IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 RSA.No. 309 of 2010() --------------------- A.S.NO.225/2003 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM O.S.NO.416/1997 OF II ADDITIONAL SUB JUDGE, ERNAKULAM APPELLANT(S)/APPELLANT/DEFENDANT: -------------------- PERIYAR LATEX (PRIVATE)LIMITED, REGISTERED OFFICE AT “USHUS ARCADE”, T.B.JUNCTION, MUVATTUPUZHA, REP. BY ITS MANAGING DIRECTOR. BY ADV. SRI.JOSEPH MARKOSE, SENIOR ADVOCATE SRI MATHEWS K.UTHUPPACHAN RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- TAMILNADU AMMONIA (PRIVATE) LIMITED, REGISTERED OFFICE AND FACTORY AT EDAYAR INDUSTRIAL DEVELOPMENT AREA, MUPPATHADOM, ALUVA 683 110, BRANCH OFFICE AT A-18, G.C.D.A. COMMERCIAL COMPLEX, MARINE DRIVE, ERNAKULAM, COCHIN. ADV. SRI.K.SRIKUMAR SRI K.MANOJ CHANDRAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.309 of 2010 -------------------------------------- Dated this the 31st day of March, 2010. JUDGMENT Admit. 2. This appeal arises from judgment and decree of learned Additional District Judge-I, Ernakulam rejecting the appeal memorandum for non-payment of balance court fee. Respondent/plaintiff and appellant/defendant entered into an agreement on 10.5.1995 for supply of ammonia and other items to the appellant. Case of respondent is that it supplied the materials on credit basis and 10% of the purchase price was to be paid by the appellant by way of sales tax. Respondent paid the sales tax (payable by the appellant) to avoid tax on tax and awaiting the decision in O.P.No.10069 of 1995 in which respondent sought exemption from payment of sales tax. Appellant by letter dated 13.12.1996 objected to the collection of sales tax. Respondent replied to that as per letter dated 7.1.1997. Respondent wanted the amount paid by it towards sales tax to be realised from the appellant with interest. Appellant while admitting the agreement denied that it was liable to pay sales tax even as per the agreement entered with the respondent. Appellant also disputed the amount claimed in the plaint by way of sales tax. It contended that respondent is holding Rs.90,970.95 as deposit under earlier bills and at any rate, the plaint claim is to be adjusted in that amount. Trial court found that appellant is liable to pay the amount and RSA No.309/2010 2 accordingly granted a decree in favour of respondent. That judgment and decree were challenged in appeal at the instance of the appellant. The appeal was admitted but within the time specified appellant did not pay the balance court fee. On 27.05.2004 when the appeal was taken up there was also no representation for the appellant. Consequently appeal memorandum was rejected for non-payment of balance court fee. That followed a decree which is under challenge in this appeal, Substantial question of law framed for a decision is whether the first appellate court is justified in rejecting the appeal memorandum for non-payment of balance court fee on the facts and circumstances of the case. Since the challenge is only to the rejection of memorandum of appeal for non-payment of balance court fee on the relevant day, it was not necessary to call for the records of the case. I have heard counsel on both sides. 3. It is contended in the memorandum of appeal that the posting on 27.05.2004 was awaiting records of trial court and not for payment of the balance court fee and hence, first appellate court ought to have given an opportunity to the appellant to pay the balance court fee. 4. Once the appeal is admitted, appellant has to pay the balance court fee within the time prescribed by law and it does not require a posting of case for the said purpose or a specific order. Hence appellant was bound to pay the balance court fee within the time prescribed by law from the date of admission of the appeal. But there is no reason to think that non-payment of RSA No.309/2010 3 balance court fee was willful. It is submitted on behalf of appellant that there are serious questions to be raised in the first appellate court. Having regard to the facts and circumstances of the case, I am inclined to give the appellant an opportunity to pay balance court fee and prosecute the appeal. The substantial question of law framed is answered accordingly. In the result this appeal is allowed by way of remand. Judgment and decree under challenge are set aside and the case is remitted to the court of learned Additional District Judge-I, Ernakulam for fresh disposal. Appellant shall pay the balance court fee within one month. Parties shall appear in the court of learned Additional District Judge-I, Ernakulam on 18.5.2010. I.A.No.570 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks