# Santoshi v. VIth Addl. Dist. Judge Sultanpur &Ors

- **Citation:** (2019) 1 ILRA 657
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019
- **Case number:** Misc. Single No. 2247 of 1991
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santoshi-v-vith-addl-dist-judge-sultanpur-ors-44535
- **Pages:** 9

## Headnote

A. The Court Fees Act, 1870 - Section 7
(xi) (cc) - whether order passed by the
trial court as well as by the revisional
court on the issue of payment of Court
658 INDIAN LAW REPORTS ALLAHABAD SERIES
Fees is valid, or not? - Question of title
of plaintiff to house in dispute raised by
tenant does not change nature of suit
(Paras 6-10) - valuation of such suit for
court-fee and jurisdiction would be
annual rent of house and not value of
house in dispute (Paras 18 & 19) (E-8)

## Text

1 All. Santoshi Vs. VIth Addl. Dist. Judge Sultanpur & Ors.
657
elections were conducted by him on
24.01.1997. The elections were granted
approval by the Sub Divisional Officer by
order dated 09.08.2001 while exercising
the power under Section 25 (1) of the
Societies Registration Act. Later on, the
SDM passed another order on 03.04.2002,
recalling
his
earlier
order
dated
09.08.2001. The contention before the
Court was that Sub Divisional Officer
while exercising his jurisdiction under
Section 25 (1) of the Act of the Societies
Registration Act could not have recalled
his earlier order which would amount to
exercising the power of review which he
was inherently lacking.

(10) This Court referred to several
judgments rendered by this Court in
similar matters, and then observed in
Paragraph no.8 as follows:-

"From the aforesaid decision cited
by learned counsel for the petitioner, it
appears that the inherent power which an
authority can possess is with relation to
either a specific provision for the same or
application of the principles as are
available under Section 151 of the Code
of Civil Procedure. In the absence of such
a provision an order could be recalled by
the authority only upon a proved ground
of fraud or misrepresentation. It cannot
be disputed that in case an order has been
obtained by fraud or misrepresentation,
the authority concerned would be within
its power to recall such order. However,
in case no such ground exists an order
cannot be recalled by reviewing it by the
authority in the absence of a specific
power under a statute. Admittedly, the
Societies Registration Act does not
provide for any such inherent power in
the
Sub-Divisional
Officer
while
exercising his jurisdiction under Section
25 (1) of the Act. Such inherent power has
not been given by any express provision
either in the Act or in the Rules.
Therefore, in the absence of any provision
under the statute permitting exercise of
inherent power it cannot be assumed by
the Sub-Divisional Officer."

(11) It is apparent from a perusal of
Section 6 (3) of the Act, 1978, that the
power to revoke an order passed under
Section 6 (3) of the Act has been
specifically granted to the Education
Officer, which can be exercised by him on
sufficient cause being shown by the
elected Committee of Management. The
aforecited case is hence not applicable.

(12) Accordingly, the writ petition is
dismissed. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.04.2019

BEFORE
THE HON'BLE IRSHAD ALI, J.

Misc. Single No. 2247 of 1991
connected with
Misc. Single No. 2248 of 1991 and Misc. Single
No. 2249 of 1991

Santoshi ...Petitioner
Versus
VIth Addl. Dist. Judge Sultanpur &Ors.
 ...Respondents

Counsel for the Petitioner:
V.P. Nagaur, Manju Nagaur

Counsel for the Respondents:
C.S.C., R.K. Saxena, Shailesh Pathak

A. The Court Fees Act, 1870 - Section 7
(xi) (cc) - whether order passed by the
trial court as well as by the revisional
court on the issue of payment of Court
658 INDIAN LAW REPORTS ALLAHABAD SERIES
Fees is valid, or not? - Question of title
of plaintiff to house in dispute raised by
tenant does not change nature of suit
(Paras 6-10) - valuation of such suit for
court-fee and jurisdiction would be
annual rent of house and not value of
house in dispute (Paras 18 & 19) (E-8)

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard learned counsel for the
petitioners and learned counsel for the
respondents.

