Jammu & Kashmir High Court
Union Bank Of India vs Bharat Bhushan And Ors. on 21 August, 1986
Equivalent citations: AIR1987J&K74, AIR 1987 JAMMU AND KASHMIR 74
Author: A.S. Anand
Bench: A.S. Anand
ORDER A.S. Anand, C.J.
1. The interpretation of Section 6 of the Court-fees Act, 1977, Bikrimi, and whether the Rules framed under Section 27 of the Court-fees Act Samvat 1977 are directory or mandatory in nature and also whether Rules 1 and 3 of the said Rules are valid or not are the meaningful questions which require determination in this revision petition.
2. The facts are simple and not in dispute. A suit for recovery of Rs. 16450.81 was filed by the petitioner-plaintiff in the Court of Additional District Judge, Jammu. Court-fee stamps valued at Rs. 1256.50/- were affixed on the plaint. The suit was resisted on a number of pleas including the one that "proper" Court fee 'stamps' had not been affixed on the plaint and therefore the plaint could not be filed, exhibited or recorded in the Court, Issue No 1, which is relevant for the purposes of decision of this revision petition was raised and it reads : --
"Whether the proper Court-fee stamps have not been affixed and, therefore, the plaint is inadmissible in evidence?"
3. The defendant respondent urged before the trial court and the same argument was reiterated before this Court, that the Court-fee had not been paid in accordance with the Rules framed under Section 27 of the Court-fees Act (hereinafter called 'the Act') and on account of that defect the plaint could not be admitted. The learned trial Court agreed with the contention and reached the conclusion that the plaint was not properly stamped'. For arriving at this conclusion, the learned trial Court found that the plaintiff had paid the Court-fees of Rs. 1256.50/- in the form of impressed stamps of the value of the Rs. 800/-and adhesive stamps at the value of Rs. 4%.50/-. The adhesive stamps used in the case, however, did not bear the word "Judicial", as required by Rule 1 of the Rules and that in breach of the requirement of R 3, impressed stamps of lower denomination had also been used without satisfying the Court that stamps of higher valuation were not available. The court, therefore, found that the plaint had not been affixed with proper Court-fee stamps and in terms of Section 6 of the Court-fees Act it could not be treated as properly filed, exhibited or recorded. The correctness of these findings has been assailed in this Court.
4. I have heard learned counsel for the parties. At the request of the Court Mr. R. P. Bakshi. Advocate also assisted the Court and I wish to record my appreciation for the services rendered by him,
5. Mr. Jamwal, learned counsel for the petitioner, vehemently argued that the trial court had not properly appreciated and interpreted Section 6 of the Act and that the rules on which reliance had been placed, were directory and not mandatory in nature. The argument of Mr. Jamwal was ably supported by Mr. R. P. Bakshi, also who, in addition, argued that both Rules 1 and 3 of the Rules were even otherwise beyond the rule making power of the government and as such ultra vires the Act. Since, the vires of the Rules had been questioned, the learned Chief Govt. Advocate was also heard in the matter. He too argued that the judgment of the trial Court was not sound.
6. Mr. J. P. Singh learned counsel for the respondent, however, on the other hand, argued that since there are different types of adhesive stamps printed by the Government, it is obligatory on it to make distinction as to for which purpose a particular adhesive stamp is to be used. He submitted that keeping in view this distinction, the rules framed under Section 27 of the Court-fees Act had to be treated as mandatory and not directory and non-compliance with the Rules would mean that proper Court-fee had not been paid which would render the plaint not capable of admission within the meaning of Section 6 of the Act.
7. With a view to properly appreciate the rival contentions raised at the Bar it would be advantageous to refer to various provisions of the Court-fees Act and the Rules framed under Section 27 of the Act.
8. Section 6 of the Act, which has been relied upon to hold that the plaint has been improperly stamped and hence could not be admitted, reads as follows :--
"No document of any of the kinds specified as chargeable in the first or second Schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper lee for such document."
