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Original Petition (Civil)
O.P. (C) No. 1079 of 2013 - Brook Side Residency Vs. State of Kerala, (2013) 299 KLR 393 : 2013 (2) KLT SN 86
(2013) 299 KLR 393 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH DAY OF MARCH 2013/29TH PHALGUNA 1934 OP(C).No. 1079 of 2013 () -------------------------- PETITIONER(S) : --------------------- 1. BROOK SIDE RESIDENCY-REPRESENTED BY BABU C.GEORGE MANAGING DIRECTOR, M/S. BROOK SIDE RESIDENCY POTHAMEDU, MUNNAR.
2. BABU C.GEORGE S/O. GEORGE, MANAGING DIRECTOR M/S. BROOK SIDE RESIDENCY, POTHAMEDU, MUNNAR.
3. REKHA C.BABU, DIRECTOR, M/S. BROOK SIDE RESIDENCY, POTHAMEDU MUNNAR.
BY ADV. SRI.P.K.BABU RESPONDENT(S) : ------------------------ 1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY GOVERNMENT OF KERALA, SECRETARIAT THIRUVANANTHAPURAM-695 001.
2. THE PRINCIPAL SECRETARY DEPARTMENT OF REVENUE, GOVERNMENT OF KERALA THIRUVANANTHAPURAM-695 001.
3. THE SUB COLLECTOR, DEVIKULAM, PIN-685 613.
4. TAHSILDAR, DEVIKULAM, PIN-685 613.
5. DISTRICT COLLECTOR, IDUKKI, PAINAVU, PIN-685 603.
R BY SPECIAL GOVERNMENT PLEADER SMT. SUSHEELA BHAT
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BP OP(C).No. 1079 of 2013 () ----------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS ------------------------------------- · EXT.P1 : COPY OF THE MEMORANDUM OF MTOP NO.42 OF 2011 DTD.8.3.2012 FILED BEFORE THE MUNNAR TRIBUNAL, MUNNAR. · EXT.P2 : COPY OF THE IA NO.171/2012 IN MTOP NO.42 OF 2011 DTD.22.11.2012 FILED BY THE PETITIONERS BEFORE THE MUNNAR TRIBUNAL. · EXT.P3 : COPY OF THE ORDER IN IA NO.171/2012 IN MTOP NO.42/2011 DTD.7.12.2012. · EXT.P4 : COPY OF THE JUDGMENT IN MTOP NO.42 OF 2011, DTD.7.12.2012.
RESPONDENT(S)' EXHIBITS : · NIL. --------------------------------------- //TRUE COPY// P.A. TO JUDGE BP THOMAS P. JOSEPH, J. ===================== Original Petition (civil) No. 1079 of 2013 ============================== Dated this the 20th day of March, 2013 Constitution of India, 1950 – Article 227 - Kerala Munnar Special Tribunal Act, 2010 – Section 9 - Decision of the Tribunal - Appeal by the Government or any person - within 60 days from the date of decision – High court shall entertain an appeal under sub.sec.(1) of Sec.9 only if there is a substantial question of law involved and shall not entertain an appeal based on factual aspects alone. In this case, no substantial question of law is involved since rejection of the plaint is for non-payment of balance court fee within the time prescribed. That is based on the factual aspect alone. Hence an appeal is not maintainable. Therefore also, petitioners are entitled to challenge the impugned judgment under Article 227 of the Constitution. JUDGMENT Ext.P4, judgment of the Munnar Tribunal, Munnar (for short "the Tribunal") rejecting the plaint (obviously under Order VII, Rule 11(b) of the Code of Civil Procedure) is under challenge in this original petition filed under Article 227 of the Constitution. 2. Petitioners/plaintiffs filed the suit in the year, 2007 claiming damages to the tune of Rs.12.35 crores from the respondents for their (alleged) illegal acts. The suit was later transferred to the Tribunal. Petitioners did not pay the balance court fee. Petitioners filed I.A. No. 171 of 2012 requesting for time to pay the balance court fee. The Tribunal rejected that application and by the impugned judgment, rejected the plaint for non payment of balance court fee. 3. Learned Special Government Pleader for respondents has raised objection as to the maintainability of a petition under Article 227 of the Constitution. It is argued that under Sec.9 of the Munnar Special Tribunal Act, 2010 (for short "the Act") an appeal is provided to this court against decision of the Tribunal within 60 days from the date of decision. Petitioners may not be permitted to circumvent the said provision by invoking Article 227 of the Constitution, it is argued. 4. Sec.9 (1) of the Act provides for an appeal by the Government or any person objecting to the decision of the Tribunal within 60 days from the date of such decision and such appeal is to be preferred before this court. The proviso thereto says that this court shall entertain an appeal under sub.sec.(1) of Sec.9 only if there is a substantial question of law involved and shall not entertain an appeal based on factual aspects alone. The right of appeal conferred by Sec.9 of the Act is circumscribed by the proviso that appeal is provided only when there is a substantial question of law and further, an appeal is precluded when it is based on factual aspects alone. In this case, no substantial question of law is involved since rejection of the plaint is for non-payment of balance court fee within the time prescribed. That is based on the factual aspect alone. Hence an appeal is not maintainable. Therefore also, petitioners are entitled to challenge the impugned judgment under Article 227 of the Constitution. 5. Learned counsel for petitioners contends that challenging resumption of land and building petitioners have filed W.P.(C) No. 18323 of 2007 and that writ petition is pending decision in this court. According to the learned counsel, the decision in that writ petition has great bearing on the claim made by the petitioners in the Tribunal. Learned counsel requested that petitioners may be granted three months' time for payment of balance court fee. Learned Special Government Pleader has contended that the suit is of the year, 2007 and for the last 6 years petitioners had time to pay the balance court fee. 6. Having heard learned counsel for petitioners and the learned Special Government Pleader, I do not find any justification in waiting till final decision in W.P.C. No. 18323 of 2007. Balance court fee in the original petition has to be paid within the prescribed time. True it is within the power of the court to grant extension having regard to the fact situation. 7. Having regard to the circumstances stated, I am inclined to grant two months time to pay the balance court fee. Resultantly, this original petition is allowed as under:- 1) Ext.P3, order dated 07.12.2012 in M.T.O.P. No. 42 of 2011 and Ext.P4, judgment dated 07.12.2012 in M.T.O.P. No. 42 of 2011 of the Munnar Special Tribunal, Munnar are set aside. 2) M.T.O.P. No. 42 of 2011 is remitted to the said Tribunal for fresh decision. 3) Petitioners are granted two months time from this day to pay the balance court fee. 4) In case balance court fee is not remitted within the aforesaid time, consequence provided under Rule 11(b) of Order VII of the Code would follow. Sd/- THOMAS P. JOSEPH, JUDGE smv //True copy// P.A to Judge |
O.P. (C) No. 3899 of 2012 - Kombi Vs. National Highway Authority of India, 2013 (1) KLT 12
(2012) 282 KLR 224 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 21ST DAY OF NOVEMBER 2012/30TH KARTHIKA 1934 OP(C).No. 3899 of 2012 (O) -------------------------- IA.1235/2012 of D.C & SESSIONS COURT, PALAKKAD PETITIONER(S): ------------- KOMBI, AGED 65 YEARS S/O. RAMAN PONNAN,MANNATH HOUSE,PANNIAMKARA POST VADAKKANCHERY -I VILLAGE, ALATHUR TALUK PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): -------------- 1. THE NATIONAL HIGHWAY AUTHORITY OF INDIA NEW DELHI, REP.BY THE PROJECT DIRECTOR, NHAI PALAKKAD. 2. THE DEPUTY COLLECTOR AND SPECIAL LAND ACQUISITION OFFICER,LANH, PALAKKAD. 3. THE DISTRICT COLLECTOR PALAKKAD (ABITRATION UNDER NH ACT) PALAKKAD-678001. R1 BY ADV. SRI. THOMAS ANTONY R BY SR. GOVERNMENT PLEADER SRI.M.P.PRAKASH THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21-11-2012, ALONG WITH OPC.3902/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC.3899/2012 APPENDIX PETITIONER(S) EXHIBITS
RESPONDENTS' EXHIBITS :
