PROMINENT ADVERTISING SERVICE Vs. A B COMMUNICATIONS

JUDGEMENT

(1.) THE Plaintiff has instituted the present suit for recovery of rs. 39,23,466/- from the defendant on 23rd October, 2002. Defendant No. 1 along with his written statement filed the counter claim on 21st April, 2004 against the plaintiff for a sum of Rs. 4,40,000/ -. In Para 11 of the counter claim, the defendant has mentioned that the requisite court fee on the said amount has been affixed with the counter claim.

(2.) THE present application being I. A. No. 3762/08 has been filed by the plaintiff under Order 7 Rule 11 read with Section 151 CPC for rejection df the counter claim filed by defendant No. 1. In reply to this application, the defendant has raised the preliminary objection that the application filed by the plaintiff under order 7 Rule 11 is not maintainable as the defendant No. 1 has already paid the court fee amounting to Rs. 6,640/- on the counter claim on 24th September, 2008.

(3.) LEARNED counsel for the plaintiff/applicant contends that the counter claim filed by the defendant cannot be entertained as the defendant has not paid the court fee along with the counter claim nor subsequently sought any permission from the court to pay the same. The court fee paid after the expiry of about 5 years has no application as the counter claim on the date of payment of court fee has already become time barred.