9. A bare reading of the section shows that it refers to the payment of fee and lays down that the fee should be paid of an amount not less than that indicated in either of the two schedules. This section in terms makes no reference to the mode of payment of the fee. Thus, if the fee, as prescribed by either of the two schedules, has been actually paid in respect of the plaint, the requirements of section would stand complied with. This section makes provision for the levy of Court-fee on the documents etc. filed in the Court and provides that the exact calculation of fee is to be made with reference to Schedules 1 and II of the Act. The levy of Court-fee is intended to form the revenues of the Government and, therefore, if in a given case, the fee, as prescribed in either of the schedules, has been paid, the requirement of Section 6 stands satisfied.
10. The mode of levying fee is specifically covered by Chapter V of the Act dealing with "the mode of levying fee". The Chapter commences with Section 25 which reads thus: --
"All fees referred to in Section 3 or chargeable under this Act shall be collected by stamps."
This section on its plain reading only mandates that "all fees" shall be collected by stamps and, therefore, where the fees have been paid by means of stamps, the requirements of this section would also stand satisfied. The reference to Section 3 in the Act (as substituted by Act No. III of 2008) appears to be irrelevant. That section only declares that in the Act unless there is anything repugnant in the subject or context "Collector" shall mean the Deputy Commissioner of a District. Since, that section is not the charging section, it appears the reference to the same has been made either by mistakes or inadevertently. This requires correction at the hands of legislature and I hope the Legislature will make the correction to avoid confusion. Reference to Section 3, however, in the aforesaid section, has no effect on the facts of the present case as it does not effect the vitality of Section 25 (supra). The next relevant section is Section 26 of the Act which reads as follows : --
"The stamps used to denote any fee chargeable under this Act shall be impressed or adhesive or partly impressed and partly adhesive as the Government may by notification in the Government Gazette, from time to time direct."
11. The requirement of Section 26 of the Act would stand complied with where the stamps used to denote the Court-fee chargeable under the Act have been paid either by impressed or by adhesive stamps or partly by impressed and partly by adhesive stamps. Thus, whereas Section 25 lays down that fees under the Act are to be collected by stamps, Section 26 requires these stamps to be either impressed or adhesive/or partly impressed and partly adhesive.
12. A conjoint reading of Sections 6, 25 and 26 of the Act leads to the unmistakable conclusion that unless Court-fee, as prescribed by Schedules I and II, has been paid either by impressed or adhesive stamps, no document including, a plaint, can be filed, exhibited or recorded in any court in view of the bar enacted by Section 6. Section 26, however, does not further mandate that the stamps should further bear the inscription "Judicial". This expression has been used in the rules framed under Section 27 of the Act. It would, therefore, now be necessary to consider the ambit and scope of the Rule making power as also the nature of the Rules framed under Section 27 of the Act.
13. Section 27 of the Act reads as follows ; --
"The Government, may, from time to time, make rules for regulating :
(a) the supply of stamps to be used under this Act.
(b) the number of stamps to be used for denoting any fee chargeable under this Act.
(c) the renewal of damaged or spoiled stamps and
(d) the keeping accounts of all stamps under this Act.
All such rules shall be published in the Government Gazette and shall thereupon have the force of law."
This section controls the rule-making power of the Government. The power, however, is limited and cannot exceed the parameters of the area placed by Clauses (a) to (d). Clauses (c) and (d) are not relevant for the purposes of this discussion. Clauses (a) and (b) are, however, material because they specifically empower the State to regulate "the supply of stamps" to be used under the 'Act' and also enable it to specify the denomination of stamps to be used for "denoting" any fee chargeable under the 'Act'. Council Order No. 683-C of 1937 vide which rules have been framed is referable to Clause (b) of Section 27. Rule 1 is nothing but a definition of 'impressed and' adhesive stamps' because Sub-rule (a) defines 'an impressed stamp' while Sub-rule (b) refers to what 'an adhesive stamp' is like. However, if this was all that the rule contained, no difficulty would perhaps have arisen, but it contains something more when it reads : --
"1. There shall be two kinds of stamps for indicating the payment of duty on instrument under the Court-fees Act, Smvt. 1977 : --
(a) impressed stamps, that is to say sheets of papers bearing impression of stamps of different values and the word "Judicial" engraved thereon and sold to the public for use by them in accordance with these rules;
(b) adhesive stamps bearing the word "Judicial" sold to the public in accordance with these rules."
