PHIPSON AND COMPANY LIMITED Vs. GAYCO PRIVATE LIMITED

JUDGEMENT

(1.) This matter has been placed before the Court on a reference by the Registry and as per the directions of Hon'ble The Chief Justice for a decision of the question whether the Court can exercise powers under Section 28 of the Court-Fees Act, 1870, after a consent judgment has been delivered, but the decree has yet to be prepared.

(2.) The suit out of which the reference arises was filed under the provisions of Order XXXVII of the Code of Civil Procedure for the recovery of Rs. 70,000.00 on the basis of five different cheques. The suit was, however, compromised and a consent decree for Rs. 28,503.33 was passed. This apparently means that the plaintiff gave up the rest of his claim in the suit, and the defendant agreed to have the decree passed for the sum mentioned above. The plaintiff had paid the court-fees on the sum of Rs. 70,000.00. After the passing of the judgment, the dealing Assistant, while preparing the decree, noticed that the court-fees paid on the plaint is deficient in view of Section 17 of the Court-Fees Act. It was noticed by the dealing Assistant that inasmuch as the basis of the suit pertained to five distinct subject-matters and each cheque furnished a separate cause of action for the filing of the suit. the court-fees should have been paid separately for the amount covered by each cheque and not on the consolidated amount. The dealing Assistant was. thus, of the view that the court-fees paid on the plaint was deficient.

(3.) The parties readily conceded that the objection that the court- fees paid initially was deficient is correct. But. what is disputed by counsel for the plaintiff is the power of the Court to take any proceedings now under Section 28 of the Court-Fees Act.