// True Copy // PA to Judge 'C.R.' P.N.RAVINDRAN, J. ````````````````````````````````````````````````````````````` O.P.(C) Nos.3899, 3902, 3903, 3904, 3905, 3906, 3907, 3908, 3909, 3910, 3911 & 3917 of 2012 ````````````````````````````````````````````````````````````` Dated this the 21st day of November, 2012 Head Note:- Arbitration and Conciliation Act, 1996 - Section 34 - Civil Procedure Code, 1908 - Section 148 - Where sufficient cause exists or events are beyond the control of a party, the court would have inherent power to extend time beyond 30 days. J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ A common issue arises in these Original Petitions filed under Article 227 of the Constitution of India. They were therefore heard together and are disposed of by this common judgment. 2. The petitioners in these Original Petitions are land owners, who own lands in Alathur Taluk. Portions of their lands were acquired for widening the National Highway 47. Dissatisfied with the land value awarded by the Special Land Acquisition Officer, the petitioners filed separate applications before the Arbitrator appointed under section 3 G(5) of the National Highway Act, 1956. By separate orders passed on different dates, the Arbitrator held that the petitioners will be entitled to enhanced land value together with interest at 9% per annum on the enhanced amount from the date of dispossession of the acquired land till the date of actual deposit thereof. 3. The petitioners thereafter filed separate petitions under section 34 of the Arbitration and Conciliation Act, 1996 in the Court of the District Judge of Palakkad. The petitions were returned as defective for various reasons on different dates, to be re-presented within 15 days. The defects were cured and the petitions were represented after the period of 15 days along with applications to condone the delay in re-presentation. The delay in re-presentation exceeded 30 days in all these cases. By the impugned orders, the Court of the District Judge held that under section 148 of the Code of Civil Procedure, the court does not have the discretion to condone delay in re-presentation exceeding 30 days. The applications to condone delay in re-presenting the petitions filed under section 34 of the Arbitration and Conciliation Act, 1996, were accordingly dismissed. Hence, these Original Petitions under Article 227 of the Constitution of India. 4. The order passed by the Court of the District Judge of Palakkad on 19-09-2012 in I.A. No.1235 of 2012 in unnumbered Arbitration Original Petition of 2012 from which O.P.(C) No.3899 of 2012 arises reads as follows:- " Petition filed under Section 5 of the Limitation Act and Section 151 of the Code of Civil Procedure. 2. It is submitted as follows: The Arbitration O.P. is filed under Section 34 of the Arbitration and Conciliation Act seeking to set aside the award of the Arbitrator dated 19.10.2011 in Arbitration Application No.409/2010 in LAC No.26/2009 of SLAO, LANH, Palakkad. 3. Petition is filed under Section 34 of the Arbitration and Conciliation Act, 1996. It was filed belatedly on 21.05.2012 without an application seeking condonation of delay and the Registry has returned the petition to be presented after curing the defect. The petition was returned on 24.05.2012, granting two weeks' time to cure the defect and to resubmit the same in proper form. But the defect was cured and the Arbitration O.P. was resubmitted only on 06.08.2012. The petition ought to have been resubmitted after curing the defect on or before 07.06.2012. But, it was resubmitted belatedly after 60 days with a petition seeking condonation of the delay. 4. Section 148 of the Code of Civil Procedure provides that:- "Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period [not exceeding thirty days in total], eventhough the period originally fixed or granted may have expired." 5. In the case in question two weeks time has been fixed by this court for re-submitting the case file after curing the defect. As per Section 148 of the Code of Civil Procedure, this court is conferred with a discretion to condone the delay, at the most of 30 days and not beyond that. The delay being 60 days, this court has no authority to condone the same. In the result, the Interlocutory Application is dismissed. No order as to costs." 5. Identical orders have been passed in the other cases also. A reading of the impugned orders discloses that the court below has dismissed the applications filed by the petitioners to condone delay in re-presenting the Arbitration Original Petitions on the short ground that the court has no power to condone delay beyond 30 days under section 148 of the Code of Civil Procedure. The Apex Court has in Salem Advocate Bar Association, T.N. Vs. Union of India [(2005) 6 SCC 344] held as follows:- "41. The amendment made in Section 148 affects the power of the court to enlarge time that may have been fixed or granted by the court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the court has no inherent power to extend the time beyond 30 days is the question. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of the court. The rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the court for performance of an act prescribed or allowed by the court. 42. In Mahanth Ram Das Vs. Ganga Das this Court considered a case where an order was passed by the Court that if the court fee was not paid by a particular day, the suit shall stand dismissed. It was a self-operating order leading to dismissal of the suit. The party's application filed under Sections 148 and 151 of the Code for extension of time was dismissed. Allowing the appeal, it was observed: "How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves on the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians." 43. There can be many cases where non-grant of extension beyond 30 days would amount to failure of justice. The object o the Code is not to promote failure of justice. Section 148, therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the court would have inherent power to extend time beyond 30 days." 6. It was held that the upper limit fixed in section 148 of the Code of Civil Procedure cannot take away the inherent power of the court to pass orders as may be necessary for the ends of justice or to prevent abuse of the process of the court, that the rigid operation of section 148 of the Code of Civil Procedure would lead to absurdity and, therefore, section 151 of the Code of Civil Procedure has to be allowed to operate fully. The Apex Court also held that the object of the Code of Civil Procedure is not to promote failure of justice and therefore, section 148 will have to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the court would have inherent power to extend time beyond 30 days. 7. In Indian Statistical Institute Vs. M/s.Associated Builders and others [1978 (1) SCC 483], the Apex Court held that the delay in re-presentation is not subject to the rigorous tests which are usually applied in excusing the delay in a petition filed under section 5 of the Limitation Act, 1963. Paragraphs 10 and 11 thereof are extracted below:- "10. The High Court was in error in holding that there was any delay in filing the objections for setting aside the award. The time prescribed by the Limitation Act for filing of the objections is one month from the date of the service of the notice. It is common ground that the objections were filed within the period prescribed by the Limitation Act though defectively. The delay, if any, was in re-presentation of the objection petition after rectifying the defects. Section 5 of the Limitation Act provides for extension of the prescribed period of limitation if the petitioner satisfies the Court that he had sufficient cause for not preferring the objections within that period. When there is no delay in presenting the objection petition, Section 5 of the Limitation Act has no application and the delay in representation is not subject to the rigorous tests which are usually applied in excusing the delay in a petition under Section 5 of the Limitation Act. The application filed before the lower Court for condonation of the delay in preferring the objections and the order of the Court declining to condone the delay are all due to misunderstanding of the provisions of the Civil Procedure Code. As we have already pointed out in the return the Registrar did not even specify the time within which the petition will have to be re-presented. 