Delhi High Court
Astrazeneca Uk Limited & Ors. vs Orchid Chemicals & Pharmaceuticals ... on 4 July, 2011
Author: V.K. Shali
Bench: V.K. Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Rev. Pet. No. 80/2010 in CS(OS) 1421/2005
Date of decision : 04.07.2011
ASTRAZENECA UK LIMITED & ORS. ......Plaintiffs
Through: Mr. A.N. Haksar, Sr. Adv.
with Mr. Neel Mason, Adv.
Versus
ORCHID CHEMICALS AND
PHARMACEUTICALS LIMITED ...... Defendant
Through: Mr. Sanjay Jain, Sr. Adv.
with Ms.Gladys Daniel, Adv.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? YES
2. To be referred to the Reporter or not ? YES
3. Whether the judgment should be reported
in the Digest ? YES
V.K. SHALI, J.
1. The question involved in the review petition is whether this Court should review the order dated 20.01.2010 by virtue of which the suit of the plaintiffs was rejected under Order VII Rule 11 (c) CPC on the ground that despite sufficient opportunities having been given to the plaintiffs, it failed to pay the deficient court fees.
2. Briefly stated the facts of the case are that the plaintiffs filed a suit for permanent injunction, restraining infringement of trademark, passing off, damages/rendition of account and CS(OS) No. 1421/2005 Page 1 of 23 delivery up etc. against the defendant. In para 17 of the plaint the plaintiffs had valued the suit for the purpose of court fees and jurisdiction as under:
S. Relief sought Value for Court
No. purpose of
court fees fee
and
jurisdiction paid
A For the decree of permanent 200 20
injunction restraining the
defendant from infringement the
plaintiff‟s registered trademark
B For the decree of permanent 200 20
injunction restraining the
defendant from passing off his
goods as those of the plaintiff‟s
goods
C For the reliefs of mandatory 21,00,000 22,840
injunction directing the
defendant to deliver upon
affidavit printed matter for
destruction/eraser of a decree of
rendition of accounts of the
profits made by the defendant
Total 21,00,400 22,880
3. On 06.10.2005, when the matter came before the Court for the first time, it had noted that the plaintiffs had not paid the requisite court fees on the quantum of damages which were claimed to the tune of Rs.2 crores. Accordingly, it directed the plaintiffs to pay the deficient court fees within a period of two weeks. The plaintiffs at the time of filing of the suit had deposited a sum of Rs. 22,800/- as court fees in terms of the CS(OS) No. 1421/2005 Page 2 of 23 valuation in para 17 of the plaint. On 20.10.2005 the plaintiffs purported to have deposited with the Registry deficient court fees of Rs.1,74,800/-. This fact was not brought to the notice of the Court, at the time when the order of which review is sought was passed. However, the suit was pursued by the plaintiffs against the defendant. The defendant had filed his written statement and the reply to the application on 11.11.2005 contesting the claim of the plaintiffs. This Court vide order dated 16.05.2006 vacated an ex-parte ad interim injunction granted on 06.10.2005, however, the defendant was directed to maintain the accounts of the sale of the drug under the trade name „Meromer‟ and submit the same to the High Court after every six months.
4. An appeal was preferred from the said order before the Division Bench in which the order was not varied or changed.
5. The case was adjourned on 04.09.2009 for the purpose of framing of issues to 20.01.2010. On 20.01.2010, this Court for the first time after filing of the suit noticed that despite the expiry of 4½ years the plaintiffs have not deposited the deficient court fees. The plaintiffs request for further time to make the deficient court fees was considered to be unreasonable and unjustified, and accordingly, the plaint was rejected.
