Astrazeneca Uk Limited & Ors. vs Orchid Chemicals & ...
2011 Latest Caselaw 3095 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+           Rev. Pet. No. 80/2010 in CS(OS) 1421/2005


                                       Date of decision : 04.07.2011


ASTRAZENECA UK LIMITED & ORS.       ......Plaintiffs
                     Through: Mr. A.N. Haksar, Sr. Adv.
                              with Mr. Neel Mason, Adv.

                                 Versus

ORCHID CHEMICALS AND
PHARMACEUTICALS LIMITED                         ...... Defendant
                     Through:              Mr. Sanjay Jain, Sr. Adv.
                                           with Ms.Gladys Daniel, Adv.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                          YES
2.     To be referred to the Reporter or not ?               YES
3.     Whether the judgment should be reported
       in the Digest ?                                       YES

V.K. SHALI, J.

1. The question involved in the review petition is whether this

Court should review the order dated 20.01.2010 by virtue of

which the suit of the plaintiffs was rejected under Order VII

Rule 11 (c) CPC on the ground that despite sufficient

opportunities having been given to the plaintiffs, it failed to

pay the deficient court fees.

2. Briefly stated the facts of the case are that the plaintiffs filed

a suit for permanent injunction, restraining infringement of

trademark, passing off, damages/rendition of account and

delivery up etc. against the defendant. In para 17 of the

plaint the plaintiffs had valued the suit for the purpose of

court fees and jurisdiction as under:

       S.  Relief sought                            Value     for Court
       No.                                          purpose of
                                                    court fees fee
                                                    and
                                                    jurisdiction paid


       A     For the decree of permanent                     200         20
             injunction        restraining   the
             defendant from infringement the
             plaintiff‟s registered trademark
       B     For the decree of permanent                     200         20
             injunction   restraining    the
             defendant from passing off his
             goods as those of the plaintiff‟s
             goods
       C     For the reliefs of mandatory             21,00,000      22,840
             injunction      directing     the
             defendant    to    deliver   upon
             affidavit  printed    matter   for
             destruction/eraser of a decree of
             rendition of accounts of the
             profits made by the defendant
             Total                                   21,00,400 22,880

3. On 06.10.2005, when the matter came before the Court for

the first time, it had noted that the plaintiffs had not paid the

requisite court fees on the quantum of damages which were

claimed to the tune of Rs.2 crores. Accordingly, it directed

the plaintiffs to pay the deficient court fees within a period of

two weeks. The plaintiffs at the time of filing of the suit had

deposited a sum of Rs. 22,800/- as court fees in terms of the

valuation in para 17 of the plaint. On 20.10.2005 the

plaintiffs purported to have deposited with the Registry

deficient court fees of Rs.1,74,800/-. This fact was not

brought to the notice of the Court, at the time when the order

of which review is sought was passed. However, the suit was

pursued by the plaintiffs against the defendant. The

defendant had filed his written statement and the reply to the

application on 11.11.2005 contesting the claim of the

plaintiffs. This Court vide order dated 16.05.2006 vacated

an ex-parte ad interim injunction granted on 06.10.2005,

however, the defendant was directed to maintain the accounts

of the sale of the drug under the trade name „Meromer‟ and

submit the same to the High Court after every six months.

4. An appeal was preferred from the said order before the

Division Bench in which the order was not varied or changed.

5. The case was adjourned on 04.09.2009 for the purpose of

framing of issues to 20.01.2010. On 20.01.2010, this Court

for the first time after filing of the suit noticed that despite the

expiry of 4½ years the plaintiffs have not deposited the

deficient court fees. The plaintiffs request for further time to

make the deficient court fees was considered to be

unreasonable and unjustified, and accordingly, the plaint was

rejected.

