IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 12.08.2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.712 of 2001 1.S.Mohamed Usman 2.M.F.Hameed Oli 3.Julaiga Gani .. Appellants /Defendant vs. Indian Overseas Bank, Church Street, Karaikal .. Respondent/ Plaintiff Appeal against the judgement and decree of the learned Additional District Judge, Pondicherry at Karaikal passed in O.S.No.38 of 1997 dated 16.11.1998. For appellants : Mr.T.Susindran For respondent : Mr.M.Muthukumaran JUDGMENT This appeal is focussed as against the judgement and decree dated 16.11.1998, passed in O.S.No.38 of 1997 by the learned Additional District Judge, Pondicherry at Karaikal. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. Broadly but briefly, precisely but narratively, the case of the plaintiff, as stood exposited from the plaint, could be portrayed thus:- (a) D1, on 14.9.1984 availed from the plaintiff Bank a credit limit of Rs.25,000/- for the purpose of his contract business. D2 and D3, in consideration of the same, created an equitable mortgage in favour of the bank, so as to secure the prompt re-payment of the said loan extended in favour of D1 with interest and other incidental charges. (b) Accordingly D2 and D3, vide their letter dated 14.9.1984 acknowledged the creation of such deposit of title deeds with the bank for the purpose of creating such equitable mortgage. The mortgage security is a continuing one and co-existing with the liability of D1 to discharge the loan. https://hcservices.ecourts.gov.in/hcservices/ (c) D1 was irregular in operating the account, ever since 22.4.1985. The incessant demands made by the plaintiff were not responded to by the debtor. The outstanding dues as on 20.7.1996 was Rs.2,21,233.20. D1 issued revival letters on 12.9.1987, 27.8.1990 and 21.8.1993. Pre-suit notices were sent on several occasions and finally it was sent on 5.11.1994, which evoked no positive response. Hence, the suit seeking preliminary decree on the said mortgage with consequential reliefs. 4. Per contra, denying and refuting, challenging and impugning the allegations and averments in the plaint, D1 filed the written statement, the pith and marrow of it would run thus:- The entire loan of Rs.25,000/- was not paid by the Bank to D1 on 14.9.1984; the interest calculated and claimed in the suit is not correct, but it is excessive and the statement of accounts filed by the plaintiff is vague. 5. D2 and D3 have also filed the written statement and additional written statement setting out various grounds, the gist and kernel of them would run thus:- As on the date of presentation of the plaint by the plaintiff, the entire Court fee payable was not paid and there was no permission sought to pay the deficit Court fee at a later date so as to save the limitation; as such, as on the date of presentation of the plaint, the suit was not maintainable and it was also barred by limitation; as the deficit Court fee was paid only on 5.10.1998 long after the expiry of the period of limitation to file the suit. The plaintiff also enclosed already cancelled stamps, which is prima facie illegal and the plaintiff cheated the Court. In fact, objections were raised, which resulted in passing the order by the trial Court, which was the subject matter of C.R.P.No.1941/1998 before this Court and this Court disposed of the said C.R.P. by observing thus:- "Hence the lower Court is directed to permit the petitioners to raise this issue in the suit and prove the same by way of evidence and consider the said issue also on merits." In another C.R.P.1237 of 1998, this Court passed order as under:- "The question whether the suit was barred by limitation or not on the date when the deficit Court fee was paid is left to be decided by the lower Court at the appropriate stage." https://hcservices.ecourts.gov.in/hcservices/ D2 and D3 did not execute any revival letters so as to save the limitation. Interest claimed is on the higher side. The suit itself is not based on documents executed by D1, but the suit is based on the mortgage created by D2 and D3. The revival letters alleged to have been executed by D1 will not have any binding effect on D2 and D3 and accordingly they prayed for the dismissal of the suit. 6. The plaintiff filed the reply statement, denying and refuting the allegations as against it and also by reiterating that the suit filed was in time. 7. The trial Court framed the relevant issues. During the trial, on the side of the plaintiff one R.Moki Koilpillai was examined as P.W.1 and Ex.A1 to A14 were marked. On behalf of the defendants neither oral nor documentary evidence was adduced. 