Decided on January 18,2006

Elcaps Capacitors Ltd. and Ors. Respondents


P.K. Deb, J. - (1.) THIS appeal has been preferred against the dismissal recorded by the then Presiding Officer, DRT, Jabalpur in T. A. No. 997 98. The dismissal has been recorded only on the ground of limitation and merit of the case had not been considered by the Tribunal in the impugned judgment. The brief facts of the case are as follows: A civil suit was filed by the appellant Bank before the District Judge, Raisen, Madhya Pradesh, for realization of Rs. 2.00 crores and odd as the loan taken by the defendant -respondents had not been paid. The suit was filed in the Civil Court on 25.3.1995 and the same was registered as Civil Suit No. 7 -B/96. While the civil suit was pending before the Civil Court, Tribunal was set up at Jabalpur and as such the same was transferred to DRT, Jabalpur, wherein it was registered as T.A. No. 99/ 98. A reference was made by the defendant company before the BIFR and such reference was registered on 26.12.1976 and for that reason as per the provisions of SICA the proceedings before the Civil Court and the Tribunal remained suspended. After decision of BIFR the defendant again filed an appeal before the AAIFR, but the defendant No. 1 company lost before the AAIFR also on 24.11.2000 and then the proceeding before the Tribunal was revived. The trouble started when the proceeding was revived before the Tribunal at Jabalpur, while the suit was originally filed before the Civil Court. In paragraph No. 13 it was mentioned that the maximum Court fee for the claimed amount of Rs. 2,57,57,600.41 was paid to the tune of Rs. 18,750/ - as per the prevalent Court fee schedule under the Court Fees Act prevalent in Madhya Pradesh but just before filing of the suit there was amendment in the M.P. Court Fees Act, whereby the Court fees have been hiked and maximum limit as was prevalent in the erstwhile M.P. Court Fees Act has been withdrawn and as such on the amount of the claim Court fees to the tune of Rs. 7,82,2407 - were to be paid but this hike is being challenged by the appellant Bank in paragraph No, 13 of the plaint itself. But they had further made an undertaking in the last line of the paragraph of the plaint in the following manner: However, if it is ultimately held that the enhanced Court fees without upper ceiling is excessible, the plaintiff undertakes to pay the deficit Court fees.
(2.) BUT then at the time of registering the suit before the Civil Court, no objection was raised regarding deficit Court fees and the suit proceeded as it was on the maximum Court fees paid by the appellant as per the unamended M.P. Court Fees Act and the suit was also transferred to the Tribunal at the same stage and nowhere there was any objection regarding deficit Court fees after the suit was revived before the Tribunal, then the appellant Bank suo motu filed a petition on 28.7.2001 to the effect that they want to pay the Court fees as per the amended M.P. Court Fees Act and the deficit thereof and so the case record be transferred to the Civil Court for making payment of the deficit fees and get it back for the purpose of adjudication. Accordingly, the case record of T.A. No. 99/98 was transferred to the Civil Court and then the deficit Court fees were paid and the case was transferred to the Tribunal for adjudication. During the adjudication, although the defendant did not appear nor raised any objection, the Tribunal suo motu raised a legal issue as to whether the suit was barred by limitation for non -payment of Court fees in time and ultimately the learned Tribunal decided the said legal issue against the appellant and dismissal of proceeding was recorded and hence the present appeal. Although it appears that the learned Tribunal had considered Section 149 of the C.P.C. and also a judgment of the Apex Court as reported in but basic fundamentals have been erred by the Tribunal in deciding the issue.
(3.) AS per the facts stated above, it is very clear that regarding deficiency of the Court fees, nowhere any objection was raised in the Civil Court, while the plaint was registered and as such the matter remained to be adjudicated. If further Court fees are to be paid on the basis of the undertaking given by the plaintiff -appellant in paragraph No. 13 of the plaint, but when the suit had been transferred to the Tribunal and revived after long five years, then although no objection was raised either by the appellant or from the defendants, the appellant thought it fit that it should pay the Court fee as per the Amended Act itself and as such prayer was made so as already mentioned above as though petition filed on 28.7.2001. Such petition was filed before the Tribunal and as such the matter was sent to the Civil Court wherein the Court fees were paid and definitely when such Court fees were paid, a bar of limitation comes in regarding the claim of the Bank unless such payment of fees is being considered as paid under Section 149 of the C.P.C. The basic principle is that if a plaint registered on deficit Court fees, then payment of further fees liberty is taken from the Court and if on such liberty being granted and by the date fixed, such fee is paid, then that fee relates back to the date of filing of the suit. Here in the present case, no such position arose, rather the plaint was registered on the maximum fees being paid as per the unamended M.P. Court Fees Act and no objection was raised by the Civil Court regarding deficit fees, perhaps for the reason of that challenge being made by the appellant in paragraph No. 13 of the plaint and undertaking given thereof. After the proceeding was revived from the suspension period of about five years, then the appellant thought it fit not to go on controversy regarding the fees, as that had been raised in paragraph No. 13 of the plaint as per undertaking given thereof, they wanted to pay the fees and accordingly fees were paid without having any objection either from the Civil Court officials or by the Tribunal. If regarding Court fees any objection remains and the same is being adjudicated during the course of trial or at any stage, then by the Court's order, said fees could be paid and if it is done at the final disposal, then also deficit fees are being paid during the period fixed in the judgment itself, which relates back to the date of filing of the suit as per Section 149 of the C.P.C. But it appears that the learned Tribunal did not consider the basic and fundamental aspect of law in this matter in issue, rather he went on considering the technical flaw saying that the undertaking made in paragraph 13 of the plaint. Dismissal of the plaint/suit without having any objection either at the time of registering the suit or afterwards from any corner, then it must be construed that as per undertaking the deficit fees were paid within the purview of Section 149 of the C.P.C. In this respect Manna Lal v. Chhotaka Bibi may be referred to by the said judgment provisions of Section 149 of the C.P.C. was considered in its proper perspective and wider scope of it. By that judgment the Full Bench decision of the Allahabad High Court was set aside. Other decisions in this respect are Jugal Kishore v. Dhanno Devi, Mahasaya Ganesh Prasad Ray v. Narendra Nath Sen.;

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