Madras High Court
M/S. A.V.R.N. Hotels Pvt Ltd vs M/S.Miraj Entertainment Ltd on 12 February, 2025
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.02.2025
CORAM
THE HONOURABLE MRS JUSTICE T.V.THAMILSELVI
CRP NO. 3168 of 2023
M/s. A.V.R.N. Hotels Pvt Ltd.,
Rep by its managing Director, Mr. A.
Vijayaraghavan, 12, Jawaharlal Nehru Salai, Inner
Ring Road, Arumbakkam, Chennai 106.
Petitioner(s)
Vs
M/s.Miraj Entertainment Ltd.,
Rep by Mr. Samir Subhash Samant, Vice President
Legal 705-796, Eureka towers, Wing B, Mind
Space, Off Link Road, Behind Toyota Show Room,
Malad (WEst) Mumbai 400 064, Maharastra.
Respondent(s)
For Petitioner : Mr.R.Srinivas Senior counsel
For Mr.M.Santhanaraman
For Respondent : M/s.Dhanaram Ramachandran
For M/s.D.R.Law Chambers
ORDER
The Learned Counsel for the respondent/plaintiff submits that the
Civil Revision Petition No. 3168 of 2023 against the dismissal order
dated 28.07.2023 for rejection of plaint by the Principal District Judge,
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Chengalpet in C.O.S. No. 139 of 2023 preferred by the
petitioner/defendant was allowed by this Court by order dated
24.06.2024.
2. The sum and substance of the respondent/plaintiff’s grievance is
that this Court has not passed any order of refund of court fee paid by the
respondent/plaintiff in the C.O.S. No. 139 of 2023.
3. Therefore, the respondent/plaintiff prayed that the Principal
District Judge, Chengalpet be ordered either to refund the Court fee paid
in INR 25,85,060/- (Twenty- Five Lakhs Eighty-Five Thousand and Sixty
Rupees) in C.O.S. No. 139 of 2023 to the respondent/plaintiff herein or
to adjust the said refund amount, without insisting on fresh payment of
court fees for the suit which is subsequently filed by the
respondent/plaintiff herein relating to the same subject matter.
4. The plaint was ordered to be rejected by this Court for non-
compliance of the mandate of Section 12 A of the Commercial Courts
Act, 2015.
5. The issue involved in the prayer of the respondent/plaintiff
under the caption “For Clarification” is that:
i. Whether the respondent/plaintiff is entitled for refund of
Court fee paid in C.O.S. No. 139 of 2023 before the
Principal District Judge, Chengalpet or can the same be
ordered to be adjusted for the subsequently filed suit relating
to the same subject matter especially when the plaint was
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rejected under Order VII Rule 11 of CPC for non-
compliance of Section 12 A of the Commercial Court Act,
2015.
ii. Whether the above prayer of the respondent/plaintiff be
granted by invoking the jurisdiction of this Court under
Article 227 of the Constitution of India.
6. It is pertinent that the Learned Counsel for the
petitioner/defendant contended that the respondent/plaintiff is not
entitled for refund of Court fee on account of rejection of plaint under
Order VII Rule 11 for non-compliance of Section 12 A of the
Commercial Courts Act, 2015 by invoking Article 227 of the
Constitution of India, in the absence of a specific statute for refund of
Court Fee on rejection of plaint.
7. The Counsel for the respondent/plaintiff submitted that this is
the first instance of a rejection of plaint arising out of non-compliance of
Section 12 A of Commercial Courts Act, 2015 being heard by the High
Court of Madras under Article 227 of the Constitution of India where
refund of Court Fee is also prayed for. He submitted that therefore, he
could not cite any landmark judicial precedent which has settled similar
lis.
8. In view of the aforesaid peculiar issues, Mr. E.V.Chandru
(Enrolment Number: 645/1997), Advocate, is appointed as Amicus
Curiae to assist this Court in this aspect vide order dated 08.01.2025.
9. Heard the Learned Amicus Curiae for the issues referred to in
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CRP. No. 3168 of 2023 vide order dated 08/01/2025.
10. The Learned Amicus Curiae at the outset invited the attention
of this Court to the provisions of The Tamil Nadu Court Fee and Suit
Valuation Act, 1965 wherever refund is specifically provided under
different heads, in Chapter VII from Sections 66 to 73 of the said Act.