8. Ultimately, the trial Court decreed the suit by passing the preliminary decree. Being aggrieved by and dissatisfied with the judgement and preliminary decree of the trial Court this appeal is focussed on various grounds, the warp and woof of them would run thus:- (i) the trial Court erroneously decided that the suit was not barred by limitation. (2) the trial Court failed to consider that the loan transaction was between the plaintiff and D1 and D1 alone is alleged to have executed the revival letters, but the decree was to the effect that D2 and D3 are also liable under the mortgage created by them. (3) the Court fee payable on the plaint was Rs.16,593.50, but at the time of presenting the plaint, a Court fee of Rs.3000/- alone was paid on 3.7.1996 and for the balance, already used and cancelled stamp papers were presented on 21.7.1997 and therefore, the presentation of the plaint on 30.7.1996 cannot be held to be valid. (4) In fact, on 5.10.1996 alone the entire deficit Court fee was paid by the plaintiff and as on 5.10.1996, the suit was barred by limitation. (5) the statement of accounts Ex.A14 is not correct, but the trial Court failed to consider the plea of the defendants https://hcservices.ecourts.gov.in/hcservices/ (6) Twice the Bank charged interest in the month of March 1990; Accordingly, he prayed for the setting aside the judgement and preliminary decree and for the dismissal of the original suit. 9. The points for consideration are as to : (i) What was the effect of the plaintiff having filed the plaint with deficit Court fee and thereafter, relating to such deficit, presenting the already used and cancelled stamp papers in one other matter and still thereafter rectifying the defects? (ii) Whether the suit was barred by limitation? (iii) Whether the revival letters executed by D1 were proved and whether those revival letters would fasten D2 and D3-the mortgagees, who created the mortgage by deposit of title deeds with liability? (iv) Whether the accounts filed by the plaintiff are proper? (v) Whether there is any infirmity in the judgement and decree of the trial Court? 10. Point Nos.(i) to (iii): The learned counsel for the defendants would develop his argument by drawing the attention of this Court to the flagrant illegalities committed in filing the suit by not paying the entire Court fee at the time of presenting the plaint; subsequently in enclosing already the used judicial stamps in one other matter and thereafter in rectifying the defects by furnishing the fresh Court fee stamp papers. According to the learned counsel for the defendants, the suit itself was barred by limitation, as the deficit Court fees were paid only after the limitation period got expired. 11. It is therefore just and necessary to scrutinise as to what happened actually in this case. 12. I have perused the original plaint and the Court fee stamp papers enclosed with it. It is ex facie and prima facie apparent that at the first instance the original plaint was presented on 30.7.1996; as on that date, the Court fee payable on the plaint was Rs.16,595.50 for the suit amount of Rs.2,21,233.20, but only one embossed stamp paper worth Rs.3000/- was found enclosed; the lower Court returned it for payment of deficit Curt fee; subsequently, it was represented on 2.6.1997 belatedly with https://hcservices.ecourts.gov.in/hcservices/ an application to get the delay condoned in representation; while representing the same, the plaintiff enclosed the already used Court fee papers relating to one other matter and subsequently, he made good the deficit Court fee and also rectified the defects. 13. The lower Court at Paragraph 18 dealt with the facts concerning the illegalities in presenting the Court fee stamp papers. The lower Court observed under paragraph 19 that the counsel for the plaintiff conceded that he had received the entire Court fee from the plaintiff Bank before presentation of the plaint, but there were some latches and mistakes in enclosing the stamp papers along with the plaint and he also admitted that already used and cancelled stamp papers to the tune of Rs.540/- were mistakenly used for the purpose of this suit. 14. The trial Court also observed that as per the order of the trial Court, the Court fee of Rs.550/- was paid so as to make good the deficit and remedy the illegality already crept in, in payment of Court fee. It is also the finding of the trial Court that the latches in payment of Court fee was due to the mistake committed by the office of the plaintiff's counsel. The ratiocination adhered to by the trial Court was that even though the deficit Court fee was paid on 1.10.1988, it would date back to the date of filing of the suit and accordingly, it should be taken that the presentation of the plaint was in time. The trial Court at paragraph 20 described the details as to the illegalities committed in presenting the Court fee stamp papers and how it was subsequently rectified. 