STATE OF BOMBAY Vs. FIRM DHANRAJ SANTOK CHAND

JUDGEMENT

(1.) FOR the present, this case has come before us simply for the determination of the question whether the court-fees paid by the appellant are deficient. The office has reported that the appellant is liable to pay further court-fee of Rs. 245/ -. The appellant contends that the demand is not correct and, therefore, the matter has been referred to us by the office. In order to appreciate the point in dispute, it would be proper to state here briefly, the facts giving rise to this appeal. Respondent No. 1 Firm Dhanraj Santokh-chand of Sangariya Mandi, district Ganga-nagar filed a suit against the appellant namely the State of Bombay and respondent No. 2 i. e. the State of Rajasthan for recovery of Rs. 19,272/1/- with a prayer for pendente lite and future interest. The trial court has decreed the suit for the entire amount of Rs. 19,272/- against the appellant and dismissed it against respondent No. 2 It has also awarded interest pendente lite and for the future at the rate of 6% per annum. The appellant has valued the appeal at Rs. 19,272/1/- and paid court-fees only on this amount. He has not paid court-fees on the amount of interest decreed against him pendente lite nor for future interest. According to the office report, the appellant should also pay court-fees for the amount of interest pendente lite and future, while learned counsel for appellant contends that he is not liable to pay court-fees on interest after the institution of the suit. It is urged by learned counsel that no court-fees are payable on a plaint in respect of interest accruing after the institution of the suit and for the same reason, court-fees should not be charged on interest pendente lite or for the future interest which is entirely in the discretion of the court and not a matter of contract between the parties. In support of his argument, he has referred to Vithal Hari Athavle vs. Govind Vasudeo Thosar (1) and Mithoolal vs. Mst. Chameli (2 ). In the first case, the question about court-fee on interest was referred to the learned Judges by the District Judge and they simply observed that - "no additional stamp would be required on account of the claim for interest from institution of the suit uptill payment. It stands on the same footing as future mesne profits. " It may be observed that this case is not very helpful because the learned Judges decided the matter in a summary manner and did not give detailed reasons in support of their view It appears that this case was also cited in Seth Ratanchand vs. Gaindsingh Takhatsingh Kurmi (3), but it was not followed, with the following observation by Vivian Bose J.- "it is a decision of just five lines, and the only reason given is that a claim of this kind stands on the same footing as a claim for future mesne profits. It is obvious that future mesne profits cannot be ascertained until there has been an enquiry. With all due respect, I cannot see how that principle can be applied when the amount claimed is capable of exact computation. " The above view of the Bombay High Court was also considered in Jagnnath Prasad vs. Bhala Prasad Singh (4) and it was not held to be good law. With due respect me also do not find our way to agree with that opinion as it is not based on good reasons.

(2.) IN the second case cited by learned counsel for appellant, the suit for profits was decreed by the trial court for a certain sum of money with interest at 12% per annum upto the date of the suit and till the date of the decree and thereafter at 6% per annum. The defendants appealed impugning the correctness of the decree but no ground was specifically directed against the award of interest before the suit or pendente lite. It was in those circumstances that the following observation was made: - "the subject-matter of the appeal should, in the circumstances, be considered to be the principal amount of the suit and the interest upto the date of the suit Ad valorem court-fee is payable under Art. 1, Sch. 1, Court-fees Act, on the value of the subject-matter of the appeal. The stamp reporter thinks that the appellant ought to have paid court-fee on the amount of interest accruing at the rate awarded by the Court between the date of the suit and the date of the decree. This view might have been correct if the appellant had specifically challenged the decree of the trial court on the ground that no pendente lite interest should have been awarded. " It is clear that in (halt case the appeal was not directed against the award of interest pendente lite and it was for that reason that the learned Judges held that court fee was not payable.

(3.) AS pointed out above, the appellant in the present case has taken a specific plea in para No. 13 both about pendente lite and future interest. It is urged by the appellant that the trial court has erred in allowing pendente lite and future interest and that it should dot have been allowed in the circumstances of the case. Thus, there being a specific plea against interest pendente lite and future the appellant must pay ad valorem court-fee on the amount of interest pendente lite and a fixed fee of Rs. 10/- for future interest. It is open to the appellant to drop these objections if it feels certain of its success in the main suit but in that case no relief would be available to it on this point in the event of its failure in the main case. We therefore order that if the amendment as suggested above is made by the appellant, the court-fee may not be charged, otherwise, it must be paid within one month from the date of this order. .