DEVIDAS Vs. CHANDRAKALA

JUDGEMENT

(1.) BY these counsel notes, the appellants take an exception to the order passed by the Additional Registrar (Judicial) of this court, dated 15.9.1995. These are the appeals under Section 173 of the Motor Vehicles Act, challenging the award passed by the Motor Accidents Claims Tribunal, wherein a monetary liability is fastened against the appellants by way of damages. Section 173 of the Motor Vehicles Act deals with a provision of filing an appeal. A proviso to Sub -section (1) of Section 173 is as under: Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court, unless he has deposited with it twenty -five thousand rupees or fifty per cent of the amount so awarded, whichever is less in the manner directed by the High Court.

(2.) WHEN the present appeals were filed, admittedly no such amount was paid along with the appeals. In this behalf the High Court Appellate Side Rules, Chapter IV, Rule 12 -A, provides that an appeal memo under the Motor Vehicles Act, 1988, filed under Section 173 of the said Act shall be accompanied by a certificate by the Registrar of the High Court that a sum of Rs. 25,000/ - or 50 per cent, whichever is less, of the amount awarded by the award appealed from, has been deposited by the appellant in the High Court. The appeal which is not accompanied by such a certificate shall be placed before the Registrar for orders. In accordance with this rule, after the appeals were filed, they were placed before the Registrar, who has passed the order directing the payment to be made of the aforementioned amount within two weeks from the date of the passing of the order, failing which he has directed to refuse the registration.

(3.) THE argument has to be rejected as not tenable. There can be no doubt as regards the law laid down by the Apex Court in the case of Lakshmiratan Engineering Works Ltd., : [1968]1SCR505 , as also in Hindusthan Commercial Bank Ltd., : AIR1970SC1384 . In both these cases the word 'entertain' has been taken to mean as 'to adjudicate upon' or 'to proceed to consider on merits'. The first mentioned case was in respect of an appeal under the U.P. Sales Tax Act and U.P. Sales Tax Rules, wherein a proviso to Section 9 regarding the filing of the appeals is almost identical. The concerned proviso therein was: Provided that no appeal against an assessment shall be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due, or of such instalments thereof as may have become payable. Reading this proviso along with Rule 66 of the U.P. Sales Tax Rules, the Apex Court proceeded to hold that the outright rejection of the appeal on the ground of nonpayment of the amount mentioned in Section 24, without its entertainment, was not right. The Apex Court proceeded to hold that the bar was only as regards the 'entertainment' of the appeal and, therefore, the bar would operate only if the appeal were to be considered on merits. The Apex Court also further held that the rule required that the memorandum of appeal shall be accompanied by the challan showing the payment. The Apex Court also noted in that case that in fact the tax was already paid. However, the challan was not accompanied with the appeal. The Apex Court, therefore, proceeded to hold that though the rule laid down one uncontestable mode of proof of the payment of the tax which the court would always accept but it did not exclude the operation of the proviso when equally satisfactory proof was made available to the officer hearing the appeal and it was proved to his satisfaction that the payment of the tax had been duly made and in time. The Apex Court, in that sense, held the rule to be directory.