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2007 DIGILAW 99 (KER)

Sajin Cashew Company v. State Bank Of Travancore

2007-02-07

A.K.BASHEER, M.RAMACHANDRAN

body2007
ORDER A. K. Basheer, J. 1. This unnumbered Regular First Appeal has been placed before us to consider the question whether the court fee paid by the appellants on the memorandum of appeal is correct or not. The Registry has pointed out that the appellants/defendants have to pay court fee on the valuation shown by the respondent/plaintiff in the Court of first instance. But the appellants insisted that the court fee of Rs. 20/- paid under Schedule 1 Art.1(ii) is correct. It is in the above circumstances that this unnumbered appeal which has been filed with a delay of 811 days in representation and also 4 days delay in its filing has come up before us. 2. A brief reference to the essential facts with regard to the nature of the claim in the suit and the contentions raised by the appellants before the Court below is necessary to consider the question of court fee that has cropped up in this case. Appellant No. 2 had admittedly availed of cash credit facility to the extent of Rs. 3 lakhs from the respondent, State Bank of Travancore in the year 1995. It is also beyond controversy that appellants 2 and 3 had also executed promissory note, letter of continuity, cash credit pledge agreement, letter of hypothecation etc. in favour of the Bank as collateral security for the loan. Appellant No. 2 had also deposited his title deed in respect of an immovable property for creating equitable mortgage in favour of the Bank. A memorandum of deposit of title deed was also executed. The suit was instituted by the Bank in the year 1997 contending inter alia that the appellants/defendants had committed default in repayment of the dues and as on November 13, 1997 a sum of Rs. 4,14,314/- was due from them. The Bank sought recovery of the above sum with interest at the rate of 17.75% per annum with quarterly rests and penal interest at the rate of 2% per annum till the date of realisation. Appellants/defendants admitted that a cash credit facility had been availed from the Bank in May 1995 as alleged in the plaint. However it was contended that the security deed executed by defendants 2 and 3 had been suppressed by the Bank and the suit was instituted on the strength of some documents manipulated by the Bank subsequently. Appellants/defendants admitted that a cash credit facility had been availed from the Bank in May 1995 as alleged in the plaint. However it was contended that the security deed executed by defendants 2 and 3 had been suppressed by the Bank and the suit was instituted on the strength of some documents manipulated by the Bank subsequently. We do not propose to deal with the various other contentions raised by the defendants since the issue that has come up for consideration falls in a vary narrow compass. Suffice it to say that the defendants had admitted the transaction between them and the Bank. But the primary contention raised by them was that the rate of interest agreed between the parties was only 17% with half yearly rests and not quarterly as contended by the plaintiff. There was also dispute with regard to the rate of penal interest. 3. The Court below passed a preliminary decree at the conclusion of the trial on July 30, 2003 in the following terms: 1. The plaintiff is entitled to the actual amount due as on 31/01/1996 from the defendants in respect of the disputed transaction including the interests at the rate of 17% with quarterly rests till the date of suit. 2. The plaintiff is entitled to realise permissible commission in respect of the cheques dishonoured and returned. 3. The plaintiff is also entitled to penal interest at the rate of 1%. 4. The plaintiff cannot claim interest on amount of penal interest. 5. The plaintiff can capitalise only interest at the rate of 17% on the principal amount. 6. The plaintiff can realise only 6% interest per annum on the principal sum due as on the date of suit till realisation. 7. The plaintiff can file petition for passing final decree and can ascertain in that proceedings the exact amount due from the defendant with the assistance of an expert. 8. The plaintiff shall file a final decree application within 6 months from today. 4. We have heard Sri. M. R. Rajesh, learned counsel for the appellants and Sri. R. D. Shenoy learned Senior Counsel who was requested to assist the Court as Amicus Curiae. 5. 8. The plaintiff shall file a final decree application within 6 months from today. 4. We have heard Sri. M. R. Rajesh, learned counsel for the appellants and Sri. R. D. Shenoy learned Senior Counsel who was requested to assist the Court as Amicus Curiae. 5. It is contended by learned counsel for the appellants that the Court below having refused to grant a decree for recovery of money to the plaintiff, the appellants are liable to pay court fee under S.35 read with Explanation IV to S.52 of the Kerala Court Fees and Suits Valuation Act, 1959. Curiously, the appellants have valued the subject matter of this appeal at Rs. 1,000/- and they have paid a court fee of Rs. 20/- on the said amount under Schedule I Art.1(ii) of the Act. 6. S.52 of the Act postulates that 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. Admittedly the plaintiff had valued the subject matter before the Trial Court at Rs. 4,14,314/- and paid court fee of Rs. 29,309/- under S.22 of the Act. Explanation I to S.52 stipulates that whether the appeal is against the refusal of the relief or against the grant of a relief, the fee payable in the appeal shall be the same as the fee that would be payable on the relief in the Court of first instance. Explanation IV to S.52 stipulates that where the relief prayed for in the appeal is different from the relief prayed for or refused in the Court of first instance, the