6. After rejection of the plaint, the plaintiffs filed an application

for review bearing review petition no. 80/2010 which came up

for hearing for the first time on 23.02.2010. In the said

review application, it was urged that on 20.1.2010, the

learned counsel for the plaintiffs on account of an inadvertent

mistake could not point out to the Court that the deficient

court fees of Rs.1,74,800/- on the amount of Rs.2 crores has

actually been deposited on 20.10.2005 which was well within

the permissible time limit of 15 days. On 22.05.2010 an

affidavit was filed and it was observed that while calculating

the court fees on an amount of Rs.2 crores on account of an

inadvertent mistake, the learned counsel for the plaintiffs had

also taken into account the court fees of Rs.22,800/- which

was deposited earlier, along with the court fees of

Rs.1,74,800/- which was deposited at a later point of time

and assumed that the aforesaid total sum of the two court

fees came to ` 1,97,600/-, was the court fees payable on the

sum of Rs.2 crores, and therefore, the suit is maintainable.

It was stated that this was a bona fide mistake on the part of

the counsel, in adding up the court fees of Rs.22,800/- along

with the court fees of Rs.1,74,800/-. However, on realizing

the mistake, the additional deficient court fees of Rs.21,000/-

was also paid by the plaintiffs. On account of these reasons,

the learned counsel for the plaintiffs has urged that the order

dated 20.01.2010 may be reviewed as there was an error

apparent on the face of the record.

7. The defendant has contested the claim of the plaintiffs and

taken the plea that even if it is assumed that the sum of

Rs.1,74,800/- was paid by the plaintiffs on account of the

court fees on the liquidated damages of Rs.2 crores within

time even then the said amount was deficient by Rs.21,000/-

according to the plaintiff‟s own admission, and therefore, the

suit as on that date i.e. 06.10.2005 suffered from deficient

court fees as the plaintiffs had failed to rectify the deficiency

within the time stipulated and there being no application

seeking enlargement of time under Section 148 and 149 CPC,

the outcome of the suit ought not to be different than the one

which has been passed on 20.01.2010.

8. I have heard the learned senior counsel, Mr.A.N.Haksar and

Mr. Sanjay Jain, the learned senior counsel for the

applicant/plaintiff and the defendant respectively.

9. Mr.Haksar, the learned senior counsel for the plaintiffs has

contended that the order dated 20.01.2010 deserves to be

reviewed on account of the fact that the said order was

passed on account of an inadvertent mistake of the junior

counsel appearing for the plaintiffs, as he had failed to point

out that within the time permissible, that is within 15 days

granted by the Court an amount of Rs.1,74,800/- was paid as

court fees on the liquidated damages of Rs.2 crores. This

fact could not be brought to the notice of the Court. It is

further contended that there was a bonafide error on the part

of the counsel representing the plaintiffs in as much as he

should have tendered full court fee on Rs.2 crores i.e.

Rs.1,97,544/- where as he took into account the earlier court

fee of Rs.22,800/- which was paid at the time of filing of the

suit and paid only the balance amount to the tune of

Rs.1,74,800/-. It is stated that this was an erroneous

calculation done by the counsel for the plaintiffs for which the

plaintiffs may not be made to suffer. In any case, the

moment it was detected by the plaintiffs that there was an

error, the deficient court fees of Rs.21,000/- was paid on

4.5.2010.

10. It was contended by the learned senior counsel for the

plaintiffs that the law of procedure has to be interpreted in

such a manner, so that it does not make a party to suffer on

account of a bona fide mistake on the part of the plaintiff or

the applicant in payment of the deficient court fees. The

learned senior counsel has referred to various passages in the

judgments of the Apex Court in case titled Buta Singh (dead)

Vs. Union of India (1995) 5 SCC 284 apart from judgments

of Prominent Advertising Services Vs. M/s A. B.

Communications & Ors 161(2009) DLT 378, K. Natarajan

Vs. P.K. Rajasekaran A.S. No. 375 of 1989.

11. It was also contended by the learned senior counsel for the

plaintiffs that the Registry had never pointed out the

deficiency of the court fees and that this is the reason the suit

continued for a period of five years despite the deficiency of

the court fees. It is urged that had the Registry pointed out

the said deficiency the plaintiffs would have rectified the

same, and it is because of this reason that the deficiency went

unnoticed both at the level of the office of the learned counsel

for the plaintiffs as well as the Registry and the plaintiffs may

not be made to suffer.