CS(OS) No. 1421/2005 Page 3 of 23
6. After rejection of the plaint, the plaintiffs filed an application for review bearing review petition no. 80/2010 which came up for hearing for the first time on 23.02.2010. In the said review application, it was urged that on 20.1.2010, the learned counsel for the plaintiffs on account of an inadvertent mistake could not point out to the Court that the deficient court fees of Rs.1,74,800/- on the amount of Rs.2 crores has actually been deposited on 20.10.2005 which was well within the permissible time limit of 15 days. On 22.05.2010 an affidavit was filed and it was observed that while calculating the court fees on an amount of Rs.2 crores on account of an inadvertent mistake, the learned counsel for the plaintiffs had also taken into account the court fees of Rs.22,800/- which was deposited earlier, along with the court fees of Rs.1,74,800/- which was deposited at a later point of time and assumed that the aforesaid total sum of the two court fees came to ` 1,97,600/-, was the court fees payable on the sum of Rs.2 crores, and therefore, the suit is maintainable. It was stated that this was a bona fide mistake on the part of the counsel, in adding up the court fees of Rs.22,800/- along with the court fees of Rs.1,74,800/-. However, on realizing the mistake, the additional deficient court fees of Rs.21,000/- was also paid by the plaintiffs. On account of these reasons, the learned counsel for the plaintiffs has urged that the order CS(OS) No. 1421/2005 Page 4 of 23 dated 20.01.2010 may be reviewed as there was an error apparent on the face of the record.
7. The defendant has contested the claim of the plaintiffs and taken the plea that even if it is assumed that the sum of Rs.1,74,800/- was paid by the plaintiffs on account of the court fees on the liquidated damages of Rs.2 crores within time even then the said amount was deficient by Rs.21,000/- according to the plaintiff‟s own admission, and therefore, the suit as on that date i.e. 06.10.2005 suffered from deficient court fees as the plaintiffs had failed to rectify the deficiency within the time stipulated and there being no application seeking enlargement of time under Section 148 and 149 CPC, the outcome of the suit ought not to be different than the one which has been passed on 20.01.2010.
8. I have heard the learned senior counsel, Mr.A.N.Haksar and Mr. Sanjay Jain, the learned senior counsel for the applicant/plaintiff and the defendant respectively.
9. Mr.Haksar, the learned senior counsel for the plaintiffs has contended that the order dated 20.01.2010 deserves to be reviewed on account of the fact that the said order was passed on account of an inadvertent mistake of the junior counsel appearing for the plaintiffs, as he had failed to point out that within the time permissible, that is within 15 days granted by the Court an amount of Rs.1,74,800/- was paid as CS(OS) No. 1421/2005 Page 5 of 23 court fees on the liquidated damages of Rs.2 crores. This fact could not be brought to the notice of the Court. It is further contended that there was a bonafide error on the part of the counsel representing the plaintiffs in as much as he should have tendered full court fee on Rs.2 crores i.e. Rs.1,97,544/- where as he took into account the earlier court fee of Rs.22,800/- which was paid at the time of filing of the suit and paid only the balance amount to the tune of Rs.1,74,800/-. It is stated that this was an erroneous calculation done by the counsel for the plaintiffs for which the plaintiffs may not be made to suffer. In any case, the moment it was detected by the plaintiffs that there was an error, the deficient court fees of Rs.21,000/- was paid on 4.5.2010.
10. It was contended by the learned senior counsel for the plaintiffs that the law of procedure has to be interpreted in such a manner, so that it does not make a party to suffer on account of a bona fide mistake on the part of the plaintiff or the applicant in payment of the deficient court fees. The learned senior counsel has referred to various passages in the judgments of the Apex Court in case titled Buta Singh (dead) Vs. Union of India (1995) 5 SCC 284 apart from judgments of Prominent Advertising Services Vs. M/s A. B. Communications & Ors 161(2009) DLT 378, K. Natarajan Vs. P.K. Rajasekaran A.S. No. 375 of 1989.
CS(OS) No. 1421/2005 Page 6 of 23
11. It was also contended by the learned senior counsel for the plaintiffs that the Registry had never pointed out the deficiency of the court fees and that this is the reason the suit continued for a period of five years despite the deficiency of the court fees. It is urged that had the Registry pointed out the said deficiency the plaintiffs would have rectified the same, and it is because of this reason that the deficiency went unnoticed both at the level of the office of the learned counsel for the plaintiffs as well as the Registry and the plaintiffs may not be made to suffer.