15. The learned counsel for the defendants would advance his argument to the effect that whatever might have been done subsequently, as per the order of the Court, that would not enure to the benefit of the plaintiff in pleading that the suit was filed within time. According to the learned counsel for the defendants, non payment of the Court fee properly, at the time of presenting the plaint, was fatal to the case of the plaintiff, as the plaintiff did not obtain permission from the Court for paying the Court fee subsequently. In support of his contention he also placed reliance on the following decision of this Court reported in 2005(5) CTC 401 – S.V.ARJUNARAJA VS. P.VASANTHA, certain experts from it would run thus: "21. In the said decision, the Division Bench of this Court has considered the effect of non- payment of deficit Court fees, within the period of limitation, as well as, how the extension of time should be given, if the deficit Court Fees has to be paid, after the period of limitation is over. Analysing the previous rulings, including the Full Bench decision of this Court in Gavaranga Sahu v. https://hcservices.ecourts.gov.in/hcservices/ Botokrishna Patro and others, 1909(32) ILR 305, relied on by the respondent/plaintiff, this Court has framed various guidelines and the relevant guidelines for the purpose of this case, are: "(1) . . . . (2) . . . . (3) Whenever a plaint is received, the same shall be verified and if found to be not in order, the same shall be returned at least on the third day (excluding the date of presentation so also the intervening holidays). (4) If the suit is presented on the last date of limitation affixing less Court Fees, than the one mentioned in the details of valuation in the plaint, an affidavit shall be filed by the plaintif giving reasons for not paying the requisite Court Fees. (5) In such cases, the Court shall, before exercising its discretion and granting time to pay the deficit Court Fees, order notice to the defendants and consider their objections, if any. However, such notice is not necessary in cases where the plaintiff has paid almost the entirety of the requisite Court Fees and the Court is satisfied on affidavit by the party that the mistake happened due to some bona fide reasons such as calculation mistake or the alike. (6) The discretion referred to in Section 149 of Code of Civil Procedure is a judicial discretion and the same has to be exercised in accordance with the well established principles of law. (7-A) In case where the plaint is presented well within the period of limitation with deficit Court Fees and the Court returns the plaint to rectify the defect giving some time (2 to 3 weeks), which also falls within the period of limitation, but the plaint is re-presented paying deficit Court Fees after the period of limitation, the Court is bound to hear the defendant, notwithstanding the fact that the plaintiff has paid substantial Court Fees (not almost entirety) at the first instance, before condoning the delay in paying the deficit Court Fees." 22.All the above guidelines in the case on hand were offended, not only by the plaintiff but also infringed by the trial Court, without adopting the procedure prescribed. Further, Order 7, Rule 11, proviso of the CPC also not complied with. In this view, the payment of Court Fees, after the period of limitation is over, will come within the meaning of Order 7, Rule 11(c), as extracted by me supra. The https://hcservices.ecourts.gov.in/hcservices/ subsequent grant of time, which is not in accordance with law, cannot be taken advantage of." 16. A mere perusal of the above decision would clearly indicate that in the cited judgement various other judgements of this Court have been referred to, however, those decisions have been differentiated and distinguished and ultimately the issue involved in that matter was decided. 