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2000 DIGILAW 236 (PNJ)

State Bank Of India v. Bishna And Anr.

2000-02-29

V.M.JAIN

body2000
Judgment V.M.Jain, J. 1. This is a revision petition against the order dated 29.1.1999 passed by the Additional District Judge, Karnal directing the petitioner-bank to affix the Court fee on the amount claimed in the appeal pending before him. 2. The facts which are relevant for the decision of the present revision petition are that State Bank of India had filed a suit for the recovery of Rs. 1,34,874/- against the defendants - respondents alongwith costs and future interest. The said suit was contested by the defendants. The learned trial Court vide judgment and decree dated 19.5.1998 decreed the suit of the plaintiff-bank for the recovery of Rs. 1,34,874/- alongwith costs and future interest from the date of the institution of the suit @ 6% per annum on the principal amount due till the realisation of the decretal amount and passed a preliminary decree and the defendants were allowed a period of 6 months to repay the said decretal amount, failing which the plaintiff - bank was held entitled to apply for final decree. Dissatisfied with the said judgment and decree of the trial Court, the plaintiff-bank filed an appeal claiming future interest @ 15% per annum instead of 6% per annum as allowed by the trial court. On the said appeal, fixed Court fee of Rs.25/- was affixed. The learned Additional District Judge, after hearing both sides, was of the view that Court fee is to be affixed on the excess amount claimed and accordingly the plaintiff-bank was given time to affix the Court fee on excess amount claimed, vide order dated 29.1.1999. Aggrieved against the said order, the plaintiff-bank has filed the present revision petition. 3. Since there is a delay in refiling the petition, an application under Section 151 CPC was filed for condoning the said delay. Another application under Section 149 CPC was also filed for extending the time in making good the deficiency in the payment of Court fee on the memo of parties. 4. Counsel for the petitioner has been heard and record perused. 5. So far as the two applications; one under Section 151 and the other under Section 149 CPC are concerned, both these applications deserve to be accepted inasmuch as there was a shortfall in the Court fee stamps on the memo of parties which has already been made good. 4. Counsel for the petitioner has been heard and record perused. 5. So far as the two applications; one under Section 151 and the other under Section 149 CPC are concerned, both these applications deserve to be accepted inasmuch as there was a shortfall in the Court fee stamps on the memo of parties which has already been made good. Accordingly, the time for payment of Court fee is extended and the delay in refiling the revision petition is condoned. 6. On merits, the learned counsel for the petitioner-bank has submitted that the learned Additional District Judge erred in law in directing the petitioner-bank to pay the Court fee on the excess amount claimed by the plaintiff-bank towards future interest. It was submitted that no Court fee is payable on the amount claimed by the plaintiff bank. Reference was made to A.I.R. 1947 Lahore 40 Mohammad Saeed and Anr. v. Abdul Alim and Ors., and (1988-2)93 P.L.R. 49 Banta Singh and Ors. v. Union of India and Ors.,. 7. However, I find no merit in the present revision petition. The two authorities relied upon by the learned counsel for the petitioner would have no application to the facts of the present case. In A.I.R. 1947 Lahore 40 (supra) it was held that on an appeal in a suit on mortgage by an unsuccessful plaintiff the Court fee should be the same as that payable on the mortgage at the time when the suit was instituted and not on the amount as increased by the accrual of interest up to the time of filing the appeal. The law laid down in this authority would have no application to the present case. The authority (1988-2)93 P.L.R. 49 (supra) is altogether on a different point and has absolutely nothing to do with the case in hand. 8. So far as the question regarding the payment of Court fee on the difference between the amount allowed by the trial Court and the amount claimed by the plaintiff in appeal (even with regard to the difference in interest) is not res integra. 9. 8. So far as the question regarding the payment of Court fee on the difference between the amount allowed by the trial Court and the amount claimed by the plaintiff in appeal (even with regard to the difference in interest) is not res integra. 9. In A.I.R. 1931 Allahabad 351 Damodar Pershad v. Hardeo Pershad, it was held by the Allahabad High Court that where the appellant claimed among other sums of amount a definitely ascertainable sum by way of pendente lite interest disallowed by trial Court, the same must be held to be part of "amount or value of the subject matter in dispute" and ad valorem Court fee was payable under Schedule 1 Article 1 or the Court Fees Act, on the sum claimed as pendente lite interest. Similarly, in A.I.R. 1945 Patna 145 Jagarnath Prasad and Ors. v. Bhala Prasad Singh and Ors., it was held by the Patna High Court that no doubt when a suit is filed, a claim for pendente lite interest is not for an ascertainable sum. But the position is quite different once the suit has been decreed and an appeal is preferred specifically with regard to the pendente lite interest disallowed up to the date of the decree. It was further held that in such a case the claim for pendente lite interest is ascertainable and therefore, ad valorem Court fee must be paid under Schedule 1 Article 1 on the amount claimed in appeal as pendente lite interest which was disallowed by the trial Court. 