Research › Search › Judgment

Himachal Pradesh High Court · body

2000 DIGILAW 295 (HP)

UCO BANK v. LEKH RAM

2000-11-13

R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J.—The plaintiff UCO Bank, has filed the present suit against the two defendants for the recovery of Rs. 6,86,540. The defendant No. 1 Shri Lekh Ram is the principal debtor while defendant No. 2 is the guarantor. 2. A truck loan to the tune of Rs. 1,87,000 was granted to defendant No. 1 on 30.1.1982 for which defendant No. 2 stood as a guarantor. The loan carried interest at the rate of 15% per annum with quarterly rests. The loan alongwith interest was repayable in monthly instalments beginning from the month of February, 1982. Each instalment was payable by the 30th of the month. The defendants failed to repay the loan as per agreed terms. As on 3.8.1992, a sum of Rs. 6,86,540 was due from the plaintiff towards the loan. Since the defendants failed to pay the said sum inspite of having been called upon to do so, the present suit has been filed. 3. The suit is being resisted and contested by the defendants. Separate written statements have been filed by the two defendants. 4. Defendant No. 1 has pleaded that he had applied for a loan of Rs. 1,00,000 for the purchase of a second hand truck, which amount was received by him. Neither loan for Rs. 1,87,000 was applied for nor such amount was disbursed to and received by him. His signatures were obtained on blank proformae of the loan documents. Rate of interest as claimed by the plaintiff was denied and it was pleaded that no interest was agreed to be paid. Execution of the balance confirmation letter was also denied. It was averred that defendant No. 1 had not visited the bank on the dates of alleged execution of balance confirmation letters. Objections as to the suit being time barred and the same not having been filed through a competent and duly authorised person were also raised. 5. Defendant No. 2, while denying the claim of the plaintiff, pleaded that he is an illiterate person. He had never agreed to become the guarantor for defendant No. 1. His signatures were obtained on blank proforrnae on the pretext that such signatures were being obtained only as a witness to the transaction between the plaintiff and defendant No. 1. 5. Defendant No. 2, while denying the claim of the plaintiff, pleaded that he is an illiterate person. He had never agreed to become the guarantor for defendant No. 1. His signatures were obtained on blank proforrnae on the pretext that such signatures were being obtained only as a witness to the transaction between the plaintiff and defendant No. 1. It was further pleaded that the plaintiff having allowed the defendant No. 1 to misutilise the principal security, namely, the truck, was estopped from filing the suit. 6. On the pleadings of the parties, following issues were framed on 12.1.1994:— 1. Whether the suit has been instituted and the plaint signed and verified on behalf of the plaintiff by a person competent to do so? OPP 2. Whether the suit is within the period of limitation? OPP 3. To what amount, the plaintiff is entitled to recover and from which of the defendants? OPP 4. Whether the plaintiff is entitled to recover interest? If so, at what rate and from which rate? OPP 5. Whether the suit is not competent and maintainable without the sale of the hypothecated truck? OPD 2 6. Whether the loan documents were tampered with while they remained in the custody of the plaintiff? If so, its effect? OPD. 7. What is the effect of the plaintiff having made good the deficiency in court-fee, subsequent to the institution of the suit, without the express permission of the court? OP Parties. 8. Relief. 7. I have heard the learned Counsel for the parties and have also gone through the record of the case. My findings on the above issues are as under: Issue No. 1. 8. The present suit has been filed by the plaintiff-bank through Sarvshri K.K. Sehgal and K.N. Grover, the Branch Manager and Officer respectively of the bank. Shri K.N. Grover has appeared as PW 1 while Shri K.K. Sehgal has appeared as PW 2. They have proved on record the general power of attorney, Ex. PW I/A and PW 2/ A in their favour, whereby they have been authorised to institute a suit like the present one for and on behalf of the bank. In view of the power of attorney Ex. PW I/A and PW 2/A and in the absence of any evidence to the contrary I hold that the suit has been filed through a competent and duly authorised person. In view of the power of attorney Ex. PW I/A and PW 2/A and in the absence of any evidence to the contrary I hold that the suit has been filed through a competent and duly authorised person. The issue is decided accordingly. Issues No. 2 and 7. 9. The present suit was initially instituted on 14.8.1992. At the time, the plaint was presented, it was insufficiently stamped inasmuch as court-fee of Rs. 3 only was affixed on the plaint. Upon scrutiny by the office, certain objections including the one that the plaint is not properly stamped, were raised on 20.8.1992. Such objections were approved by the Deputy Registrar (J) of this Court on 22.8.1992. The plaint was returned to the plaintiff for removing the objections and refiling the same within a week. The objection as to court fee was removed by affixing the requisite court-fee and the plaint was refiled on 29.10.1992, that is, after more than two months from the date on which the same was returned to the plaintiff for removing the objections. The suit came to be admitted and registered on 28.12.1992. 