(Prayer: Arbitration Appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996, praying to call for the records and set aside the fair and executable order dated 10.03.2026 passed in Ar.O.P.No.166 of 2024 on the file of the Principal District Court, Tirunelveli and allow the Arbitration Appeal.)
This Arbitration Appeal is posted before me for determination of the objection raised by the Registry regarding the correct Court fee payable on the memorandum of the present Appeal.
2. The appeal filed by the appellant is arising out of an order passed by the learned Principal District Judge, Tirunelveli, allowing the Arbitration Original Petition filed under Section 34 of “the Arbitration and Conciliation Act, 1996”, (herein after referred to as “the Arbitration Act”) seeking to set aside the award dated 25.01.2021 passed by the sole arbitrator.
3. The appellant herein filed arbitration claim petition against the respondents for recovery of money based on loan transaction. The sole Arbitrator passed an award directing the respondents to pay a sum of Rs.8,73,263/- together with interest at the rate of 18% p.a. Aggrieved by the said award, the respondents filed Arbitration Original Petition under Section 34 of the Arbitration Act seeking to set aside the award. The said Original Petition was allowed by the learned District Judge and thereby the award passed by the sole Arbitrator was set aside. Challenging the order passed in the Original Petition filed under Section 34 of the Arbitration Act, the present appeal has been filed by the appellant.
4. The appellant herein valued the appeal as incapable and paid the fixed Court fee as per Schedule-II, Article 3(ii) of “the Tamil Nadu Court Fees and Suits Valuation Act, 1955” (hereinafter referred to as “the Tamil Nadu Court Fees Act”) as amended by Tamil Nadu Court Fees and Suits Valuation (Amendment) Act, 2024 (Act 43 of 2024). However, the Registry entertained a doubt with regard to the correctness of the valuation in the light of Section 52 of the Tamil Nadu Court Fees Act, whereunder ad valorem Court fee is payable on the subject matter of the appeal and returned the papers. Since the appellant insisted that the Court fee payable is only fixed one as per Schedule II Article 3(ii) of the Tamil Nadu Court Fees Act, the appeal is posted before me under the caption “for maintainability” for the purpose of deciding the correct Court fee payable on the memorandum of appeal.
5. The learned counsel appearing for the appellant would submit that Section 52 of the Tamil Nadu Court Fees Act will get attracted only in cases where appeal is filed against the decree passed by the Court and in cases where appeal is filed against an order, it will fall under Schedule II Article 3 of the Tamil Nadu Court Fees Act. He further submitted that Article 3 of Schedule II of the Tamil Nadu Court Fees Act is a special provisions which deals with Court fee payable on an appeal against the order and the same will prevail over the general provision under Section 52 of the the Tamil Nadu Court Fees Act. He also submitted that the order passed by the Court under Section 34 of the Arbitration Act, cannot be treated as a decree and the same is only an order. In such circumstances, the appeal against the said order shall be valued as per Schedule II Article 3 of the the Tamil Nadu Court Fees Act. Hence, the learned counsel submitted that the present appeal has been properly valued and fixed Court fee has been paid. In support of his submission, the learned counsel relied on the following judgments:
1. Diwan Bros. Vs. Central Bank of India, Bombay and others reported in (1976) 3 SCC 800;
2. Asya Vs. Sundaram Finance Limited and Others reported in 2016 SCC OnLine Ker 41136;
3. P.V.Devasia Vs. State of Kerala reported in CDJ 1964 Ker HC 219;
4. Chemicals Ltd., Nidadavole Vs. Raka Corporation (Private) Ltd., reported in CDJ 1963 APHC 022;
5. Ediga Muniyya Vs. The State of Andhra Pradesh reported in 1961 SCC OnLine AP 3.
5. Section 52 of the Tamil Nadu Court Fees Act, 1955 reads as follows:
“52. Appeals.- The fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject-matter of the appeal:
Provided that, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the Court of first instance or by the Court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree.”
6. A close scrutiny of the above said provision would make it clear that it is a general provision for the valuation of the appeal. However, from the wordings of the said section, it is clear that it is applicable to all the appeals and its applicability is not restricted the appeal filed against the decrees as contended by the learned counsel appearing for the appellant. Therefore, if we hold that Arbitration Appeal under Section 37 of the Arbitration Act shall be valued under Section 52 of the Tamil Nadu Court Fees Act, the appellant has to pay ad valorem Court fee on the subject matter of the appeal.
7. Article 3 of Schedule II to Tamil Nadu Court Fees Act r/w Section 21 of the said Act provides for payment of fixed Court fees for various kinds of memorandum of appeals from an order for which Court fee has not been otherwise provided for in the Tamil Nadu Court Fees Act. Article 3 of Schedule II of the Tamil Nadu Court Fees Act is extracted below:
SCHEDULE II Article Particulars Proper Fee
1. ...........