12. The learned senior counsel for the defendant Mr. Sanjay Jain

has vehemently contested the plea for review of the order

dated 20.01.2010 on the ground that even if it is assumed by

this Court that the plaintiffs had paid the deficient court fees

as claimed by them to the tune of Rs.1,74,800/- within the

time permitted even then it could not be assumed that the

deficiency in terms of the payment of court fees was rectified.

It is contended by the learned senior counsel that admittedly

on a sum of Rs.2 crores the total court fees payable is

Rs.1,97,600/- while as an amount of only Rs.1,74,800/- was

paid and the deficiency even if it is one rupee will be counted

as a deficiency and the same cannot be ignored for the

purpose of the payment of the court fees. It was also

contended that there was no application for enlargement of

time or for deposit of the deficient court fees and therefore, it

was urged that in the absence of any application seeking

further deposit of additional amount of `21,000/- or so, could

not come to the rescue of the plaintiffs. The learned senior

counsel for the defendant has placed reliance on number of

judgments of the different High Courts in order to support his

contentions. These judgments are as under:

(i) Mandadi Krishna Reddy Vs. Guggula Sreenivas Reddy 2004 (6) ALD 638

(ii) Anantha Naichen Rama Naichen Vs. Vasudev Naicken AIR 1967 Ker. 85

(iii) M.D. Yunus Vs. Surga Begun, AIR 1955 Hyd. 156

(iv) Krishnakudva Vs. Ganapathy Hegde ILR (2204) Kar.

(v) Sahara India Airlines Vs. R.A. Singh 66 (1997) DLT 891 (DB)

(vi) Jagannath Motors Vs. Rushikulya Gramya Bank 2007 (II) OLR 521

13. I have carefully considered the submissions of the learned

counsel for the parties and have gone through the record.

14. There is no dispute about certain facts in the instant case.

These undisputed facts are that at the time when the matter

came up for hearing for the first time i.e. 06.10.2005, the

plaintiffs had paid court fees to the tune of Rs.22,800/- only

and no court fees whatsoever was paid by him on the

liquidated damages of Rs.2 crores. On 06.10.2005, this

Court had granted time to the plaintiffs to pay the deficient

court fees within two weeks which period expired on

23.10.2005. The plaintiffs deposited the court fees of

Rs.1,74,800/- on 20.10.2005 that is well within the time

permissible. It is also not in dispute that the suit continued

thereafter for almost five years and neither the defendant nor

the Registry pointed out the deficiency in the payment of the

court fees. It is also not in dispute that when the matter was

taken up on 20.01.2010 the learned counsel for the plaintiffs

was not in a position to apprise the Court that the deficient

court fees in terms of the order dated 6.10.2005 though

partially was deposited to the tune of Rs.1,74,800/-. The

Court fees was again deficient to the tune of approximately

Rs. 21,000/- or so. It is also not disputed that on 04.05.2010

the plaintiffs without filing any application seeking

enlargement of time either under Section 148 CPC or under

Section 149 CPC on his own independent will, deposited the

deficient court fee of Rs.21,000/-. The question to be

considered is, as to whether the plea which has been set up

by the plaintiff no. 1 that there was an error apparent on the

face of the record on 20.01.2010 in not pointing out that a

substantial amount of court fees i.e. Rs.1,74,800/- was

deposited by them though again deficient is a ground for

review of the order dated 20.01.2010 and further whether the

explanation which has been given by the learned counsel for

the plaintiffs, that there was a bona fide mistake on the part

of the counsel for the plaintiffs in calculating the court fees by

adding up the two figures of Rs.1,74,800/- and Rs.22,800/-

and assuming that the deficient court fees on a sum of

Rs.2crores stood paid and hence the suit was not liable to be

rejected.