11. In a recent judgment of this Court delivered on August 3, 1977 in Mahant Bikram Dass Vs. Financial Commissioner, it is pointed out that the petition under Section 5 of the Limitation Act seeking to condone the delay in preferring an appeal is different from a petition for excusing the delay in re-presentation." 8. Referring to the proviso to sub-section (3) of section 34 of the Arbitration and Conciliation Act, 1996, the learned counsel for the respondents submitted that the Court entertaining an application filed under section 34 of the Arbitration and Conciliation Act, 1996 can condone the delay in filing the application only up to a period of 30 days. The learned counsel also invited my attention to the decision of the Apex Court in Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department and Others [(2008) 7 SCC 169], wherein it was held that, the court has no discretion to condone the delay beyond 30 days, even if sufficient cause is shown. The said principle cannot, in my opinion, govern applications to condone the delay in re-presenting the Arbitration Original Petitions and can be pressed into service by the respondents only when petitions to condone the delay, if any, in filing the Arbitration Original Petitions are taken up for consideration. The right of the respondents to put forward the contention that in view of the proviso to sub- section (3) of section 34 of the Arbitration and Conciliation Act, 1996 and the principles laid down by the Apex Court in Consolidated Engineering Enterprises (Supra), the delay, if any, in filing the petitions under section 34 of the Arbitration and Conciliation Act, 1996 cannot be condoned if it exceeds 30 days, is kept open to be raised at the appropriate stage. 9. In the light of the authoritative pronouncements of the Apex Court referred to above, I am of the opinion that the impugned orders cannot be sustained. Apart from holding that the court has no power to extend the time for re-presentation beyond the period of 30 days stipulated in section 148 of the Code of Civil Procedure, the court below has not given any reason for dismissing the applications to condone the delay in re-presentation. I accordingly hold that the impugned orders cannot be sustained. They are accordingly set aside and the applications to condone the delay in representing the Arbitration Original Petitions are allowed. Consequently, the delay in re-presenting them shall stand condoned and the Arbitration Original Petitions shall stand restored to file. The Original Petitions are disposed of as above. Sd/- (P.N.RAVINDRAN, JUDGE) aks/04/12 |
O.P. (C) No. 3869 of 2011 - N. Gopinathan Vs. State of Kerala
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Thomas P. Joseph, J. O.P. (C) No. 3869 of 2011 Dated : 03-01-2012 Head Note:-
For Petitioner:
For Respondent:
J U D G M E N T 1. Exts.P5 and P3, orders are under challenge in these Original Petitions, respectively. 2. Property of petitioners were acquired by the State and reference cases were registered by the learned Sub Judge, Thodupuzha as L.A.R. Nos. 14 of 1989 and 5 of 2001. References were answered in favour of petitioners. For realisation of the amount due, petitioners filed E.P. Nos. 81 of 2000 and 60 of 2005, in L.A.R.Nos. 14 of 1989 and 5 of 2001, respectively. It is not disputed that properties of respondent - State were attached and sold in auction and purchased by petitioners, in both the cases. It would appear that thereafter, there was some attempt to settle the dispute based on which the matter was referred to the Adalath. In L.A.R. No.14 of 1989, the amount payable to the petitioner was fixed by the Adalath as Rs. 14,00,000/- to be paid within one month. Of the said amount, respondent deposited Rs. 12,41,380/- in the executing court. That was followed by petitioner filing an application for cheque on 22.09.2011 for withdrawal of the said amount. In the meantime, respondent in O.P. (C) No. 3869 of 2011 filed application to set aside the sale. But that application was dismissed by Ext.P4, order dated 04.09.2011 as it was presented beyond the prescribed time. The application for cheque preferred by petitioner was dismissed by Ext.P5, order for the reason that petitioner had purchased the property of respondent in auction, application filed by respondent to set aside the sale was dismissed and hence the application for issue of cheque cannot be maintained. 3. In O.P. (C) No. 4179 of 2011, the amount payable to the petitioners was settled in the Adalath as Rs. 4,85,550/- out of which respondent deposited Rs. 4,35,538/- in the executing court. There, respondent filed Ext.P2, application to set aside the sale after recording full satisfaction of the decree since according to the respondent, the entire amount due under the decree was deposited. That application was dismissed. Following that, the application for cheque preferred by petitioners was dismissed by Ext.P3, order dated 11.08.2011. There also the same reasoning as adopted by learned Sub Judge in Ext.P5, order (in O.P. (C) No. 3869 of 2011) is made use of. 4. It is contended by learned counsel for petitioners that though subsequent to the purchase of property in auction by petitioners, as the matter was settled in the Adalath the executing court ought to have set aside the sale and allowed the applications filed by petitioners for cheque. It is contended by learned counsel that even if the applications presented by the respondent to set aside the sale were beyond the prescribed time and hence the executing court could not have set aside the sale, it is within the power of this Court exercising jurisdiction under Article 226 of the Constitution of India to grant relief in such a situation since grant of such relief is necessary in the ends of justice and it does not in any way affect the right or interest of any of the parties to the proceedings. Learned counsel has placed reliance on the decision of Supreme Court in Sree Jain Swetambar Terapanthi Vid (S) Vs. Phundan Singh and others, AIR 1999 SC 2322 and in particular, observations in paragraph 18. 5. Learned Government Pleader for the respondent in both the cases submitted that setting aside the sale of properties would be to the advantage of respondent - State. It is pointed out by the learned Government Pleader that petitioners had not deposited the amount required for purchase of stamp papers and hence no sale certificate has been issued in favour of petitioners. Learned Government Pleader also stated that the amount above referred is deposited in the executing court. 6. No doubt, the applications preferred by the respondent - State to set aside the sale in both the cases are beyond the prescribed time and hence those applications could not be taken into account by the executing court. The question is whether this Court exercising power under Article 226 of the Constitution of India could grant relief to the parties in these proceedings. 7. It is not disputed by the parties that though subsequent to the auction sale in the executing petitions parties have settled the dispute in the Adalath consequent to which the amount payable to the petitioners was fixed and certain deposits are also made by the respondent - State in the executing Court. Admittedly the applications preferred by the respondent - State to set aside the sale of properties were dismissed. 8. Now, petitioners are not desirous of having a sale certificate in their favour and as admitted by both sides petitioners have also not deposited the amount required for purchase of stamp papers; nor has the sale certificates been issued in favour of petitioners. In such a situation, though, provisions of the Code of Civil Procedure (for short, "the Code") do not enable the respondent - State to get the auction sale set aside, it is not beyond the power of this Court to grant relief. 9. The Supreme Court in the above cited decision was considering an order of injunction passed by the High Court though not in accordance with the provisions of law. The Supreme Court referred to various decisions and held:
