1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 986 OF 2010. Force Motors Ltd. -: VERSUS :- S.M. Motors. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : AUGUST 12, 2010. The matter is for final disposal and accordingly, I have heard Shri A.A. Naik, learned Counsel for petitioner/original defendant and Shri S.P. Deshpande, learned Counsel for respondent/original plaintiff. Respondent has filed a Special Civil Suit No.175/2004 before the 3rd Joint Civil Judge, Senior Division, Amravati for recovery of amount of Rs.18,82,447.81 with 18% interest. In this suit, the petitioner / defendant filed a Counter Claim in the year 2 2006 for amount of Rs. 1,71,44,884.05. The written statement and counter claim as filed were not accompanied by necessary court fee. Vide Exh.22, petitioner sought leave to pay court fee of Rs. 2,19,700/- on counter claim. That application has been rejected on 02.09.2009 by the Joint Civil Judge, Senior Division, Amravati. Shri Naik, learned Counsel for petitioner contends that though analogy of Order VII Rule 11 of Code of Civil Procedure has been used by the learned Trial Court, the Trial Court has ignored the fact that there was no time given to the petitioner to pay the court fee. He further states that the provisions of Section 149 of the Code of Civil Procedure were only squarely applicable and law on the point has not been correctly appreciated. He has invited attention to the judgment of learned Single Judge of this Court reported at 2003 [1] Mh.L.J. 366 (Appanna Bala Koregave and others .vrs. Shripal Bandu Koregave and others); judgment of Hon'ble Apex Court reported at (2006) 2 SCC 285 (K.C. Skaria .vrs. Government of State of Kerala 3 and another ) and the subsequent judgment delivered by the Hon'ble Apex Court reported at 2009 [9] SCC 173 (P.K. Palanisamy .vrs. N.Arumugham and another). His contention is, as the time to pay court fee was never given to petitioner, his counter claim on record could not have been rejected and the payment of court fee therefore, needed to be allowed. The question of limitation does not arise, as after payment of court fee the same relates back to the date of filing of the counter claim i.e. 01.02.2006. Shri Deshpande, learned Counsel for respondent, on the other hand points out that the petitioners' have failed to demonstrate their bonafide before the trial Court or before this Court. He states that even the fact of error being inadvertent, has not been properly brought on record. He has invited attention to the written statement containing counter claim as filed to show how the valuation of counter claim for the purpose of jurisdiction and court fee has been disclosed on affidavit by a competent officer. In this background, he has invited attention to the application for permission 4 to deposit the deficit court fee moved about 30 months thereafter, and he argues that, that application though contains several factual assertions, is not supported by any verification or even affirmation. His contention is, in this situation the appreciation of controversy by the trial Court cannot be faulted with and there is no jurisdictional error. He has relied upon the judgment of Hon'ble Apex Court reported at (1995) 5 SCC 284 (Buta Singh .vrs. Union of India). The facts show that on 01.02.2006 the written statement containing counter claim was filed and the counter claim at that time was within limitation. Perusal of judgment relied upon by Shri Deshpande, learned Counsel and in case of Buta Singh (supra), shows that there the application of Section 149 of Code of Civil Procedure to payment of court fee on memorandum of appeal has been gone into and the Hon'ble Apex Court has found that Section 149 confers discretion upon the Court and is not a right given to a party seeking to pay such court fee. The Hon'ble Apex Court has also noticed that Order 41 Rule 9 of Code of 5 Civil Procedure contemplates use of proper discretion in this respect. After the appeal is presented, the registry scrutinizes the memo of appeal and has to point out to the appellant or his counsel, the deficit court fee payable on memorandum of appeal and reasonable time needs to be given for said purpose. The memorandum of appeal can be returned to appellant for doing the needful. The Hon'ble Apex Court further found that if, deficit court fee is not made up and presented within time under Section 148 of Code of Civil Procedure, there would be no appeal in the eye of law, unless the delay is condoned. It is also noticed that if, the party deliberately to suit his convenience pays insufficient court fees, the mistake is not bonafide, but one of the choice made by the party and hence, if even after pointing out the need to make up the court fee and grant of time, the court fee is not paid, it will be open to the Court either to reject such memorandum of appeal or to refuse to condone the delay for not showing sufficient cause thereon. The observations made by the Hon'ble Apex court in paragraph no.10 shows that after the 6 arguments in appeal were heard, the party gained an impression that compensation was likely to be enhanced and hence it found that method adopted by the claimant cannot be encouraged and there were no bonafides on their part. It is obvious even from this judgment that the Hon'ble Apex Court has noted that after opportunity is given to the appellant to pay Court fee, if there is failure on his part to pay the same within the prescribed time, appeal can be dismissed. The judgment in case of Appanna Bala Koregave and others .vrs. Shripal Bandu Koregave and others (supra), shows that the Hon'ble Apex Court has found that Section 4 of the Court Fees Act bars the court from receiving plaint if, it does not bear proper court fees and Section 149 of Code of Civil Procedure acts as an exception to that bar and enables the Court to permit the plaintiff to pay deficit court fee at subsequent stage. Judgment in case of P.K. Palanisamy .vrs. N.Arumugham and another (supra), shows that the observations of Hon'ble Apex Court that Section 4 of the Court Fees Act does not mean that when ever plaint is 7 presented with deficit court fee, the same deserves out right rejection. The provisions of Section 149 are construed to provide for a legal fiction and when deficit court fee is paid, the same is deemed to have been paid in first instance. In paragraph no.17, the Hon'ble Apex Court has also found that the payment of court fee further more is a matter between the Court and suitor. The further observations show that after plaint is rejected, the Hon'ble Apex Court has taken note of the fact that the defendant gets benefited. If an objection is raised in that behalf, or an application has to be maintained by the Court at the behest of defendant for rejection of plaint in terms of Order VII Rule 11 (c) of the Code of Civil Procedure, the Hon'ble Apex Court has noted that several aspects of the matter are required to be considered. The facts here clearly show that after written statement containing counter claim was filed, the respondent / plaintiff did not file any application under Order VII Rule 11 (c), and the petitioner / defendant of its own moved an application at Exh.22 seeking leave to 8 pay court fee on that counter claim. Section 149 of Code of Civil Procedure, therefore clearly governs the controversy. If the trial Court wanted to rely upon Order VII Rule 11, the trial Court could have asked the petitioner to pay court fee and thereafter in case of default therein, the counter claim could have been rejected. The judgment of learned Single Judge of this Court in the case of Appanna Bala Koregave and others .vrs. Shripal Bandu Koregave and others (supra), paragraph no.5 shows that when counter claim was already raised in written statement, the court has power to extend time for paying necessary court fees stamp by invoking provisions of Section 149 read with Order VII Rule 11 of Code of Civil Procedure. It is apparent that the counter claim was accepted on record and no objection for non payment of court fee was filed at any point. In this situation, though Shri Deshpande, learned Counsel has tried to contend that the approach of petitioner in the matter is not bonafide, material on record is sufficient to deny absence of bonafides. The counter claim for huge sum has been 9 raised before the trial Court within limitation and Court fee upon it is sought to be paid. Merely because the application seeking that leave is not supported by verification or affirmation, absence of bonafides cannot be inferred. In the circumstances, the impugned order dated 02.09.2009 passed below Exh.22 in Special Civil Suit No. 175/2004 is quashed and set aside. The petitioner / defendant has already deposited the court fee. The trial Court to appropriate the same towards the stamp duty on the counter claim. Writ Petition is allowed. Rule is made absolute accordingly. No costs. JUDGE Rgd.