10. In A.I.R. 1962 Bombay 52 Mishrilal Tarachand Lodha v. State of Maharashtra and Ors., it was held by the Bombay High Court in para 5 of the judgment that in a regular appeal no Court fee is payable on the amount of costs but if an appeal is directed only against costs, then certainly Court fee is payable on the amount sought to be challenged in appeal. It was further held that there was no reason why the same principle should not be followed in the case of interest where interest only is the subject matter or the appeal and not the original right between the parties. In A.I.R. 1934 Lahore 739 Fateh Singh and Anr. It was further held that there was no reason why the same principle should not be followed in the case of interest where interest only is the subject matter or the appeal and not the original right between the parties. In A.I.R. 1934 Lahore 739 Fateh Singh and Anr. v. Mauj Rai and Ors., it was held by the Lahore High Court that ordinarily no Court fee is payable upon costs entered in the decree against which an appeal is presented but where apart from and independently of any other relief which the appellant seeks, he seeks distinct relief on the ground that by the decree under appeal the costs of the parties have not been properly assessed or apportioned the value of such distinct relief should be reckoned as part of the subject matter in dispute for the purpose of the Court fees. 11. In A.I.R. 1937 Nagpur 6, Sheikh Rahman v. Balchand and Anr., it was held by the Nagpur High Court that as a general rule Court fee on a plaint are payable on interest claimed upto the date of suit but not beyond and if the suit is dismissed and the plaintiff still wants interest in appeal, he must pay Court fee on the amount claimed upto the date on which he files the appeal but again not beyond that. In A.I.R. 1920 Patna 376 Tarapada Mitra v. Jagadamba Kumari, it was held by the Patna High Court that in equity and in law a party is required to pay a Court fee on the sum for the recovery of which he seeks the assistance of the Court and where a decree holder sues to recover a sum as interest in addition to the sum named in the decree, he must pay Court fee on the amount he claims. 12. In A.I.R. 1919 Oudh. 305(1), Gobardhan Das v. Narendra Bahadur Singh and Ors., it was held by the Oudh High Court that the proper Court fee payable on an appeal relating to future interest is an ad valorem fee on the amount of interest claimed upto the date of the presentation of the appeal. 12. In A.I.R. 1919 Oudh. 305(1), Gobardhan Das v. Narendra Bahadur Singh and Ors., it was held by the Oudh High Court that the proper Court fee payable on an appeal relating to future interest is an ad valorem fee on the amount of interest claimed upto the date of the presentation of the appeal. In A.I.R. 1922 Patna 387(2) Jamuna Rai v. Ramtahall Raut and Ors., a suit on a mortgage was dismissed by the trial Court and the plaintiffs who filed the appeal paid the same Court fee on the memorandum of appeal as had been paid on the plaint and the appellate Court awarded the plaintiffs the sum claimed in the plaint together with interest accruing due between the institution of the suit and the date of the decree and under these circumstances, it was held by the Division Bench of Patna High Court that the plaintiffs were bound to pay additional Court fee on the amount awarded as interest. 13. In A.I.R. 1943 Lahore 275, Hakim Mehr Din v. Swami Kutilak Ram, the preliminary mortgage decree in a suit for sale of the mortgaged property awarded the plaintiff a certain amount on account of principal and interest on a part of the principal from the date of the suit till the date fixed for redemption. In appeal, the plaintiff claimed interest on the whole amount of the principal from the date of the suit till the date of realisation. Under those circumstances, it was held by a Full Bench of Lahore High Court that the period from the date of institution of the suit till the date of realisation was divisible into two parts:- (1) the period from the date of the institution of the suit upto the date of redemption, and (2) the period from the date of redemption upto the date of realisation. It was further held that as far as the second period was concerned, the amount claimed by the plaintiff was unascertainable and as such the plaintiff must pay the fixed Court fee of Rs.10/-, but so far as the first period was concerned, the total amount claimed by the plaintiff was ascertainable and similarly the total amount awarded to the plaintiff in respect of this period was also ascertainable. It was further held that thus from the total amount claimed in appeal in respect of first period, the total amount awarded to the plaintiff in respect of this period by the trial Court must be deducted and the difference between these two sums would be a definite and ascertainable sum and Court fee on this amount must be paid ad valorem under Schedule 1 Article 1 of the Court Fee Act. 14 In view of the law laid down in the above mentioned authorities, it would be clear that the plaintiff bank was required to pay the ad valorem Court fee on the future/further interest claimed in appeal upto the date of filing of the appeal being the difference between the amount allowed by the trial Court and the amount claimed by the plaintiff-appellant bank in appeal. 