10. In the present cases, no question of social justice is involved. But, on equitable grounds I am inclined to grant relief to the respondent so far as setting aside of the sale is concerned. Such a course is necessary to grant relief to the petitioners also pursuant to the settlement in the Adalath. Granting relief in the circumstances would not affect the right of either of the parties. In that situation though, grant of such a relief is not strictly provided by the Code, I am inclined to invoke the power under Article 226 of the Constitution of India, set aside sale of properties of respondent - State in both the execution proceedings and permit petitioners to withdraw the amount in deposit. So far as the balance amount if any payable to the petitioners in each case is concerned, respondent has to deposit such amount if any in the executing court within a period of four (4) months from this day failing which it will be open to the petitioners to realise the balance amount if any by way of execution of the award of the Adalath. Resultantly these Original Petitions are allowed as under:
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O.P. (C) No. 3608 of 2011 - Padmini Vs. C.O. Marykutty, (2012) 269 KLR 687
(2012) 269 KLR 687 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH MONDAY, THE 3RD DAY OF SEPTEMBER 2012/12TH BHADRA 1934 OP(C).No. 3608 of 2011 (O) -------------------------- EP 92/2010 IN OS.87/2008 of MUNSIFF COURT, VAIKOM PETITIONER(S)/PETITIONER: ------------------------ PADMINI, CHERANALLOOR HOUSE, KADUTHURUTHY, VAIKOM. BY ADV. SRI.S.ANANTHAKRISHNAN RESPONDENT(S): -------------- 1. C.O.MARYKUTTY PAYYAPPALLY HOUSE, THURUTHYPPALLY BHAGOM, NJEEROOR VAIKOM-686 612. 2. VASUDEVAN, CHERANALLOOR HOUSE, KADUTHURUTHY, VAIKOM-686 604. BY ADV. SRI.GEORGE JOSEPH (ITTANKULANGARA) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER(S) EXHIBITS
RESPONDENTS' EXHIBITS :
/TRUE COPY/ P.A. TO JUDGE. "C.R." V. CHITAMBARESH, J -------------------------------- OP(C) NO. 3608 OF 2011 ------------------------------------ Dated this the 3rd day of September, 2012 Head Note:- Kerala Court Fees and Suits Valuation Act, 1959 - Sections 17 and 21 - Code of Civil Procedure, 1908 - Order XXI Rule 58 - Claim Petition - Market value of the property - Claim petition had been rejected as defective for non-payment of sufficient court fee - Article 11 (i) (i) of Schedule II of the Act dealing with ad- valorem fees specifically mentions about application and petition under Section 47 and Order XXI Rules 58 and 90 of the CPC - Petitioner had paid the requisite court fee of Rs. 10 - Held, The execution court egregiously erred in rejecting the claim petition as defective for not filing the valuation statement and not paying court fee on the basis of market value of the property as in a suit. JUDGMENT Should court fee be paid under the Kerala Court Fees and Suits Valuation Act, 1959 (the 'Act' for short) on the market value of the property in a claim petition preferred under Rule 58 of Order XXI of the Code of Civil Procedure, 1908(the 'CPC' for short)? 2. The petitioner herein had preferred a claim under Rule 58 of Order XXI of the CPC when the subject property was attached in execution of a decree obtained by the first respondent against the second respondent. The execution court however rejected his claim petition on the ground that no valuation statement had been filed and that the same ought to have been valued akin to a plaint in the suit. The execution court relied on Section 17 of the Act which reads as follows: "17. Fee payable on petitions, applications, etc.-- The provisions of Sections 10 to 14 shall apply mutatis mutandis to the determination and levy of fee in respect of petitions, applications and other proceedings in Courts in the same way as they apply to the determination and levy of fee on plaints in suits". The rejection of the claim petition without any adjudication is impugned in this Original Petition under Article 227 of the Constitution of India with a further prayer to direct the execution court to consider the same on merits. 3. I heard Mr. S. Ananthakrishnan, Advocate on behalf of the petitioner and Mr. George Joseph Ittankulangara, Advocate on behalf of the first respondent. 4. All questions relating to right, title or interest in the property attached arising between the parties to a proceeding or their representatives shall be determined by the court dealing with the claim or objection and not by a separate suit. The execution court in accordance with its determination can allow or disallow the claim or objection and release the property from attachment either wholly or partly or pass such other order as the circumstances deem fit. The order made adjudicating the claim or objection shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. I would have relegated the petitioner to file an appeal had the claim been adjudicated on merits or to a suit had the claim petition been not entertained by the execution court. But the instant case is one where the claim petition had been rejected as defective for alleged non-payment of sufficient court fee which could ofcourse be scrutinized in an Original Petition of this nature. 5. I shall immediately refer to Section 21 of the Act which reads as follows: "21. Fee how reckoned-- The fee payable under this Act shall be determined or computed in accordance with the provisions of this Chapter, Chapter VI, Chapter IX and Schedules I and II". Article 11 (i) (i) of Schedule II of the Act dealing with ad- valorem fees specifically mentions about application and petition under Section 47 and Order XXI Rules 58 and 90 of the CPC and the same is as follows: "(i) Application or petition under Section 47 and order XXI, Rules 58 and 90 of the Code of Civil Procedure, 1908-- (i) when filed in a Revenue Court or a Munsiff's court [Ten rupees] (ii) When filed in a Sub-Court or a District Court [Twenty five rupees] (iii) when filed in the High Court [Fifty rupees]" The petitioner had paid the requisite court fee of Rs. 10/- in the claim petition preferred under Order XXI Rule 58 of the CPC since the suit from which the execution arose was instituted in the court of the Munsiff. Section 17 of the Act can have no application to a claim petition preferred under Order XXI Rule 58 of the CPC which is governed by Schedule II Article 11 (i) (i) of the Act only. Section 17 of the Act being general has obviously to give way to Schedule II Article 11 (i)(i) of the Act which is specific (see Gurram Seetharam Reddy Vs. Gunti Yashoda and another [2004 (6) ALT 111 (F.B.]