ABDUL AZEEZ Vs. NEDUNGADI BANK LTD.

JUDGEMENT

(1.) The conflict between Philomina Joseph Vs. State of Kerala (2009 (1) KLT 591 (DB)) and Ramakrishnan K. Vs. Venugopalan (2013 (2) KLT 98 (DB)) has led to this reference of the case to the Full Bench.

(2.) The suit for realisation of money filed by the Bank was decreed against which the principal debtor has filed the Regular First Appeal challenging the extent of the liability as well as the rate of interest. One-third fee was remitted at the time of preferment of the appeal and the balance fee was also paid in time under the Kerala Court Fees and Suits Valuation Act, 1959 ('the Act' for short). The dispute was later settled between the parties out of court and no compromise in terms of O.XXIII R.3 of the Code of Civil Procedure, 1908 ('CPC' for short) was however recorded. Nevertheless the appeal was dismissed as 'not pressed' in view of the submission on behalf of the appellant that the liability to the Bank has been fully discharged. It is thereafter that the appellant filed I.A. No. 918/2016 seeking refund of the total fee paid on the memorandum of Regular First Appeal relying on Sec. 69 of the Act. The Division Bench noticed that the dictum in Ramakrishnan's case (supra) militated against the dictum in Philomina Joseph's case (supra) as regards the entitlement for refund of fee. Two learned single Judges have also taken a contrary view in Peirce Leslie India Ltd. Vs. Kunheerium (1978 KLT 811) and Aravindaksha Prabhu Vs. Shamsuddin (2003 (1) KLT 644).

(3.) We heard Mr. C.P. Muhammed Nias, Advocate on behalf of the appellant, Mr. C. Ajlth Kumar, Advocate on behalf of the respondents as well as Mr. B. Jayasurya, Senior Government Pleader on the issue.