12. The learned senior counsel for the defendant Mr. Sanjay Jain has vehemently contested the plea for review of the order dated 20.01.2010 on the ground that even if it is assumed by this Court that the plaintiffs had paid the deficient court fees as claimed by them to the tune of Rs.1,74,800/- within the time permitted even then it could not be assumed that the deficiency in terms of the payment of court fees was rectified. It is contended by the learned senior counsel that admittedly on a sum of Rs.2 crores the total court fees payable is Rs.1,97,600/- while as an amount of only Rs.1,74,800/- was paid and the deficiency even if it is one rupee will be counted as a deficiency and the same cannot be ignored for the purpose of the payment of the court fees. It was also contended that there was no application for enlargement of time or for deposit of the deficient court fees and therefore, it CS(OS) No. 1421/2005 Page 7 of 23 was urged that in the absence of any application seeking further deposit of additional amount of `21,000/- or so, could not come to the rescue of the plaintiffs. The learned senior counsel for the defendant has placed reliance on number of judgments of the different High Courts in order to support his contentions. These judgments are as under:
(i) Mandadi Krishna Reddy Vs. Guggula Sreenivas Reddy 2004 (6) ALD 638
(ii) Anantha Naichen Rama Naichen Vs. Vasudev Naicken AIR 1967 Ker. 85
(iii) M.D. Yunus Vs. Surga Begun, AIR 1955 Hyd. 156
(iv) Krishnakudva Vs. Ganapathy Hegde ILR (2204) Kar.892
(v) Sahara India Airlines Vs. R.A. Singh 66 (1997) DLT 891 (DB)
(vi) Jagannath Motors Vs. Rushikulya Gramya Bank 2007 (II) OLR 521
13. I have carefully considered the submissions of the learned counsel for the parties and have gone through the record.
14. There is no dispute about certain facts in the instant case.
These undisputed facts are that at the time when the matter came up for hearing for the first time i.e. 06.10.2005, the plaintiffs had paid court fees to the tune of Rs.22,800/- only and no court fees whatsoever was paid by him on the liquidated damages of Rs.2 crores. On 06.10.2005, this Court had granted time to the plaintiffs to pay the deficient court fees within two weeks which period expired on CS(OS) No. 1421/2005 Page 8 of 23 23.10.2005. The plaintiffs deposited the court fees of Rs.1,74,800/- on 20.10.2005 that is well within the time permissible. It is also not in dispute that the suit continued thereafter for almost five years and neither the defendant nor the Registry pointed out the deficiency in the payment of the court fees. It is also not in dispute that when the matter was taken up on 20.01.2010 the learned counsel for the plaintiffs was not in a position to apprise the Court that the deficient court fees in terms of the order dated 6.10.2005 though partially was deposited to the tune of Rs.1,74,800/-. The Court fees was again deficient to the tune of approximately Rs. 21,000/- or so. It is also not disputed that on 04.05.2010 the plaintiffs without filing any application seeking enlargement of time either under Section 148 CPC or under Section 149 CPC on his own independent will, deposited the deficient court fee of Rs.21,000/-. The question to be considered is, as to whether the plea which has been set up by the plaintiff no. 1 that there was an error apparent on the face of the record on 20.01.2010 in not pointing out that a substantial amount of court fees i.e. Rs.1,74,800/- was deposited by them though again deficient is a ground for review of the order dated 20.01.2010 and further whether the explanation which has been given by the learned counsel for the plaintiffs, that there was a bona fide mistake on the part of the counsel for the plaintiffs in calculating the court fees by CS(OS) No. 1421/2005 Page 9 of 23 adding up the two figures of Rs.1,74,800/- and Rs.22,800/- and assuming that the deficient court fees on a sum of Rs.2crores stood paid and hence the suit was not liable to be rejected.
