THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.S.APPA RAO A.S.Nos.567 & 853 of 1999 Date of judgment: 24-08-2011 CT in A.S.No.567 of 1999 Between: Visakha Machinery Private Limited rep by its M.D. Sri K.Murali Krishna ..Appellant and 1. M/s. Binny Limited, Engineering Divsion, Meenambakam, Madras-14 and others. ..Respondents The Court made the following Common Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.S.APPA RAO A.S.Nos.567 & 853 of 1999 Common Judgment: (Per Honourable Sri Justice A.Gopal Reddy) These appeals by the plaintiff and defendants arise out of the very same order of II Additional District Judge, Visakhapatnam dismissing O.S.No.57 of 1996 (old No.194/1989) filed for recovery of Rs.65,54,590.50 ps. claiming to be the balance amount for the works carried out by the plaintiff and counter claim by the defendants. Facts in nutshell, which are necessary for disposal of the appeals, are as under: Plaintiff—Company dealing in Structural Fabrication, Supply, Fabrication erection of Steel Structures, Equipment and concentrate in trading in taking up works in Visakhapatnam Steel Plant (VSP). At the time of being contacted by the defendants, the plaintiff had orders from Hindustan Ship Yard Limited for fabrication and out filling of bunk houses and from M</s. Globe Hi-Fab (P) Ltd., for fabricating of heavy structures for Visakhapatnam Steel Plant. The defendant who has taken up the works from VSP including the work of elevated water tank No.1 had a discussion with the plaintiff and identified the plaintiff as capable of completing the job in time by offering various incentives and induced the plaintiff to agree to reduce price to Rs.8,560 per metric tonne; which the defendants claimed the rate and keeping for themselves a small amount in the form of labour escalation to cover their over heads and costs, made the plaintiff agree for reducing the mobilisation advance from Rs.8 lakhs to 5 lakhs and persuaded the plaintiff to start the job on 07-12-1984, which was accordingly commenced. Later the letter of intent—Ex.X1, dated 12-07-1982 was issued and accordingly entered into an agreement Ex.A9 printed purchase order was issued by the defendants for the description of the work “Fabrication, Supply and Erection of Elevated Water Tank”“ with the prices quoted therein. As there were certain disputes between the parties with regard to amount payable under various bills submitted by the plaintiff, alleging to be not paid, filed the above suit for recovery of amount of Rs.65,54,590.50 ps. as per the letter of consent dated 24- 11-1984 and work order dated 14-12-1984 and to recover the interest at 10% per annum from the date of suit till realisation. Defendants filed written statement denying the plaint allegations and also made counter claim for an amount of Rs.19,07,201/-. Basing on the above pleadings the following issues were settled for trial. 1. Whether the court at Visakhapatnam had jurisdiction to try the suit? 2. Whether the court fee paid is not correct? 3. Whether the plaintiff is entitled to recover the suit amount? 4. To what relief? The learned trial court after elaborately considering the printed proforma of invoice—Ex.A9, on issue No.1 held court at Visakhapatnam will not have jurisdiction in view of Clause 11 of printed instructions of the invoice and also answered the other issues against the plaintiff and dismissed the suit. In para-56 of the judgment the learned trial court held as no court fee is paid by the defendant, the counter claim made by the defendant cannot be considered and accordingly rejected. But curiously separate decrees were drafted which is the subject matter of present appeals. Though it is clearly mentioned that value of the counter claim is Rs.19,07,201/- and court fee of Rs.21,426/- is paid basing on the suit value, the trial court dismissed the counter claim. In view of the observation made in para-56 of the judgment, no endeavour has been made by the trial court to consider the counter claim filed by the defendants except elaborately discussing the evidence adduced by the parties and dismissing the suit. Even in the operative portion of the judgment it is only mentioned that suit is dismissed with costs, with a direction that plaintiff can present the bills in accordance with the procedure and as per the conditions of the purchase order without relying on the letter addressed by the Commercial Manager who was retired and accordingly decree was drafted dismissing the suit. Once the counter claim of the defendant is rejected, it is not known how a separate decree is drafted and it is nowhere stated about dismissal of counter claim especially when there is negative fact in para-56, as referred earlier, regarding non-payment of court fee. Both the counsels have taken us to the entire pleadings, documents, evidence adduced by the parties and glaring mistake committed by the trial court in recording a finding against the plaintiff in dismissing the suit and rejecting the counter claim of the defendant when the defendants lead ample evidence in substantiating the counter claim. Both the counsels submit that the findings recorded by the trial court are not tenable and requested the court to remit the matter for fresh consideration basing upon the evidence available on record. With regard to jurisdiction of civil court basing upon Ex.A9— printed proforma of invoice, counsel for the appellant stated that in second page of invoice where printed instructions are available, under instruction No.11, all disputes arising in connection with the contract shall be settled in a Court in the State of Tamilnadu only is not signed by either parties. Added to the same, in the first page after signature it is stated continued in second page. The second page is typed proforma which was not signed by both the parties. The fact of second page was not signed by the parties will not oust/confer jurisdiction of the Court at Visakhapatnam as per the evidence already made by the parties. Since we are satisfied that the learned trial Court committed a glaring error in recording a finding that the court fees has not been paid by the defendants on the counter claim and the same cannot be entertained is not in tune with the decree, we set aside the entire judgment of the trial court and remit the matter for fresh consideration basing on the evidence available on record and decide the claim of the plaintiff and counter claim of the defendants afresh within three months from the date of receipt of a copy of this order. After dictating the judgment, learned counsel for the appellant made a request for refund of court fees in view of Section 64 of the A.P. Court Fees and Suits Valuation Act, 1956. Since we heard the appeal for whole two days and only at the conclusion of the arguments when it was pointed that counter claim has been rejected on flimsy grounds by the trial court, both the counsel argued for remand. Refund of court fees is discretion of the Court while ordering remand. In view of the same, we feel that the parties are not entitled to refund of court fees and the request of the counsel of the appellant is accordingly rejected. The appeals are accordingly allowed. No order as to costs. ________________ A.GOPAL REDDY, J. ______________ K.S.APPA RAO,J. 24-08-2011 Murthy