“Section 66. Refund in cases of delay in presentation of plaint,
etc.
(1) Where a plaint or memorandum of appeal is rejected on the
ground of delay in its representation, or where the fee paid on a
plaint or memorandum of appeal is deficient and the deficiency is
not made good within the time allowed by law or granted by the
Court, or the delay in payment of the deficit fee is not condoned
and the plaint or memorandum of appeal is consequently rejected,
the Court shall direct the refund to the plaintiff or the appellant, of
the fee paid on the plaint or memorandum of appeal which has
been rejected.
(2) Where a memorandum of appeal is rejected on the ground that
it was not presented within the time allowed by the law of
limitation, one-half of the fee shall be refunded.
Section 67. Refund in cases of remand
(1) Where a plaint or memorandum of appeal which has been
rejected by the lower Court is ordered to be received; or where a
suit is remanded in appeal for a fresh decision by the lower Court,
the Court making the order or remanding the appeal may direct
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the refund to the appellant of the full amount of fee paid on the
memorandum of appeal; and, if the remand is on second appeal,
also on the memorandum of appeal in the first appellate Court
and, if the remand is in Letters Patent Appeal, also on the
memorandum of second appeal and memorandum of appeal in the
first appellate Court.
(2) Where an appeal is remanded in Second Appeal or Letters
Patent Appeal for a fresh decision by the lower appellate Court,
the High Court remanding the appeal may direct the refund to the
appellant of the full amount of fee paid on the memorandum of
Second Appeal if the remand is in Second Appeal, and of the full
amount of fee paid on the memorandum of Second Appeal and the
Memorandum of Letters Patent Appeal if the remand is in Letters
Patent Appeal:
Provided that, no refund shall be ordered if the remand was
caused by the fault of the party who would otherwise be entitled to
a refund:
Provided further that, if the order of remand does not cover the
whole of the subject-matter of the suit, the refund shall not extend
to more than so much fee as would have been originally payable
on that part of the subject-matter in respect whereof the suit has
been remanded.
Section 68. Refund where Court reverses or modifies former
decision on ground of mistake
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Where an application for a review of judgment is admitted on the
ground of some mistake or error apparent on the face of the
record, and on the rehearing the Court reverses or modifies its
former decision on that ground, it shall direct the refund to the
applicant of so much of the fee paid on the application as exceeds
the fee payable on any other application to such Court under
Article 11 (g) and (u) of Schedule II.
Section 69. Refund on settlement before hearing
Whenever any suit is dismissed as settled out of Court before any
evidence has been recorded on the merits of the claim, half the
amount of all fees paid in respect of the claim or claims in the suit
shall be ordered by the Court to be refunded to the parties by
whom the same have been respectively paid.
Explanation -- The expression 'merits of the claim' shall have the
meaning assigned to it in section 12.
Section 70 - Refund of fee paid by mistake or inadvertence
The fee paid by mistake or inadvertence shall be ordered to be
refunded.
Section 71. Instruments of partition
Where the final decree in a partition suit has been engrossed on
non-judicial stamps furnished by the parties, the Court shall order
the refund to the parties of so much of the valued fee paid by them
as is equal to the value of the non-judicial stamps furnished by
them.
