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2006 Supreme(Bom) 14
IN THE HIGH COURT OF BOMBAY
Vilas Rambhau Nakade
Versus
Civil Judge, Senior Division, Nagpur
Decided on , January 9, 2006
Headnote:Bombay Court Fees Act, 1959 - Sections 51, 45 Bombay Stamps Act, 1968, Section 25B There is no time limit provided within which Court fees must be put to use When the legislature has deliberately not provided any time limit under Bombay Court Fees Act, Court cannot read such time limit on account of Section 52-B of the Bombay Stamps Act. When Section 25-B was added to Bombay Stamps Act, by State Government by amendment in 1989, the State Government could have made similar provisions in Bombay Court Fees Act, 1959. However the State Government has not made any such provision under Bombay Court Fees Act, 1959. In absence of such provision, the bar sought to be invoked by the respondent by placing reliance upon Section 52-B of the Bombay Stamps Act cannot be read within Bombay Court Fees Act, 1959. The provisions of Bombay Court Fees Act, 1959 does not contain any time limit for using the court fees purchased by purchaser himself for his use though when the vendor wants to claim refund of court fees stamps surrendered by him or on his behalf, the time limit has been provided for. It is to be noted that vendor does not purchase the stamp duty for himself, but he trades in it and his business is subject to the terms and conditions of licence given to him for that purpose. After his death the said court fees stamps are of no use for his dependents. The same is the position if his licence is revoked or suspended. Therefore, there is a provision for refund of amount of said court fee to such vendor or his dependent/heirs. However, again the time limit prescribed therefor is 6 months which can be increased up to one year in special cases. It is thus apparent that when a person has purchased the court fees for his own use, there is no time limit within which the said court fees must be put to use. In the absence of express provision in Bombay Court Fees Act, 1959 prescribing any such time limit it is not possible to read the provisions in Rule 52 of Rules, under Court Fees Act, 1870 applicable to vendors in that regard. The legislature has made a provision for refund of used court fees under Sections 15, 16, 17 and 17-A of the Bombay Court Fees Act. Thus if the court fees paid by purchaser is subsequently found to be in excess or unwarranted because of premature termination of the litigation, the legislature has taken precaution to refund to him the proportionate or excess court fees. Thus, when the legislature has deliberately not provided any time limit for this purpose under Bombay Court Fees Act, 1959, the Court below was not justified in reading such time limit on account of Section 52-B of the Bombay Stamps Act. AIR 1969 Del 130; AIR 1961 All 321; AIR 1972 SC 459; AIR 1976 All 475; 1973 (1) SCC 162 Referred.
( 2 ) I have heard Advocate markandeywar, for petitioner/plaintiff, Mrs. Wandile, learned AGP for respondent nos. 2, 6 and 7 and Advocate Bernad John, for respondent no. 3 and 4. By consent of parties, rule is made returnable forthwith and the matter is finally heard.
( 3 ) ADVOCATE Markenadeywar, has invited attention of the court to the provisions of Bombay Stamps Act, 1958; Bombay Court fees Act, 1959 and the various cases to contend that the provisions of Bombay Stamps Act 1958 cannot be used to interpret the provisions of bombay Court Fees Act, 1959. He contends that, both the Acts occupy totally different field and Stamp Duty and Court Fees are two different aspects. In support he has relied upon the judgment of the learned Single Judge of allahabad High Court reported at AIR 1976 all. 475 (Banney Khan Vs. Chief Inspector of Stamps ). He further states that the provisions of Bombay Court Fees Act shows that it is law enacted with a view to consolidate and amend the law relating to fees taken in Court and hence it is a complete code in this respect. He further states that similarly the Bombay Stamp Act, is also a complete code. In such circumstances, according to him no other law therefore cannot be looked into to interpret the Bombay Court fees Act. He has relied upon the judgment of the Honble Apex Court reported at AIR 1972 sc 459 (Smt. Rohini Kumari Vs. Narendra singh ). He further states that the provision like section 52 (B) added by amendment to Bombay court Fees Act 1958 doe snot exist in Bombay court Fees Act and hence the intention of legislature in this respect is apparent. He contends that, that intention has been defeated by reading Section 52 (B) in Bombay Court fees Act. In support he has relied upon the judgment of learned Single Judge of Allahabad high Court reported at AIR 1961 All. 321 (M/ s. A. Tellery and sons. Vs. Carpet Mazdoor sabha ). He further argues that no artificial restrictions in relation to court fees in the nature of time limit could have been read impliedly by the court below, as there was no such specific bar in it. In support he relied upon the judgment of Delhi High Court reported at AIR 1969 Delhi 130 (Chief Controlling Revenue authority Vs. Fertilizer Corporation of india ). He has further relied upon the judgment of the Honble Apex Court reported at AIR 1975 SC 946 (Anandji Haridas and Co. Vs. Engineering Mazdoor Sangh), to contend that the provisions of Bombay Court Fees Act, in this respect are plain and simple and therefore, they ought to have been given effect to by the court below.
( 4 ) AS against this, Mrs. Wandile, learned Assistant Government Pleader, has invited attention to the judgment qf the Honble apex Court reported at 1973 (1) SCC 162 (The secretary, Government of Madras Vs. Zenity Lamp and Electrical Ltd.), to point out that the Court fees payable is not tax and also its exact nature. The learned AGP has invited attention to the provisions of Section 37 of the Bombay Court Fees Act, to point out that the court fee is col
