USHA Vs. FOOD CORPORATION OF INDIA

JUDGEMENT

(1.) This appeal is filed against the order in O.P. (MV) 33/82. The Registry raised an objection that the Court fee paid on the appeal is not correct. According to the appellant, the Court fee paid is correct and the matter is placed before us to decide the question as to whether the court fee paid is correct or not. The appellant contends that the appeal is filed against the order passed in an arbitration O.P. filed in 1982 and the appeal being a continuation of that proceeding, the court fee to be paid on appeal is the same as that was payable on the date of the filing of the O.P. and, it is argued that the amendment to Court Fees and Suit Valuation Act which came into force on 5th December, 1990 has no application. Reliance was placed on the decision reported in State of Bombay v. M/s. S.G. Films Exchange ( AIR 1960 SC 980 ). The Registry points out that in view of the decision reported in Kochappu v. Somasundaran Chettiar ( 1991 (1) KLT 657 ) the Court fee paid is not correct.

(2.) We heard appellant's counsel. In State of Bombay v. M/s. S.G. Films Exchange (AIR 1960 SC 980) the Supreme Court considered the question of refund of court fee. In that case, the suit was decreed on 22.7.1954 and appeal was filed against the decree on 4.9.1954 and court fee was paid on that day. The appeal was later settled between the parties and a prayer was made for dismissal of the appeal. An application was filed for refund of excess court fees paid on the memorandum of appeal. The appellants contended that the appeal having arisen out of a suit which had been instituted on or about 16th April, 1953, that is prior to the coming into force of the Court Fees (Bombay Amendment) Act no Court fees were payable on the memorandum of appeal and that it was due to the mistake the appellant had paid Court fee. The appellant further contended that they were not legally bound to pay anything by way of Court fee except a sum of Rs. 32/-. The court ordered refund of the entire court fee paid on the appeal. The Supreme Court upheld the order passed by the Bombay High Court and held thus:

(3.) In the present case, certainly the appellant has to pay higher court fee on the basis of the amended provision. In this case, the right of appeal is imperilled by enhancing the rate of court fee. So, this is a case where the decision in State of Bombay v. M/s. S.G. Films Exchange (AIR 1960 SC 980) has direct application and the appellant is liable to pay court fee on the basis of the unamended provision and we hold that the Court fee paid is sufficient.