15. According to the learned counsel for the plaintiffs the order dated 20.1.2010 deserves to be reviewed on account of an error apparent on the face of the record coupled with the facts that there was a bona fide mistake in the calculation of the amount of the court fees while as this has been contested by the learned senior counsel for the defendant on the ground that even if the order dated 20.01.2010 is reviewed so as to take into account the court fees to the tune of Rs.1,74,800/- having been paid within the time permissible, the same was still deficient and it could not be considered to be a ground for review of the order and hence the outcome of the suit has to be the same, namely, the rejection of the plaint under Order 7 Rule 11(c) CPC. In order to appreciate this controversy, it would be worthwhile to refer to certain provisions of the CPC. These provisions are as under:
148. Enlargement of time.- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period 1[not exceeding thirty days in total], even though the period originally fixed or granted may have expired.
149. 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 CS(OS) No. 1421/2005 Page 10 of 23 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.
Order VII Rule 11 Rejection of plaint- The plaint shall be rejected in the following cases"-
(a) ...........
(b) ...........
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;"
16. The suit of the plaintiffs has been rejected under Order 7 Rule 11 (c) CPC holding that the deficient court fees had not been paid within the stipulated time. The Supreme Court in case titled Sangram Singh Vs. Election Tribunal, Kota, Bhurey Lal Baya AIR 1955 SC 425 while dealing with the question of setting aside an ex-parte proceeding had an occasion to comment on the purpose of procedural law.
17. Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.
18. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that CS(OS) No. 1421/2005 Page 11 of 23 decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by the large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."
17. This purpose of the Civil Procedure Code has been its hallmark and it has been echoed time and again by the Supreme Court in subsequent judgments in different words.
18. In case titled Sk. Salim Haji Abdul Khayumsab Vs. Kumar (2006) 1 SCC 46, it was observed by the Apex Court that all the rules of procedure are the handmaid of justice. The language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.
19. In case titled Kailash Vs. Nanhku (2005) 4 SCC 480, the Apex Court has observed that merely because a provision of law is couched in a negative language implying a mandatory CS(OS) No. 1421/2005 Page 12 of 23 character, the same is not without exceptions. The Courts, when called upon to interpret the nature of the provision, may, keeping in view of the entire context in which the provision came to be enacted, and hold the same to be directory though worded in the negative form.
20. In case titled Rani Kusum Vs. Kanchan Devi (2005) 6 SCC 705, the Apex Court has observed that the mortality of justice at the hands of law troubles a judge‟s conscience and points an angry interrogation at the law reformer. Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.
21. The learned senior counsel for the plaintiff has also drawn the attention to the judgment of the Apex Court in case titled Buta Singh (dead) by LRs. Vs. Union of India (1995) 5 SCC 284 wherein it has been observed as under:
"The discretion conferred on the court by Section 149 is a judicial discretion. The court is not bound to exercise the discretion unless the applicant shows sufficient cause for the failure to pay deficient court fee or he was under bona fide mistake in payment thereof. Mere poverty or ignorance or inability to pay the court fee at the time of presenting the appeal is not always a good ground for indulgence under Section 149. Bona fide mistake on the part of the appellant or applicant in making the deficit court fee may be a ground to exercise discretion in favour of the appellant. It is the duty of the Registry before CS(OS) No. 1421/2005 Page 13 of 23 admitting the appeal to point out to the appellant or his counsel that deficit court fee be payable. If the party deliberately to suit his convenience paid insufficient court fee, the mistake is not a bona fide but one of choice made by the party in making the deficit court fee. In that situation, even after pointing out the need to make the court fee and given time, if the court fee is not paid and MOA is represented within the enlarged time, it would be open to the court either to reject the MOA or refuse to condone the delay for not showing sufficient cause thereon. Therefore, the court is required to exercise its judicial discretion keeping the fact and circumstances in each case and not automatically for mere asking that indulgence be shown to the party to make good the deficient court fee. In the latter event, it is not the exercise of the judicial discretion but showing undue indulgence. The aid of Section 149 could be taken only when the party was not able to pay court fee in circumstances beyond his control or under unavoidable circumstances.
22. In Rakesh Wadhawan Vs. Jagdamba Industrial Corp. AIR 2002 SC 2004, it has been observed that a statute can never be exhaustive and Courts have the jurisdiction to pass procedural orders. It was observed that such innovations are permissible supported by the principles of justice, good sense and reason. Reference was also made to the powers of the Court under Section 148 and 149 to do justice to a litigant.