2. All the above-referred writ petitions
involve similar controversy, therefore treating the
Writ Petition No.2247 (MS) of 1991 titled
'Santoshi v. Vith Addl. Distt. Judge, Sultanpur and
others' as leading writ petition, the writ petitions
are decided by means of a common judgment.

3. The issue involved in the bunch
of writ petitions is that the order passed
by the trial court as well as by the
revisional court on the issue of payment
of court-fee is valid, or not.

4. Submission of learned counsel for
the petitioner-defendants in the suit is that
valuation of the property is more than
rupees one lakh, therefore, the court-fee
paid is not sufficient. In the circumstance,
the order passed by the trial court
rejecting the objection of the petitioner
and dismissing the revision suffers from
apparent illegality.

5. He next submitted that he is a
licensee of the house, therefore, the courtfee is payable under Section 7(v)(e) of the
Court Fees Act, 1870. In support of his
submission, learned counsel for the
petitioner placed reliance upon the
judgment of Bombay High Court in the
case of Ratilal Manilal v. Chandulal
Chhotalal reported in A.I.R. (34) 1947
Bombay 482.

6. On the other hand, learned counsel
for the respondents submitted that in view of
the provisions contained under Section
7(xi)(cc) of the Court Fees Act, 1870, in the
suit between the landlord and tenant for
recovery of rent, question of title of plaintiff to
house in dispute raised by tenant does not
change nature of suit. Basis for valuation of
such suit for court-fee and jurisdiction would
be annual rent of house and not value of house
in dispute. In support of his submission,
learned counsel for the respondents placed
reliance upon the judgment rendered by this
Court in the case of Paramhansanand
Shiksha Mandir Ashram v. VII Additional
District Judge, Deoria and others reported
in AIR 1994 ALLAHABAD 293.

7. He next submitted that the defendant
of the suit has no grievance and has no right in
regard to payment of court-fee on the basis of
valuation of one year's rent. It is between the
plaintiff and the State. In support of his
submission, learned counsel placed reliance
upon the judgment rendered by Hon'ble
Supreme
Court in the case of
Sri
Rathnavarmaraja v. Smt. Vimla reported in
AIR 1961 Supreme Court 1299.

8. After having heard the rival
submissions of learned counsel for the
parties, I perused the material on record
and the judgments relied upon by the
learned counsel for the parties.

9. To resolve the controversy
involved in the present writ petition in
regard to payment of court-fee, the
provisions of Section 7(v)(e) of the Court
Fees Act, 1870 relied upon by learned
counsel for the petitioner are quoted
below:
1 All. Santoshi Vs. VIth Addl. Dist. Judge Sultanpur & Ors.
659

"7. Computation of fees payable in
certain suits .The amount of fee payable
under this Act in the suits next hereinafter
mentioned shall be computed as follows:

(i) xxxxxxxxxx

(ii) xxxxxxxxxx

(iii) xxxxxxxxxx

(iv) xxxxxxxxxx

for possession of land, houses and
gardens.(v) In suits for the possession of
land, houses and gardensaccording to the
value of the subject-matter; and such
value shall be deemed to be where the
subject-matter is land, and

(a) xxxxxxxxxxx

(b) xxxxxxxxxxx

(c) xxxxxxxxxxx

(d) xxxxxxxxxxx

for houses and gardens.(e) Where the
subject-matter is a house or garden
according to the market-value of the
house or garden;"

10. Learned counsel for the
respondents placed reliance upon Section
7(xi)(cc) of the Court Fees Act, 1870 and
submitted that in the suit between the
landlord and tenant for recovery of rent,
question of title of plaintiff to house in
question raised by the tenant does not
change the nature of suit. Thus, basis for
valuation of such suit for court-fee and
jurisdiction would be annual rent of the
house and not value of the house in
dispute. For the ready reference, Section
7(xi)(cc) of the Court Fees Act, 1870
reads as under:

"7. Computation of fees payable in
certain suits for money.- The amount of
fee payable under this Act in the suits next
hereinafter mentioned shall be computed
as follows:..