10. Be it stated, that when the suit was refiled on 29.10.1992 after affixing requisite court fee on the plaint, neither an application under Section 149, Code of Civil Procedure, seeking leave of the court to make up the deficiency in court fee nor an application for condonation of the delay in refiling the suit was made by the plaintiff. 11. During the course of hearing of the suit on 10.11.1999, when an objection was raised as to the suit being time barred by considering 29.10.1992 to be the date on which the suit was filed, an application, being OMP 522/99, came to be made by the plaintiff under Section 149 read with Section 151, Code of Civil Procedure, "for grant of post facto sanction/permission relating to making good the deficiency in the court fees". The application so made reads:— "1. That the above mentioned civil suit was filed in this Honble Court, but there was a deficiency in Court fees. The application so made reads:— "1. That the above mentioned civil suit was filed in this Honble Court, but there was a deficiency in Court fees. The deficiency in court fees was made good later on and to the best of the knowledge of the plaintiff subject to verification from the official record, such making good the deficiency of the court fees had the implied, if not the express, permission of the learned Registrar (Vigilance) of this Honble Court, since this fact was borne out by the order of the learned Registrar Vigilance as notices were ordered to be issued to the parties after the deficiency in court fee was made good. It is further submitted that this application is being moved by way of abundant precaution in order to avoid any technical objection. The suit is still pending before this Honble Court and it is submitted that procedure being a hand maid of justice, the ends of justice demand that this Honble Court may kindly be pleased to exercise its discretion in favour of the plaintiff in the matter of according post facto sanction (if required) to the factum of the deficiency of court fee having been made good during the pendency of the suit. It is also submitted that the settled law of the land is also that deficiency of the court fee can also be made good at the appellate stage. However, as already submitted in order to avoid any technical objection, the present application is being moved by way of abundant precaution. 2. That it may also be submitted that in any case, the plaint was stamped albeit with deficient court fee, it cannot be stated that there was no properly constituted plaint before this Honble Court at the time when it was instituted. It is, therefore, respectfully prayed that this application may kindly be allowed and formal order may kindly be passed giving recognition to the deficiency in court fee having been made good." 12. The application is being resisted by the defendants, inter alia, on the grounds that the application was not maintainable as the same was not supported by an affidavit and that no sufficient cause has been shown for not affixing proper court fee on the plaint on the day when the suit was initially filed. 13. The application is being resisted by the defendants, inter alia, on the grounds that the application was not maintainable as the same was not supported by an affidavit and that no sufficient cause has been shown for not affixing proper court fee on the plaint on the day when the suit was initially filed. 13. Section 149, Code of Civil Procedure, provides:— "Power to make up deficiency of court-fees.—Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the court may, in its discretion at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance." 14. Relying on the above provision, the learned Counsel for the plaintiff has contended that the court has ample discretion to allow the payment of court fee at any time. 15. The H.P. Court Fees Act, 1968, provides for the payment of Court- fee payable in respect of different kinds of documents etc. to be filed in court. Section 4 of the said Act lays down: "Fees on documents filed, etc., in the High Court in its ordinary and extra-ordinary jurisdiction.—No document of any of the kinds specified in the First or Second Schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, the High Court in any case coming before such,— (a) in the exercise of its ordinary or extra-ordinary original civil jurisdiction; or (b) in the exercise of its jurisdiction as regards appeal from the courts subject to its superintendence; or (c) in the exercise of its jurisdiction as a court of reference or revision; or (d) in the exercise of its jurisdiction to issue directions, orders or writs under the Constitution of India; or (e) in the exercise of its jurisdiction in any other manner, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such documents." 