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Section 72. Exemption of certain documents
Nothing contained in this Act shall render the following
documents chargeables with any fee:-
(i) mukhtarnama, vakalatnama or other written authority to
institute or defend a suit when executed by a member of any of the
Armed Forces of the Union not in civil employment;
(ii) memorandum of appearance filed by advocates or pleaders
when appearing for persons proceeded against in criminal cases;
(iii) plaints and other documents in suits filed in village Courts;
(iv) plaints in suits before Collectors under [Tamil Nadu]
Regulation XII of 1816;
(v) application or petition to a Collector or other officer making a
settlement of land revenue, or to the Board of Revenue relating to
matters connected with the assessment of land, or with the
ascertainment of rights thereto or interest therein, if presented
previous to the final confirmation of such settlement;
(vi) application relating to a supply for irrigation of water
belonging to Government;
(vii) application for leave to extend cultivation or to relinquish
land, when presented to an officer of land revenue by a person
holding, under a direct engagement with Government, land of
which revenue is settled but not permanently;
(viii) application for service of notice of relinquishment of land or
of enhancement of rent;
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(ix) written authority to an agent to distrain;
(x) first application (other than a petition containing a criminal
charge of information) for the summons of a witness or other
person to attend either to give evidence or to produce a document
or in respect of the production or filing of an exhibit not being an
affidavit made for the immediate purpose of being produced in
Court;
(xi) bail bonds in criminal cases other than bail bonds in village
Courts, recognizances to prosecute or give evidence and
recognizances for personal appearance or otherwise;
(xii) petition, application, charge or information respecting any
offence when presented, made or laid to or before a police officer,
or to or before the heads of villages or the village police;
(xiii) petition by a prisoner or other person in duress or under
restraint of any Court or its officer;
(xiv) complaint of a public servant as defined in the Indian Penal
Code (Central Act XLV of 1860) or an officer of the 3 State
Railway;
(xv) application for permission to cut timber in Government
forests or otherwise relating to such forests, not being applications
from forest contractors for extending the period of their leases;
(xvi) application for the payment of money due by the Government
to the applicant, other than an application for refund of lapsed
deposit made six months after the date on which the amount
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lapsed to the Government;
(xvii) petition of appeal against any municipal tax;
(xviii) application for compensation under any law, for the time
being in force relating to the acquisition of property for public
purposes;
(xix) petition under section 48 of the Indian Christian Marriage
Act, 1872 (Central Act XV of 1872);
(xx) petition or appeal by a Government servant or a servant of
the Court of Wards when presented to any superior officer or
Government against orders of dismissal, reduction or suspension;
copies of such orders filed with such appeals, and applications for
obtaining such copies.
Section 73. Power to reduce or remit fees
The State Government may, by notification in the Fort. St. George
Gazette, reduce or remit, in the whole or in any part of the
territory of this State, all or any of the fees chargeable under this
Act, and may, in like manner, cancel or vary such notification.”
11. Referring to the above provisions, the Learned Amicus Curiae
submitted that non inclusion of the relief of refund of Court Fee for
rejection of plaint is clearly a case of casus omissus and that Courts while
interpretating a provision only interpretates law and cannot legislate it,
save in case of strong and clear necessity and when reason for it is found
in the four corners of its statute itself. The Learned Amicus Curiae
Mr.E.V.Chandru has vehemently contended that this Court under Article
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227 cannot legislate over and above the purview of the law for the
purposes of granting the unwarranted reliefs prayed for refund of Court
Fee on a grant rejection of plaint application.
12. The Learned Amicus Curiae has also gainfully referred to
Article 284 (2) of the Constitution of India.
Emphasis was laid upon Article 284 which reads as follows:
Article 284 in Constitution of India – Custody of suitors'
deposits and other moneys received by public servants and courts
All moneys received by or deposited with—
(a)any officer employed in connection with the affairs of the
Union or of a State in his capacity as such, other than revenues or
public moneys raised or received by the Government of India or
the Government of the State, as the case may be, or
(bHYPERLINK
"https://indiankanoon.org/doc/1654454/")any court within the
territory of India to the credit of any cause, matter, account or
persons, shall be paid into the public account of India or the
public account of the State, as the case may be.”
Emphasis was laid upon the word ‘all money received or deposited
with’.
13. He has referred to Article 284(b) and has lucidly argued that all
monies received by or deposited with any court within the territory of
India to the credit of any cause, matter, account or persons, shall be paid
into the public account of India or the public account of the State as the
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case may be.
14. In this context, the learned Amicus Curiae Mr. E.V. Chandru
laid emphasis that Article 284 is a one way traffic, where, if a money is
deposited either by a way of court fee or by any other means into the
court, it shall be credited to the public account of the state and if at all
that has to be claimed back from the public account, there should be a
law made by the competent Legislature either under the state legislature
or by the central laws.
15. The learned Amicus Curiae has also referred to the various
provisions of The Court Fee Act of 1870 and the Court Fee act of Tamil
Nadu Court Fee and Suit Valuation Act, 1965 and has argued that in both
these legislations, there is no specific provision enabling this Hon’ble
Court to refund the money if the decree is passed under Order 7 Rule 11
of CPC i.e., Rejection of Plaint.