fee payable in the appeal shall be the fee that would be payable in the Court of first instance on the relief prayed for in the appeal. The provisions contained in S.52 referred to above undoubtedly show that the appellants have to necessarily pay the court fee on the subject matter of the suit. 7. S.35 of the Act deals with suit for accounts. The fee payable in a suit for accounts shall be computed on the amount sued for as estimated in the plaint or at Rs. 1,000/- whichever is higher. Apparently the appellants are seeking refuge under the above clause in S.35 of the Act and it is thus that they have estimated the value of the subject matter at Rs. 1,000/-. The fee payable in a suit for accounts shall be computed on the amount sued for as estimated in the plaint or at Rs. 1,000/- whichever is higher. Apparently the appellants are seeking refuge under the above clause in S.35 of the Act and it is thus that they have estimated the value of the subject matter at Rs. 1,000/-. As mentioned earlier, the plaintiff had not instituted the suit as one for accounts. The suit was instituted for recovery of the amount found due in the loan account. The plaintiff had paid court fee before the Trial Court under S.22 of the Act and not under S.35. The appellants defendants did not have a case that the suit instituted by the plaintiff was one for accounts. It is true that the Court below had passed a "preliminary decree" since it was of the view that Ext. A8 statement of account produced for the period from January 1, 1994 to November 13, 1997 did not give a clear idea about the exact amount due. There was also dispute with regard to certain amounts claimed by the plaintiff as penal interest, service charges, process fee etc. More importantly, Ext. A8 statement of account indicated that the interest was calculated at the rate of 17% with quarterly rests, whereas the defendants had contended that interest was payable at half yearly rests. It was in the above circumstances that the Trial Court had found it necessary, rightly or wrongly, that the "assistance of an expert had to be utilised to arrive at the exact amount payable by the defendants to the plaintiff". It is pertinent to note that the Court below had found that the plaintiff was entitled to get a decree for recovery of money that was due as on January 31, 1996 with 17% interest with quarterly rests till the date of suit. But the Court wanted to get the assistance of an "expert" to arrive at the exact amount due. However, the appellants seem to be under the impression that the relief prayed for has not been granted to the plaintiff. Even assuming that the above suit had been instituted under S.35, the appellants will be liable to pay court fee on the amount sued for as estimated in the plaint. However, the appellants seem to be under the impression that the relief prayed for has not been granted to the plaintiff. Even assuming that the above suit had been instituted under S.35, the appellants will be liable to pay court fee on the amount sued for as estimated in the plaint. The appellants will have to value the subject matter in the same manner in which it had been valued by the plaintiff. 8. A Division Bench of this Court in Mariyan v. Narayanan, 1974 KHC 58 : 1974 KLT 194 : AIR 1974 Ker. 147 has laid down that "when a defendant appellant appeals against the preliminary decree in a suit for accounts and challenges the whole of the said decree, he has to a value the subject matter of the appeal, namely the relief of account, in the same manner in which it had been valued by the plaintiff. It is not open to him to alter the valuation of the subject matter made by the plaintiff for purposes of court fee." In that view of the matter the contention raised by the appellants that they are liable to pay court fee under S.35 cannot be sustained at all. The appellants are undoubtedly under a misconception. Even assuming that the appeal arises from a suit for accounts, the appellants will have to compute the court fee under S.35 read with Schedule I and Art.1(iv) on the valuation of Rs. 4,14,314/- shown by the plaintiff before the Trial Court. Under no circumstances the appellants could have estimated the value of the subject matter at Rs. 1,000/- invoking the aid of S.35 at the appellate stage, since evidently S.35 refers to suits and not appeals. 9. Sri. R. D. Shenoy learned senior counsel has invited our attention to a Full Bench decision of this Court in Scaria Joseph v. Mathai George, 1974 KHC 162 : 1974 KLT 721 : ILR 1974 (2) Ker. 502 : AIR 1975 Ker. 24 . The Full Bench held that "where the subject matter in the appeal coincides with the subject matter in the suit, the value of the appeal for the purposes of court fee will be the same as that of the suit. 502 : AIR 1975 Ker. 24 . The Full Bench held that "where the subject matter in the appeal coincides with the subject matter in the suit, the value of the appeal for the purposes of court fee will be the same as that of the suit. But if the subject matter in appeal relates only to a portion or part of the suit claim, then that portion will have to be separately valued and court fee paid on the same." 10. Having regard to the entire facts and circumstances, the contentions raised by the appellants are liable to be repelled. We do so. The appellants shall be liable to pay court fee as provided under S.52 of the Act on the basis of the valuation shown on the subject matter of the suit in the Court of first instance. Appellants cannot get the aid of S.35 of the Act at the appellate stage and estimate the value at Rs. 1,000/- as provided thereunder, ignoring the valuation shown by the plaintiff in the suit and the court fee paid thereon under S.22. If the appellants remit the requisite court fee as indicated above within 15 days from the date of receipt of a copy of this order, the Registry shall receive the same.