23. Similar is the view taken by the learned Single Judge of our own High Court in case titled Prominent Advertising Services Vs. M/s A. B. Communications & Ors. 161 (2009) DLT 378 wherein it has been observed that:
"no doubt, the plaintiff can blame the defendant for not paying the requisite court fee when the statement has been made by the defendant that the court fee has been affixed with the counter CS(OS) No. 1421/2005 Page 14 of 23 claim but at the same time, I feel that the Registry is also at fault as no objection was raised by the Registry for non-filing of the court fee by the defendant. The Registry ought to have fix a date for payment of court fee. Under the said situation, this Court is expected to do justice and decide the controversy between the parties. In case the Registry had fixed a date for payment of court fee, the present problem ought not have arisen between the parties and the question of filing the present application would not have arisen at all. Under Order VII Rule 11 CPC, the legislature has provided one opportunity to the party to pay the deficient court fee in order to cure the defect on the question of court fee and counter claim. Therefore, this Court cannot take a harsh view considering the overall circumstances of the case."
24. As against this, Mr.Sanjay Jain, learned senior counsel for the defendant has referred to the following judgments:
(i) In Mandadi Krishna Reddy Vs. Guggula Sreenivas Reddy 2004 6 ALD 638, it was held as under:-
"7. That apart, though it is true that under Section 149 of CPC the Court in its discretion may allow a person to make up deficiency of Court fee at any stage of the proceedings even without any application by the party, such discretion is required to be exercised reasonably keeping in view the principles of law and taking into consideration the facts and circumstances of the case on hand. In the case on hand, it was not the case of the plaintiff that there was any bona fide mistake in calculation of the Court fee payable. It was not even stated that due to financial difficulties or for some other valid reason, he was unable to pay the proper Court fees. The fact that the plaint was represented after about four years without paying the deficit court fees and without explaining the reasons and without seeking the leave of the Court makes it clear that non-payment of proper court fees was deliberate. The Court below grievously erred in exercising the discretion in favour of such a party. It is relevant to note that the plaintiff failed to offer any explanation for the default on his part in payment of proper court fee in the first instance and particularly for non-payment of deficit court fee CS(OS) No. 1421/2005 Page 15 of 23 even after the period of about four years. In such circumstances, the court below ought to have rejected the plaint under Order 7, Rule 11(c) of CPC which mandates that where the plaintiff on being required by the Court to pay the deficit court fee within the time to be fixed fails to do so the plaint shall be rejected. It is to be noted that the plaint initially presented was returned on 17.6.1999 granting seven days time for complying the objections including the payment of deficit court fees. Admittedly, the plaintiff failed to do so and resubmitted the plaint after about for years on 13.2.2003. If that be so, in the light of the mandatory provisions of Order 7 Rule 11(c), the plaint is liable to be rejected."
(ii) In Anantha Naicken Rama Naicken Vs. Vasudev Naicken AIR 1967 Ker 85, it was observed as under:-
"That is absolutely an erroneous view taken by the trial court. If it is found at the hearing that deficit court fee has not been paid, the proper thing would be to stop further hearing of the matter and direct the plaintiff or the party concerned to pay the necessary court fee and then only resume the hearing and in default of such compliance, to reject the plaint or memorandum of appeal..."
(iii) In Mohd. Yunis Vs. Sugra Begum AIR 1955 HYD 156, it was held as under:-
"We are clearly of the opinion that the Court cannot exercise its powers under Section 151 if the result of it would amount to depriving the defendant of a valuable right that he had acquired viz. of contenting that the suit that was barred by limited....."