..........

.....

Between landlords and tenant.-(xi) In
the following suits between landlord and
tenant-

.......

.......

(cc) for the recovery of immovable
property from a tenant, including a tenant
holding over after the determination of a
tenancy;"

11. In the case of Badal M. Mittal
and others v. Omprakash M. Mittal
and others reported in 2018(2)ALLMR
499: 2017(6)BomCR 339, the Bombay
High
Court
while
considering
the
judgment rendered in the case Ratilal
Manilal (supra) relied upon by learned
counsel for the petitioner, has held in
paragraphs 5 and 7 as under:

"5. In my opinion, the judgment of
the learned Single Judge in Sushila
Uttamchand Jain is clearly per incurium.
Firstly, it does not take into account the
applicable provision of law contained in
the Schedule to the Court Fees Act.
Article 1 of Schedule I of the Act, which
provides for ad valorem fees payable on a
suit presented to any civil court, requires
the court fees to be calculated on the
basis of the amount or value of the subject
matter in dispute subject to a maximum of
Rupees 3 lakhs. Article 2 provides for a
plaint in a suit for possession under
Section 6 of the Specific Relief Act. In
case of such suit, the fee prescribed is
one-half of the amount prescribed in the
scale provided under Article 1. This
clearly implies that even in the case of a
suit under Section 6 of the Specific Relief
Act, the amount or value of the subject
matter in dispute is ascertainable and
court fee is to be computed ad valorem on
the basis of such amount or value.
660 INDIAN LAW REPORTS ALLAHABAD SERIES
Secondly, there are Division Bench
judgments of our Court, particularly in
the cases Shah Ratilal Manilal vs. Shah
Chandulal
Chhotalal
MANU/MH/0129/1946: AIR 1947 BOM
482, Hiranand Assumal v. Mohandas
Vishindas
Chainani
MANU/MH/0377/
1976: 1977 Mh.L.J.501 and Lakhiram
Ramdas v. Vidyut Cable and Rubber
Industries MANU/MH/0110/1963: 1963
Mh.L.J.942, which clearly suggest that in
a suit for possession, whether against a
defendant claiming to be a licensee,
whose licence has been determined, or
against a trespasser, the Court fees are
payable ad valorem as in the case of any
other suit for possession based on market
value of the property, of which possession
is sought. Shah Ratilal's case was a suit
for possession of a house from a licensee.
The trial Court, on the defendant's
objection, went into the question of the
Court fee and came to the conclusion that
the subject matter of the suit was not the
house itself but the right to eject the
defendant.
At
that
time,
suits
for
possession of immovableproperty fell
under s.7(v)(e) of the Court Fees Act and
were to be valued according to the value
of
the
subject-matter,
namely,
the
property. Taking it that the subject matter
of the suit was the right to eject the
defendant, the learned Judge found that
the value of that right was the value at
which the defendant's right to remain in
the house could be valued; and looked at
from that point of view he considered that
the value which the plaintiff put upon hisclaim, namely Rs.5,000 odd, could be
accepted even though the market value of
the house itself was about four times as
much. The division bench of our Court
hearing a revision from this order set it
aside and held that court fees were
payable on the value of the house under
Section 7(v) (e) of the Court Fees Act,
1870 (equivalent to Section 6(v) of
Bombay Court Fees Act). This is what the
division bench had to say:

