N RAMANLAL AND CO Vs. KIRCHAND SUNDERJI OF MORBI
LAWS(GJH)-1960-10-3
HIGH COURT OF GUJARAT
Decided on October 03,1960

N.RAMANLAL AND COMPANY Appellant
VERSUS
KIRCHAND SUNDERJI Respondents


Referred Judgements :-

INDIRA SOHANLAL V. CUSTODIAN OF EVACUEE PROPERTIES DELHI AND OTHERS. [DISTINGUISHED]
FRYER V. MORLAND [REFERRED]
COLONIAL SUGAR REFINING CO. V. IRVING [REFERRED]
MULLINS V. SURREY TREASURER [REFERRED]
MCLAUGHIN V. WEST GATH [REFERRED]
HOUGH V. WIDDUS [REFERRED]
NAGENDRANATH BOSE V. MAN MOHAN SINGH ROY [REFERRED]
SHANKAR MARUTI V. BHAGWANT GUNAJI [REFERRED]
SAWALDAS MADHAVDAS V. ARTI COTTON MILLS LTD. [REFERRED]
EOOSEIN EASAM DADA INDIA LIMITED VS. STATE OF MADHYA PRADESH [REFERRED]
GARIKAPATI VEERAYA VS. N SUBBIAH CHOUDHRY [REFERRED]



Cited Judgements :-

C N BROS VS. COMMISSIONER OF INCOME TAX AHMEDABAD [LAWS(GJH)-1961-1-2] [REFERRED]


JUDGEMENT

J. M. SHELAT - (1.)The question that falls for determination is whether the appellants who were the defendants in the suit and who filed this appeal on 19/12/1959 that is after the new Act came into force are liable to pay Court-fees under the old Act or under the new Act?
(2.)The preamble to the new Act recites that the Act was passed with the object of consolidating and amending the law relating to the fees except those falling under entries 77 and 96 of list I in the Seventh Schedule to the Constitution. The principal difference between the old Act and the new Act is the new scale of fees provided in the ad valorem fees and the withdrawal of the maximum of Rs. 12 500 thereunder in the old Act and the substitution in its place of unlimited fees chargeable under the last sub-clause of clause (1) of Schedule I of the Act. It is not in dispute that the present memorandum of appeal is a document falling under clause (1) of the first schedule and if the new Act were to apply to it the fees chargeable of it would be Rs. 1240/according to the higher scale now provided.
(3.)Section 5(1) creates a disability against a document on which proper fees are not paid for by providing that no document of any of the kinds specified as chargeable in the fact or second schedule to the Act annexed shall be filed exhibited or received in any Court of Justice...unless in respect of such document there has been paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. The memorandum of appeal being a document falling under clause(1) of the first schedule it is liable to be charged with the ad valorem fees specified therein. It may be observed that section 5 falls under Chapter III which is headed Computation of Fees. Sub-clauses (2) and (3) provide for a machinery when a difference of opinion arises between a suitor or his pleader on the one hand and the officer whose duty it is to see that proper fees are paid under the Act on the other. Chapter VI then deals with the mode of levying fees. Section 36 in Chapter VI provides that all fees shall be charged and collected under this Act at the rate in force on the date on which the document chargeable to court-fees is or was presented. The section thus provides that whenever a document is presented the fees which shall be charged and collected under this Act shall be at the rate in force on the date on which such document is or was presented. The inclusion of this provision in the Act seems to have been thought necessary in view of two other sections in the Act. Section 40 provides that no document which requires to bear a stamp under this Act shall be of any validity unless and until it is properly stamped. It also provides that if any such document is through mistake or inadvertence received filed or used in any court without being property stamped the presiding Judge may order such document to be stamped as directed by him and upon that being done the same shall be as valid as if it was properly stamped in the first instance. This section explains why in section 36 the words was presented occur. Thus if a document was presented but through mistake or inadvertence was not properly stamped at the rate in force on the date of its presentation the presiding Judge can call upon such document to be stamped at the rate in force when it was presented. Ordinarily when the Legislature had already provided in section 5 and the two schedules both the liability for payment of court-fees as also the extent of that liability there would no longer be any necessity of again laying down the rate of fees at which the chargeable documents are to be stamped. It became necessary however to insert section 36 because of section 46 being in the Act which enables the State Government to reduce or to remit from time to time all or any of the fees mentioned in the two schedules. This powers to vary the rates though only by way of reduction or remission in whole or in part appears to have made the Legislature to enact in section 36 that the fees to be charged and collected under section 5 and the two schedules shall be at the rate in force on the date when the document chargeable thereunder is or was presented. In the light of these two sections section 36 cannot be regarded as argued by the learned Advocate General as a section simplicitor for the levying of court-fees under the new scale whenever a document is presented after the Act comes into force. The object of enacting section 36 was to lay down that court-fees shall be charged at the rate in force from time to time in accordance with section 5 the two schedules and also in accordance with such charges that may be made by the State Government under the power conferred upon them by section 46 of the Act. From a reading of sections 5 36 and 46 it is thus clear that the court-fees payable under the Act of 1959 are those prescribed in the two schedules at the rate existing on the day when a document was presented depending upon whether there was any reduction thereunder or remission thereof at any particular time. Hence section 36 uses words at the rate in force on the date on which the document chargeable to court-fees is or was presented. But for section 46 there apparently was no necessity of section 36 in the Act. No doubt such a power to educe or remit was given to the appropriate Government under section 35 of the Act of 1870 But the Legislature had not then thought fit to incorporate a section similar to the present section 36 though there was section 25 in the earlier Act which said that all fees referred to in section 3 or chargeable under this Act (Italics are mine) shall be collected by stamps.
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