. The execution court egregiously erred in rejecting the claim petition as defective for not filing the valuation statement and not paying court fee on the basis of market value of the property as in a suit. 6. I am also reminded of the following excerpt from a decision of the Division Bench of this court in Padmanabhan Vs. Shriram Chits & Investments (P) Ltd. [1995 (2) KLT 61]: "The fact that the amended provisions in Order XXI Rule 58 CPC provide for settlement of all claims to the property attached in the execution proceedings itself may not be a sufficient reason to hold that the orders passed under the above provision adjudicating a claim is the result of an exercise of original jurisdiction even as regards the claimants. It may be true that in a claim proceeding the execution court may also be bound to adjudicate the claim in its entirety as if it is a court of first instance. It may also be true that the order passed as a result of such adjudication may have the force of a decree for the purpose of appeal under the provisions of Order XXI Rule 58 (4) CPC. But whatever may be the scope and ambit of the enquiry to be conducted and the legal effect of the result of the adjudication, still the jurisdiction actually exercised can never be treated as anything different from that of an execution court. The jurisdiction exercised though may be wide and akin in many respects to original jurisdiction it will still be subject to all the limitations of the jurisdiction of the executing court. The proceedings will remain as proceedings initiated on the execution side of the court in contrast to the original side of the court". (emphasis applied) 7. I set aside the impugned order and direct the court of the Munsiff of Vaikom to dispose of E.A. No. 253/2011 in E.P. No. 92/2010 in O.S. No. 87/2008 on merits after hearing all the parties to the proceedings. The Original Petition is allowed. No costs. V. CHITAMBARESH JUDGE ncd |
O.P. (C) No. 440 of 2011 - C. Varghese Mathai Vs. Varghese C. Philippukutty, (2012) 269 KLR 464
(2012) 269 KLR 464 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN WEDNESDAY, THE 2ND DAY OF FEBRUARY 2011/13TH MAGHA 1932 OP(C).No. 440 of 2011 (O) AGAINST THE ORDER IN I.A.NO.920/2010 IN OS.NO.42/2005 OF SUB COURT, THIRUVALLA PETITIONER/PETITIONER/PLAINTIFF: C.VARGHESE MATHAI, CHALAKUZHY MALIYACKAL VEETIL, POLACHIRACKAL, KAVIYOOR VILLAGE. BY ADVS.SRI.G.UNNIKRISHNAN SRI.S.SREEDEV RESPONDENTS:CR.PETITIONERS: DEFENDANTS: 1. VARGHESE C.PHILIPPUKUTTY, CHALAKUZHY MALIACKAL, AMALLOOR MURI KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK-689101. 2. ANNAMMA JACOB, NEDUMPLAYICKAL VEETIL, MANKUZHIPPADI, MALLAPPALLY VILLAGE-689101. 3. SUSAN, PALLICKAL VEETTIL, OLAKETTIYAMPALAM, MAVELIKARA VILLAGE, NOW AT 27 KIMBARK, CRESSENT MARKHAM,ONTARIO L3 R8 P8 CANADA 4. ELIZABETH KURUVILLA, ADAVIMANGALATHU MODAYIL VEETIL, MANKUZHIPPADY, MALLAPPALLY VILLAGE, NOW AT 27, KIMBARK CRESSENT MARKHAM, ONTARIO L3, R8, P8, CANADA. 5. TRITTY MARIYAM, VATTAPPARAMBATHU, KATTOOKKARA MURI, THIRUVALLA VILLAGE, NOW AT 527 TOPTON, CRT, MISSISSAUGA ONTARIO L5 R3 M6, CANADA. 6. GENERAL MANAGER, STATE BANK OF INDIA, MAIN BRANCH, THIRUVALLA-689101. 7. SHEELA PAUL, PUNNAKKADU VEEDU, THYMARAVUMKARA, WEST OTHERA.P.O.,PIN-689546. 8. ANCY PAUL, DO-DO- 9. TOM C.PAUL, -DO-DO- THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02-02-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS:
RESPONDENTS' EXHIBITS:
//TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 440 OF 2011 O ------------------------------------------------------ Dated this the 2nd day of February, 2011 Head Note:- Limitation Act, 1963 - Articles 122 & 137 - Whether for restoration of a suit which was dismissed erroneously on the basis of a compromise entered into between the parties before the Lok Adalath, Article 122 of the Limitation Act or Article 137 of the Limitation Act would apply? Held:- To attract Article 122, the application for restoration should be on account of the dismissal of the suit for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. In the present case, the dismissal of the suit was not on any of these grounds. Therefore, Article 122 does not apply. If so, the residuary Article 137 will apply and the period of limitation is three years. Code of Civil Procedure, 1908 - Order IX Rule 9 - When Rule 9 of Order IX of the Code of Civil Procedure makes a specific provision for restoration of a suit, whether Section 151 of the Code of Civil Procedure can be resorted to for that purpose? Held:- In the present case, the dismissal of the suit was not on the ground of the absence of the plaintiff when the suit was called on for hearing. Therefore, Rule 8 of Order IX of the Code of Civil Procedure will not apply. The suit was dismissed on the basis of the alleged consensus arrived at between the parties and recorded by the Adalath. It cannot be considered as a dismissal of the suit for default as provided under Rule 8 of Order IX of the Code of Civil Procedure. If so, the application for restoration could not be made invoking Rule 9 of Order IX of the Code of Civil Procedure and Section 151 of the Code of Civil Procedure could be invoked. It was found by this Court in W.P.(C) No.15463 of 2009 that the proceedings of the Lok Adalath were illegal and improper. It was also held that there was no executable decree as there was no executable award passed by the Lok Adalath. The dismissal of the suit was also held to be improper. That means, the trial court was not justified in dismissing the suit. For restoration of such a suit, Rules 8 and 9 of Order IX of the Code of Civil Procedure would have no application. A mistake committed by the Court should be rectified by the Court. The Court was apprised of the mistake by filing an application for restoration of the suit. Rectification of a mistake could be made at any time. It was the duty of the trial court to rectify the mistake. The parties to the suit need only point out that such a mistake was committed by the Court. The Court was satisfied that the suit was liable to be restored. The source of power for the same is not certainly Rule 9 of Order IX, but it could only be Section 151 of the Code of Civil Procedure. JUDGMENT The questions of law which arise for consideration in this Original Petition are: (1) Whether for restoration of a suit which was dismissed erroneously on the basis of a compromise entered into between the parties before the Lok Adalath, Article 122 of the Limitation Act or Article 137 of the Limitation Act would apply; and (2) When Rule 9 of Order IX of the Code of Civil Procedure makes a specific provision for restoration of a suit, whether Section 151 of the Code of Civil Procedure can be resorted to for that purpose. 2. The petitioner is the first defendant in O.S.No.42 of 2005, Sub Court, Thiruvalla, which was filed by the first respondent for partition. An appeal between the parties as A.S.No.36 of 2004 was also pending before the Sub Court, Thiruvalla. The aforesaid matters were referred to the Lok Adalath. In the Lok Adalath held on 29.3.2008 at Sub Court, Thiruvalla, the following arrangement was arrived at: "Parties are present, agreed to settle the matters including matters and cases pending before the Munsiff's Court, Thiruvalla after measuring the properties on or before the next Lok Adalath. The connected cases are A.S.No.35/2004, A.S.36/2004." On the basis of the alleged settlement, O.S.No.42 of 2005 was dismissed recording the settlement. 3. The plaintiff challenged the proceedings of the Lok Adalath and the dismissal of the suit, in W.P.(C) No.15463 of 2009. It was contended that no measurement as contemplated in the consensus among the parties was done and contrary to the consensus, O.S.No.42 of 2005 was dismissed. It was contended by the plaintiff that no award was passed by the Lok Adalath. W.P.