2. .........
3. Memorandum of appeal from an order inclusive ofan order determining any question under section 144 of the Code of Civil Procedure, 1908, and not otherwise provided for when presented-
(i) to any Court other than the High One hundred Court or to any Executive Officer rupees other than the Government or the Appropriate Authority specified in the notification under sub-section (1) of section 4 of the Tamil Nadu Board of Revenue Abolition Act, 1980 or Chief Executive Authority.
ii) (A) to the High Court except Intellectual One thousand Property Division. five hundred rupees.
(B) to the Intellectual Property
Division of the High Court,—
(a) appeal against the order of the Ten thousand Registrar of Trade Marks under rupees section 91of the Trade Marks Act, 1999 (Central Act 47 of1999).
(b) appeal against the order of Five thousand Registrar of Copyrights under section rupees 72 of the Copyright Act, 1957 (Central Act 14 of 1957).
(c) appeal against the order of the Ten thousand Controller or Central Government rupees under section 117-A of the Patents Act, 1970 (Central Act 39 of 1970).
(d) appeal against the order of the Five thousand Registrar under section 31 of the rupees Geographical Indications of Goods (Registration and Protection) Act, 1999 (Central Act 48 of 1999)
(e) appeal against the order or Five thousand decision of the Authority or the rupees Registrar under section 56 of the Protection of Plant Varieties and Farmers’ Rights Act, 2001 (Central Act 53 of 2001).
(f) appeal against the order of a Two thousand Commercial Court under section 13 rupees (1-A) of the Commercial Courts Act, 2015 (Central Act 4 of 2016)
(g) appeal against the order passed in One thousand interim application, by the five hundred Commercial Division of the High rupees Court constituted under section 4 of the Commercial Courts Act, 2015 (Central Act 4 of 2016)
4. ........ .......
8. The learned counsel appearing for the appellant by taking this Court to Article 3(ii) A of Schedule II of the Tamil Nadu Court Fees Act would submit that when a memorandum appeal from an order not otherwise provided for is presented before the High Court, the fixed Court fee is only Rs.1500/- and therefore, the Court fee paid on the present memorandum of appeal is correct. The said submission of the learned counsel for the appellant was made mainly on the footing that Article 3 of Schedule II of the Tamil Nadu Court Fees Act is a special provision for appeal against orders and Section 52 of the Tamil Nadu Court Fees Act is the general provision prescribing the Court fees on all kinds of appeals.
9. Section 9 of the above said Act, reads as follows:
“9. Documents falling under two or more descriptions:-Subject to the provisions of the last preceding section, a document falling within two or more descriptions in this Act shall, where the fees chargeable thereunder are different, be chargeable only with the highest of such fees:
Provided that, where one of such descriptions is special and another general, the fee chargeable shall be the fee appropriate to the special description.”
10. The proviso to the above said Section would make it clear that the special provision for charging Court fee will prevail over the general provision for charging Court fee. Section 52 of the Tamil Nadu Court Fees Act is a general provision for charging all kinds of appeal whether it is appeal against decree or order. Article 3 of Schedule II of the the Tamil Nadu Court Fees Act extracted above is a special provision for charging Court fees on the appeals presented against orders.
11. Now we have to see whether the decision of the Court under Section 34 of the Arbitration Act can be treated as an order or decree. If it is a decree, certainly it will fall under Section 52 of the the Tamil Nadu Court Fees Act, as there is no other provision in the said Act for charging appeal against decrees. On the other hand, if the decision of the Court under Section 34 of the Arbitration Act is treated as an order, then certainly, it will fall under Article 3 (ii) of Schedule II of the Tamil Nadu Court Fees Act, as it is a special provision in the said Act for charging appeal against orders.
12. This appeal is filed under Section 37 of the Arbitration Act. The said Section reads as follows:
“37. Appealable orders.-(1) [Notwithstanding anything contained in any other law for the time being in force, an appeal] shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:-
(a) refusing to refer the parties to arbitration under section 8;
(b) granting or refusing to grant any measure under section 9;
(c) setting aside or refusing to set aside an arbitral award under section 34.
(2) An appeal shall also lie to a Court from an order of the arbitral tribunal-
(a) accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or
(b) granting or refusing to grant an interim measure under section 17.
(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.”