25. A perusal of the authorities which have been relied upon by the learned senior counsel for the defendant would clearly show that it is not disputed that under Section 149 of the CPC, the Court has the discretion to allow the person to make CS(OS) No. 1421/2005 Page 16 of 23 up the deficient court fees at any stage of the proceedings even without there being an application by a party. The only question to be considered is as to whether in the given situation, the said discretion deserves to be exercised in favour of a party or not. It is a question of fact to be decided in the light of the facts of all the individual cases. In Mandadi Krishna Reddy‟s case no reasonable explanation was given for non-deposit of Court fees while in the present case the applicant has given a reasonable explanation which inspires confidence.
26. So far as the facts of the present case are concerned, for the reasons which have been stated hereinafter, I feel that the discretion deserves to be exercised in favour of the plaintiffs for enlargement of time of deposit of court fees and the order dated 20.1.2010 deserves to be reviewed because of the three primary reasons. Firstly, that the plaintiff had paid the deficient court fees (according to him) on an amount of `2 crores to the tune of `1,74,000/- within the stipulated period of 15 days set out by the Court on the very first date of hearing.
27. Secondly, this fact could not be brought to the notice of the Court at the time when the order dated 20.1.2010 was passed on account of an inadvertent mistake of the counsel for the plaintiffs.
CS(OS) No. 1421/2005 Page 17 of 23
28. Thirdly, that this fact was also not pointed out by the Registry that the deficient court fee was not met in full measure and therefore, the case should not proceed with as a result the case continued to be heard not only by the Trial Court but also by the Apex Court where an appeal was preferred by one of the parties.
29. Fourthly, the deficient court fees on being detected was deposited by the plaintiffs voluntarily without any application and waiting any further which shows that the bonafides of the plaintiffs could not be suspected. The explanation given by the plaintiffs seems to be reasonable.
30. Moreover, there are judgments of the different High Courts and in the light of the judgments of the Apex Court cited by the learned senior counsel for the plaintiffs on the subject matter, I feel that this Court must go by the judgments of the Apex Court and should allow the application in favour of the plaintiffs so as to advance the substantial justice rather than get bogged down by the technicalities.
31. After going through the aforesaid judgments the only irresistible conclusion which one can derive is that the procedural laws are not to be used to oust a person from pursuing the remedy of obtaining justice, but procedural laws are only to facilitate the ends of justice provided the bonafide of the party seeking the condonation of his lapse are not suspect.
CS(OS) No. 1421/2005 Page 18 of 23
32. As against this, the authorities which have been relied upon by the learned senior counsel for the defendant are the judgments of different High Courts wherein it has been held in the facts of those cases that the suit could not proceed for want of payment of deficient court fees but the said string of authorities does not govern the facts of the present case.
33. I will deal with those authorities later on. At present, let us see whether the facts of the present case warrant the review of the order dated 20.01.2010 on account of an error apparent on the face of the record and also on account of a bona fide mistake on the part of the counsel for the plaintiffs in calculating the court fees. The answer to this question in my considered view has to be in affirmative that the order dated 20.01.2010 deserves to be reviewed and the application of the plaintiffs deserves to be allowed. The reason for this is twofold, firstly, on 20.01.2010 when the order of rejection of the plaint was passed, the learned counsel for the plaintiffs for whatsoever reason failed to point out that the plaintiffs had already deposited a substantial amount of Rs.1,74,800/- within the permissible time limit which was considered by them as deficient court fees payable on the liquidated damages of Rs.2 crores. If that be so then, there is an error apparent on the face of the record and this error has crept not only because the learned counsel for the plaintiffs has failed to point out this fact to the Court but also on account of the CS(OS) No. 1421/2005 Page 19 of 23 mistake of the Registry in not raising an objection despite the pendency of the suit for more than five years, therefore, this mistake which has resulted in an error apparent on the face of the record cannot be solely attributed to the plaintiffs. This mistake has also to be shared in equal measure by the Registry.
34. The second question which arises for consideration is that the court fees which was deposited by the plaintiffs on 20.10.2005 was also deficient by Rs.21,000/- approximately and if this fact is taken into account the requirement of law is not fulfilled and still the court fees being deficient whether the suit deserves to be rejected and the outcome which has been arrived at on 20.01.2010 need not be changed.
