TARACHAND GHANSHYAMDAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The question involved in this appeal has been described by the learned trial Judge as a very important question. It is not important in the sense of being a difficult or a serious question, but it has become important, because certain assumptions have come to be attached to it which have caused this Court, in certain instances, to exercise a power where neither the power, nor any occasion for its exercise really existed. The answer to the question, however, appears to be plain. We were able to reach that answer without much difficulty, because the learned Senior Standing Counsel, who appeared for the appellant, made no serious attempt to argue the unarguable.

(2.) The facts are simple. The appellants, Messrs. Tarachand Ghanshyamdas, brought a suit in the Court of the Subordinate Judge, Berhampore, against Sree Radhakrishna Sugar Mills Ltd., (In Liquidation), and certain other parties for the enforcement of a charge, alleged to have been created by a certain Debenture of Trust Deed and some other reliefs. The suit was valued at Rs. 15,00,000/- and the 'ad valorem' duty of Rs. 10,000/-, payable on the plaint under Article I, Schedule I, Court-fees Act, was paid. Thereafter, the defendant company, by its Liquidator, applied to this Court for the transfer of the suit to its Extraordinary Original Civil Jurisdiction under Clause 13 of the Letters Patent. On that application, an order transferring the suit was made. If the suit had been instituted on the Original Side of this Court, the fee initially payable by the plaintiff-appellants would have been Rs. 22-8-0 under items 2, 11 and 12 of the First Schedule to Rule 74 of Chapter 36 of the Original Side Rules or rather it would have been Rs. 18/-, since the fee payable on the Power of Attorney under item 11 cannot properly be said to be a fee paid on the plaint. The appellants took the view that since the suit had been transferred to this Court immediately on its institution and was being tried here, they were liable to pay only such fees as were chargeable under the Rules of this Court and that the amount they had paid at Berhampore in excess of Rs. 22-8-0 had been overpaid. Accordingly, they made an 'ex parte' application for a certificate of excess payment, enabling them to obtain a refund of the excess fee paid by them. As the question was of some importance and affected the revenues of the State, the learned trial Judge directed notice of the application to be given to the State Government. In pursuance of that notice, the learned Advocate-General appeared to oppose the application and after hearing him as also the appellants' counsel, the learned Judge dismissed it.

(3.) The learned Judge in his judgment has referred to four cases, all of them unreported, in which an application for a certificate was made in similar pircumstances. In two of them, decided respectively in 1943 and 1952, a certificate was granted. In one, decided in 1910, a certificate was refused and an earlier application made in the same case also met with a refusal. In the fourth case, decided in 1905, a middle course appears to have been chosen and it was directed that in the taxation of fees, chargeable in this Court, the plaintiffs should be givan credit for the institution fee paid by them in the Court from which the suit had been transferred.