Delhi High Court
R & D Enterprises (Exports) vs Air France on 9 September, 1997
Equivalent citations: 1997VAD(DELHI)570, AIR1998DELHI193, 70(1997)DLT63, 1997(43)DRJ443, AIR 1998 DELHI 193, (1997) 43 DRJ 443 (1997) 70 DLT 63, (1997) 70 DLT 63
Author: D.K. Jain
Bench: D.K. Jain
JUDGMENT D.K. Jain, J.
(1) A short but interesting point arising in the matter is whether the amount of court fees payable in a suit for recovery of money against an international air carrier, falling within the ambit of [The] Carriage by Air Act, (69 of 1972) (hereinafter referred to as the ACT) is to be computed ad-valorem, on the amount claimed or it can be paid on a tentative value, taking shelter under Rule 22(5) in the IInd Schedule to the Act on the plea that the plaintiff, who seeks conversion of foreign currency in the Indian Rupee, is not aware of the exact amount likely to be awarded, because it has to be worked out on the exchange rate prevailing on the date of judgment in the suit.
(2) Plaintiff no.1 is a proprietory concern of plaintiff no.2. Defendant no.1, Air France, is an international airways. Defendant no.2 is the consignee of goods based in New York. The plaintiff's case is that they consigned fifty packages of garments of the weight of 555 Kilograms from Delhi to New York for defendant no.2; out of it, 26 packets were lost in transit, making the entire consignment unsaleable, unacceptable and useless; the plaintiff suffered loss of the entire 50 packages (555 Kgs.) for which defendant no.1 was liable to compensate and bound to make payment of Rs.7,70,000.00 in terms of Indian Rupee per calculation on declared value as on 16 September 1994; that after lot of correspondence, defendant no.1 got plaintiffs' consent to its offer of Rs.2,54,797.92 equivalent to Us $ 8112.00, paid to the plaintiff in full and final settlement; that plaintiff's consent was given under duress and coercion and as such the plaintiff still was due and claimed the balance amount of Rs.5,22,202.00 from defendant no.2 (para 23 ; that the liability being statutory, the plaintiffs are not aware as to what exact amount is likely to be decreed as the court has to calculate the amount as per rate of Franc prevailing on the date of judgment; the amount calculated by the plaintiff may increase or decrease depending on the rates at the time of judgment and as such the final relief cannot be valued. The reliefs claimed are:- (I)for money and (ii) declaration. The first chargeable ad-valorem and the second on a fixed court fees. Para 26, relating to valuation for court fees and jurisdiction, framed in unconventional and some what laboured manner, but heavily relied on by the plaintiff, runs thus :- " 26.The Suit has been valued at Rs.5,00,002.00 for the purpose of jurisdiction for declaration on which fixed (sic) court fee has been paid. The suit is valued at Rs.500.00 for jurisdiction for recovery, on which proper court fee has been paid. ......."
With the above averment, the plaintiff has affixed a court fees of Rs.40 on the plaint: Rs.20 for the relief of recovery of money and Rs.20 for the second relief of declaration.
(3) On filing of the plaint, the Registry of the court raised objection that proper court fee had not been paid, as the suit was for recovery of money falling under section 7(i) of the Court Fees Act, 1870 requiring payment of ad-valorem court fee. On the plaintiff insisting on his stand, on tentative valuation, the Joint Registrar, after hearing, by his order dated 15 July 1996, upheld the Registry's objection and called upon the plaintiffs to remove the objection and pay the requisite court fee.
(4) Aggrieved, the plaintiffs have filed this appeal under Rule 4, Chapter Ii, Delhi High Court (Original Side Rules), 1967.
(5) I have heard Mr.G.N. Aggarwal, learned counsel for the appellant at some length.
(6) For proper appreciation of the contentions urged on behalf of the appellant, it would be appropriate at this stage to notice and refer to the provisions of the Act and its Schedules I and Ii containing certain rules relating to international carriage by air, signed on a convention on 12 October 1929 at Warsaw (Schedule I) and to the amended rules at such convention held on 28 September 1955 by the Hague Protocol [Schedule II]. The Act (69 of 1972) was enacted to give effect to the conventions referred to above, for unification of certain rules relating to international carriage etc; and to make provision for applying the rules contained in the said conventions. Sections 3 and 4 of the Act respectively lay down that the rules contained in the first and the second schedule, relating to the rights and liabilities of the carriers, passengers, consignors, consignees etc, shall have the force of law in India. Chapter Iii of the Second Schedule lays down rules pertaining to the liability of the carrier. Rule 22 of the said Schedule, relevant for the matter, falling in the said chapter, inter alia, limits the liability of the carrier of passengers to 2,50,000 Francs for each passenger (Sub-rule 1) and in the matter of registered baggage and cargo to a sum of 250 Francs per Kg.etc., (Sub-rule 2). Sub-rule 5 of Rule 22, particularly relied upon by the appellant, lays down the formula for conversion of compensation awarded in francs into national Indian currency. For the sake of a ready reference it is set down below :- " The sums mentioned in francs in this rule (22) shall be deemed to refer to a currency unit consisting of sixty-five and a half milligrams of gold of millesimal fineness nine hundred. These sums may be converted into national currencies in round figures. Conversion of the sums into national currencies other than gold shall, in case of judicial proceedings, be made according to the gold value of such currencies at the date of the judgment."
