Karnataka High Court
Byrappa vs Mysore Paper Mills Limited on 27 July, 1999
Equivalent citations: ILR2000KAR730, 2000(4)KARLJ31
ORDER
1. The controversy in the present matter is regarding the payment of the Court fees. The suit for declaration claiming a sum of Rs. 2,15,350/-was filed by the petitioner. Earlier, in the suit, there were two prayers, one was to declare that the plaintiff is entitled to receive the amount of Rs. 2,15,350/- with interest at the rate of 18% p.a. on the said amount till realisation, and the other one was for a mandatory injunction directing to return the said deposit amount which was deleted. By an order dated 28-11-1997, the Court found that the Court fee of Rs. 200/- paid by the plaintiff under Section 47 of the Karnataka Court Fees and Suits Valuation Act, is insufficient and therefore, he was directed to pay ad valorem Court fee in accordance with Section 21 of the Act.
2. The submission of the learned Counsel for the petitioner is, that, in a suit for declaration that the plaintiff is entitled for certain amount lying in deposit, he need not pay anything more than the Court fees fixed than what is prescribed under Section 47 of the Karnataka Court Fees and Suits Valuation Act and the provisions of Section 21 are not applicable.
3. Reliance is placed on the judgment given in the case of B. Subba Rao v B. Venkata Rao and Another .
4. I have considered over the matter.
5. The provisions of Section 47 of the Court Fees and Suits Valuation Act, 1958 are as under.--
"47. Suits not otherwise provided for.--In suit not otherwise provided for, fee shall be payable at the following rates:
(i) In a Revenue Court:
Rupees fifteen
(ii) In any Civil Court:
Rupees twenty if the value of the subject matter is Rs.
5/- or less; rupees one hundred if the value is above Rs. 5,000/-but below Rs. 10,000/- and rupees two hundred if the value is Rs. 10,000/- and above.
When the relief relating to the correctness of a finding cannot be separated from the entire decree passed by the Trial Court, Court fee has to be paid as per Section 21 read with Article I Schedule I of the Act and Section 47 of the Act is not applicable -- Thimma Reddy v K.A. Krishnamurthy and Another ".
From the perusal of the above provisions of the Act it is evident that this section is applicable in respect of the Court fees that the suits for which there are no provisions. It is thus a residuary clause and can be invoked only if there are no other provisions.
6. Section 21 of the Court Fees and Suits Valuation Act refers to the suits for money, which is as under:
"21. Suits for money.--In a suit for money (including a suit for damages or compensation, or arrears of maintenance, of annuities, or of other sums payable periodically), fee shall be computed on the amount claimed.
The amounts of expenditure or charges referred to in clauses (a) to (f) of Rule 1 of Order XX-A of the Code cannot form part of the amount claimed occurring in Section 21 of the Court Fees Act".
7. According to the averments made in the plaint, the defendant's Company is holding deposit of earnest money of Rs. 16,000/- and six and a half per cent deductions are made out of Rs. 7,00,000/- and certain other additional amount is stated to be due regarding manhole, extra fitting and extra pipeline thus totalling to Rs. 2,15,350/-. The figure which has been stated in the plaint is not the amount which was in deposit or is liable to be refunded but is yet to be adjudicated by the Court and therefore, the provisions of Section 21 of the Karnataka Court Fees and Suits Valuation Act, 1958 are attracted and as it is a suit for money the fee has to be computed on the amount claimed. In the suit for money the fee is to be computed on the amount claimed. This Court in Thimma Reddy's case, supra, has observed that, in a case where the relief relating to correctness of finding cannot be separated from entire decree, provisions of Section 21 are applicable. Similarly, where the amount is yet to be determined by the Trial Court, on the basis of the averments made in the plaint, then, it will be considered to be a suit for money.
8. In the suit filed by the petitioner prayer is for recovery of money and simply because the word "declaration" has been added in the prayer it will not convert the suit as a declaratory suit and nature of the suit will not be changed.
9. The Trial Court found that the plaintiff deleted the prayer for mandatory injunction directing the defendants to return the accrued/deposited amount of Rs. 2,15,350/-. Prayer was made for recovery of the amount. From the averment made in the plaint as well as the prayer column it is established that it was a simple money suit on which ad valorem Court fee has to be paid. It cannot be considered to be a declaratory suit. The Trial Court has not erred in holding that the Court fee is not payable in accordance with the provisions of Section 47 of the Court Fees and Suits Valuation Act and it is insufficient. The Court fee is required to be paid under Section 21 of the Act. There is no jurisdictional error or illegality committed. The judgment given in the case of B. Subba Rao, supra, is not applicable because it was observed in that case that, ".... The plaintiff has not applied for a direction to pay the money and the prayer if granted does not entitle him to enforce the realisation of the amount in execution of the decree which may be passed. The officer who has control over the fund and competent to pay it is not a party to the suit. The adjudication of the right to it in plaintiffs favour may suffice for the plaintiff getting the amount. The officer in charge of the money is not interested in the person to whom payment is to be made whether he is the plaintiff or any other and all that he wants is a judicial recognition of the claim. The person who disputes the claim is the defendant and since the money is not with him it does not seem to be necessary or reasonable to call upon the plaintiff to pay ad valorem Court fee on the amount in deposit. That contingency may arise if the custodian declines to pay it and the plaintiff wants to enforce his claim for payment".
The case of the petitioner is not of a deposit lying with the defendant but the amount is yet to be adjudicated by the Court. In these circumstances, no case for interference is made out.
10. Civil Revision Petition is dismissed. The petitioner may deposit the amount within 15 days from today.