"In plain English the subject-matter
of a suit is what the suit is about. It is not
the same thing as the object of the suit.
The object of the suit is the claim, in other
words possession of the house. The
subject of the suit is the house. That this is
the correct view to take is, I think, clear
also from the wording of s.7(5) itself. The
section says that suits for the possession
of land, houses or gardens are to be
valued according to the subject-matter
and the sub-section goes on to say that
where the subject matter is land, the value
shall be determined according to cls. (a),
(b), (c) or (d) and where the subjectmatter is a house or garden, the value
shall be deemed to be the market value of
the house or garden. In other words the
section contemplates the subject matter of
a suit for the possession of land as being
the land, the subject matter of a suit for
the possession of a garden as being the
garden and the subject-matter of a suit for
the possession of a house as being the
house, and there is no suggestion to be
derived from the section itself or, so far as
I know, from anywhere else that the
subject-matter ought to be taken to be
anything else. I can imagine hard cases
arising out of this provision; I can
imagine cases where paying the Court-fee
on the value of a house might in all the
circumstances be an unduly heavy price
to pay in the event of the suit being lost.
But we cannot do anything about that.
The law seems to be as I have said; and if
the law is harsh, it can always be
amended."

Lakhiram's case (supra) was a suit
for a mandatory injunction against the
defendants, who were licensees and
1 All. Santoshi Vs. VIth Addl. Dist. Judge Sultanpur & Ors.
661
whose licence had been terminated. The
argument before the court was that the
plaintiff had merely sought declaration
coupled with a mandatory injunction for
the defendants' removal from the premises
and a preventive injunction restraining
them from re-entering or interfering with
the plaintiff's possession, and the suit
must accordingly be valued under Section
6(iv)(j) of the Bombay Court Fees Act.
The argument was rejected by the court,
holding the suit to be in substance a suit
for possession, however ingenuously the
substantive prayer for possession was
circumvented by asking for mandatory
and preventive injunctions instead. It
reiterated the law laid down in Shah
Ratilal's case (supra) quoted above and
negatived the contention that it was a
case for a declaration with consequential
relief of injunction falling within clause
(j) of Section 6(iv) of the Bombay Court
Fees Act. Since the plaintiff had in effect
asked for possession, for which there was
a provision in the Act, in Section 6(v),
clause (j) was held to be inapplicable.
This position of law was also reiterated
by yet another division bench of our
Court
in
Hiranand
Assumal's
case
(supra). In fact, in Hiranand Assumal, the
Division Bench quoted with approval a
judgment of Chandrachud, J., as he then
was, in a Civil Revision Application
bearing on this point. That was a case,
where the subject matter in dispute was a
shop in a building. It was in possession of
the defendant as a tenant on a monthly
rent. This shop was given by the
defendant to the plaintiffs on a monthly
fee. The plaintiffs had brought the suit,
from
which
the
aforesaid
revision
application arose, against the defendant
under Section 6 of the Specific Relief Act,
alleging that they were in possession of
the shop as licensees of the defendant and
were
wrongly
dispossessed
by
the
defendant. Chandrachud, J. agreed with
the manner in which the trial court
determined the market value of the shop.
The suit was held to be correctly valued
on the basis of such market value of the
shop and not on the basis of statutory
right to be enforced by the plaintiffs under
Section 6 of the Specific Relief Act.

7.
Learned
Counsel
for
the
Defendants submits that a decree passed
in a specific performance suit under subsection (1) of Section 6 is a temporary
decree; it does not bar any person from
suing to establish his title to such
property and to recover possession
thereof from the decree- holder. Learned
Counsel in this behalf relies on subsection (4) of Section 6. There is nothing
in law to indicate that a decree passed
under sub- section (1) is a temporary
decree. Sub-section (4) merely implies
that any decree passed under sub-section
(1) does not bar any person from
establishing his title to the property. That
does not mean a decree under Section (1)
is not final. The thrust of the Defendants'
argument is that anyway a decree under
sub-section (1) of Section 6 of the Specific
Relief Act is a decree, which is liable to
be defeated by another decree that may be
passed in a title suit by the true owner.
The suggestion appears to be that court
fee based on the market value of the
property for such a decree is harsh on the
plaintiff. In the first place, for a suit under
Section 6 of the Specific Relief Act, the
legislature has provided for only half the
court fees payable on a regular suit for
possession. But secondly, and more
importantly, even if paying such court fee
on the value of the property could be
termed as an unduly heavy price to pay,
to repeat the words of the Division Bench
in Shah Ratilal's case, "we cannot do
662 INDIAN LAW REPORTS ALLAHABAD SERIES
anything about it ...... if the law is harsh,
it can always be amended"

12. The provisions contained under
Section 7(v)(e) clearly specifies that in the
suit for the possession of land, houses and
gardens according to the value of the
subject-matter,
such
value
shall
be
deemed where the subject-matter is land
and where the subject-matter is house or
garden according to the market value.