17. In my considered opinion, the decision of the Division Bench of this Court reported in (2003) 2 M.L.J.305-K.NATARAJAN V. P.K.RAJASEKARAN would be more appropriate in the facts and circumstances of this case, certain excerpts from it would run thus:- Civil Procedure Code (V of 1908), Sec.149 – Deficiency in payment of Court – fee – Power of the Court to extend time – Suit for recovery of money filed on the last date of limitation – One Rs.1 paid as Court-fee – Extension of time sought for and deficit Court-fee paid with delay – The discretionary power of the Court to be exercised – Procedure is laid down for exercising the judicial discretion under Sec.149. The Court has got jurisdiction to allow a person, by whom the fee is payable to pay the whole or part, when it is found, he has not paid. In effect, Section 149 C.P.C. is proviso to Section 4 of Tamilnadu Court Fees and Suits Valuation Act, 1955. There are no reasons for us to come to the conclusion that the term 'document' occurring in Section 149 would not include a plaint. Section 149, which gives the discretion to the Court has to be exercised in a manner known to law. The discretion is one of judicial discretion. Thus, the legal position is that the discretion available to the Court under Section 149 is one of judicial discretion to be exercised in a manner known to law. Suppose if a bona fide mistake crepts in, say for instance, the plaintiff wrongly valued the suit under a particular provision or where something happened beyond his control, for example, robbery or non-availability of stamps, then the Court will be more in favour of granting time to the plaintiff to pay deficit Court fee. But at the same time, if the plaintiff so acted (a) to harass the defendant, (b) did it expecting a compromise or awaiting result of some litigation or (c) because of contumacy or mala https://hcservices.ecourts.gov.in/hcservices/ fides on his part, Courts will not exercise its jurisdiction in his favour. By and large, the position is, the Court must be satisfied of bona fide mistake or some happenings beyond his control. The next question is, once discretion is exercised in favour of the plaintiff and plaintiff also pays the deficit Court fee in time, whether it will have the effect as if necessary Court fee was paid even in the first instance. There can be no difficulty in answering in the affirmative since Section 149 itself makes it clear. Thus, the legal position can be summed up as that before exercising discretion under Section 149 C.P.C., and granting time to the plaintiff to pay necessary Court fee and which time goes beyond the period of limitation to file a suit, notice must be given to the defendant. We also point out that suppose a reason is given by the plaintiff for not paying the Court fee, it would not be possible for the Court to investigate into it and certainly the presence of the defendant will help the Court to take a decision. Of course, where the time granted by the Court to pay the deficit court fee falls within the period of limitation to file the suit, no notice need be given to the defendant/opposite party. It is desirable that whenever a plaint is presented, the same is verified and returned at least on the third day (excluding the holidays), if necessary pointing out the defects. The next question is, suppose if no notice is given to the defendant and the Court exercises its discretion in favour of plaintiff, what is the remedy to the defendant. The defendant can file an application under Section 151 C.P.C. with necessary prayer thereon. Once such an application is filed, the Court will take the same on file if in order and dispose of within a period of three months therefrom after hearing both the parties, in any event before framing of the issues. The rulings AIR 1950 Madras 769 (Venkataseshamma v. Ranganaryakamma), AIR 1967 A.P. 147 can be pointed out in support of this legal position. Of course, the defendant alternatively will be at liberty to file a revision under Article 227 of Constitution of India. Whenever a plaint is filed affixing less Court fee than what is required under the Act, the plaintiff is bound to file an affidavit setting out the reason as to why he or she is paying less Court fee than the one mentioned in https://hcservices.ecourts.gov.in/hcservices/ the plaint itself. Thereupon, the Court before granting time, order notice to the defendant, hear him/her and decide as to whether time should be granted or not. But however, in respect of cases where the time has already been granted, if defendant has grievance that Court should not have granted time, it will be open to the defendant to take out an application as mentioned supra. The next question is, will it be open to the defendant to raise objections for the first time at the trial of the suit or at the appellate stage. We have to answer only in the affirmative. We have already seen by referring to various rulings of the Supreme Court as to what is meant by judicial discretion. Hence, it is unnecessary to refer to the same over again here. Failure to exercise judicial discretion on the principles laid down by the Supreme Court is nothing but failure on the part of the Court concerned to apply the correct