15. According to the learned counsel for the plaintiffs the order

dated 20.1.2010 deserves to be reviewed on account of an

error apparent on the face of the record coupled with the facts

that there was a bona fide mistake in the calculation of the

amount of the court fees while as this has been contested by

the learned senior counsel for the defendant on the ground

that even if the order dated 20.01.2010 is reviewed so as to

take into account the court fees to the tune of Rs.1,74,800/-

having been paid within the time permissible, the same was

still deficient and it could not be considered to be a ground

for review of the order and hence the outcome of the suit has

to be the same, namely, the rejection of the plaint under

Order 7 Rule 11(c) CPC. In order to appreciate this

controversy, it would be worthwhile to refer to certain

provisions of the CPC. These provisions are as under:

148. Enlargement of time.- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period 1[not exceeding thirty days in total], even though the period originally fixed or granted may have expired.

149. Power to make up deficiency of court fees.- Where the whole or any part of any fee prescribed for any document by the law for the time being in force

relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.

Order VII Rule 11 Rejection of plaint- The plaint shall be rejected in the following cases"-

(a) ...........

(b) ...........

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;"

16. The suit of the plaintiffs has been rejected under Order 7 Rule

11 (c) CPC holding that the deficient court fees had not been

paid within the stipulated time. The Supreme Court in case

titled Sangram Singh Vs. Election Tribunal, Kota, Bhurey

Lal Baya AIR 1955 SC 425 while dealing with the question of

setting aside an ex-parte proceeding had an occasion to

comment on the purpose of procedural law.

17. Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.

18. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that

decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by the large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."

17. This purpose of the Civil Procedure Code has been its

hallmark and it has been echoed time and again by the

Supreme Court in subsequent judgments in different words.

18. In case titled Sk. Salim Haji Abdul Khayumsab Vs. Kumar

(2006) 1 SCC 46, it was observed by the Apex Court that all

the rules of procedure are the handmaid of justice. The

language employed by the draftsman of procedural law may

be liberal or stringent, but the fact remains that the object of

prescribing procedure is to advance the cause of justice. In

an adversarial system no party should ordinarily be denied

the opportunity of participating in the process of justice

dispensation. Unless compelled by express and specific

language of the statute, the provisions of CPC or any other

procedural enactment ought not to be construed in a manner

which would leave the court helpless to meet extraordinary

situations in the ends of justice.

19. In case titled Kailash Vs. Nanhku (2005) 4 SCC 480, the

Apex Court has observed that merely because a provision of

law is couched in a negative language implying a mandatory

character, the same is not without exceptions. The Courts,

when called upon to interpret the nature of the provision,

may, keeping in view of the entire context in which the

provision came to be enacted, and hold the same to be

directory though worded in the negative form.

20. In case titled Rani Kusum Vs. Kanchan Devi (2005) 6 SCC

705, the Apex Court has observed that the mortality of justice

at the hands of law troubles a judge‟s conscience and points

an angry interrogation at the law reformer. Procedural law is

not to be a tyrant but a servant, not an obstruction but an

aid to justice. Procedural prescriptions are the handmaid and

not the mistress, a lubricant, not a resistant in the

administration of justice.

21. The learned senior counsel for the plaintiff has also drawn the

attention to the judgment of the Apex Court in case titled

Buta Singh (dead) by LRs. Vs. Union of India (1995) 5 SCC

284 wherein it has been observed as under:

"The discretion conferred on the court by Section 149 is a judicial discretion. The court is not bound to exercise the discretion unless the applicant shows sufficient cause for the failure to pay deficient court fee or he was under bona fide mistake in payment thereof. Mere poverty or ignorance or inability to pay the court fee at the time of presenting the appeal is not always a good ground for indulgence under Section 149. Bona fide mistake on the part of the appellant or applicant in making the deficit court fee may be a ground to exercise discretion in favour of the appellant. It is the duty of the Registry before

admitting the appeal to point out to the appellant or his counsel that deficit court fee be payable. If the party deliberately to suit his convenience paid insufficient court fee, the mistake is not a bona fide but one of choice made by the party in making the deficit court fee. In that situation, even after pointing out the need to make the court fee and given time, if the court fee is not paid and MOA is represented within the enlarged time, it would be open to the court either to reject the MOA or refuse to condone the delay for not showing sufficient cause thereon. Therefore, the court is required to exercise its judicial discretion keeping the fact and circumstances in each case and not automatically for mere asking that indulgence be shown to the party to make good the deficient court fee. In the latter event, it is not the exercise of the judicial discretion but showing undue indulgence. The aid of Section 149 could be taken only when the party was not able to pay court fee in circumstances beyond his control or under unavoidable circumstances.

