IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 WP(C).No. 8632 of 2009(O) ------------------------- OS.94/2007 of PRINCIPAL SUB COURT, ERNAKULAM .................... PETITIONER(S): --------------- UCO BANK, M.G.ROAD BRANCH, RAVIPURAM, ERNAKULAM,COCHIN-682016. REPRESENTED BY ITS CHIEF MANAGER. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.ANIL KUMAR SREEDHARAN RESPONDENT(S): --------------- 1. V.R.SANTHOSH KUMAR, AGED 40 YEARS, S/O.RAMAN NAIR, "GOEK NEST" PERIYAR COLONY THOTTAKKATTUKARA P.O. ALUVA-683108. 2. MRS.ANJU SANTHOSH, AGED 34 YEARS, W/O. V.R.SANTHOSH KUMAR "GOEK NEST" PERIYAR COLONY THOTTAKKATTUKARA P.O. ALUVA -683108. 3. M.MURALEEDHARAN, AGED 47 YEARS, S/O.MADHAVAN NAIR,31/40-C,"PRANAVAM" AMBILIPADAM ROAD, VYTTILA, KOCHI-682019. 4. MRS.ROSE CHRISTOPHER, AGED 60 YEARS, W/O.PAUL JOSEPH, "SURAJ COTTAGE" WEST VELIYATHUNADU P.O. THADIKADAVU, KARUMALOOR VILLAGE, ALUVA-683108. 5. THOMAS COLOMBUS @ SURAJ CHRISTOPHER, AGED 35 YEARS, S/O.ROSE CHRISTOPHER, "SURAJ COTTAGE" WEST VELIYATHUNADU P.O. KARUMALOOR VILLAGE, ALUVA. 6. STATE OF KERALA REPRESENTED BY GOVT. PLEADER, HIGH COURT OF KERALA. ADV. SRI.C.ANILKUMAR (KALLESSERIL) FOR R4 GOVT.PLEADER SRI. RAVIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * W.P. (C ) No. 8632 of 2009 * * * * * * * * * * * * * * * * * * Dated: 5th February, 2010 JUDGMENT The Writ Petitioner is the United Commercial Bank (UCO Bank), M.G. Road branch, Ernakulam represented by its Chief Manager. The Bank instituted O.S. No. 94 of 2007 before the Sub Court, Ernakulam, for recovery of a sum of Rs. 15,64,402/- from respondents 1 and 2 as defendants. Subsequently, the Writ Petitioner came to know that the suit was filed before the Sub Court without noticing that the said Court has no jurisdiction to entertain the suit and that the suit could be entertained only by the Debt Recovery Tribunal which alone has exclusive jurisdiction to entertain a suit of this nature in view of Sec. 18 read with Sec. 1 (4) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 . The plaintiff Bank has, therefore, approached this Court seeking a transfer of the suit along with the application for adjourment from the Sub Court to the Debt Recovery Tribunal, Ernakulam and for an order directing the Debt Recovery Tribunal to give credit of Rs. 14,360/- being the 1/10th of the court fee paid on the suit or in the alternative directing the Debt Recovery Tribunal, Ernakulam and to entertain the plaint in -:2:- O.S.94/07 of Sub Court, Ernakulam returned and presented by the petitioner after giving credit to the court fee already paid in the Sub Court from the total court fee payable at the Debt Recovery Tribunal. 3. Sec. 24 C.P.C. which contains the general power of transfer of the High Court and the District Court may not apply in the light of the decision in Nahar Industrial Enterprises Limited v. Hong Kong & Shanghai Banking corporation - JT 2009 (10) SC 199 wherein it has been held that the Debt Recovery Trinunal is not a court Subordinate to the High Court within the meaning of Sec. 24 (1) (a) or (b) of C.P.C. Relying on the decision in Kanniammal and another v. P. Narayanan and another - AIR 1989 Madras 350 it was submitted by the learned counsel for the petitioner that if Sec. 24 C.P.C. is not applicable then a transfer prayed for by the petitioner can be ordered by this Court in exercise of the power under Art. 227 of the Constitution of India. 4. After giving my anxious consideration to the facts and circumstances of the case, I am of the view that it may not be permissible for this court to transfer this case from the Sub Court, Ernakulam to to the Debt Recovery Tribunal due to the reason that the Debt Recovery Tribunal is not a Court subordinate to the High Court within the meaning of Sec. 24 C.P.C. By virtue of the -:3:- fact that the suit itself was not maintainable before the Sub Court , Ernakulam, the plaint was, liable to be returned under Order 7 Rule 10 C.P.C. Then the further question is as to what should happen to the 1/3 court fee of Rs. 14,360/- already paid on the plaint while instituting the suit before the Sub Court, Ernakulam. I have no doubt in my mind that the suit was filed on the basis of a wrong legal advice which had overlooked the want of jurisdiction of the Sub court and the exclusive jurisdiction of the Debt Recovery Tribunal. When a suit is filed before a Court having no jurisdiction evidently on the strength of a wrong legal advice, the Court fee paid thereon can be treated as paid under a mistake falling under Sec. 70 of the Kerala Court Fees and Suits Valuation Act, 1959. In any view of the matter, as observed by a Division Bench of this Court in Sankunni Somadhan v. Vinodhini Amma - 2000 (1) KLT 640 if a litigant is made to pay fees which is not payable by him under the provisions of the Act, the statute does not stand in the way of refunding such fees paid as it never authorised receipt of such fees and in such cases, the litigant has got a right to get the fees refunded to him. It was further observed that the Court has inherent jurisdiction to order refund of Court fee paid ex debito justitiae or to order refund of the court fee paid under such circumstances. Accordingly, the court below shall return the plaint under Order 7 Rule 10 C.P.C. and -:4:- shall also refund the 1/3 court fee of Rs. 14360/- paid on the plaint at the time of institution of the suit so as to enable the petitioner to present the plaint before the Debt Recovery Tribunal, Ernakulam within the period of limitation available to him. This Writ Petition is disposed of as above. V. RAMKUMAR, (JUDGE) ani.