(C) NO.15463 of 2009 was disposed of as per the judgment dated 26.3.2010. This Court set aside the proceedings of the Adalath. It was held that the plaintiff is at liberty to approach the Court for restoration of the suit by filing proper application. It was also held that if proper application is filed, the Court shall restore the suit and dispose of the same in accordance with law. 4. The plaintiff filed I.A.No.920 of 2010 to restore the suit. The application was filed on 26.7.2010, invoking Section 151 of the Code of Civil Procedure. The petitioner/first defendant filed objections. He contended that the application for restoration of the suit is barred by limitation. No application was filed to condone the delay in filing the application for restoration of the suit. The plaintiff also did not explain the delay in the affidavit. It was also contended that the application under Section 151 of the Code of Civil Procedure was not maintainable. 5. The court below allowed I.A.No.920 of 2010 by the order dated 20.9.2010, holding that Article 137 of the Limitation Act would apply and that the application was filed well within time. That order is under challenge in this Original Petition. 6. Learned counsel for the petitioner submitted that the application for restoration should have been filed under Rule 9 of Order IX of the Code of Civil Procedure. The application for restoration is barred by limitation under Article 122 of the Limitation Act. It is contended that Article 137 of the Limitation Act has no application. The counsel for the petitioner also raised a contention that when an express provision is made in the Code of Civil Procedure for restoration of the suit, the plaintiff was not entitled to invoke Section 151 of the Code of Civil Procedure. 7. As held in Ram Chand and Sons Sugar Mills Private Ltd., M/s.Barabanki (U.P.) v. Kanhayalal Bhargava and others (AIR 1966 SC 1899); Arjun Singh v. Mohindra Kumar and others (AIR 1964 SC 993), Padam Sen and another v. The State of Uttar Pradesh (AIR 1961 SC 218) and Krishnan Namboodiri v. Unnikrishnan Namboodiri (2005 (3) KLT 556), the inherent power of the Court cannot override the express provisions of the law. If there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent power of the Court cannot be invoked. 8. In G.Christhudas and another v. Anbiah and others (AIR 2003 SC 1590), the Supreme Court held: "The dismissal for non-prosecution of the appeal by persons interested in the matter could only be under S. 151 C.P.C. and not under any other provision of O. XLI of CPC. If an appeal is dismissed under S. 151 C.P.C., Art. 122 of the Limitation Act would have no application because when a Court makes an order under S. 151 C.P.C., it is implicit that such a Court has the power to entertain an application to set aside its order made under S. 151 C.P.C. The power exercised under S. 151 C.P.C. is ex debito justitiae. An application invoking the inherent power of the Court under S. 151 C.P.C. is not one which a party is required to make under any provisions of the C.P.C. for setting in motion the machinery of the Court. Thus, Art.122 of the Limitation Act has no application to such application." 9. In M/s. Ram Chand & Sons Sugar Mills Pvt. Ltd. v. Kanhayalal Bhargava and others (AIR 1966 SC 1899), the Supreme Court held: "The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of S.151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court." 10. In Shipping Corporation of India Limited v. Machado Brothers and others (AIR 2004 SC 2093), the Supreme Court held: "If there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151 of the Code, the Courts have all the necessary powers under Section 151 CPC to make a suitable order to prevent the abuse of the Court." 11. Rule 9 of Order IX of the Code of Civil Procedure provides for restoration of suit in a case where a suit was dismissed under Rule 8 of Order IX of the Code of Civil Procedure. Rule 8 of Order IX provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far it relates to the remainder. In the present case, the dismissal of the suit was not on the ground of the absence of the plaintiff when the suit was called on for hearing. Therefore, Rule 8 of Order IX of the Code of Civil Procedure will not apply. The suit was dismissed on the basis of the alleged consensus arrived at between the parties and recorded by the Adalath. It cannot be considered as a dismissal of the suit for default as provided under Rule 8 of Order IX of the Code of Civil Procedure. If so, the application for restoration could not be made invoking Rule 9 of Order IX of the Code of Civil Procedure and Section 151 of the Code of Civil Procedure could be invoked. 12. It was found by this Court in W.P.(C) No.15463 of 2009 that the proceedings of the Lok Adalath were illegal and improper. It was also held that there was no executable decree as there was no executable award passed by the Lok Adalath. The dismissal of the suit was also held to be improper. That means, the trial court was not justified in dismissing the suit. For restoration of such a suit, Rules 8 and 9 of Order IX of the Code of Civil Procedure would have no application. A mistake committed by the Court should be rectified by the Court. The Court was apprised of the mistake by filing an application for restoration of the suit. Rectification of a mistake could be made at any time. It was the duty of the trial court to rectify the mistake. The parties to the suit need only point out that such a mistake was committed by the Court. The Court was satisfied that the suit was liable to be restored. The source of power for the same is not certainly Rule 9 of Order IX, but it could only be Section 151 of the Code of Civil Procedure. 13. The next question for consideration is whether Article 122 of the Limitation Act or Article 137 of the Limitation Act will apply. Article 122 occurs in the third division of the Schedule to the Limitation Act under the heading "applications". Article 137 is also included in that division, but under Part II thereof. Articles 122 and 137 read as follows: "-------------------------------------------------------------------------- Description of application Period of limitation - Time from which period begins to run --------------------------------------------------------------------------- 122. To restore a suit or appeal or application for review or revision dismi- ssed for default of appea- rance or for want of pro- secution or for failure to pay costs of service of process or to furnish security for costs. Thirty days The date of dismissal. ............. .... ..... 137. Any other application Three years for which no period of limitation is provided elsewhere in this division. When the right to apply accrues --------------------------------------------------------------------------" To attract Article 122, the application for restoration should be on account of the dismissal of the suit for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. In the present case, the dismissal of the suit was not on any of these grounds. Therefore, Article 122 does not apply. If so, the residuary Article 137 will apply and the period of limitation is three years. For the aforesaid reasons, I am of the view that the order passed by the court below is legal and proper. No grounds are made out for interference. The Original Petition is, accordingly, dismissed. (K.T.SANKARAN) Judge ahz/ |
O.P. (C) No. 3772 of 2011 - M.J. Fifthaly Fernando Vs. MV Kinship Prosperity, (2012) 262 KLR 269