15. The question regarding the payment of Court fee on future interest under appeal also came up for consideration before their Lordships of the Supreme Court, in A.I.R. 1964 S.C. 457, State of Maharashtra v. Mishrilal Tarachand Lodha and Ors. In the said authority it was held by the Honble Supreme Court that no Court fee was required to be paid on future interest where the appellant challenging the decree of the trial Court was challenging the entire decree. However, where the appellant was not challenging the entire decree but was only challenging that part of the decree passed by the trial Court whereby a lesser rate of interest was allowed to the plaintiff-appellant towards future/further interest, even according to the Honble Supreme Court, the plaintiff-appellant bank would be required to pay ad valorem Court fee on the amount sought to be claimed. In the said authority, after placing reliance on the law laid down by Allahabad High Court in A.I.R. 1934 Allahabad 805 Mitthoo Lal v. Mt. Chameli, and by the Oudh High Court in A.I.R. 1937 Mt. Keolapati v. B.N. Varma, (supra), it was held by the Honble Supreme Court as under:- "(20) We, therefore, hold that the amount of pendente lite interest decreed is not to be included in the amount or value of the subject matter in dispute in appeal for the purposes of Article 1 of Schedule 1 of the Act unless the appellant specifically challenges the correction of the decree for the amount of interest pendente lite independently of the claim to set aside that decree. The appellant here has not specifically challenged the decree in that respect and, therefore, the High Court is right in holding the memorandum of appeal to be sufficiently stamped." 16. It was further held by the Honble Supreme Court in the said authority that in the said case, it was required to construe the expression "value of the subject matter in dispute in appeal" for the purposes of determining the amount of Court fee due on memorandum of appeal and the relevant provision governing the question of Court fee to be paid on the memorandum of appeal filed in a Civil Court is contained in Article 1 of Schedule 1 of the Court Fee Act, according to which the Court fee is to be paid ad valorem according to the amount or value of the subject matter in dispute. It was further held in the said authority that if the appellant disputes expressly the propriety or correctness of the decree with respect to the cost or pendente lite interest, independently of the claim to the subject matter in the trial Court, he will have to pay Court fee on the amounts challenged, as in that case he disputes those amounts in appeal and therefore, those amounts do come within the expression "value of the subject matter in dispute in appeal". It was further held that this has been the basis of the various decisions of the Courts in which Court fee has been demanded on the amount of costs or future interest. 17. In view of the law laid down by their Lordships of the Supreme Court in the above mentioned authority, it would be clear that the plaintiff-appellant bank was required to pay the ad valorem Court fee on the amount claimed in appeal towards future/further interest, which had been dis-allowed by the trial Court and while calculating the said amount, the plaintiff-appellant bank would be required to calculate the difference between the amount allowed and the amount claimed towards future/further interest upto the date of the filing of the appeal. In my view, the law laid down by their Lordship of the Supreme Court in the above said authority is a clincher with regard to the payment of ad valorem Court fee on future/further interest specifically claimed by the plaintiff appellant bank in the appeal against the judgment and decree passed by the trial Court. 18. In my view, the law laid down by their Lordship of the Supreme Court in the above said authority is a clincher with regard to the payment of ad valorem Court fee on future/further interest specifically claimed by the plaintiff appellant bank in the appeal against the judgment and decree passed by the trial Court. 18. Before parting with this judgment, it is my duty to refer to an authority of Orissa High Court, which has some bearing on the case in hand and which I came across while going through the law on the subject. In 1993 I.S.J. (Banking) 485 Indian Metals and Ferro Alloys Limited v. Gurcharan Biswal and Anr., a part of the claim was dis-allowed by the trial Court alongwith pendente lite and future interest. In appeal, the plaintiff claimed the amount which was dis-allowed by the trial Court alongwith future and pendente lite interest. It was under these circumstances that it was held by the Orissa High Court that the grant of pendente lite and future interest being within the judicial discretion of the Court, no Court fee was payable to challenge that part of the decree, when refusal of interest from the pre-suit period has been challenged and the and the Court fee has been paid on it. In my opinion, the law laid down by the Orissa High Court in the said authority would have no application to the facts of the present case, where the entire claim of the plaintiff bank was decreed by the trial Court except grant of interest at a lesser rate and in appeal, the plaintiff bank had claimed higher rate of interest and no more. In any case, in view of the law laid down by the Lordships of the Supreme Court in A.I.R. 1964 S.C. 457 (supra), the plaintiff bank would be required to pay the ad valorem Court fee in appeal filed by it against the judgment and decree passed by the trial Court. 19. In view of my detailed discussion above, in my opinion, the learned Additional District Judge was perfectly justified in directing the plaintiff appellant bank to pay ad valorem Court fee in the appeal on the difference of the amount claimed in appeal towards interest i.e. on the difference between the amount claimed and the amount awarded by way of interest. 20. 20. Accordingly, the present revision petition fails and is dismissed in limine. It is made clear that the plaintiff bank would be required to pay the ad valorem Court fee on the amount claimed by the bank by way of future/further interest which had been dis-allowed by the trial Court, to be calculated upto the date of filing of the appeal. 21. While directing the plaintiff-appellant bank to pay the requisite Court fee, the Additional District Judge had allowed time to the plaintiff-appellant bank to pay the Court fee upto 15.2.1999. This period has since" expired. Under these circumstances, it is further ordered that if the appellant bank has not so far paid the requisite fee, the petitioner bank is allowed time upto 3.4.2000 to pay the requisite Court fee.