M/S. Prominent Advertising ... vs M/S. A.B. Communications & Ors.
2009 Latest Caselaw 1205 Del

*          HIGH COURT OF DELHI : NEW DELHI

+                     I.A.No.3762/2008 in CS(OS) No.2012/03

%                     Judgment reserved on :          30th March, 2009

                      Judgment pronounced on :          6th April, 2009


     M/s. Prominent Advertising Services            ...Plaintiff
                     Through : Mr. Arvind Nigam, Adv. with
                                 Mr. Samrat Nigam, Adv.

                      Versus

     M/s. A.B. Communications & Ors.              ....Defendants
                   Through : Mr. Rajesh K. Gogne, Adv. with
                               Mr. Sanjay Jha, Adv. for Defendant
                               No.1
                               Mr. Vikas Sharma, Adv. for
                               Defendant No.2

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may                       Yes
   be allowed to see the judgment?

2. To be referred to Reporter or not?                              Yes

3. Whether the judgment should be reported                         Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The plaintiff has instituted the present suit for recovery of

Rs.39,23,466/- from the defendant on 23rd October, 2002. Defendant

No.1 along with his written statement filed the counter claim on 21 st

April, 2004 against the plaintiff for a sum of Rs.4,40,000/-. In Para 11

of the counter claim, the defendant has mentioned that the requisite

court fee on the said amount has been affixed with the counter claim.

2. The present application being I.A.No.3762/08 has been filed

by the plaintiff under Order 7 Rule 11 read with Section 151 CPC for

rejection of the counter claim filed by defendant No.1. In reply to this

application, the defendant has raised the preliminary objection that the

application filed by the plaintiff under order 7 Rule 11 is not

maintainable as the defendant No.1 has already paid the court fee

amounting to Rs.6,640/- on the counter claim on 24th September, 2008.

3. Learned counsel for the plaintiff/applicant contends that the

counter claim filed by the defendant cannot be entertained as the

defendant has not paid the court fee along with the counter claim nor

subsequently sought any permission from the court to pay the same.

The court fee paid after the expiry of about 5 years has no application as

the counter claim on the date of payment of court fee has already

become time barred.

4. Learned counsel has argued that it was the duty of the

defendant to pay the court fee along with the counter claim and further

that the counter claim which has been filed by the defendant under the

provisions of Order 8 Rule 6-A, CPC itself is a suit and in case no court

fee is paid, the said counter claim cannot be treated as a suit or counter

claim in the eyes of the law.

5. The counsel has also argued that under the provisions of

Order 7 Rule 11(c) of the Code of Civil Procedure, the deficient court

fee can be paid by a party if necessary application in this regard is

moved by a party to pay the court fee for extension of time but in the

present case there was no court fee at all paid by the defendant along

with the counter claim and, therefore, the question of payment of

deficient court fee under the provisions of Order 7 Rule 11(c) Code of

Civil Procedure does not arise.

6. Lastly the counsel has referred to the provisions of Order 4

Rules 1,2 and 3 of the Code of Civil Procedure as well as Section 3 of

the Limitation Act in support of his submissions.

7. I have considered the legal submissions made by learned

counsel for the plaintiff. The fact of the matter is that the counter claim

in this matter was filed by the defendant on 21 st April 2004 and in Para

11 of the same, a statement has been made that the requisite court fee

has been affixed with the counter claim.

8. Learned counsel for the defendant has argued that it is a

bonafide lapse on the part of the defendant that he has not affixed the

court fee otherwise the defendant had the intention to pay the same. He

has also argued that as soon as it came to the knowledge of the

defendant that the court fee has not been affixed with the counter claim,

the same was paid immediately on 24th September, 2008.

9. The second important fact in the matter is that the title of the

counter claim has been mentioned along with the written statement as of

today. The counter claim has not been numbered as per the rules.

10. It is also a matter of fact that the Registry has not raised any

objection about the non payment of the court fee with the counter claim.

In view of above, counsel for defendant submits that the pleadings about

the counter claim are sufficient and the said pleadings have to be

treated as counter claim, since the court fee has already been paid,

therefore, the application filed by the plaintiff is made with malafide

intention and is not maintainable.

11. No doubt, the plaintiff can blame the defendant for not

paying the requisite court fee when the statement has been made by the

defendant that the court fee has been affixed with the counter claim but

at the same time, I feel that the Registry is also at fault as no objection

was raised by the Registry for non filing of the court fee by the

defendant. The Registry ought to have fix a date for payment of court

fee. Under the said situation, this court is expected to do justice and

decide the controversy between the parties. In case the Registry had

fixed a date for payment of court fee, the present problem ought not

have arisen between the parties and the question of filing the present

application would not have arisen at all.

12. Under Order 7 Rule 11, Code of Civil Procedure, the

Legislature has provided one opportunity to the party to pay the

deficient court fee in order to cure the defect on the question of court fee

and counter claim. Therefore, this court cannot take a harsh view

considering the overall circumstances of the case.

13. Another contention of the plaintiff is that on the date of

paying the court fee the counter claim itself was barred by time and it

cannot be entertained as counter claim. In my view, the said submission

of the learned counsel for the plaintiff has no force as the counter claim

was filed along with the written statement which was within time. The

counter claim in a way is set up in the written statement and since it is

not disputed that the written statement is not barred by time, therefore, it

is held that the counter claim which is set up along with the written

statement is not barred by limitation.

14. In the instant case, as already discussed that the written

statement does contain the counter claim and since the defendant No.1

has now paid the court fees, therefore, the application has no force. It is,

therefore, dismissed. Since the defendant No.1 has now paid the court

fee, the Registry is directed to register the said counter claim within two

weeks from today. I.A stands disposed of .

CS(OS) No.2012/2003

List the matter on 11th May, 2009 before the Joint Registrar,

the date already fixed.

MANMOHAN SINGH, J.

APRIL 06, 2009 sa