22. In Rakesh Wadhawan Vs. Jagdamba Industrial Corp. AIR

2002 SC 2004, it has been observed that a statute can never

be exhaustive and Courts have the jurisdiction to pass

procedural orders. It was observed that such innovations are

permissible supported by the principles of justice, good sense

and reason. Reference was also made to the powers of the

Court under Section 148 and 149 to do justice to a litigant.

23. Similar is the view taken by the learned Single Judge of our

own High Court in case titled Prominent Advertising

Services Vs. M/s A. B. Communications & Ors. 161 (2009)

DLT 378 wherein it has been observed that:

"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. Under Order VII Rule 11 CPC, 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."

24. As against this, Mr.Sanjay Jain, learned senior counsel for

the defendant has referred to the following judgments:

(i) In Mandadi Krishna Reddy Vs. Guggula Sreenivas

Reddy 2004 6 ALD 638, it was held as under:-

"7. That apart, though it is true that under Section 149 of CPC the Court in its discretion may allow a person to make up deficiency of Court fee at any stage of the proceedings even without any application by the party, such discretion is required to be exercised reasonably keeping in view the principles of law and taking into consideration the facts and circumstances of the case on hand. In the case on hand, it was not the case of the plaintiff that there was any bona fide mistake in calculation of the Court fee payable. It was not even stated that due to financial difficulties or for some other valid reason, he was unable to pay the proper Court fees. The fact that the plaint was represented after about four years without paying the deficit court fees and without explaining the reasons and without seeking the leave of the Court makes it clear that non-payment of proper court fees was deliberate. The Court below grievously erred in exercising the discretion in favour of such a party. It is relevant to note that the plaintiff failed to offer any explanation for the default on his part in payment of proper court fee in the first instance and particularly for non-payment of deficit court fee

even after the period of about four years. In such circumstances, the court below ought to have rejected the plaint under Order 7, Rule 11(c) of CPC which mandates that where the plaintiff on being required by the Court to pay the deficit court fee within the time to be fixed fails to do so the plaint shall be rejected. It is to be noted that the plaint initially presented was returned on 17.6.1999 granting seven days time for complying the objections including the payment of deficit court fees. Admittedly, the plaintiff failed to do so and resubmitted the plaint after about for years on 13.2.2003. If that be so, in the light of the mandatory provisions of Order 7 Rule 11(c), the plaint is liable to be rejected."

(ii) In Anantha Naicken Rama Naicken Vs. Vasudev

Naicken AIR 1967 Ker 85, it was observed as under:-

"That is absolutely an erroneous view taken by the trial court. If it is found at the hearing that deficit court fee has not been paid, the proper thing would be to stop further hearing of the matter and direct the plaintiff or the party concerned to pay the necessary court fee and then only resume the hearing and in default of such compliance, to reject the plaint or memorandum of appeal..."

(iii) In Mohd. Yunis Vs. Sugra Begum AIR 1955 HYD 156,

it was held as under:-

"We are clearly of the opinion that the Court cannot exercise its powers under Section 151 if the result of it would amount to depriving the defendant of a valuable right that he had acquired viz. of contenting that the suit that was barred by limited....."