13.

In
the
case
of
Sri
Rathnavarmaraja (supra) relied upon
by learned counsel for the respondents,
the Court has held in paragraph 2 of the
judgment as under:

"2. The Court-fees Act was enacted
to collect revenue for the benefit of the
State and not to arm a contesting party
with a weapon of defence to obstruct the
trial of an action. By recognising that the
defendant was entitled to contest the
valuation of the properties in dispute as if
it were a matter in issue between him and
the plaintiff and by entertaining petitions
preferred by the defendant to the High
Court in exercise of its revisional
jurisdiction against the order adjudging
court-fee payable on the plaint, all
progress in the suit for the trial of the
dispute on the merits has been effectively
frustrated for nearly five years. We fail to
appreciate what grievance the defendant
can make by seeking to invoke the
revisional jurisdiction of the High Court
on the question whether the plaintiff has
paid adequate court-fee on his plaint.
Whether proper court-fee is paid on a
plaint is primarily a question between the
plaintiff and the State. How by an order
relating to the adequacy of the court-fee
paid by the plaintiff, the defendant may
feel aggrieved, it is difficult to appreciate.
Again,
the
jurisdiction
in
revision
exercised by the High Court under s. 115
of the Code of Civil Procedure is strictly
conditioned by cls. (a) to (c) thereof and
may be invoked on the ground of refusal to
exercise
jurisdiction
vested
in
the
Subordinate Court or assumption of
jurisdiction which the court does not
possess or on the ground that the court has
acted illegally or with material irregularity
in the exercise of its jurisdiction. The
defendant who may believe and even
honestly that proper court-fee has not been
paid by the plaintiff has still no right to
move the superior court by appeal or in
revision against the order adjudging
payment of court-fee payable on the plaint.
But counsel for the defendant says that by
Act 14 of 1955 enacted by the Madras
Legislature which applied to the suit in
question, the defendant has been invested
with a right not only to contest in the trial
court the issue whether adequate court-fee
has been paid by the plaintiff, but also to
move the High Court in revision if an
order contrary to his submission is passed
by the Court. Reliance in support of that
contention is placed upon sub-sec. (2) of S.
12. That sub-section, in so far as it is
material, provides :

"Any defendant may, by his written
statement filed before the first hearing of
the suit or before evidence is recorded on
the merits of the claim.....plead that the
subject-matter of the suit has not been
properly valued or that the fee paid is not
sufficient. All questions arising on such
pleas shall be heard and decided before
evidence is recorded affecting such
defendant, on the merits of the claim. If
the court decides that the subject-matter
of the suit has not been properly valued or
that the fee paid is not sufficient, the court
shall fix a date before which the plaint
shall be amended in accordance with the
1 All. Santoshi Vs. VIth Addl. Dist. Judge Sultanpur & Ors.
663
court's decision and the deficit fee shall
be paid....."

14. Learned counsel for the
respondents in support of his submission,
placed reliance upon another judgment in
the case of Paramhansanand Shiksha
Mandir Ashram (supra), wherein the
Hon'ble Supreme has held in paragraphs
7, 8 and 9 of the jurisdiction as under:

"7. From the perusal of the copy of
the plaint, which is available before this
Court as Annexure ''1' to the petition, it is
absolutely clear that the suit is one for
recovery of immovable property from the
petitioner who is alleged to be tenant. The
question of title to the house in dipsute
raised by the petitioner is only incidental.
The success of the suit of the respondentsII set for recovery of the property in suit
will, obviously, depend upon proof of the
existence of relationship of landlord and
tenant between them and the petitioner. If
they fail toe stablish that relationship, the
suit will fail. For the purpose of
determination of question as to whether
the respondents-II set are entitled to the
decree prayed for in the suit the question
of their title to the property in dispute is
not directly and substantially involved,
and incidential enquiry thereof will not
change the nature of the suit which was
and continues to be a suit between the
landlord and tenant for recovery of the
disputed
immovable
property
notwithstanding the order of the Judge
Small Causes directing return of the
plaint.