16. When the Legislature has made specific provisions for refund
of money or Court Fee on many other heads, it has left out such a relief
for the provisions of Order 7 Rule 11, which would mean in the
submissions of the learned Amicus Curiae that, it is not a negligent
omission but it falls under the caption ‘Casus Omissus’.
17. The Learned Amicus Curiae has also referred to Judgment in
Jage Ram Vs. Ved Kaur and Others SC on 28/01/2025, wherein the
Hon’ble Supreme Court has laid down that the refund of Court Fee is
permissible only if the matter is referred to arbitration, conciliation,
judicial settlement, including through Lok Adalat or mediation for
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settlement and the cases decided in terms of such a settlement and not
otherwise.
18. In the case at hand before the Hon’ble Supreme Court, the
settlement in terms of it, the second appeal was decided by the High
Court is not on reference to any of the above authorities or fora rather it
was an amicable settlement out of court and the Hon’ble Supreme Court
has also opined that the petitioner is not entitled to refund of the court fee
and the High Court has not committed any error or illegality in refusing
such a prior.
19. In this context also the Learned Amicus Curiae has pointed out
that return of court fee has to be made only if there is a provision in
accordance with law and Article 227 is non-elastic for such an
impermissible relief.
20. Furthermore, it was argued by Mr.E.V.Chandru by referring to
M/s Patil Automation Private Limited Vs. Rakheja Engineers Private
Limited on 17 August, 2022 SC, which is a division bench judgment of
the Hon’ble Supreme Court where the seminal question is with regard to
whether the provisions of Section 12A of the Commercial Courts Act,
2015 is mandatory or directory. Even though this was the seminal
question which was answered in favour of the defendant in that suit to
the effect that if a matter is not referred to pre-suit mediation, then such a
suit is liable to be dismissed under Order 7 Rule 11 of CPC that is
rejection of plaint and a decree is to be passed in consequence of the said
rejection.
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21. The Learned Amicus Curiae has brought to the knowledge of
this Court that para 24, 30 and 33 of the judgment of the Hon’ble
Supreme Court reported in 2022 Live Law SC 678 that is M/s Patil
Automation Private Limited Vs. Rakheja Engineers Private Limited
on 17 August, 2022 SC Bench: Hrishikesh Roy, K.M. Joseph, that has
ancillary answered the issue of non-refund of court fee also.
22. The relevant portions on which the Learned Amicus Curiae has
referred to are reproduce here for gain:
“24. Section 12A of the Act reads as follows:
12A. Pre-Institution Mediation and Settlement— (1) A suit, which
does not contemplate any urgent interim relief under this Act, shall
not be instituted unless the plaintiff exhausts the remedy of pre-
institution mediation in accordance with such manner and
procedure as may be prescribed by rules made by the Central
Government.
(2) The Central Government may, by notification, authorise the
Authorities constituted under the Legal Services Authorities Act,
1987 (39 of 1987), for the purposes of pre-institution mediation.
(3) Notwithstanding anything contained in the Legal Services
Authorities Act, 1987 (39 of 1987), the Authority authorised by the
Central Government under sub-section (2) shall complete the
process of mediation within a period of three months from the date
of application made by the plaintiff under sub-section (1):
Provided that the period of mediation may be extended for a
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further period of two months with the consent of the parties:
Provided further that, the period during which the parties
remained occupied with the pre-institution mediation, such period
shall not be computed for the purpose of limitation under
the Limitation Act, 1963 (36 of 1963).
(4) If the parties to the commercial dispute arrive at a settlement,
the same shall be reduced into writing and shall be signed by the
parties to the dispute and the mediator.
(5) The settlement arrived at under this section shall have the
same status and effect as if it is an arbitral award on agreed terms
under sub-section (4) of section 30 of the Arbitration and
Conciliation Act, 1996 (26 of 1996).”