14. As there is no definition of impressed or adhesive stamp in the Court-fees Act, the Rule is intended to supply one and as such is supplemental to Section 26, but its insistance to require the stamps to bear the word "Judicial" is not referable to the rule making power contained in Section 27 and whatever its administrative significance, its absence in the adhesive stamps used in this case does not attract the penal consequences envisaged by Section 6 of the Act, thereby showing that it is only directory in nature. It is, therefore, possible, that the Government has itself, though lately, realised the futility of this requirement and abandoned it. The fact, however, remains that if the requirement, that the stamps of either description should bear the word "Judicial" engraved on them was not referable to the rule making power, its abandonement by the Government, which alone is empowered to regulate the supply of stamps, is wholly innocuous and inconsequential in so far as the use of such stamps by a litigant is concerned.
15. I shall now take up for consideration the argument relating to the violation of Rule 3. The said rule reads : --
"3. When in the case of fees exceeding Rs. 10/- the amount can be denoted by a single impressed stamp, the fee shall be denoted by a single impressed stamp of the required value. But if the amount cannot be denoted by a single impressed stamp, or if a single impressed stamp of the required value is not available an impressed stamp of the next lower value shall be used and the deficiency shall be made up by the use of one or more additional impressed stamps of the next lower values available which may be required to make up the exact amount of the fee in combination with adhesive stamps to make up the fraction of Rs. 10 or less."
16. A bare reading of the rule demonstrates the different contingencies contemplated by it, which permit the deviation from its strict adherence. The options available under the Rule, by themselves, therefore, show that it is only directory in nature and not mandatory in its operation particularly when the use of stamps of particular denomination has been made dependant upon their availability which itself is dependant upon the supply of stamps to the stamp-vendor by the treasury and so on and so forth. So, when the purchase of stamps for use under the Act is dependent upon so many factors over which a litigant has no control, the sale of stamps of particular denomination to him by the stamp vendor appointed under Section 34 of the Act is per se proof of the non-availability of the stamps required to be used to "denote fee" in terms of Rule 3 (supra) and the trial Court, therefore, fell in error in seeking further proof of the non-availability of the stamps of higher denominations. Further, the fact that in this case adhesive stamps of the value of Rs. 420/-were affixed on the impressed stamps of the value of Rs. 300/- as required by Rule 4 is again a proof of the non-availability of the impressed stamps of higher denomination and therefore the conclusion is irresistible that Rule 3 stands complied with.
17. Even otherwise these rules which have been framed for administrative convenience are only rules of procedure, which it has been held time and again are always meant to advance the cause of justice and not to impede it. Too technical a construction, that leaves no room for reasonable elasticity of interpretation (which Rule 3 itself permits) should be guarded against, lest the very means designed for furtherance of the object of securing revenue for the State be used to frustrate it. The construction placed by the trial Court on these rules, has instead of achieving the object, obstructed it at the very threshold, where neither is benefited but the plaintiff stands penalised and justice suffers.
18. Moreover, a fiscal statute like the Court-fees Act requires to be interpreted liberally in a manner that it lessens rather than adds to the burden of the subject. As early as in R. Subrao v. S. Venkalrao. AIR 1918 PC 188, it was observed :-
"The Court-fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the benefit of the State. This is evident from the character of the Act."
The Court further held that "The defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interests of the State, but to obstruct the plaintiff, he does not content with it wrongly decided to the detriment of the Revenue but that it dealt with the case without jurisdiction."
