Punjab & Sind Bank vs Shri Ramji Dass Khanna (Through ...
2002 Latest Caselaw 303 Del

JUDGMENT

Dalveer Bhandari, J.

1. The common question of law arises for interpretation in all these appeals, therefore, we deem it appropriate to dispose of all these appeals by a common judgment. This judgment shall dispose of RFA (OS) Nos. 2, 3, 4 & 31/89.

2. During the course of hearing the learned counsel for the appellant Bank, Mr. Ajit Singh, confined his submissions only to the refund of excess court fees paid by the appellant Bank in these appeals by mistake. Mr. Singh also submitted that the appellant bank filed these appeals only with the prayer for enhancing the rate of interest from 9% (granted by the Single Judge) to 17.5% as claimed in the suits.

3. Mr. Singh submitted that the amount claimed by the appellant was unascertainable because one can never be certain whether the court would grant enhanced amount of interest. The appellant has to claim or right to get enhanced interest amount. It is only the discretion of the court. In a suit or appeal of this nature, it is impossible for anyone to estimate money value of the subject matter in issue.

4. He has drawn our attention to the Court Fees Act, 1870 and submitted that according to Schedule II, Article 17(vi) of the Court Fees Act, the appellant is liable to pay only fixed court fee of only Rs. 10. Schedule II, Article 17(vi) reads as under:

17(vi) Every other suit where it is not possible to estimate at a money-value the subject Ten rupees matter in dispute, and which is not otherwise provided for by this Act.

5. Mr. Singh contended that the case of the appellant Bank is squarely covered by the aforecited Schedule II, Article 17(vi) of the Court Fees Act and accordingly the appellant Bank is required to pay only Rs. 10 as the fixed court fee. By mistake the appellant had paid the full court fee and therefore, the excess amount paid by the appellant by mistake be directed to be refunded.

6. In support of his submissions, he has placed reliance on a full bench judgment of Lahore High Court in Hakim Mehr Din v. Swami Kultilak Ram Ors., AIR 1973 (13) Lahore 275. In somewhat similar circumstances, the full bench in this case observed as under:

"that the period from the date of institution of the suit till the date of realisation was divisible in two parts: (1) the period from the date of the institution of the suit up to the date of redemption, and (2) the period from the date of redemption up to the date of realization. As far as second period was concerned, the amount claimed by the plaintiff was unascertainable."

In the instant case also, from the date of the institution of the suit till realization, the amount is not ascertainable.

7. Mr. Ajit Singh has also placed reliance on a Constitution Bench judgment of the Supreme Court State of Maharashtra v. Mishrilal, . In para 15 of the said judgment, their Lordships of the Supreme has observed as under:

".....The reason really is that it is the value of the right claimed in the suit or appeal which is covered by the expression 'amount or value of subject matter in dispute' in Article 1, Schedule I, of the Act and that the plaintiff has no right to get any of these amounts from the defendant though the Court may, in its discretion, allow future interest and costs according to the circumstances of the suit in view of Section 35 C.P.C. This principle equally applies to the non-inclusion of the decreed amounts of pendente lite interest in evaluating the subject matter in dispute in appeal as that too is awarded in the exercise of its discretion by the court and the plaintiff has no right or claim for that amount against the defendant."

8. Reliance has also been placed on a Full Bench judgment of the Patna High Court in Dwarka Singh v. Nagdeo Singh and Ors., .

In para 6 the court observed that

"When the party by mistake has paid an excess amount of court fee than is payable by him, and the court is satisfied about it, it is obvious that the excess amount was never paid under any provisions of the Court Fees Act in any of the schedules and as such, it was never the money of the Government.

When it is not the Government money, the Court would be doing only the proper thing in passing a formal order for refund in exercise of its inherent jurisdiction to stop the abuse of the process of the court. Where, however, the amount has been duly paid as requisite for entertaining in court the document filed, the amount of court fee has duly become Government money and, therefore, the court can order refund only with reference to the provisions of Sections 13, 14 and 15 of the Court Fees Act, and its jurisdiction under Section 151 of the Code of Civil Procedure cannot be invoked as it would go against the provisions of the Court Fees Act altogether."

9. The principle laid down by a Constitution Bench in the case of Mishrilal (supra) is fully applicable to the facts of this case. The appellant bank (plaintiff in suit) has to claim or right to get pendente lite or future interest enhanced from the defendant though the court may, in its discretion allow enhanced pendente lite or future interest according to the facts and circumstances of the suit in view of Section 34 and 35 of the Code of Civil Procedure.

10. In the facts and circumstances of the instant case we are satisfied that the appellant has by mistake paid an excess amount of court fee whereas the appellant Bank was required to pay a fixed court fee of Rs. 10 in the instant appeal according to the aforecited Schedule of the Court Fees Act, 1870. The excess amount was not paid under any provisions of the Court Fees Act in any of the Schedules and as such it was never the money of the Government. The amount of court fee has duly become Government money, therefore, the court has to pass an order of refund of the ecess amount.

11. We are in respectfully agreement with the ratio laid down in the aforesaid judgment. The appellant (plaintiff in the suit) cannot claim enhancement in the rates of interest as a matter of right. It depends on the sole discretion of the court. Therefore, it is not possible to estimate the money value of the subject matter in issue. In cases of this nature only fixed court fee of Rs. 10 is required to be paid according to the Court Fees Act, 1870. The appellant in its appeals has only claimed the enhanced interest amount from the date of institution of the suit till the realisation.

12. We deem it appropriate to hold that the appellant is entitled to a certificate of refund of the excess amount paid towards the court fees in these appeals. We direct the registry to issue the certificate for refund of this amount within three weeks and the excess amount be paid to the appellant bank is expeditiously as possible.

13. These appeals are accordingly disposed of.