8. The exercise of finding out the
valuation of the property in dispute
undertaken by the trial court was
misconceived. In a suit instituted by the
landlord for recovery of immoveable
property from the tenant the quantum of
valuation of the immoveable property is
irrelevant. The valuation of a suit for
recovery of immoveable property founded
on relationship of landlord and tenant, for
the purpose of pecuniary jurisdiction of
the court and payment of court fees, has
to be assessed on the basis of annual rent
of the immoveable property as envisaged
in Section 7(xi)(cc) of the Act.

9. In the instant case the suit being
one by the landlord for recovery of the
immoveable property from the tenant,
based on the alleged relationship of
landlord and tenant, and the monthly rent
being Rs.100/-, it has been correctly
valued at Rs.1200/- for the purpose of
determination
of
the
pecuniary
jurisdiction of the court, and the court
fees paid thereon has rightly been held to
be sufficient. Further, it has been
appropriately pointed out by the courts
below that the order of the Judge small
causes, Deoria passed in Suit No.29 of
1978, directing the return of the plaint
does not change the nature of the Suit
No.1265 of 1981, and will also not have
the effect of amending the plaint of the
suit."

15. Section 7(xi)(cc) clearly lays
down that in the suit instituted by the
landlord for recovery of immoveable
property from the tenant, the quantum of
valuation of the immoveable property is
irrelevant. The valuation of a suit for
recovery of immoveable property founded
on relationship of landlord and tenant for
the purpose of pecuniary jurisdiction of
the court and payment of court fees, has
to be assessed on the basis of annual rent
of the immoveable property as envisaged
in the aforesaid Section.

16. In the aforesaid case, the question
was in regard to that the court fee payable in
664 INDIAN LAW REPORTS ALLAHABAD SERIES
a suit for possession of a house based upon
the
allegation
that
the
defendant
in
possession is licencee of the plaintiff. The
trial court on the defendant objection, went
into the question of court-fee and came to the
conclusion that the subject matter of the suit
was not the house itself, but the right to eject
the defendant. The suit for possession of
immoveable property falls under Section 7
(v) of the Court Fees Act and are valued
according to the subject matter of the suit.
Taking it that the subject-matter of the suit
was the right to eject the defendant, the
learned Single Judge found that value of that
right was the value at which the defendant's
right to remain in the house could be valued;
and looked at from that point of view he
considered that the value which the plaintiff
put upon his claim, namely Rs.5,000 odd,
could be accepted even though market value
of the house itself was about four times as
much.

Considering
the
facts
and
circumstances of the case, this Court
holds that the subject-matter of the suit is
house. The Section says that the suits for
possession of land, house or maintenance
are to be valued according to the subject
matter and the sub-section goes on to say
that where subject-matter is land, the
value shall be determined according to
clauses (a), (b), (c) or (d) and where the
subejct matter is house or garden, the
value shall be deemed to be the market
value of the house or garden.

17. On perusal of the judgment
relied upon by learned counsel for the
petitioner, this Court records that the
same does not support the submissions
advanced by learned counsel for the
petitioner. In regard to the judgments
relied upon by learned counsel for the
respondents, the submissions advanced
fully support the contention of the learned
counsel for the respondents.

18. In the judgment relied upon by
learned counsel for the respondents, it has
been held that in exercise of finding out
the valuation of the property in dispute
undertaken by the trial court was
misconceived. In a suit institued by the
landlord for recovery of immoveable
property from the tenant the quantum of
valuation of the immoveable property is
irrelevant. The valuation of a suit for
recovery of immoveable property founded
on relationship of landlord and tenant, for
the purpose of pecuniary jurisdiction of
the court and payment of court fees, has
to be assessed on the basis of annual rent
of the immoveable property as envisaged
in Section 7(xi)(cc) of the Act.