13. A perusal of the above said Section, which enables the appellant to file an appeal before this Court, would make it clear that a decision of the Court under Section 34 of the Arbitration Act is only an order, because the said Section declares that “appeal shall lie from the following orders” to the regular first appellate Court. Therefore, it is clear that a decision under Section 34 of the Arbitration Act setting aside the award or refusing to set aside the award is treated as an order and the same is liable to be appealed against before the regular appellate Court empowered to hear the appeals from original decrees passed by the said Court. Therefore, we can definitely come to a conclusion that the order passed by the District Court setting aside the award of the sole arbitrator which is impugned in this appeal is only an order as per the wordings of Section 37 of the Arbitration Act.
14. The above said conclusion can be supported by another view also. Section 36 of the Arbitration Act declares that an award passed by the Arbitrator shall be enforced in accordance with the provisions of the Code of Civil Procedure, as if it were a decree of the Court, provided that the time for making an application to set aside the award under Section 34 of the Arbitration Act got expired. Therefore, it is clear that the award of the Arbitrator is treated as a deemed decree only for the purpose of enforcement and it cannot be treated as a decree for the purpose of filing an appeal. Further, Section 37 of the Arbitration Act which enables filing of an appeal also declares that a decision rendered under Section 34 of the Arbitration Act is only an order. In such circumstances, we have no difficulty in coming to the conclusion that a decision of the Court under Section 34 of the Arbitration Act is only an order and it cannot be equated with a decree. Once we come to the conclusion that a decision of the Court under Section 34 of the Arbitration Act is only an order, it will fall under the special provision charging the appeal against the orders i.e., Article 3 of Schedule II to the Tamil Nadu Court Fees Act. By virtue of proviso to Section 9 of the Tamil Nadu Court Fees Act, the special provision will prevail over the general provision. Hence, I hold that an appeal filed against the order under Section 34 of the Arbitration Act is chargeable to Court fee under Article 3(ii)A of Schedule II to the Tamil Nadu Court Fees Act.
15. It is also pertinent to mention that prior to amendment of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 under Tamil Nadu Act 6 of 2017, Article 4 of Schedule II to Tamil Nadu Court Fee and Suit Valuation Act, 1955 contained a special provision charging ad valorem Court fee on the appeal filed against the Arbitration and Conciliation Act, which reads as follows:
SCHEDULE II Article Particulars Proper Fee
1. ...........
2. .........
3 ........
4 Memorandum of Appeal under One per cent of the Arbitration and Conciliation the value for Act, 1996; jurisdiction subject to a maximum of Rs.5,000/-
5 ......
16. The said provision was deleted by Tamil Nadu Act 20 of 2021 and new Article was substituted which reads as follows:
SCHEDULE II Article Particulars Proper Fee
1. ...........
2. .........
3 ........
4 Application for setting aside the Three per cent of arbitral award and for the value for enforcement of the foreign award jurisdiction under the Arbitration and subject to a Conciliation Act, 1996 maximum of one lakh rupees.
5 ......
17. Therefore, the legislature consciously deleted the earlier provisions in the Tamil Nadu Court Fees Act charging ad valorem Court fee on the appeals filed under the Arbitration Act and as on today, the ad valorem Court fee is restricted to applications filed under the Arbitration Act. Since the legislature deleted the earlier provisions prescribing ad valorem Court fee for the appeal filed under the Arbitration Act, the intention of the legislature is to charge only fixed Court fee for such appeals as per the provisions prescribing fixed Court fee for the appeals against the orders.
18. It is also pertinent to mention that by virtue of Tamil Nadu Act 43/2024, Article 3 was again amended and Article 3(ii) B introduced prescribing fixed Court fees for appeal against the order passed by the Registrar of Trade Marks under Trade Marks Act, 1999, appeal against the order passed by the Registrar under Copyright Act, 1957, appeal against the order passed by a Controller or Central Government under Patents Act, 1970, appeal against the order passed by the Registrar under Geographical Indications of Goods (Registration and Protection) Act, 1999, appeal against the order passed by the Registrar under Protection of plant varieties and Farmers' Rights Act, 2001, appeal against the order passed under Section 13(1-A) of the Commercial Courts Act, 2015 and appeal against the order passed in interim application by the Commercial Division of the High Court. However, the legislature has not thought it fit to re-introduce charging of ad valorem Court fee on the appeals filed against the orders passed under the Arbitration Act. Therefore, the legislative intent is very clear and it wanted to charge appeals against orders passed under Arbitration Act only with a fixed Court fee. Therefore, I hold that the fixed Court fee of Rs.1,500/- paid by the appellant under Article 3 of Schedule II of the Tamil Nadu Court Fees Act is correct. Accordingly, the objection raised by the Registry is over ruled and the Court fee paid by the appellant is held to be correct.
19. The Registry is directed to list the appeal “for Admission” in due course.