30. In Bhikraj Jaipuria v. Union of India6, a Bench of five learned
Judges dealt with the question arising out of Section 175(3) of the
Government of India Act, 1935. The Court, inter alia, had to deal
with the question, whether enactment should be considered
directory or obligatory:
“17. The question still remains whether the purchase orders
executed by the Divisional Superintendent but which were not
expressed to be made by the Governor-General and were not
executed on behalf of the Governor-General, were binding on the
Government of India. Section 175(3) plainly requires that
contracts on behalf of the Government of India shall be executed
in the form prescribed thereby; the section however does not set
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out the consequences of non-compliance. Where a statute requires
that a thing shall be done in the prescribed manner or form but
does not set out the consequences of non-compliance, the question
whether the provision was mandatory or directory has to be
adjudged in the light of the intention of the legislature as disclosed
by the object, purpose and scope of the statute. If the statute is
mandatory, the thing done not in the manner or form prescribed
can have no effect or validity:
if it is directory, penalty may be incurred for non-compliance, but
the act or thing done is regarded as good. As observed in Maxwell
on Interpretation of Statutes, 10th Edn., p. 376:
“It has been said that no rule can be laid down for determining
whether the command is to be considered as a mere direction or
instruction involving no invalidating consequence in its disregard,
or as imperative, with an implied nullification for disobedience,
beyond the fundamental one that it depends on the scope and
object of the enactment. It may perhaps be found generally correct
to say that nullification is the natural and usual consequence of
disobedience, but the question is in the main governed by
considerations of convenience and justice, and when that result
would involve general inconvenience or injustice to innocent
persons, or advantage to those guilty of the neglect, without
promoting the real aim and object of the enactment, such an
intention is not to be attributed to the legislature. The whole scope
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and purpose of the statute under consideration must be
regarded.”
Lord Campbell in Liverpool Borough Bank v. Turner [(1861) 30
LJ Ch 379] observed:
“No universal rule can be laid down as to whether mandatory
enactments shall be considered directory only or obligatory with
an implied nullification for disobedience. It is the duty of courts of
justice to try to get at the real intention of the legislature by
carefully attending to the whole scope of the statute to be
construed.”
33. In fact, Sub-sections (2) and (3) of Section 80 came to be
inserted by virtue of the amendment. In Section 80(1), in view of
the insertion of Sub-Section (2), the opening words “save as
otherwise provided in sub-Section (2)” came to be inserted. There
were other changes which were brought about in Section 80 as it
stood, as can be discerned from Section 80(1) as substituted. The
judgment of the Privy Council, in the decision reported
in Bhagchand Dagadusa Gujrathi and Ors. v. Secretary of
State for India8, set at rest the controversy about the mandatory
nature of the requirement of a previous notice to be given to
comply with Section 80. We need only notice what this Court held
in the Judgment in State of Madras v. C.P. Agencies and others9:
“1. … The very language of Section 80 makes it clear,-- and it has
been so held by the Judicial Committee in Bhagchand Dagdusa v.
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Secy. of State, 54 Ind App 338:(AIR 1927 PC 176) which decision
has been adopted by the same tribunal in many later cases--that
Section 80 is express, explicit and mandatory and admits of no
implications or exceptions. …”
In Page 24 and Para 62, the Learned Amicus Curiae has
argued that the counsel for the plaintiff in the suit, has attempted
to enlighten the Hon’ble Supreme Court that if the plaint is under
Order 7 Rule 11 CPC, the plaintiff would be saddled with the
deprivation of the court fee. He would also contend therein that
such an aspect of refund of court fee has to be considered. When
the court decides the question as to whether the provision is
mandatory or not, whenever a plaint is rejected on the ground that
the suit is barred by any law, this is in
62. One of the arguments of Shri Saket Sikri is that, if a
plaint is rejected under Order VII Rule 11, the plaintiff would be
saddled with the deprivation of the court fee paid. He would
contend that this aspect may be considered, when the Court
decides the question as to whether the provision is mandatory or
not. Whenever a plaint is rejected on the ground that the suit is
barred under any law, this consequence is inevitable. [We may
only, in this context, observe, that under Section 4A of the Kerala
Court Fee and Suit Valuation Act, 1959, the plaintiff needs to pay
only one-tenth of the total court fee at the time of institution of the
suit. The balance is to be paid not later than fifteen days from the
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date of framing of issues, inter alia. Section 4A further provides
that if the parties further settle the dispute within the period
specified or extended by the Court for payment of the balance
court fee, the plaintiff shall not be called upon to pay the balance
court fee.] If a plaint is rejected for failure to give a notice, as
contemplated in Section 80 of the CPC, the court fee paid, may be
lost. Equally, for violation of Section 69 of the Indian Partnership
Act, if the plaint is rejected, the plaintiff loses the court fee. While
it may appear to be hard on the plaintiff, the effect of the provision
contained in Order VII Rule 11, cannot be diluted. Therefore, we
are not impressed by the argument, subject to what we will hold
later on.
