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IN THE HIGH COURT OF KARNATAKA
E.S.Indiresh, J.
Ganiga Earth Movers - Appellant
Versus
Dbm Geotechnics And Constructions Pvt. Ltd. - Respondent
Writ Petition No. 2 of 2021 (GM-CPC)
Decided On : 05-04-2022
Refund of Court Fee - Writ Petition - The court held that the trial Court ought to have refunded entire court fee to the petitioner/plaintiff, as the trial Court has come to a conclusion that the suit is not maintainable and relegated the plaintiff to approach Arbitrator in terms of the arbitration clause in the agreement.
Fact of the Case:
The plaintiff filed a suit seeking recovery of money, which was disposed of as not maintainable, and the trial Court directed the plaintiff to exhaust the remedy available under the provisions of the Arbitration and Conciliation Act, 1996. The plaintiff sought a refund of the court fee paid for the suit, which was dismissed by the trial Court.
Finding of the Court:
The court found that the trial Court ought to have refunded the entire court fee to the petitioner/plaintiff, as the suit was not maintainable and the plaintiff was directed to approach the Arbitrator in terms of the arbitration clause in the agreement. The Writ Petition was accordingly allowed.
Issues: The issue was whether the trial Court should refund the court fee to the plaintiff after the suit was found to be not maintainable and the plaintiff was directed to approach the Arbitrator.
Ratio Decidendi: The court's decision was influenced by the fact that the suit was not maintainable and the plaintiff was directed to approach the Arbitrator in terms of the arbitration clause in the agreement, leading to the conclusion that the trial Court should refund the court fee to the plaintiff.
Final Decision: The Writ Petition was allowed, and the trial Court was directed to refund the court fee to the plaintiff after due identification.
JUDGMENT
1. This Writ Petition is filed by the plaintiff in Com.OS No.1 of 2020 on the file of the IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru challenging the order dtd. 1/10/2020 dismissing the interlocutory application filed by the plaintiff seeking refund of the Court fee.
2. Relevant facts for adjudication of this Writ Petition are that the plaintiff has filed suit against the defendants in Com.OS No.1 of 2020 seeking recovery of money and the said suit came to be disposed of by order dtd. 7/2/2020 as the suit is not maintainable and consequently, the trial Court directed the plaintiff to exhaust the remedy available under the provisions of Arbitration and Conciliation Act, 1996 (for short, hereinafter referred to as 'Act'). In the said suit, the plaintiff has paid the court fee and since the suit came to be disposed of as not maintainable, the plaintiff has filed an application as per Annexure-E seeking refund of court fee. The trial Court, after considering the material on record, by impugned order 1/12/2020 dismissed the application and being aggrieved by the same, plaintiff has presented this Writ Petition.
3. Sri Ravishankar Shastry G, learned counsel appearing for the petitioner submitted that the suit came to be disposed of reserving liberty to the plaintiff to approach the Arbitrator under the provisions of the Act as the suit is not maintainable and therefore, the trial Court ought to have refunded the court fee to the plaintiff. In this regard, he relied upon the judgment of the Hon'ble Apex Court in the case of SLP(C) No.18102 of 2013 decided on 25/10/2019 produced at Annexure-F to the writ petition and contended that the the trial Court ought to have refunded the court fee to the plaintiff.
4. Smt. K. Shobha, learned High Court Government Pleader, supported the impugned order.
5. Taking into consideration the arguments advanced by the learned counsel appearing for the plaintiff and the observation made by the Hon'ble Apex Court in the aforementioned case, I am of the view hat the trial Court ought to have refunded entire court fee to the petitioner/plaintiff, as the trial Court has come to a conclusion that the suit is not maintainable and relegated the plaintiff to approach Arbitrator in terms of the arbitration clause in the agreement. In that view of the matter, I am of the view that the impugned order dtd. 1/10/2020 is liable to be set aside and IA.I in filed Com.OS No.1 of 2020 is allowed and the trial Court is directed to refund the court fee to the plaintiff after due identification. Writ Petition is accordingly allowed.
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