25. A perusal of the authorities which have been relied upon by

the learned senior counsel for the defendant would clearly

show that it is not disputed that under Section 149 of the

CPC, the Court has the discretion to allow the person to make

up the deficient court fees at any stage of the proceedings

even without there being an application by a party. The only

question to be considered is as to whether in the given

situation, the said discretion deserves to be exercised in

favour of a party or not. It is a question of fact to be decided

in the light of the facts of all the individual cases. In Mandadi

Krishna Reddy‟s case no reasonable explanation was given for

non-deposit of Court fees while in the present case the

applicant has given a reasonable explanation which inspires

confidence.

26. So far as the facts of the present case are concerned, for the

reasons which have been stated hereinafter, I feel that the

discretion deserves to be exercised in favour of the plaintiffs

for enlargement of time of deposit of court fees and the order

dated 20.1.2010 deserves to be reviewed because of the three

primary reasons. Firstly, that the plaintiff had paid the

deficient court fees (according to him) on an amount of `2

crores to the tune of `1,74,000/- within the stipulated period

of 15 days set out by the Court on the very first date of

hearing.

27. Secondly, this fact could not be brought to the notice of the

Court at the time when the order dated 20.1.2010 was passed

on account of an inadvertent mistake of the counsel for the

plaintiffs.

28. Thirdly, that this fact was also not pointed out by the Registry

that the deficient court fee was not met in full measure and

therefore, the case should not proceed with as a result the

case continued to be heard not only by the Trial Court but

also by the Apex Court where an appeal was preferred by one

of the parties.

29. Fourthly, the deficient court fees on being detected was

deposited by the plaintiffs voluntarily without any application

and waiting any further which shows that the bonafides of

the plaintiffs could not be suspected. The explanation given

by the plaintiffs seems to be reasonable.

30. Moreover, there are judgments of the different High Courts

and in the light of the judgments of the Apex Court cited by

the learned senior counsel for the plaintiffs on the subject

matter, I feel that this Court must go by the judgments of the

Apex Court and should allow the application in favour of the

plaintiffs so as to advance the substantial justice rather than

get bogged down by the technicalities.

31. After going through the aforesaid judgments the only

irresistible conclusion which one can derive is that the

procedural laws are not to be used to oust a person from

pursuing the remedy of obtaining justice, but procedural laws

are only to facilitate the ends of justice provided the bonafide

of the party seeking the condonation of his lapse are not

suspect.

32. As against this, the authorities which have been relied upon

by the learned senior counsel for the defendant are the

judgments of different High Courts wherein it has been held

in the facts of those cases that the suit could not proceed for

want of payment of deficient court fees but the said string of

authorities does not govern the facts of the present case.

33. I will deal with those authorities later on. At present, let us

see whether the facts of the present case warrant the review

of the order dated 20.01.2010 on account of an error

apparent on the face of the record and also on account of a

bona fide mistake on the part of the counsel for the plaintiffs

in calculating the court fees. The answer to this question in

my considered view has to be in affirmative that the order

dated 20.01.2010 deserves to be reviewed and the application

of the plaintiffs deserves to be allowed. The reason for this is

twofold, firstly, on 20.01.2010 when the order of rejection of

the plaint was passed, the learned counsel for the plaintiffs

for whatsoever reason failed to point out that the plaintiffs

had already deposited a substantial amount of Rs.1,74,800/-

within the permissible time limit which was considered by

them as deficient court fees payable on the liquidated

damages of Rs.2 crores. If that be so then, there is an error

apparent on the face of the record and this error has crept not

only because the learned counsel for the plaintiffs has failed

to point out this fact to the Court but also on account of the

mistake of the Registry in not raising an objection despite the

pendency of the suit for more than five years, therefore, this

mistake which has resulted in an error apparent on the face

of the record cannot be solely attributed to the plaintiffs. This

mistake has also to be shared in equal measure by the

Registry.

34. The second question which arises for consideration is that the

court fees which was deposited by the plaintiffs on

20.10.2005 was also deficient by Rs.21,000/- approximately

and if this fact is taken into account the requirement of law is

not fulfilled and still the court fees being deficient whether the

suit deserves to be rejected and the outcome which has been

arrived at on 20.01.2010 need not be changed.

