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2019 Supreme(Bom) 478
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. Patel, J.
Bai Mamubai Bhimji Bhanji Trust, Through Its Trustees - Appellant
Vs.
Neelkanth Mansions and Infrastructure Pvt. Ltd. - Respondent
Suit No. 835 of 2014
Decided on : 05-04-2019
Advocate Appeared:
Nilesh Modi, Adv., Rachit Thakkar, Adv., B.N. Jadhav, Adv., Drishti Modi, Adv., Rustamji & Ginwala, Adv., Adwait Kulkarni, Adv., Purnanand & Co, Adv., Kunal Bhanage, Adv., Dilip Talekar, Adv.
Headnote:
Maharashtra Court Fees Act, 1959 – Rule 131(17) and Rule 163 - Sections 15,16,17,17A,43,43(1) - Claim for Repayment - Suit itself was of 2014 - 1st Plaintiff is a private family trust - On October 2014 parties tendered Consent Terms to - He made an order on those - He took Consent Terms on record accepted the undertakings and disposed of suit in accordance with Consent Terms - Order itself did not say anything in regard to refund at all - Clause 24 of Consent Terms signed by parties contained a single line refund of Court fees as per Rules - This is usual compact wording Court find in many Consent Terms and indeed routinely in judicial orders of this court - Plaintiffs did not immediately apply for a certificate from Registry one they needed to present to collector to obtain refund - They did so only on October 2016 i.e. just a day before second anniversary of filing of the Consent Terms - Registry passed no order on that application by praecipe - But it also did not issue a certificate - Plaintiffs were told that no certificate could be issued because claim for repayment was not made within one year from date of settlement - Questions correctness of this refusal - Whether this is in Consent Terms or in order of Court because once Court disposes of suit in accordance with the Consent Terms every provision of Consent Terms becomes an order of Court - Whether Registry is entitled to refuse to issue certificate on the ground that more than a year has passed since court allowed claim for repayment made at time of Consent Terms - Held, Sections 15 to 17A operate in a wholly different sphere from Section 43A - Sections 15 to 17 relate to situations where there is an order of a court correcting course in appeal or review or correcting a mistake thus entitling a Plaintiff to a refund - Court is not required to allow only a refund - It is required to issue a certificate - Therefore Section 17A requires that certificate itself must be presented for encashment within two years - Further starting point is entirely different - In these sections starting point of time is date of issuance of the certificate not judicial order - There is no concept of making a ‘claim for repayment - Section 43 makes it clear that where there is a compromise of suit before evidence is taken, 50% of Court fee is to be repaid by Court - words are shall be repaid - This is therefore a statutory entitlement of every plaintiff who has paid court fees - He is entitled to a refund of 50% of the court fees he paid if his suit is settled before evidence is recorded -To Court mind reason is as self-evident as distinction. Sections 15, 16 and 17 all deal with situations where there is a judicial act being reversed or corrected judicially thus entitling a litigant to a refund - It is not just refund that then follows - It is actual issuance of a certificate and time-limitation is then necessary simply because certificate should not remain open indefinitely - Section 43 speaks of a settlement without any intervention of Court - It contemplates a situation where a party may not ever apply for a refund of court fees - Claim allowed
G.S. PATEL, J.
1. A few days ago, Mr Modi mentioned the matter. He said he had applied to the registry for a certificate for a refund allowed by the court at the time when the suit was settled. The registry orally declined to issue that certificate. It said Mr Modi’s application was barred by the proviso to Section 43(1) of the Maharashtra Court Fees Act, 1959. Mr Modi sought a direction to the registry to issue that certificate so that he could present it to the collectorate to get the refund.
2. That seemingly innocuous request raised, I found, a question of interpretation of one phrase under Section 43. Section 43 allows a refund of half the court fees when a suit is settled before evidence. But that refund, its proviso says, cannot be allowed if the ‘claim for repayment’ is made more than one year after the date when the suit is settled. The question therefore is this: when is ‘a claim for repayment’ said to be made? Is it when the party entitled to a refund gets an order allowing that refund, or is it when the party, having obtained such an order, applies to the registry for a certificate? Correctly read, does the application for a certificate have to be made within one year of the date of settlement? Is the ‘claim for repayment’ the application for a certificate, or is it the request to the court to allow a refund? At my request Mr Bhanage, learned AGP, has rendered assistance Court on the question of interpretation.
3. The following facts will provide sufficient context. The suit itself was of 2014. The 1st Plaintiff is a private family trust. On 28th October 2014, parties tendered Consent Terms to RD Dhanuka J. He made an order on those. He took the Consent Terms on record, accepted the undertakings and disposed of the suit in accordance with the Consent Terms. The order itself did not say anything in regard to the refund at all. Clause 24 of the Consent Terms signed by the parties contained a single line: “refund of Court fees as per Rules”. This is the usual compact wording we find in many Consent Terms and, indeed, routinely in judicial orders of this court.
4. The Plaintiffs did not immediately apply for a certificate from the Registry, one they needed to present to the collector to obtain the refund. They did so only on 27th October 2016 i.e. just a day before the second anniversary of the filing of the Consent Terms. The Registry passed no order on that application by praecipe. But it also did not issue a certificate. The Plaintiffs were told that no certificate could be issued because ‘the claim for repayment’ was not made within one year from the date of the settlement. Mr Modi questions the correctness of this refusal.
5. Section 43 (1) and its first proviso read thus:
“43. Repayment of fee in certain circumstances
(1) When any suit in a court or any proceeding instituted by presenting a petition to a Court under the Hindu Marriage Act, 1955 is settled by agreement of parties before any evidence is recorded, or any appeal or cross objection is settled by agreement of parties before it is called on for effective hearing by the Court, half the amount of the fee paid by the plaintif, petitioner, appellant, or respondent on the plaint, petition, appeal or cross objection, as the case may be, shall be repaid to him by the Court:
Provided that no such fee shall be repaid if the amount of fee paid does not exceed twenty five rupees or the claim for repayment is not made within one year from the date on which the suit, proceeding, appeal or cross objection was settled by agreement.”
(Emphasis added)
6. Mr Modi submits, and I think quite correctly, that the ‘claim for repayment’ is not the ‘application for a certificate’. The claim for repayment is the direction obtained from the Court allowing a refund ‘in accordance with the Rules’. It makes no difference, in his submission, again one I am inclined to accept, whether this is in the Consent Terms or in the order of the Court because once the Court disposes of the sui
