Civil Revision No.8264 of 2010(O&M) [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Civil Revision No.8264 of 2010(O&M) Decided on : March 14, 2011 Hari Kishan Goel ... Petitioner VERSUS M/s Joonix India and another ... Respondents CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.A.P.Bhandari, Advocate for the petitioner. Mr.Ritesh Khatri, Advocate for the respondents. A.N.JINDAL, J.- This petition assails the orders dated 13.9.2010 (Annexure P- 1) and 30.11.2010 (Annexure P-3) passed by Additional District Judge, Faridabad directing the petitioner to file the court fee on the memorandum of appeal, as determined by the Civil Judge (Jr.Divn.), Faridabad. In nutshell, the facts are that the petitioner filed a suit for dissolution of a firm as well as rendition of accounts and evaluated the suit @ Rs.10,000/- and it was stated that the additional court fee would be paid at the time of determination of the amount. Thereafter, the respondents filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, with a request to direct the petitioner to pay the ad valorem court fee. Civil Revision No.8264 of 2010(O&M) [ 2 ] At this, the Trial Court directed the petitioner to pay the court fee on the amount of Rs.19 lacs. Aggrieved by the aforesaid order, the petitioner preferred Civil Revision No.1291 of 2008, wherein, this High Court on 9.4.2008 passed the following order:- “In the present case, there is no specific amount for the purpose of valuation in the plaint in view of the law laid down above. The valuation of the suit as done by the plaintiff- petitioner is required to be accepted. Of course, the plaintiff can always be asked to make up the court fee on the basis of the amount which would be finally determined by the Court. Accordingly, the order requiring the petitioner to fix the ad-valorem court fee can not be sustained. The same is set aside. However, it would be open for the Court to ask the petitioner to fix the court fee on the amount, if any, found due after final determination and awarded by the court ultimately.” The Trial Court vide judgment dated 24.12.2009 passed the preliminary decree and directed the petitioner to pay court fee of Rs.4,86,370/-. The respondents filed an appeal against the said judgment dated 24.12.2009, but they affixed the same court fee as affixed by the petitioner (plaintiff before the trial Court) at the time of filing the suit. It may be mentioned that the respondents had moved an application along with the appeal for filing the same as an indigent person, which was dismissed on 13.9.2010, but the appeal was not dismissed for want of payment of ad-valorem court fee and vide order dated 30.11.2010, the Civil Revision No.8264 of 2010(O&M) [ 3 ] Appellate Court observed as under:- “...The matter regarding court fee was ultimately settled by the Hon'ble High Court vide its judgment dated 24.12.2009, wherein, the Hon'ble High Court had directed that court fee shall be payable as per final determination by learned trial court. Vide judgment dated 13.9.2010, this Court has found that final decree has not been passed, therefore, no final valuation has been done and accordingly the appellant was directed to make payment “as per valuation made by the plaintiff before the learned Trial Court at the time of filing of this suit”. In view of the facts noted above, there is no ambiguity in the order dated 13.9.2010. This court has clearly directed the appellant to pay the court fee on the basis of the court fee paid by the plaintiff at the time of filing of this suit. It is made clear that the appellant shall be liable to pay the court fee according to final determination by learned Trial Court.” Now, coming to the provisions of payment of court fee for rendition of accounts of firms, I need to consider Section 7(iv)(f) of the Court Fees Act, 1870 relating to the said class of suits, which reads as under:- “Sec.7 : Computation of fees payable in certain suits : The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:- (iv) In suits - Civil Revision No.8264 of 2010(O&M) [ 4 ] (a) to (e) ... ... ... (f) for accounts; according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.” There is no dispute that on the memorandum of plaint in a suit for accounts, the plaintiff can value the suit for purposes of court-fees on the approximate sum due to him. There is also no dispute that in an appeal against the preliminary decree directing accounts to be taken, the appellant can value the appeal for purposes of payment of court-fee on the basis of the valuation given by the plaintiff in the plaint. The present is the case relating to the passing of the preliminary decree, which has been appealed against. In a case for preliminary decree dissolving the firm and directing to calculate the accounts, still no certain sum, which could be said to be due to the plaintiff and payable by the respondents on account of settlement of accounts, could be determined before the decree is passed. For this purpose, the court either appoints a Commission to take the accounts or directs the production of the necessary documents before itself. After taking the accounts, the Commissioner or the Court, as the case may be, ascertains the amount due to the plaintiff from the defendant or due to the defendant from the plaintiff. When the accounts are settled by a Commissioner, the parties are entitled to file objections to his report and after considering the objections the court ascertains about the amount due to one party or the other, and the Court would pass a final decree accordingly for the amount so ascertained in