEVADHAR, J.)<\/p>\n
           —\n<\/p>\n
                       ::: Downloaded on – 09\/06\/2013 14:01:17 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mr Puneet Malhotra And Anr vs Mr.R.S.Gai on 23 October, 2008 Bench: D.K. Deshmukh, S.J. Vazifdar, J.P. Devadhar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4064 OF 2008 Mr Puneet Malhotra and Anr. …Petitioners v\/s. Mr.R.S.Gai,Sole Arbitrator & others …Respondents — Mr S.S. Kanetkar for […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-953","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMr Puneet Malhotra And Anr vs Mr.R.S.Gai on 23 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mr-puneet-malhotra-and-anr-vs-mr-r-s-gai-on-23-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mr Puneet Malhotra And Anr vs Mr.R.S.Gai on 23 October, 2008 - 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