35. The explanation given by the learned senior counsel for the plaintiffs is that there was a bonafide mistake on the part of the learned counsel for the plaintiffs in calculating the court fees payable on the amount of Rs.2 crores inasmuch as he should have tendered full court fee on Rs. 2 crores, i.e., ` 1,97,544/- or so, whereas he took into account the earlier court fee of Rs. 22,800/- which was paid at the time of filing of the suit and paid only the balance amount to the tune of Rs. 1,79,800/- and that is how the mistake has arisen. An affidavit of Mr.Supriya Kumar Guha, Co. Secretary of the plaintiff nos.1 and 2 S/o Late Sh.J.K.Guha, in this regard has been filed by the learned counsel for the plaintiffs. This fact CS(OS) No. 1421/2005 Page 20 of 23 has also not been pointed out by the Registry that the Court fees which was deposited by them on 20.10.2005 was deficient by Rs.21,000/- approximately.
36. The learned senior counsel for the defendant has contended that the plaintiffs while depositing the said deficient court fees, has not filed any application for enlargement of time to pay the deficient court fees and certainly the time could not be enlarged so as to last for a period of five years, and therefore, this voluntary deposit of the court fees by the plaintiffs cannot be taken as a ground for rectification of the deficient court fees and consequently for the review of the order dated 20.01.2010.
37. I do not agree with the contentions of the learned senior counsel for the defendant that the deficient court fees which has been paid by the plaintiffs though on 22.01.2010 cannot be taken cognizance of. I do not feel that there has to be necessarily an application for enlargement of time for payment of court fees in each and every case especially the one which is like the present one where on account of a bona fide mistake of a counsel, a party has paid the deficient court fees though not in full measure but in substantial measure. Reliance can be placed on Mahanth Ram Das's case AIR 1961 SC 882, P.K.Palanisamy Vs. N.Arumughan & Anr. (2009) 9 SCC 173 and Indian Statistical Institute Vs. M/s Associate Builder and Ors. 1978 (1) SCC 483. The Courts CS(OS) No. 1421/2005 Page 21 of 23 as well as the parties are human and there is a possibility that as a human being a party may commit an error. The question which is to be considered is whether there was any malafide intention in not depositing the full court fees, if the answer to this question is in affirmative only then the discretion need not be exercised by the Court in favour of party whose intentions are not bonafide and are actuated with a clear intention to prolong the trial or to seek the access to the Court without discharging the obligations warranted by a statute. In the instant case, I feel that there was no such intention on the part of the plaintiffs who had actually paid a substantial amount of court fees to the tune of Rs.1,74,800/- and it was a bona fide mistake on the part of the counsel in calculating the court fees and therefore, malafide or ill motive may be attributed to such an error because it is ultimately the humans who commit an error. It is also my considered view that even though no application was filed by the plaintiffs seeking enlargement of time under Section 149 of CPC yet the Court on the facts of the present case in exercise of its power u/S 149 CPC is well within its power to condone such delay in filing the deficient court fees. In this regard reliance can be placed on Mandadi Krishna Reddy‟s case. Further the suit filed for permanent injunction, restraining infringement of trademark, passing off, damages/rendition of account and delivery etc. against the defendant is pending for CS(OS) No. 1421/2005 Page 22 of 23 the last more than five years and the deficient court fees was paid in substantial measure within the permissible time. The balance amount of deficient court fees could not be paid earlier on account of bonafide human error of the counsel for the plaintiff as well as on account of failure on the part of the registry to point out the deficiency.
38. For reasons mentioned above, I feel that the order dated 20.01.2010 deserves to be reviewed on account of there being an error apparent on the face of the record regarding the payment of the court fees, I feel that the suit must continue rather than being rejected as admittedly as on date the plaintiffs have rectified the deficiency in payment of entire court fees.
39. Accordingly, the application of the plaintiff is allowed and the order dated 20.1.2010 is recalled and the matter be posted before appropriate Court according to Roster subject to the orders of Hon‟ble The Chief Justice for further proceedings.
V.K. SHALI, J.
July 04, 2011 Kp/RN CS(OS) No. 1421/2005 Page 23 of 23