16. It was contended on behalf of the defendants that since Section 4 of the H.P. Court Fees Act prohibits the filing of plaint where it is not properly stamped, the plaint will be deemed to have been presented and the suit instituted on 29.10.1992 when deficiency in court fee was made good. 17. The Supreme Court in Mannan Lal v. Mst Chhotka Bibi (dead) by her legal representatives and others, AIR 1971 SC 1374, has while dealing with Section 4 of the Court-fee Act, 1870 which is part materia to Section 4 of the H.P. Court Fees Act, 1968 and Section 149, Code of Civil Procedure has held that Section 4 of the Court Fees Act is not the last word on the subject. The Court must consider the provisions of both the Act and the Code of Civil Procedure to harmonise the two sets of provisions which can only be done by reading Section 149 of the Code of Civil Procedure as a proviso to Section 4 of the Court Fees Act by allowing the deficiency to be made good within a period of time fixed by it. If the deficiency is made good, no possible objection can be raised on the ground of the bar of limitation. 18. In view of the ratio laid by the Supreme Court in the above referred to case, the settled position is that if the deficiency in Court fee is made good within the time allowed by the Court, the suit/ appeal would be deemed to have been instituted on the date it was originally instituted with insufficient court-fee. However, if the deficiency in court fee is not made good within the time allowed by the court, then the appeal/suit would be deemed to have been instituted on the date the same is presented after affixing proper court fee thereon. 19. As stated above, in the present case, the plaintiff, vide order dated 22.8.1992 of the Deputy Registrar (J), was called upon to remove the objections including the objection as to the deficiency in court fee within a week. As per endorsement on court fee, the same was purchased on 27.10.1992 and the deficiency of court fee on the plaint was made good on 29.10.1992 when the plaint was refiled. As per endorsement on court fee, the same was purchased on 27.10.1992 and the deficiency of court fee on the plaint was made good on 29.10.1992 when the plaint was refiled. As stated earlier, while refiling the plaint on 29.10.1992 after affixing proper court fee thereon no application was made under Section 149 read with Section 148, Code of Civil Procedure for enlargement of time for making up the deficiency in the court fee. 20. On the failure of the plaintiff to make good the deficiency in court fee within time and in the absence of an application under Section 148, Code of Civil Procedure, this Court specifically framed an issue, being issue No. 7, on 12.1.1994 in the following terms:— "What is the effect of the plaintiff having made good the deficiency in court fee subsequent to the institution of the suit, without the express permission of the court?" 21. Inspite of framing of such an issue, the plaintiff did not care to make the requisite application for leave of the court under Section 149, read with Section 148, Code of Civil Procedure, till 15.11.1999 when an application, being OMP No. 522 of 1999 came to be made. 22. It may not be out of place to mention here that in para 10 of the plaint which was initially filed by the plaintiff on 14.8.1992 after affixing court fee of only rupees three thereon, it has been averred as under:— "That the value of the suit for the purposes of court fee and jurisdiction is rupees 6,86,540 on which a court fee of rupees 9078.40 paise has been accordingly affixed." 23. The plaint has been signed and verified by two officers of the plaintiff Bank. The averments made in para 10, quoted above, were, therefore, wrong to the knowledge of the plaintiff since court fee worth rupees three only was affixed on the plaint. While instituting the suit it was never mentioned that proper court fee was not being affixed on the plaint and for what reasons. Neither any prayer was made by the plaintiff seeking time to make good the deficiency. One weeks time to remove the office objections was allowed by this Court on 22.8.1992. 24. While instituting the suit it was never mentioned that proper court fee was not being affixed on the plaint and for what reasons. Neither any prayer was made by the plaintiff seeking time to make good the deficiency. One weeks time to remove the office objections was allowed by this Court on 22.8.1992. 24. Undoubtedly, this Court under Section 149, Code of Civil Procedure has the discretion to allow a party at any stage to pay the whole or part of the court fee prescribed for any document. However, while exercising such judicial discretion the court has to satisfy itself that failure to pay the proper court fee was for the sufficient reasons and that the party or his counsel were not to blame. [See: Smt Amur Kaur v. Iqbal Singh and others, 1972 Rev. L.R. 468 (FB)]. 25. In Ved Prakash v. Smt. Shakuntala Devi and another, 1997 (3) Sim. L.C. 28, a learned Single Judge of this Court following the ratio laid down by the Full Bench of Lahore High Court in Jagat Ram v. Misar Kharaiti Ram and another, AIR 1938 Lahore 361, has held that the discretion to be exercised by the Court under Section 149, Code of Civil Procedure, is to be exercised in favour of the litigant only if the application is bona fide. 26. The above ratio was duly approved by a Division Bench of this Court in United India Insurance Company v. Kuldeep Singh, CMP (M) No. 178/2000 decided on 26.9.2000. 