35. The explanation given by the learned senior counsel for the

plaintiffs is that there was a bonafide mistake on the part of

the learned counsel for the plaintiffs in calculating the court

fees payable on the amount of Rs.2 crores inasmuch as he

should have tendered full court fee on Rs. 2 crores, i.e., `

1,97,544/- or so, whereas he took into account the earlier

court fee of Rs. 22,800/- which was paid at the time of filing

of the suit and paid only the balance amount to the tune of

Rs. 1,79,800/- and that is how the mistake has arisen. An

affidavit of Mr.Supriya Kumar Guha, Co. Secretary of the

plaintiff nos.1 and 2 S/o Late Sh.J.K.Guha, in this regard has

been filed by the learned counsel for the plaintiffs. This fact

has also not been pointed out by the Registry that the Court

fees which was deposited by them on 20.10.2005 was

deficient by Rs.21,000/- approximately.

36. The learned senior counsel for the defendant has contended

that the plaintiffs while depositing the said deficient court

fees, has not filed any application for enlargement of time to

pay the deficient court fees and certainly the time could not

be enlarged so as to last for a period of five years, and

therefore, this voluntary deposit of the court fees by the

plaintiffs cannot be taken as a ground for rectification of the

deficient court fees and consequently for the review of the

order dated 20.01.2010.

37. I do not agree with the contentions of the learned senior

counsel for the defendant that the deficient court fees which

has been paid by the plaintiffs though on 22.01.2010 cannot

be taken cognizance of. I do not feel that there has to be

necessarily an application for enlargement of time for

payment of court fees in each and every case especially the

one which is like the present one where on account of a bona

fide mistake of a counsel, a party has paid the deficient court

fees though not in full measure but in substantial measure.

Reliance can be placed on Mahanth Ram Das's case AIR

1961 SC 882, P.K.Palanisamy Vs. N.Arumughan & Anr.

(2009) 9 SCC 173 and Indian Statistical Institute Vs. M/s

Associate Builder and Ors. 1978 (1) SCC 483. The Courts

as well as the parties are human and there is a possibility

that as a human being a party may commit an error. The

question which is to be considered is whether there was any

malafide intention in not depositing the full court fees, if the

answer to this question is in affirmative only then the

discretion need not be exercised by the Court in favour of

party whose intentions are not bonafide and are actuated

with a clear intention to prolong the trial or to seek the access

to the Court without discharging the obligations warranted by

a statute. In the instant case, I feel that there was no such

intention on the part of the plaintiffs who had actually paid a

substantial amount of court fees to the tune of Rs.1,74,800/-

and it was a bona fide mistake on the part of the counsel in

calculating the court fees and therefore, malafide or ill motive

may be attributed to such an error because it is ultimately

the humans who commit an error. It is also my considered

view that even though no application was filed by the

plaintiffs seeking enlargement of time under Section 149 of

CPC yet the Court on the facts of the present case in exercise

of its power u/S 149 CPC is well within its power to condone

such delay in filing the deficient court fees. In this regard

reliance can be placed on Mandadi Krishna Reddy‟s case.

Further the suit filed for permanent injunction, restraining

infringement of trademark, passing off, damages/rendition of

account and delivery etc. against the defendant is pending for

the last more than five years and the deficient court fees was

paid in substantial measure within the permissible time. The

balance amount of deficient court fees could not be paid

earlier on account of bonafide human error of the counsel for

the plaintiff as well as on account of failure on the part of the

registry to point out the deficiency.

38. For reasons mentioned above, I feel that the order dated

20.01.2010 deserves to be reviewed on account of there being

an error apparent on the face of the record regarding the

payment of the court fees, I feel that the suit must continue

rather than being rejected as admittedly as on date the

plaintiffs have rectified the deficiency in payment of entire

court fees.

39. Accordingly, the application of the plaintiff is allowed and the

order dated 20.1.2010 is recalled and the matter be posted

before appropriate Court according to Roster subject to the

orders of Hon‟ble The Chief Justice for further proceedings.

V.K. SHALI, J.

July 04, 2011 Kp/RN