LAWS(KER)-2009-12-40

MATHAI Vs. THRESSIAMMA

Decided On December 01, 2009
MATHAI Appellant
V/S
THRESSIAMMA Respondents

JUDGEMENT

(1.) The cross appellant is the plaintiff in the suit, and the respondent herein is the defendant. The suit was one for breach of contract and damages, which was decreed with cost, and the counter claim filed by the defendant was also dismissed. The plaintiff was allowed to realise a sum of Rs.8 lakhs with interest at the rate of 9% per annum, from the date of the suit till the date of decree, and thereafter, at the rate of 6% till its realisation. The advance amount paid by the defendant was held as forfeitable, and so the counter claim was dismissed.

(2.) After paying one-third of the court fee, as contemplated under Section 22 of the Kerala Court Fees and Suits Valuation Act, (hereinafter referred to as the Court Fees Act for short), defendant preferred an appeal, R.F.A.No.868 of Cross Objection No.24 of 2009 in 2008. The appeal was admitted on 19.12.2008. Notice was sent on 6.1.2009 with hearing date on 27.1.2009. The respondentplaintiff, on being served with the notice, filed Cross Objection No.24 of 2009. While the matter was pending before this Court, attempts were made to settled the claim through mediators, which however failed. Though the appeal was admitted as early as in December, 2008, the appellant did not pay the balance court fee, despite time being granted (enabling him to pay such court fee, with a petition to condone the delay of paying the court fee, if remitted). Consequently, the appeal was rejected for nonpayment of the balance court fee, by our Order, dated 7.8.2009. The court fee already paid was ordered to be refunded, as provided under Section 66(1) of the Court Fees Act.

(3.) In the meanwhile, cross objection was admitted on 10.7.2009 and directed the cross appellant to serve a copy of the cross appeal to the respondent. As may be noticed, it was after admitting the cross appeal that the appeal happened to be rejected for non-payment of the balance court fee. However, at Cross Objection No.24 of 2009 in the time when the appeal was rejected, the pendency of the cross appeal was not noticed, and hence it was separately posted.