(2012) 262 KLR 269 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM TUESDAY, THE 3RD DAY OF JULY 2012/12TH ASHADHA 1934 OP(C).No. 3772 of 2011 (O) -------------------------------------- [AGAINST THE ORDER DT. 04/11/2011 OF THE JFMC-I, KOCHI IN CMP.2854/2010 IN CMP.1338/10] .......... PETITIONER: ------------------- M.J.FITHALY FERNANDO, 59 YRS., S/O. MARIACRUZ, 1/338-3, KAVERI MAIN STREET, SRINAGAR, IYER BUNGLOW, MADURAI-625 014. BY ADV. SRI.T.R.ASWAS. RESPONDENTS: ------------------------ 1. MV KINSHIP PROSPERITY, OFF.NO.3295-IMO NO.8027884-AN INDIAN FLAG SHIP REGISTERED AT PORT OF KOCHI WITH PRINCIPAL OFFICER, MERCANTILE MARINE DEPT. GOVT. OF INDIA,WELLINGTON ISLAND,KOCHI-682 009 TOGETHER WITH HER HULL, ENGINES MACHINERY, APPAREL, EQUIPMENTS, STORES, ARTICLES, THINGS AND OTHE PARAPHERNALIA, PRESENTLY ANCHORED AT MUMBAI PORT, REP. BY ITS MASTER. 2. M/S. KINSHIP SERVICES INDIA (P) LTD., KINSHIP HOUSE, PLOT NO.1 & 6, CAT IV, MARAR ROAD, WELLINGTON ISLAND, KOCHI-682 003, REP. BY ITS DIRECTOR PRABHAKAR KINI. 3. S.M. IFTHIKARUDHIN, 58 YEARS, S/O. SYED KHAN, DIRECTOR, M/S. KINSHIP SERVICES INDIA(P) LTD., KINSHIP HOUSE, PLOT.NO.1 & 6, CAT IV, MARAR ROAD, WELLINGTON ISLAND, KOCHI-682 003, RESIDNG AT 317, MERIDIAN HOUSE, PANAMPILLY NAGAR, KOCHI - 682 036. BY SRI.E.K.NANDAKUMAR, SENIOR ADVOCATE, ADVS. SRI.A.K.JAYASANKAR NAMBIAR, SRI.K.JOHN MATHAI. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03-07-2012, ALONG WITH O.P.(C).NO. 3773/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.3772/2011-O: APPENDIX PETITIONER'S EXHIBITS:
RESPONDENTS' EXHIBITS:
//TRUE COPY// P.A. TO JUDGE. Prv. C.R. C.N.RAMACHANDRAN NAIR, & C.K.ABDUL REHIM, JJ. .................................................................... O.P.(CIVIL) Nos.3772, 3773, 3774 & 3775 of 2011 .................................................................... Dated this the 3rd day of July, 2012. Head Note:- Arbitration and Conciliation Act, 1996 - Section 8 - Merchant Shipping Act, 1958 - Section 149 - Power of court to rescind contract between master, owner or agent and seaman or apprentice - Any clause or contract as a whole sought to be rescinded by the court, should be brought to the notice of the court and it is for the petitioners to plead and prove how the contract as such or any term therein is unjust for the court to declare the same invalid and proceed to grant relief to the parties. J U D G M E N T Ramachandran Nair, J. These writ petitions are filed by two Captains, Chief Engineer and Chief Officer respectively employed in the ship owned by the first respondent challenging separate but identical orders issued by the Judicial Magistrate of the First Class, Kochi, allowing petition filed by the first respondent under Section 8 of the Arbitration and Conciliation Act, 1996, referring the dispute on wages between the petitioners and the first respondent for arbitration. We have heard counsel appearing for the petitioners and also for the first respondent and have also gone through the impugned orders of the Magistrate. The writ petitions were posted before Division Bench along with connected Writ Appeal filed by first respondent, W.A. No.2086/2010, which was disposed of by us through separate judgment on 22.6.2012. 2. While the petitioners allege that the first respondent owes them substantial amount towards salary and allowances for the services rendered by them in the ship owned and managed by the first respondent and cheques issued towards discharge of such liability got dishonoured, the case of the first respondent is that claim of wages by the petitioners is in dispute and the same has to be settled between the first respondent and the petitioners in arbitration proceedings in terms of clause (8) of the standard contract of employment between the petitioners and the first respondent. The sequence of events that led to the filing of applications by the petitioners before the Magistrate Court at Kochi is as follows. Since one of the ships of the first respondent was registered in Kochin, the petitioners approached this court invoking admirality jurisdiction for arrest and detention of ship for recovery of arrears of wages claimed by them. In the writ petition so filed the first respondent raised the contention that wage dispute has to be settled in arbitration proceedings in terms of the contract. However, this court without going into the merit of the said contention suggested the petitioners to file application before the Magistrate Court under Section 145 of the Merchant Shipping Act, 1958 (hereinafter called "the MS Act"). Accordingly the petitioners filed separate applications under Section 145 of the MS Act before the Magistrate Court which issued notice to the first respondent. The first respondent appeared before the Magistrate Court and filed application under Section 8 of the Arbitration and Conciliation Act for referring the claim for settlement of wage dispute in arbitration in terms of clause (8) of the employment contract between the petitioners and the first respondent. Even though petitioners raised objection about maintainability of the application filed by the first respondent under Section (8) of the Arbitration Act and contended that the Magistrate Court has got powers under Section 145(1) of the MS Act to settle dispute on wages through summary proceedings, the learned Magistrate overruled the objections and allowed the application filed by the first respondent under the Arbitration Act and disposed of the matter referring the claim for settlement in arbitration. It is against these orders of the Magistrate the petitioners have filed these writ petitions. In W.A. No.2086/2010 the dispute raised by the first respondent was that the Magistrate Court does not have powers under Section 445 of the MS Act to pass interim orders either to restrain or arrest the ship or to demand security for recovery of arrears of wages claimed by the seamen like petitioners. However, we rejected the said contention raised by the first respondent by dismissing the Writ Appeal vide judgment dated 22.6.2012 and by simultaneously declaring that the Magistrate Court has the powers to pass interim orders either by way of attachment or arrest of ship or other movables or by demanding security for realising arrears of wages determined by the Magistrate and even during pendency of application filed by the seamen like the petitioners claiming wages in the Magistrate Court. In these O.Ps. the question raised is whether the Magistrate Court can proceed to settle the claim of wages including determination of wages payable to the seamen namely, the petitioners, without referring the matter for arbitration in terms of clause (8) of the employment contract which provides for settlement of dispute between the first respondent and the employees in arbitration proceedings. Counsel for the petitioners relied on two decisions of the Supreme Court, one in O.KONAVALOV Vs. COMMANDER, COAST GUARD REGION reported in 2006(4) SCC 620 and the other in BOOZ ALLEN AND HAMILTON INC. Vs. SBI HOME FINANCE LTD. reported in 2011(5) SCC 532. The second decision above referred is relied on for the proposition that the petitioners' claim of wages against the shipping company is a right in rem available to petitioners and so much so, arbitration is not the remedy for recovery of arrears. Another decision relied on by the petitioners is that of the District Court of the United States in the case of JACK PALMER, JR. Vs. INFOSYS TECHNOLOGIES LTD. INCORPORATED rendered in Civil Action No.2:11-cv-00217-MHT-CSC decided on 9.11.2011. However, on going through these judgments we do not find the judgments deal with any claim of wages of seamen against the shipping company. In our view, the right claimed by the employees against the employer namely, the first respondent-shipping company, is a right in personam where dispute has to be settled inter-party before the appropriate forum. So far as maintainability of arbitration proceedings is concerned, for settlement of wage dispute between seamen and shipping company, we notice that arbitration is excluded under Section 132(a) of the MS Act only in respect of claims