favour of the party who is found entitled to the amount due. Civil Revision No.8264 of 2010(O&M) [ 5 ] The Trial Court assessed the value of the relief at Rs.1.20 crores only on the basis of the admission that recoveries due to the respondent firm is about Rs.1.20 crores, but that cannot be said to be final before the account books are summoned and the amount due is calculated. Anyway, without commenting over the issue of court-fee, it would be suffice to say that the amount due cannot be calculated before the final decree is passed, over which the petitioner was to pay the court fee. The analogy behind affixing approximate court fee at the time of passing the decree is that before the actual amount payable is ascertained, it could not be said as to how much amount was due to him. Since the respondent was not in possession of the account books, therefore, actual payment could not be calculated and only preliminary decree is to be passed with regard to dissolution of the firm and settlement of accounts, and the amount was to be determined after calculations at the time of passing of the final decree. That is why the Legislature left it to the plaintiff to pay the court fee on the value of the suit as assessed by him. Similarly, the appellant was also directed to pay the court fee on the value of the suit as assessed by the plaintiff at the time of filing of the suit. The petitioner has not disputed the aforesaid settled proposition of law on the point, but he argues that this case is an exception as the respondent firm had objected to the filing of initial payment of court fee paid by the petitioner at the time of filing of the suit, therefore, now, it cannot approbate and reprobate to say that the court fee payable on the memorandum of appeal should be, as filed by the plaintiff initially at the time of filing of the suit. In this regard, the petitioner has referred to Civil Revision No.8264 of 2010(O&M) [ 6 ] the judgment delivered by the Full Bench of Madhya Pradesh High Court in case Rambai Vottery and others vs. Shivaprasad Vottery, Jabalpur, AIR 1976 Madhya Pradesh 1. Having gone through the said judgment, the basic proposition could not be disputed and exactly a similar following question was referred to the Full Bench:- “Whether in an appeal against a preliminary decree declaring dissolution of partnership and directing accounts, a defendant is bound to value the relief in appeal on the valuation that was put by the plaintiff on the plaint, or whether it is open to the defendant to put a different valuation in appeal for purposes of court-fee under Section 7(iv)(f) of the Court fees Act?” The Full Bench of the Madhya Pradesh High Court answered this question as under:- “In an appeal against a preliminary decree declaring dissolution of partnership and directing accounts, the defendant is bound to value the relief in appeal according to the value put by the plaintiff on the plaint unless, on an objection by the defendant, a different valuation has been determined by the Court. It is not open to the defendant to put a different valuation in appeal for purposes of court-fee under sub-clause (f) of clause (iv) of Section 7 of the Court-fees Act, unless such valuation is determined by the Court to be proper valuation for purposes of the suit itself.” In this regard, it may be observed that the court actually did not Civil Revision No.8264 of 2010(O&M) [ 7 ] determine while passing the preliminary decree as to what was actually due to the plaintiff. Even the order dated 9.4.2008 passed by this Court in Civil Revision No.1291 of 2008 never had such intention to direct the petitioner to affix the court fee on the basis of the admission made by respondent- firm, but the relevant part of the order is again reproduced as under:- “Accordingly, the order requiring the petitioner to fix the ad- valorem court fee can not be sustained. The same is set aside. However, it would be open for the Court to ask the petitioner to fix the court fee on the amount, if any, found due after final determination and awarded by the court ultimately.” The order indicates that the petitioner was directed to pay the court fee on the amount, if any found due. The words, “if any found due” refers to the final adjudication upon which what amount is due to the plaintiff and awarded by the court ultimately and it would be ascertained at the time of passing of the final decree. Therefore, without deviating from the view of the Full Bench of Madhya Pradesh High Court, as it might have passed the order looking to the conduct of the petitioner before them. The order of this High Court dated 9.4.2008 cannot be surpassed. The amount of court fee was to be paid by the petitioner at the time of passing of the final decree. Payment of any such amount in the Trial Court at the time of passing of the preliminary decree would not ipso facto bind the respondent to pay the court fee in appeal. Now, coming to the conduct of the respondent firm, who targeted the petitioner for no reasons to force him to make payment of court fee, it may be observed that the respondent firm could be directed to make Civil Revision No.8264 of 2010(O&M) [ 8 ] the payment of court fee over the amount, if it admits such amount which may be payable to the petitioner by way of written statement or otherwise. But in any other situation, it would pay the ad valorem court fee on the memorandum of appeal at the time of final determination, which may be payable to the respondent by the petitioner. With the above observations, the petition is dismissed. March 14, 2011 ( A.N.JINDAL ) `gian' JUDGE