Again in Bhura Mal Din Dayal v. Imperial Flour Mills Ltd., AIR 1959 Punjab 629, it was opined as follows : --
"It is also well settled that the Court should put a liberal interpretation on fiscal statutes like the Court-fees Act, so as to lessen and not to add to the burden of litigation. This of course does not mean that where a provision is clear and explicit it should not be enforced; it merely means that while dealing with fiscal statutes, letter of law is of paramount importance.
Before concluding it would not be out of place also to emphasise that payment of court-fees as a source of revenue, is a matter primarily between the State and the subject. If the State has realised the court-fee it is hardly proper for the opposing litigant to raise objection on the score of Court-fee for the purpose of shutting out or obstructing adjudication of the disputes."
19. In Chief Controlling Revenue Authority v. Fertilizer Corpn. of India Ltd., AIR 1969 Delhi 130, it was once again held that the Courts should put a liberal interpretation on fiscal statute like the Court-fees Act. The learned Chief Justice Shri I. D. Dua (as his Lordship then was), after noticing with approval the law laid down in (1895) ILR 19 Bom 145 wherein it was held that Section 26 of the Court-fees Act did not authorise the making of a direction that the court-fee stamps should bear the words "court-fees" on the stamps and therefore the stamps not bearing the impression were not a bad tender went on to observe : --
"To insist on a citizen paying court-fee twice over for seeking justice in the same cause, can be justified only on a clear and specific provision of law validly made. None has been cited in the present case except the rules mentioned above. The correctness of the decisions holding those rules to be outside the rule making power, has not been questioned and I have not been persuaded in this case to disagree with the view taken in those decisions."
I shall now, in the light of the aforesaid discussion take up for consideration the facts of the present case.
20. Undoubtedly, the fee as prescribed by the Act, had been paid by the plaintiff by impressed and adhesive stamps. The trial Court had found that because the stamps had not been affixed in the manner prescribed by Rules 1 and 3 of the Rules the plaint was not affixed with "proper Court-fee". Since, the Rules framed under Section 27 of the Act are only directory in character and not mandatory in nature the finding recorded by the trial Court was erroneous. The courts must remember that in the present context of social-justice, the objections of the type raised by the defendant respondent should not merit any consideration because the effort of the court has to be to lessen the burden of the subject and provide him speedy justice. Once the court finds that provisions of Sections 6, 25 and 26 have been complied with in a given case, it would not be justified to non-suit a litigant by allowing the adversary to raise hyper-technical pleas relating to court-fee which is a matter between the subject and the State and gives no right to the adversary in litigation to stall the proceedings. The stringent provision of the Act are aimed in the interest of the revenue and once the object is secured according to law, the party staking his claim on the instrument should not be defeated on the ground of some alleged or imaginary technical defect, particularly, in the light of the provisions of Section 28 of the Act which empowers the court to rectify the mistake even in those cases where the document does not bear proper stamps but has been inadvertantly received without objection from the other side. Since, in the instant case the prescribed by Sections 25 and 26 of the Act, (sic) the trial Court was not justified to hold that Section 6 of the Act had not been complied with and could not hold that the plaint did not bear 'proper' Court-fee and could not be exhibited. The finding of the trial Court on issue No. 1 is, therefore; erroneous. The same is set aside and it is held that since the prescribed fee had been paid in accordance with the provisions of the Act, the plaint is properly filed and could be exhibited and recorded.
21. Thus, for what has been said above, the order of the trial court regarding the invalidity of the plaint under Section 6 of the Act for non-compliance with Rules 1 and 3 of the Rules cannot be upheld and is hereby set aside. The revision petition, therefore, succeeds and is allowed. The case is remanded to the trial Court to re-admit the plaint and to proceed with the trial in accordance with law,
22. In the peculiar circumstances of the case, the parties shall bear their own costs. Parties shall appear before the trial Court on 17-9-1986. The record of the case shall be sent back forthwith.