LAWS(MAD)-1980-2-8

OFFICIAL RECEIVER COIMBATORE Vs. S A RAMASWAMI GOUNDER

Decided On February 15, 1980
OFFICIAL RECEIVER, COIMBATORE Appellant
V/S
S.A.RAMASWAMI GOUNDER Respondents

JUDGEMENT

(1.) This matter has come- before the Full Bench on a reference made by a Division Bench consisting of my Lord, the Chief, Justice and Ratnam, J. The facts which gave rise to the said order of reference may briefly be set out. The petitioner herein is the other respondent in S. A. 1606 of 1963, which was allowed by this court on 28-4-1977. Aggrieved against the said judgment the petitioner purported to file a Letters Patent Appeal before this court on the basis of leave granted by this Court while allowing the second appeal. On the office pointing out that the, Letters Patent Appeal is not competent in view of Section 100-A, C. P Code as amended by Central Act 104 of 1976, the petitioner realised that he cannot maintain the appeal. He then filed the present petition for the refund of court-fee purporting to be under Section 70 of the Tamil Nadu Court- fees and Suits Valuation Act, and Sec. 151, C. P. Code. Section 70 can have no application to the facts of this case as it could not be said that the court-fee had been paid by mistake or inadvertence. Though Mr. Vanchunathan, learned counsel for the petitioner, concedes this position, he however seeks the grant of a certificate from this court in exercise of Its inherent powers under Section 151, C. P. Code, not directing or recommending the refund of court-fee but indicating the circumstances under which the court-fee has been paid and defaced so as to enable the petitioner to get a refund of the court-fee from the Revenue authorities ex gratia. According to him it has been the uniform practice of this court to grant a certificate stating the circumstances under which the court-fee was paid. Thus the question that arises for consideration by the Full Bench is whether in cases where refund cannot be ordered under any provision of the Court-fees Act the court can grant a certificate stating the circumstances under which the court-fee has been paid so as to enable the party to get a refund of the court-fee from the Revenue authorities ex gratia or otherwise.

(2.) The question of refund of court-fee has come up frequently before this court. Some decisions have been rendered with reference to the provisions 'of Sections 13, 14 and 15 of the Court-fees Act, 1870 and the others have been rendered with reference to the provisions of Sections 66 to 70 of the Tamil Nadu Court-fees Act of 1955 which has replaced the Court-fees Act of 1870 so far as it is applicable to the State of Tamil Nadu. Sections 13 to 15 of the Court fees Act of 1870 enabled a party to obtain a refund of the court-fee in the circumstances set out in those sections. Dealing with the scope of Sections 13 to 15 of the 1870 Act, the Supreme Court in Om Prakash Gupta v. State of U. P. had expressed the view that the said provisions were exhaustive of the provisions that enabled a party to obtain a refund of court-fee and that, therefore, there is no scope for an inherent power to grant a refund of court-fee apart from the said provisions. A similar view was taken in Tej Bahadur v. Pearelal, wherein it has been held that the Court has no inherent power to grant a certificate for refund of court-fee for, if the court were to grant certificate in the supposed exercise of any such inherent power it would not be a case of refund being granted on the strength of a certificate, but on account of an act of grace on the part of the Government and, therefore, such a certificate being by no means mandatory, the court must refuse to grant it. In Tarachand Ghanshyamdas v. State of West Bengal, and Sriramulu v. Board of Revenue the court has taken the view that the Legislature having applied its mind to the question whether the fee levied in the first instance should be retained in all cases and specifically indicated the occasion on which the fee should be refunded the court cannot modify or add to the provisions by ordering refund in exercise of its inherent powers and thus interfering indirectly with the revenues of the State by purporting to make equitable adjustments of the court-fees in the exercise of its inherent powers. This court, however, has taken the view in the following decisions that though a party may not be entitled to get a refund under the provisions of the said Sections 13, 14 and 15 of the Central Act 1870, still the court has got power to grant a certificate to the effect that the court-fee received by the court has not been utilized or that the stamps have been spoiled so as to enable the party to apply to the Government for refund of the court-fee as a matter of grace. This is on the basis that granting such a certificate is different from directing a refund of the court-fee and that only for directing a refund of court-fee a statutory basis is necessary but for giving a certificate the court's inherent power can be invoked.

(3.) In Thimmayya Naidu v. Venkataramanamma ILR 55 Mad 641: (AIR 1932 Mad 438) a Division Bench of this court took the view that the High Court could under its inherent powers assist the appellant who had erroneously paid court- fee by issuing a certificate to the party stating that excess court-fee has been levied so as to enable him to approach the Revenue authorities for refund of the excess court-fee paid. According to the Bench what the court does in such cases is to decide what is the proper court-fee payable and then issue a certificate to the party that excess court-fee has been levied. In support of its view the Bench relied on the decisions of the Calcutta High, Court in re G. H. Grant (1870) 14 Suth WR 47, Harihar Guru v. Ananda Mahanty (1913) ILR 40 Cal 365, Girishchandra Mali v. Girishchandra Dutta, 36 Cal WN 190: (AIR 1932 Cal 450), the decision of the Allahabad High Court in In re Chauba Munalal ILR 52 All 546: (AIR 1930 All 471 (1)) and the judgment of the Patna High Court in Sasibhushan Mazumdar v. Maniklal Chandra (1928) 107 Ind Cas 825, all of which laid down that Section 151, C. P. C. enables a High Court to order refund of court-fee paid in excess when obvious injustice would be done if it were not repaid. On the basis of the above decision it was held by this court in the above case that it would be unreasonable and unjust for the High Court not to assist a party to recover the excess court-fee erroneously paid under its own order or under the order of a court subordinate to it.