27. The Supreme Court in Buta Singh (dead) by LRs v. Union of India, (1995) 5 SCC 284, while dealing with the question of exercise of discretion under Section 149, Code of Civil Procedure, has held that the Court is not bound to exercise the discretion unless the applicant shows sufficient cause for the failure to pay deficit court fee or that he was under bona fide mistake in payment thereof. It was further held that if the party deliberately to suit his convenience paid insufficient court fee, the mistake is not bona fide but one of the choice made by the party ip making the deficit court fee. Therefore, the court is required to exercise its judicial discretion keeping in view the facts and circumstances of each case and not automatically for mere asking that indulgence be shown to the party to make good the deficit court fee. 28. Therefore, the court is required to exercise its judicial discretion keeping in view the facts and circumstances of each case and not automatically for mere asking that indulgence be shown to the party to make good the deficit court fee. 28. The application made by the plaintiff under Section 149 read with Section 151, Code of Civil Procedure, seeking expost facto leave of the Court for making good the deficiency in court fee, has been reproduced in extenso above. No reason has been assigned as to why the deficiency in court fee could not be made good till 29.10.1992 when the deficiency in court fee was made good. 29. Besides, in view of the categorical averment made in the plaint that court fee of Rs. 9,078.40 paise has been affixed on the plaint, without in fact affixing such court fee, the lapse cannot be said to be bona fide. It appears to be a deliberate act just to overcome the limitation. As pointed out above, even inspite of framing of a specific issue, no attempt was made by the plaintiff to obtain the leave of the court. 30. As a result, the judicial discretion under Section 149, read with Section 148, Code of Civil Procedure, cannot be exercised in favour of the plaintiff. The application, being OMP No. 522 of 1999 is as such dismissed. 31. A contention was raised on behalf of the plaintiff that the suit was admitted by the Registrar on 28.12.1992 in exercise of the powers under Rule 3(1), Chapter II, of the Delhi High Court (Original Side) Rules, 1967, (for short: the Rules) as were then applicable to this Court and that under Rule 4 of Chapter II of the said Rules an appeal lay against the order of the Registrar passed under Rule 3. Since the defendants failed to challenge the order of the Registrar dated 28.12.1992 admitting the plaint, the defendants are estopped from challenging the admission of the plaint and raise the question of limitation. 32. There is no merit in the contention raised. Firstly, the Registrar has not been vested with the powers of the court to decide the question of limitation. Secondly, even if the question of limitation is not raised by the defendants, the Court under Section 3 of the Limitation Act, 1963 is enjoined with a duty to go into the question of limitation. Firstly, the Registrar has not been vested with the powers of the court to decide the question of limitation. Secondly, even if the question of limitation is not raised by the defendants, the Court under Section 3 of the Limitation Act, 1963 is enjoined with a duty to go into the question of limitation. Thirdly, under Rule 3 of Chapter II of the Rules, the Registrar has not been invested the powers to hear and dispose of the applications under Section 149, Code of Civil Procedure. Therefore, mere admission of the plaint by him would not amount to granting of leave to make good the deficiency in court fee. Even otherwise, as pointed out above, at no stage prior to 15.11.1999 any prayer was made by the plaintiff for leave under Section 149, Code of Civil Procedure. 33. Since the deficiency in court fee has been made good on 29.10.1992 beyond the period of the limitation meant for the suit and without the leave of the court, the effect thereof is that the suit will be deemed to have been filed on 29.10.1992 for the purpose of limitation. 34. Ex. PW 6/A is the balance confirmation letter dated 20.10.1989 whereby defendant No. 1 is shown to have admitted his liability to the extent of Rs. 4,52,898.50 paise. Admittedly, no balance confirmation letter admitting the liability was executed by the defendants after 20.10.1989. Calculating the period of limitation of three years from 20.10.1989, the present suit filed on 29.10.1992 is, on the face of it, barred by time. The two issues are, as such, decided against the plaintiff. Issue No. 6. 35. No evidence has been led by the defendants in support of the issue. The same is accordingly decided against the defendants. Issue No. 5. 36. The present issue was not pressed by the defendants during the course of hearing. The same is decided against the defendants. Issue Nos. 3 and 4. 37. Even if it be assumed that the suit amount is due from the defendants and that the plaintiff is entitled to interest at the rate claimed, in view of my findings on issue Nos. 2 and 7 above, the plaintiff is not entitled to recovery any amount from the defendants. The two issues are decided against the plaintiff. Relief. 37. Even if it be assumed that the suit amount is due from the defendants and that the plaintiff is entitled to interest at the rate claimed, in view of my findings on issue Nos. 2 and 7 above, the plaintiff is not entitled to recovery any amount from the defendants. The two issues are decided against the plaintiff. Relief. As a result, the suit fails and the same is accordingly dismissed leaving the parties to bear their own costs. Petition dismissed.