Arbitration
J K Agrawal
(Querist) 09 December 2017
This query is : Resolved
Resp Ld friends.
Despite to hard working I could not find some solid citation on following issues. If you please can help me.
1 That arbitration proceedings are judicial proceedings and the arbitrator is empowered to entertain application under section 340 of Cr. P. C for an offence by the plaintiff of filing false claim and forged documents.
2 Court Fee is applicable (or not applicable as 99% advocates says but they have no citation or a particular section exempting so.) in arbitration proceedings.
Thanks and regards to all fellows.
Shailesh Kumar Shah
(Expert) 09 December 2017
Answer of First question:-
Manohar Lal vs. Vinesh Anand and Ors. (09.04.2001 - SC)
726(U.C.) 2001(I)
if you wish copy of judgement, please provide email id, i will sent the same.
Answer of Second question :-
Please more describe, in which context ?
J K Agrawal
(Querist) 10 December 2017
Thanks a Lot Mr Shailesh. I could not find it despite to 3 hours exercise on net and even on some Latest and costly software.
I traced out the copy of judgment on indiankanoon.org.
My second question is that a company purchased water pump worth Rs 5000/- under 2 year guarantee (with a clause that in case of any dispute, arbitration will be invoked). The water pump found not working well and not repaired / replaced despite to many complaints. The Company file a suit for damages before an Arbitrator (solely appointed by him as per agreement) and Claimed around Rs 50 lakh for damages.
The company may success or not but question is that if it can claim any amount Rs 50 lakh or Rs 50 crore without paying Court fee? In Rajasthan Court fee is around 5% that is Rs 2,50,000/- in this case. I taken opinion from so many renowned Civil Lawyers and the lawyers claiming themselves expert in Arbitration matters. All says that "Court fee not applicable to Arbitration Proceedings". But when I asked for any citation or support of any law to this opinion, they all having no support. My personal view is that Court fee is applicable. The only point against me is section 89 of the CPC, or under Legal Services Authority Act which says that if a case is referred by Civil Court to ADR and decided by ADR then the refund of Court fee can be claimed from the Collector. It also not exempt the filing of suit but refund only allowed. At least the party claiming a false amount should pay Court fee also. If you provide email id and permit, I may provide the arguments by me in this regard.
Thanks
Advocate J K Agrawal Jaipur advocatejk@yahoo.co.in
Shailesh Kumar Shah
(Expert) 10 December 2017
Please go through this case for court fee on arbitration case:-
Saraswat Cooperative Bank Ltd. vs. Fariruddin Quereshi N. (25.02.2011 - BOMHC) :
2013(1)ARBLR129(Bom), 2012(1)BomCR902
Surrender K Singal
(Expert) 11 December 2017
Hats off to Expert Shah for on-tap citations..great !
J K Agrawal
(Querist) 13 December 2017
Dear Mr. Sailesh
Thanks for Reply and pain, taken by you for me. Once I also encountered this Citation but overlooked so taken it again. This citation says that "As There is no specific provision for Court Fee for a claim before Arbitration in Bombay Court Fee ACT so Court Fee is not payable". It has two meaning. One that the "Court fee Act is applicable", Two, that "fee is payable only if prescribed in CF Act". As I think This citation also determining the question of CF in an Appeal so it is not much argued on question that "If court fee provision is there or not for initial proceedings before the Arbitration as per Bombay Court Fee Act?". Provision is there. The proceeding before arbitration include in definition of plaint and court fee is not exempted any where in Bombay C F Act.
How trouble sum it is that you first raise a plea. Then loose it here. Then go to High Court. Again loose and then go to the Supreme Court and if you are lucky enough, get a law properly interpreted.
Shailesh Kumar Shah
(Expert) 13 December 2017
Shri J K Agrawal Advocate
Thanks for giving opportunity to assist you.
Please find below judgement and i am also produced some relevant extract, however its not wholly related to query raised by you but its on support:-
In the case Delhi High Court Bar Association & Anr. vs. Govt. of NCT of Delhi & Anr. (09.10.2013 - DELHC)
Citation 203(2013)DLT129
xxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxx
W.P. (C) No. 456/2013 has been filed and argued by Ms. Neelam Rathore, Advocate. This writ petitioner had initiated proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 challenging an arbitral award. By an order dated 18th December 2012, the learned Single Judge of this court directed this petitioner to affix proper court fees in terms of the Court Fees (Delhi Amendment) Act, 2012 based on the value of the properties which form the subject matter of the award under challenge. In this background, this writ petition seeks to challenge the constitutionality of the amendment of the levy under Clauses 8(a) and 8(b) of Schedule II of the Court Fees Act on the ground that the same was arbitrary, unreasonable, illegal, ultra vires and unconstitutional.
xxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxx
We have held that the Delhi Legislative Assembly did not have the legislative competence to amend the Court Fees Act, 1870. We have also held that the Court Fees (Delhi Amendment) Act, 2012 adversely impacts the Part-III rights and results in violation of Article 38 and 39A of the Constitution of India. For these reasons, the Court Fees (Delhi Amendment) Act, 2012 as a whole has to be struck down. The Court Fees (Delhi Amendment) Act, 2012 is hereby declared as invalid and ultra vires the Constitution and therefore, struck down.
J K Agrawal
(Querist) 13 December 2017
Thanks Shailesh Ji it will go through by evening.
