Madras High Court
Syndicate Bank vs M.Alagappan on 28 April, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 28.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA(MD)No.566 of 2012
Syndicate Bank, Karaikudi Branch,
Karaikudi, Sivagangai District,
Rep.through its Branch Manager
... Appellant/Appellant/Plaintiff
Vs.
1.M.Alagappan
2.M.Sankar ...Respondents/Respondents/Defendants
Prayer: Second Appeal is filed under Section 100 of Civil Procedure
Code, against the judgment and decree dated 30.09.2011 passed in A.S
No.16 of 2011 on the file of the District Judge, Sivagangai confirming
the judgment and decree dated 28.02.2008 in O.S No.77 of 2006 on the
file of the Subordinate Judge, Devakottai.
For Appellant : Mr.R.Pandivel
For Respondent : Mr.R.Sundar Srinivasan for R1
Mr.K.Govindarajan for R2
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JUDGEMENT
The plaintiff in O.S No.77 of 2006 on the file of the Sub Judge,
Devakottai is the appellant in this second appeal. The appellant filed
the said suit for recovering a sum of Rs.2,26,955/- from the defendants
herein. The plaintiff is a Nationalised Bank. The case of the plaintiff
is that the first defendant has availed over draft facility upto Rs.3.00
lacs and agreed to pay the said sum with subsequent interest. The
second defendant stood as a guarantor. The defendants executed a
renewal letter on 15.07.2003. The first defendant committed default.
Therefore, to recover the same, the suit was filed on 14.07.2006. There
can be no doubt that the suit was filed within the limitation period
though literally on the last date. It appears that due to paucity of
stamp papers, the suit was filed by affixing only a sum of Rs.100.00 as
court fee. However, on the same day, an application was taken out
seeking extension of time to pay the deficit court fee and order
obtained. The deficit court fee was duly paid within the extended time
granted by the trial court. After the suit summons were issued to the
defendants, they also entered appearance and filed I.A No.93 of 2007
seeking rejection of plaint. Vide order dated 28.02.2008, the application
filed under Order 7 Rule 11 of CPC was allowed and the plaint was
rejected. The ground on which the said order was passed was that the
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plaintiff did not pay the entire court fee within the limitation period.
The learned trial Judge declined to take note of the fact that the deficit
court fee eventually came to be paid. Questioning the same, the
appellant herein filed A.S No.16 of 2011 before the District Court,
Sivagangai. By the impugned judgment and decree dated 30.09.2011,
the first appellate court came to the conclusion that the filing of the
first appeal was not maintainable and that a Civil Revision Petition only
will lie. Questioning the same, this Second Appeal came to be filed.
The second appeal was admitted on the following substantial questions
of law :
“1.Whether an order rejecting the plaint should be
construed as a “decree” as provided under Section 2(2) of
the Code of Civil Procedure ?
2.Whether the rejection of the plaint is proper
under Order 7 Rule 11(C) even after paying the deficit
court fees within a time fixed by the Court ?
3.Whether the 1st appellate court's judgment is
sustainable due to non-compliance of the provision
under Order 41 Rule 31 of the Code of Civil Procedure ?
and
4.Whether the first appellate court's judgment,
without any discussion about the trial court's judgment
is sustainable?”.
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2.Heard the learned counsel on either side.
3.It is well settled that an order rejecting plaint will amount
to a decree and as such only an appeal under Section 96 (2) of CPC will
lie. This is evident from the definition of the decree provided under
Section 2(2) of CPC. The first appellate court had gone wrong in holding
that only a CRP will lie and not an appeal under Section 96 of CPC.
Therefore, the first substantial question of law is answered in favour of
the appellant.
4.In normal course, since the first appeal had suffered
dismissal only on the ground of maintainability, the second appeal need
not be decided on merits by this Court and the matter can be
remanded to the first appellate court. But then, the first appeal was
only on a pure question of law. Therefore, the learned counsel for the
appellant bank suggested that this Court can as well as decide whether
the rejection of plaint by the trial court was justified. If this Court
comes to the conclusion that the rejection of plaint is not justified, the
second appeal can be allowed and straightaway the matter can be
remanded to the trial court so that the suit can be decided on merits.
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5.It is seen that the suit transaction is of the year 2002. Already
19 years have gone by. As already suggested by the appellant's counsel,
I decided to test the correctness of the order passed by the trial court.
There is no doubt that the suit was filed within the limitation period.
Of course, the entire court fee was not paid. For paying the deficit
court fee, extension of time was sought for. Within the extended time,
the deficit court fee was also paid. The only question is as to whether
the non-payment of the entire court fee within the limitation period can
lead to the conclusion that the suit itself was not filed in time. The
trial court has not taken note of the mandate set out in Section 149 of
CPC. Section 149 of CPC reads as follows :
“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.”
This Section had been interpreted in a catena of decisions. The learned
counsel for the appellant draws my attention to one such decision
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reported in 2011 (3) MLJ 1037 (P.Kumar v. Sanjay Agarwal). The
Hon'ble Judge in the said case had held as follows :
“29.Be that as it may, the terms "at any stage"
in Section 149 of Civil Procedure Code adumbrates
that the deficiencies can be made good even after
the expiry of the limitation period in regard to the
filing of the suit or Appeal and further, the
discretion can be exercised even in the case of a
plaint without any Court fee. In this connection, it is
not out of place for this Court to point out that the
discretion showered on a Court of law as per Section
149 of C.P.C. is over and above the application
under Order 7, Rule 11 of C.P.C. To put it precisely
Order 7, Rule 11 of C.P.C. is not an enabling
provision, but only a disabling one and the proper
Section in and by which time may be granted for
payment of Court fee is only Section 149.”
6.Therefore, I have no hesitation to answer the second substantial
question of law in favour of the appellant. It is answered in favour of
the appellant. The judgment and decree passed by the courts below
are set aside. The second appeal is allowed. The matter is remitted to
the file of the trial court. Since the suit is of the year 2006, the trial
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Judge will ensure that the suit proceedings are decided on merits and
in accordance with law within a period of six months from the date of
receipt of copy of this order. Since the defendants have entered
appearance through counsel before this Court, there is no need to issue
any fresh suit summons to them. The defendants will enter
appearance before the trial court on 25.06.2021. The defendants will
file their written statements on 25.06.2021 itself. Registry is directed
to return the records to the trial court. No costs.
28.04.2021
skm
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The District Judge, Sivagangai.
2.The Subordinate Judge, Devakottai.
Copy to :
The Record Keeper, V.R.Section,
Madurai Bench of the Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis/
G.R.SWAMINATHAN, J.
skm
SA(MD)No.566 of 2012
28.04.2021
https://www.mhc.tn.gov.in/judis/