19. In the instant case the suit being
filed by the landlord for recovery of the
immoveable property from the tenant,
based on the alleged relationship of
larndlord and tenant, and the monthly rent
being Rs.100/-, it has been correctly
valued at Rs.1400/- for the purpose of
determination
of
the
pecuniary
jurisdiction of the court, and the court fees
paid thereon has rightly been held to be
sufficient.
Further,
it
has
been
appropriately pointed out by the courts
below that the order of the Judge, Small
Causes, passed in Regular Suit No.120 of
1989, directing the return of the plaint
does not change the nature of the suit, and
will also not have the effect of amending
the plaint of the suit.

20. Considering over-all facts and
circumstances of the case and the
judgments relied upon, the petitioner has
failed to establish his case on the point of
payment
of
court-fee.
1 All. Goldrush Sales & Services Ltd. Vs. The Managing Director U.P.S.R.T.C. & Anr.
665

21. Accordingly, this writ petition
lacks merit and is hereby dismissed.

22. However, respondent no.1- IInd
Additional Civil Judge, Junior Division is
directed to proceed to decide the Suit
No.120
of
1999
expeditiously
and
preferably within a period of one year
from the date of production of a certified
copy of this order.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.09.2019

BEFORE
THE HON'BLE RAJAN ROY, J.

ARBITRATION APPLICATION NO. 29 of 2012

Goldrush Sales &Services Ltd.
 ...Applicant
Versus
The Managing Director U.P. S.R.T.C.&Anr.
 ...Opposite Parties

Counsel for the Applicant: Shradha
Agarwal, Akash Prasad,Shraddha Agarwal,
Sri Akash Prasad, Sri Amrendra Nath
Tripathi, Sri Prashant Agarwal, Sri Sachin
Garg, Sri Shishir Tiwari.

Counsel for the Opposite Parties:
Sri Mahesh Chandra, Sri Ratnesh Chandra.

A. Arbitration and Conciliation Act, 1996section 11- In response to the notice
opposite
party
no.2
intimated
the
Applicant
about
appointment
of
an
arbitrator and not by opposite party no.1
as agreed in the arbitration agreement.
Onus to prove receiving-Indian Evidence
Act-section
114-III(f)
and
General
clauses Act-section 27-Opposite party
no.2 assert serving of notice of opposite
party no.1 to the applicant after 7 years.

Held:-Unless delivered, it cannot be treated as
having been communicated. Accordingly, once
the application under Section11had been filed
no such appointment could have been made
and the matter was purely within the domain
of this Court to do so. (Para 9)

B. Arbitration and conciliation Act, 1996Section
3(2)-
until
delivered
no
communication; actual delivery of order
of
appointment
of
arbitrator
is
a
necessary prerequisite specially in terms
of section 3(2) of the Act.

Held:-The term ''delivered' is distinct from the
word ''dispatch'. Delivered means to bring and
handover
something
to
the
addressee.
(Para12) (E-9)

(Delivered by Hon'ble Rajan Roy J.)

1. Heard learned counsel for the
parties.

2. This is an application under
Section 11 of the Arbitration and
Conciliation Act, 1996.

3. Before proceeding with the merits
of the matter it is necessary to mention
that in the relief clause cancellation of
appointment/ nomination of Shri Niranjan
Kumar- opposite party no. 3 as Arbitrator
had also been sought. Realizing the
mistake, as, such a relief could not be
sought under Section 11, although the
other part of the relief was admissible, an
application for amendment of the relief
clause was filed which was objected by
the opposite parties on the ground that it
should not be allowed at such a belated
stage. But, considering the nature of the
proceedings and the technicality involved
which does not materially affect the
substantive disposal of the application for
appointment
of
an
Arbitrator,
the
application for amendment is allowed. As,
it does not affect the merits, therefore, no
fresh response is called for consequent to