IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 RSA.No. 1040 of 2010() ---------------------- AGAINST THE ORDER IN IA.161/2009 IN AS.49/2009 of D.C. & SESSIONS COURT,KOLLAM OS.32/2001 of ADDL.SUB COURT,KOLLAM .................... APPELLANT/APPELLANT/IST PLAINTIFF: ------------------------------------------- S.VINOBHA,S/O.SIVARAMAN,KIZHAKKEVILA VEEDU,PARIPPALLY. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENT(S)/DEFENDANTS AND PLAINTIFFS 2 & 3: ---------------------------------------------- 1. M/S.MAHARASTRA APEX CORPORTION LTD., SYNDICATE HOUSE,MANIPAL 675 119,THE POWER OF ATTORNEY HOLDER K.GOPALAKRISHNAN BHATT. 2. THE BRANCH MANAGER,M/S.MAHARASTRA APEX CORPORATION LTD.,OPPOSITE OF UPASANA HOSPITAL, SHAHENA MANSION,NH 208,CONTONMENT CHERRY,KOLLAM. 3. THE ARBITRATOR,ASN HEBBER,ADVOCATE AND ARBITRATOR,IRUVANTHINGE,ANANTH NAGAR-II,STATE MANIPAL 576 119,UDUPPI,KARNATAKA. 4. M.SHAMSUDHEEN,S/O.MUHAMMED MUSTAFA, TUTORIAL TEACHER,NEERONTHI PUTHEN VEEDU, EZHIPPURAM,PARIPPALLY.P.O,KOLLAM. 5. T.SANJEEVAN,S/O.THANKAPPAN,VALLASSERIL ERAM,TADICADU.P.O,ANCHAL. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.1040 OF 2010 ----------------------------------- Dated this the 5th day of October, 2010 J U D G M E N T The learned counsel for the appellant seeks permission to withdraw the appeal without prejudice to his right to impeach the validity of the agreement, which was challenged in the suit, in appropriate legal proceedings and also the jurisdiction of the Arbitration Tribunal, in case any award is passed by the Tribunal on the basis of reference under such agreement. The learned counsel for the appellant also submitted that before the lower appellate court, the court fee paid was much in excess than what was due on the memmorandum of appeal, and so much so, an order may be passed permitting for refund of the excess amount paid. The decision rendered by this Court in Thanappan v. Hassan Kappor (2003 (2) KLT 39) is relied by the counsel to contend that a fixed court fee as covered by the Court Fees Act alone need be paid and not ad valorem court fee on the suit R.S.A.NO.1040/2010 2 claim when an appeal is preferred against the rejection of a plaint for non-payment of the balance court fee. Since the present appeal is dismissed as withdrawn, as requested for by the appellant, it is not possible to pass any order for refund of the court fee, which is stated to have been paid in excess before the lower appellate court. However, it is open to the appellant to seek refund of the excess court fee, if any, paid, from the court below, if so provided by law. Since the suit has been dismissed for default, no reservation as canvassed for, appears to be necessary, as it is open to the appellant to raise whatever defences available under law if a claim is raised against him. Appeal dismissed as withdrawn. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.1040/2010 3