The Hon’ble Supreme Court has discussed such a provision
in page 30, more specifically in para 76 under the caption ‘the
relief ’. Such a paragraph is reproduced herein.
76. On the findings we have entered, the impugned orders
must be set aside and the applications under Order VII Rule 11
allowed. This would mean that the plaints must be rejected.
Necessarily, this would involve the loss of the court fee paid by the
plaintiffs in these cases. They would have to bring a fresh suit, no
doubt after complying with Section 12A, as permitted under Order
VII Rule 13. Moreover, the declaration of law by this Court would
relate back to the date of the Amending Act of 2018.”
23. The Hon’ble Supreme Court has held that on the findings, it
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had entered, the impugned orders must be set aside and the application in
Order 7 Rule 11 CPC allowed.
24. Thus Supreme Court further has categorically and conclusively
held that this would mean that the plaints must be rejected. Necessarily
this would involve the loss of the court fee paid by the plaintiff in these
cases.
25. Further in page 33 paragraph 83, the Supreme Court has also
held, in the concluding lines that, ‘The imperative need to comply with
the mandate of Section 12A which we have unravelled if it has not been
shared by the parties on the advice they received or on the view
prevailing in the High Courts would necessarily mean that unless we
hold that the law, we declare is prospective such suits must perish. The
court fee paid would have to be written off. In a fresh suit which would
be otherwise barred by limitation, shelter can be taken only
under SectioHYPERLINK "https://indiankanoon.org/doc/409538/"n
HYPERLINK "https://indiankanoon.org/doc/409538/"14 of the
Limitation Act. The availability of the power under Section 14 itself may
have to be decided by the court.
26. Therefore, on a careful analysis of the above submissions and
perusal of the Judgment of the Hon’ble Supreme Court in M/S Patil
Automation Private Limited Vs. Rakheja Engineers Private Limited
on 17 August, 2022 SC, this Court is duty bound to conclude that the
Hon’ble Suprmee Court has not only laid down the law that Section 12A
of the Commercial Courts Act is mandatory but has also incidentally
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answered an issue which was raised by the Supreme Court, that any court
fee paid while instituting the suit and the subsequent rejection of plaint
based on the facts and circumstances that it was not referred to pre-
mediation and if urgency not pleaded thereof, the court finds that the
plaint ought to be rejected. The rejection of plaint would also involve a
loss of court fee.
27. Therefore, refund of such court fee in the absence of any
provision either in the Tamil Nadu Court Fee and Suit Valuation Act,
1965 or under the Court Fees Act of 1870, cannot be granted and the
powers vested with this Hon’ble Court under Article 227 of Constitution
of India cannot be extended or stretched in the absence of any specific
provision, that too when there is a mandate in the constitutional
provision Article 284 of Constitution of India, that it vests with the State
Exchequer of Treasury. It is also added that the issue of refund of Court
Fee on an application under Order VII Rule 11 arising out of a lis before
Commercial Court, is no more res intergra in view of the landmark
Judgment of the Hon’ble Supreme Court in M/S Patil Automation
Private Limited Vs. Rakheja Engineers Private Limited on 17
August, 2022 SC
28. In view of the above discussions the above issue is clarified
and is answered as against the prayers of the respondent/plaintiff in
accordance with law.
29. This court extends its encomium for the well laid down
meticulous arguments of the Learned Amicus Curiae who has taken this
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Hon’ble Court to the provisions of the Constitution of India and to the
provisions of the Court Fee Act of 1870 and also to the relevant portions
of the Tamil Nadu Court Fee and Suit Valuation Act, 1965 apart from
referring to the various landmark judgments of the Hon’ble Supreme
Court cited supra.
30. With these aforesaid discussions, the CRP is disposed of.
12.02.2025
rpp/pbl
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T.V.THAMILSELVI,J.
rpp/pbl
CRP NO. 3168 of 2023
12.02.2025
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