provision of law in a given case. The next question is, suppose if the plaintiff fails to deposit the deficit Court fee within the time granted and also fails to make any application for extension of time before expiry of that time granted at the first instance, can he thereafter file a petition for extension of time. This Court deem it necessary to clarify the legal position and lay down the procedure to be followed as under:(1) Section 149 of Code of Civil Procedure is a proviso to Section 4 of the Tamilnadu Court Fees and Suits Valuation Act, 1955; (2) The word 'document' employed in Section 149 of Code of Civil Procedure would include plaint also; (3) Whenever a plaint is received, the same shall be verified and if found to be not in order, the same shall be returned at least on the third day (excluding the date of presentation so also the intervening holidays); (4) If the suit is presented on the last date of limitation affixing less Court fee, than the one mentioned in the details of valuation in the plaint, an affidavit shall be filed by the plaintiff giving reasons for not paying the requisite Court fee;(5) In such cases, the Court shall before exercising its discretion and granting time to pay the deficit Court fee, shall order notice to the defendants and consider their objections, if any. However, such notice is not necessary in cases where the plaintiff has paid almost the entirety of the requisite court fee and the Court is satisfied on https://hcservices.ecourts.gov.in/hcservices/ affidavit by the party that the mistake happened due to some bona fide reasons such as calculation mistake or the alike; (6) The discretion referred to in Section 149 of Code of Civil Procedure is a judicial discretion and the same has to be exercised in accordance with the well established principles of law; (7) But however, in cases where the time granted to pay the deficit Court fee falls within the period of limitation, the defendant need not be heard; (7A) In case where the plaint is presented well within the period of limitation with deficit court fee and the court returns the plaint to rectify the defect giving some time (2 or 3 weeks), which also falls within the period of limitation, but the plaint is re-presented paying deficit court fee after the period of limitation, the Court is bound to hear the defendant, notwithstanding the fact that the plaintiff has paid substantial court fee (not almost entirety) at the first instance, before condoning the delay in paying the deficit court fee; (8) In cases where part of the time granted to pay the deficit Court fee falls outside the period of limitation and the deficit court fee is paid within the time of limitation (i.e., the plaint is re-presented with requisite court fee), the court need not wait for the objections of the defendant and the plaint can be straight away numbered;(9) The court should exercise its judicial discretion while considering as to whether time should be granted or not. Cases where the plaintiff wrongly (bona fide mistake) valued under particular provisions of law under Court Fee Act or where he could not pay the required Court fee for the reasons beyond his control, due to some bona fide reasons, the Court shall condone the delay. Payment of substantial court fee is a circumstance, which will go in favour of the claim of the plaintiff that a bona fide mistake has crept in; But however, in cases where the plaintiff acted wilfully to harass the defendant (like wilful negligence in paying court fee, awaiting the result of some other litigation, expecting compromise, etc.); (10) If the court had exercised its discretion without issuing notice, then it is open to the defendant to file application under Section 151 of Code of Civil Procedure for proper relief. It will be open to the defendant to file a revision under Article 227 of Constitution of India. That apart, objection can also be raised at the trial or even at the appellate stage, since the failure to exercise judicial discretion in a manner known to law https://hcservices.ecourts.gov.in/hcservices/ (as laid down in various decisions of the Supreme Court) amounts to Court applying a wrong provision of law."(emphasis supplied) 18. In this case, as revealed from the judgement of the trial Court, the deficit Court fee of Rs.540/- was paid on 1.10.1998 as per the order of the lower Court dated 25.9.1998. Then it has to be seen as to whether as on 1.10.1998 the suit itself was barred by limitation, taking into consideration the cause of action arose in this case. 19. The learned counsel for the defendants would draw the attention of this Court to the equitable mortgage created by depositing the