below Rs.3,000/- which has to be settled by the Master of the ship. Even though counsel for the petitioners contended that the summary proceedings contemplated under Section 145 is a special power conferred on Magistrate Court and it's objective is fast determination and recovery of arrears of wages to seamen is correct, we are of the view that so long as MS Act does not prohibit settlement of wage dispute through arbitration, we feel the agreement between shipping company and employees cannot be declared void or unenforceable. It is to be noticed that arbitration as a method of settlement of dispute between seamen and the shipping company is visualised in the statute and that is why a limited exclusion is provided in petty claims upto 3000 provided in Section 132(a) of the MS Act. So much so, wherever the dispute is not covered by Section 132 of the MS Act, the provision contained in sub-section (4) thereof does not hit the arbitration proceedings. We are, therefore, of the view that arbitration as a method of settlement is not prohibited under the provisions of MS Act. So much so, the powers of the Magistrate under Section 145 in regard to settlement of wages is subject to arbitration proceeding, if any, agreed between shipping companies and their employees and, therefore, in an application for wages filed under Section 145 of the MS Act, the Magistrate is absolutely free to refer the matter for arbitration in exercise of authority conferred under Section 8 of the Arbitration Act. However, this is subject to the extraordinary powers conferred on the Magistrate under Section 149 of the MS Act, which is as follows: "S.149. Power of court to rescind contract between master, owner or agent and seaman or apprentice:- Where a proceeding is instituted in any court in relation to any dispute between master, owner or agent of a ship and a seaman or apprentice, arising out of or incidental to their relation as such, or instituted, for the purpose of this section, the court, if having regard to all the circumstances of the case, it thinks it just to do so, may rescind any contract between the master, owner or agent and the seaman or apprentice, upon such terms as the court may think just, and this power shall be in addition to any other jurisdiction which the court can exercise independently of this section." 3. Counsel for the petitioners submitted that this is a fit case for the court to exercise it's extraordinary powers under Section 149 above extracted and rescind the contract because there is no referable dispute for settlement in arbitration by virtue of the acknowledgement of arrears payable by the first respondent by issuing cheques to all the petitioners. We find force in this contention because if the employer has issued cheques towards settlement of wage arrears and if the employees namely, petitioners, have no other claim in excess of the cheque amount, probably it is a matter for the court to consider whether there is any dispute that survives to be referred for arbitration. Section 8 proceedings under the Arbitration Act is only for reference of a referable dispute for settlement in arbitration proceedings. This presupposes that there is a dispute between parties and the same under the agreement between parties has to be settled in arbitration. If first respondent has accepted the arrears of wages payable to the petitioners and has issued cheques towards payment of such arrears and if petitioners have no other claim, then there is nothing for the Magistrate Court to adjudicate under Section 145(1) of the MS Act. Therefore, what is required for the court is only to exercise powers of recovery under Section 445(1) of the MS Act. At the maximum the court may have to pass formal orders under Section 145 after hearing both sides awarding arrears of wages equal to amounts covered by cheques issued by first respondent as arrears of wages, allowances etc. payable to petitioners and thereafter to proceed for recovery of the arrears through orders of restraint, arrest, attachment of movables and immovables of the defaulter etc. 4. As already stated, Section 149 confers power to rescind a contract between the owner of the shipping company and the seamen, if the court is of the view that in the interest of justice it is just and proper to do it. We notice from the impugned orders issued by the Magistrate that the Court has considered this issue and held that in the absence of any evidence or circumstance established by the petitioners affecting the validity of the agreement, the court cannot rescind the contract or ignore the provisions in the contract of employment providing for arbitration. There can be no dispute that while exercising powers under Section 149 the court need not always consider rescinding of contract as a whole. On the other hand, court can cancel any unjust clause in the contract, if it is so satisfied in exercise of powers under the said Section. However, we agree with the view taken by the Magistrate that any clause or contract as a whole sought to be rescinded by the court, should be brought to the notice of the court and it is for the petitioners to plead and prove how the contract as such or any term therein is unjust for the court to declare the same invalid and proceed to grant relief to the parties. In this case the basic evidence relied on by the petitioners in opposing the arbitration claim made by the first respondent is that wage dispute is settled when cheques are issued by the first respondent to the petitioners acknowledging liability towards wages. We find force in this contention because if petitioners do not have claim above the cheque amount towards arrears of wages and allowance payable by first respondent and if the court is satisfied that the cheques issued are towards arrears of wages payable by the first respondent, then there is no dispute to be referred for settlement in arbitration based on clause (8) of the employment contract. However, since the issue is not raised or decided in detail with reference to cheques and other evidence available with the petitioners, we feel one more opportunity can be granted to the petitioners to substantiate before the Magistrate court that reference for arbitration in terms of Section 8 of the Arbitration Act is not required because of settlement of wages through issuance of cheques. We, therefore, allow the O.Ps. by setting aside the impugned orders of the Magistrate Court and remand the matter for reconsideration on the specific issue whether there is any referable dispute for arbitration, if the first respondent has agreed upon the arrears on wages and allowances and has issued cheques to the petitioners which could be reckoned for passing formal orders on wages under Section 149 of the MS Act and to proceed for recovery in exercise of powers under Section 445. As a consequence of the relief granted above, first respondent's application filed under Section 8 is restored to the Magistrate for fresh consideration. The Magistrate is directed to give opportunity to both sides to adduce evidence and also to argue the matter before issuing fresh orders on first respondent's application. Since already there is appearance for parties before the Magistrate Court, we direct the Magistrate to dispose of the matter afresh within a period of two months from date of receipt of copy of this judgment. The petitioners and respondents are directed to appear through counsel or otherwise on the posting dates given by the Magistrate to ensure compliance of this judgment within the time frame. The parties shall appear before the Magistrate Court on 8.8.2012. Sd/- C.N.RAMACHANDRAN NAIR Judge Sd/- C.K.ABDUL REHIM Judge True copy P.S. to Judge pms |
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