(7) Reliance is placed on Rule 22 by learned counsel for the appellant to contend that as according to the rule, compensation is payable in terms of francs and their conversion in Indian Rupee has to be made on an exchange rate prevailing on the date of judgment, as to what exact amount in terms of Indian Rupee would be payable to him on the date of judgment being not clear at the time of filing of the suit, the plaintiff is not in a position to work out the exact amount of court fees and has to fix it on a tentative value with an undertaking to make up the deficiency, if any, on the passing of the judgment and the decree on valuation finally worked out at the then prevailing exchange rate. For it, reliance is placed on a decision of the Supreme Court in Fora Sol Vs.Oil and Natural Gas Commission , holding that on a decree or Award passed in foreign currency, the proper date for fixing rate of exchange is the date of the decree.
(8) The contention is fallacious. What Rule 22 in the Second Schedule lays down, is the outside limit of compensation payable in terms of francs by an international airways. Sub-rule (5) of Rule 22 sets out the manner and the method of working out its conversion from foreign currency to Indian Rupee and the Supreme Court judgment in Fora Sol's case simply lays down that the conversion rate applicable would be as prevailing on the date of judgment and decree. The compensation payable has to be assessed by the court in terms of francs. For converting it to Indian rupees, the stipulation in Sub-rule (5) to apply the conversion rate prevailing on the date of judgment is for the benefit of a Plaintiff, so that, by claiming certain amount in the plaint, the plaintiff, may not be adversly affected by the fluctuations in rates pending adjudication by the courts. The Act or the Rules, however, do not concern at all or provide for or refer to computation for or payment of court fees in a suit. For it, one has to advert to and is bound by the provisions of the court fees Act.
(9) It is the duty of the court, in which the suit is instituted, to ensure, at the time of institution of the suit, that proper court fee has been paid according to the Court Fees Act. It is clear from the resume of the plaint, extracted above, that the suit filed is basically and substantially one for money falling under section 7(i) of the Court Fees Act. The averments in the plaint and the relief claimed essentially makes it so. So far as money suits are concerned, ad-valorem court fees provided for in and computed as per Schedule I of the said Act shall have to be paid. For simple suits for money, there is no provision or warrant to fix a tentative value for court fee in the plaint, which is possible in suit for accounts or for partition or for administration or for winding up accounts of a partnership. In such type of cases, a preliminary decree is passed to ascertain the amount due to the plaintiff and when such amount is ascertained a final decree for the ascertained sum is passed. Para 48 of the Forasol case (supra) makes it abundantly clear. The basic difference in such types of cases and a money suit is that in the latter case there can only be one decree. There is, therefore, no question of affixing tentative value in a money suit in which ad-valorem court fee is payable on the sum claimed.
(10) In the instant case the amount claimed in plaint para 23, as noticed above, being Rs.5,00,002.00 , court fees is payable on this amount. The amount of compensation payable has to be decided by the court on the merits of the case. It may be found to be more or less than the amount claimed in the suit or it may be that it is held to be not payable. Can the plaintiff for this uncertainty be allowed to pay court fees on some tentative value, arbitrarily fixed, instead of the amount claimed by him in the suit, even though with an averment to make up the deficiency, if any, at a later stage? Obviously not, for otherwise this would tantamount to undue and unfair advantage and indeed an abuse of the process of the court by enabling a plaintiff to make a highly exaggerated claim at an astronomical figure and having trial process for adjudication of issues raised without payment of proper court fee on the claim so laid.
(11) Besides, this being a money suit and the court fees payable being ad-valorem, the plaintiff having affixed the jurisdictional value of the suit at Rs.5,00,002.00 cannot, in view of section 8 of the Suits Valuation Act, 1887 be heard to say that the value for purposes of court fee in any pointed circumstances |;could be affixed at a lesser or tentative amount.
(12) For all these reasons, I find no merit in the appeal. The same is accordingly dismissed and the order of the learned Joint Registrar is affirmed.