Punjab-Haryana High Court
Punjab National Bank vs The Lord Krishan Paper Industries And ... on 24 May, 1999
Equivalent citations: (1999)123PLR125
Author: Harjit Singh Bedi
Bench: Harjit Singh Bedi
JUDGMENT Harjit Singh Bedi, J.
1. The plaintiff/petitioner-the Punjab National Bank, instituted a suit against the defendants/respondents for recovery of Rs. 19,20,424.90 paise. The suit was decreed vide order of the trial Court dated 25th November, 1988 and a preliminary decree for the said amount alongwith future interest @ 6% per annum from 29th October, 1985 till the date of realisation was ordered. It was also directed that if the amount aforesaid was not paid within six months i.e. upto 15th June, 1987, the petitioner would be entitled to a final decree. The petitioner was not satisfied with the amount of interest awarded by the trial Court and filed an appeal before the Additional District Judge, Kurukshetra claiming interest @16% per annum with half yearly rests. At the time of the hearing of the appeal by the lower Appellate Court, the respondent took an objection that the appeal was not maintainable as no Court-fee had been paid and that there was no prayer in the memorandum of appeal that the said Court-fee would be paid on a subsequent date. The learned Appellate Court relying on various judgments of this Court held that as no Court fee had been paid and there was no request for making the Court fee good later, there was no obligation on the Court to allow the appellant an opportunity to make up the deficiency in the Court fee. The appeal was, accordingly, dismissed as not maintainable. Aggrieved thereby, the present revision has been filed by the Bank.
2. Mr. Rajiv Trikha, the learned counsel appearing for the appellant-Bank has, at the very outset, relied on a judgment of the Hon'ble Supreme Court in Mohammad Mahibulla and Anr. v. Seth Chamanlal (Dead) by LRs and Ors., 1992 I.S.J. (Banking) 293, to contend that once the appellate Court had come to a conclusion that the memorandum of appeal had not been sufficiently stamped, an opportunity should have been given by the Court to make good the balance of the court-fee within a period to be fixed by the Court and if there was failure to comply with the direction of the Court, the memorandum of appeal was liable to be dismissed at that stage.
3. Mr. O.P. Goyal, the learned senior counsel appearing for respondent No. 3 has, however, sought to distinguish the judgment cited, on facts and has also placed reliance on some judgments of the High Court in support of his case.
4. After hearing the learned counsel for the parties, I am of the opinion that this petition deserves to succeed. The Hon'ble Supreme Court in the cited case observed (with reference to Sections 107(2) and 149 of the Code of Civil Procedure) that keeping in view the fairness of procedure, it was appropriate that if an Appellate Court came to the conclusion that the memorandum of appeal was not sufficiently stamped, it was obligatory on its part to give an opportunity to make good the balance fee within a specified time. As already mentioned above, the lower Appellate court in the present case, had come to the conclusion that no court-fee had been paid and the memorandum of appeal was, therefore, not maintainable. This finding is not entirely correct for the reasons that a court-fee of Rs. 10/- had been appended to the memorandum of appeal and as such, the present case was also one of the deficit Court-fee. In this view of the matter, the judgment of the Hon'ble Supreme Court would apply fully to the facts of this case. This petition is, accordingly, allowed, the judgment of the Appellate Court dated 12th April, 1990, is set aside and the matter is remitted to the lower Appellate Court for decision in accordance with law. The parties are directed through counsel to appear before the Lower Appellate Court on 13th September, 1999. It is also directed that the Appellate Court will give a reasonable time to the bank to affix the Court-fee as per requirement and in case, the said Court-fee is not paid by the due date, the memorandum of appeal will be rejected on that ground alone. If the Court-fee is paid within time, the lower Appellate Court will determine the controversy on the merits of the case. Costs of the present revision are also tabulated at Rs. 2,500/- Dasti Order.