IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 OP(C).No. 238 of 2011(O) ------------------------ OS.402/2005 of ADDL.SUB COURT,KOLLAM .................... PETITIONER (S): ------------------------- BISHOP JEROME TRUST, BISHOP JEROME NAGAR,CHINNAKKADA, KOLLAM REP.BY ITS SECRETARY. BY ADVS. SRI.ALEX N.MATHEW (KOLLAM), SRI.H.RAMANAN, SRI.JAMES JOSE. RESPONDENT(S): ---------------------------- PROF.EUGINE NAZARETH PANDALA, ARCHITECT AND URBAN DESIGNER,RESIDING IN SREEMANGALAM, MATHILIL PO,KOLLAM. BY ADV. SMT.MARY BENJEMIN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. -------------------------------------------------- OP(C) No.238 of 2011-O -------------------------------------------------- Dated this the 15th day of March 2011 Judgment In this writ petition filed under Article 227 of the Constitution, the petitioner challenges Ext.P2 order whereby the court below has found that the court fee paid in the suit on the basis of the averments in the plaint is proper for the time being. The short facts of the case are the following : 2. The respondent herein had instituted OS No.402/05 before the Sub Court, Kollam seeking the following reliefs : 1.A decree for settlement of accounts settling the accounts between the plaintiff and the defendant regarding the Architectural work of the Bishop Jerom Nagar Commercial Complex and the Spiritual Animation Centre at Kottayam and declaring the amount due to the plaintiff from the defendant. OPC 238/11 2 2.Allowing the plaintiff to recover the amount that may be found due to him from the defendant and his assets. 3.Allowing the plaintiff to realise all costs of the suit including Advocates fee from the defendant and his assets. 4.Allowing such other necessary ancillary and incidental reliefs as the plaintiff may pray for during the course of the suit and which the court may deem fit to grant in the interest of justice. He had estimated the amount due to him as Rs.5 lakhs and had paid the court fee thereon. The petitioner herein, who was the defendant in the suit, entered appearance and raised the issues of valuation and payment of court fee paid by the plaintiff. According to the defendant, the court fee paid was inadequate. The court below considered the issue raised by the defendant and came to the conclusion that the court fee paid is proper in view of Section 35 of the Kerala Court Fees and Suit Valuation Act. OPC 238/11 3 3. The learned counsel for the petitioner pointed out that the court below was not justified in coming to the said conclusion. The learned counsel drew attention of this court to the averments in the plaint and pointed out that the claim made therein was much more than Rs.5 lakhs and the court fee should have been paid accordingly. In paragraph 20 of the plaint, the plaintiff has clearly stated as follows : “20. Since there is dispute regarding the total cost of the project as well as the total payments made by the defendant and also regarding the rate at which the remuneration of the plaintiff has to be calculated, the plaintiff is not in a position to institute a suit for recovery of an ascertained and define amount and so, he is filing this suit for settlement of accounts valuing the suit tentatively as an estimated amount of Rs.5 lakh.” OPC 238/11 4 It may be noticed that the plaintiff had undertaken the Architectural work of what is called Bishop Jerom Nagar Commercial Complex and the Spiritual Animation Centre at Kottiyam and amounts were due to him. In spite of several communications between the parties, the amount could not be settled and the plaintiff has not received the amount due to him. That necessitated the suit. He has clearly stated in the plaint that he is unable to mention the exact amount due to him for want of accounts and that is why he was compelled to institute the suit for settlement of accounts. 4. Section 35 of the Kerala Court Fees and Suits Valuation Act reads as follows : “35. Suit for accounts (1) In a suit for accounts, fee shall be computed on the amount sued for as estimated in the plaint or on rupees one thousand whichever is higher. (2) Where the amount payable to the plaintiff as ascertained in the suit is in excess of the amount as estimated in the plaint, no decree OPC 238/11 5 directing payment of the amount as so ascertained shall be passed until the difference between the fee actually paid and the fee that would have been payable had the suit comprised the whole of the amount so ascertained is paid. If the additional fee is not paid within such time as the court may fix, the decree shall be limited to the amount to which the fee paid extents. (3) Where in any such suit, it is found that any amount is payable to the defendant, no decree shall be passed in his favour, until he pays the fee due on the amount.” 5. The court below has addressed the issue in the proper perspective and has come to the conclusion that prima facie, going by the averments in the plaint the court fee paid is sufficient and if the amount due to the plaintiff is found to be far more in excess than what is claimed in the plaint, he has to pay the balance court fee going by Section OPC 238/11 6 35(2) of the Kerala Court Fees and Suits Valuation Act. This court is unable to find anything wrong in the order passed by the court below. Further, except under certain circumstances, the question regarding payment of court fee is a matter between the State and the plaintiff and the defendant has no say in the matter. No such a ground is made out in the present case. This petition is without any merits and it is accordingly dismissed in limine. P.Bhavadasan, Judge sta OPC 238/11 7