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High Court Of Delhi
SUSHIL KUMAR RAUT - Appellant
Versus
VIRENDER BHATNAGAR SANSATHAN - Respondent
Interim Application 729 of 2003
Decided On : 04/22/2003
Held :
Plaintiff undoubtedly instituted the suit on 10.10.2002. Based either on the plea of part payment as per the plaintiff or on the plea of accord and satisfaction upon payment of Rs. 25 lacs by the defendant on 6.12.1999, the said suit was within time. It could even have been filed up to 6.12.2002. Plaintiff has undoubtedly been negligent in not moving an application for extension of time for refiling or for condensation of delay and extension of time for making up the deficit court fee when refiling the suit on 2.31.2002 along with deficit court fee. These applications were moved on 7.1.2003 and 1.2.2003. Plaintiffs Explanationn for delay is that he was arranging for funds for making the payment of huge amount of Rs. 75,600/-, which was required as court fee, is a plausible one. It was not a case where the plaintiff has contended that either the court fee was not payable or that he was not liable to pay. Even in a suit as an indigent person under Order XXXIII, if the Court ultimately holds that IPA is not maintainable and the plaintiff has the means to pay the Court fee, a direction is given for payment of the same.
The plaintiff had nothing to gain by delaying making up the deficiency in court fee. There is no element of any mala fides or contumacy. In fact what is alleged even by defendant is negligence. This the plaintiff explains by stating that it was his inability to arrange for the requisite funds. Plaintiff, of course, was negligent in not filing the application for extension of time for refiling as also for extension of time to make up the deficiency in court fee on time. Applying the above principles, the time for payment of deficit court fee deserves to be extended and is hereby extended up to the time the deficiency in court fee was made i.e. up to 2.1.2003.
The deficiency in Court fee is permitted to be made up as of 10.10.2002. It would thus be open for the defendant to plead that the suit as instituted on 10.10.2002 was barred by limitation, if so advised.
( 1 ) BY this judgment, IA. No. 729/2003, under Section 151 for condoning the delay in refiling the suit after removal of objections and IA. No. 1925/2003, under Section 149 CPC for extension of time in payment of the deficit court fee are being decided.
( 2 ) THE facts giving rise to the above applications may be briefly noted:-
(I)PLAINTIFF on 10. 10. 2002, filed this suit for recovery of Rs. 75 lacs together with pendente lite and future interest @ 18 per cent per annum and costs against the defendant. It was filed with an urgent application, affixing court fee of Rs. 2. 75 paise and court fee of Rs. 2. 75 paise, being affixed on the memo of parties. On 19. 10. 2002, the registry returned the suit with the following objection, " that ad valorem court fee should be paid, might be returned to be refiled within one week. " Suit was one for recovery simplicitor and the value of the suit for purposes of court fee and jurisdiction had been given in the plaint at Rs. 75 lacs by the plaintiff.
(II)PLAINTIFF filed IA. 729/2003 on 7. 1. 2003 for condonation of delay, stating that counsel requested the plaintiff to send the money for payment of deficit court fees. The same could not be arranged. It could only be arranged and made available on 21. 12. 2002. It is the plaintiff s case that court fee was applied for on 22. 12. 2002 and made available on 31. 12. 2002 and suit was immediately refiled on reopening on 2. 1. 2003, as the Courts were closed during winter vacations from 22. 12. 2002 till 1. 1. 2003.
(III)PLAINTIFF averred in the application that the suit was originally filed well within limitation and was still within limitation prescribed for a recovery suit. It is claimed that no prejudice could be caused to the defendant by condoning the delay in refiling the suit. Application was duly supported with an affidavit of plaintiff. Reply to the said application has been filed by the defendant on 19. 2. 2003. It is pleaded in the reply that suit, as filed by the plaintiff on 10. 10. 2002 was no suit in the eyes of law as court fee had not been affixed. The registry in terms of Rule 2 of Chapter IV of the Delhi High Court (Original Side) Rules, 1967 finding the suit, as instituted, defective had returned the same giving one week s time to be refiled. The same has been refiled only after a period of 74 days on 2. 1. 2003 without any explanation forthcoming for the delay in refiling the suit or an application for condonation. It was pursuant to objection by registry again that the suit was refiled on 7. 1. 2003, along with an application for condonation of delay. It is claimed that 7. 1. 2003 is the date when the suit has been properly presented for registration. Defendant claims that even if the cause of action for the suit, as per the plaintiff was said to have arisen on 7. 12. 1999, the suit as instituted on 7. 1. 2003 was barred by limitation.
(IV) Plaintiff in IA. 1925/2003, under Section 149 CPC prays for extension of time to pay the court fee. As regards the delay in filing the court fee, it is claimed that the court fee required was a huge amount of Rs. 75,600/- and the money for the same could not be arranged by the plaintiff. Plaintiff purchased the court fee as soon as the money for the same was arranged on 21. 12. 2002. It is urged by the plaintiff that there was part payment affected by the defendant on 7. 12. 1999 and the suit could have been, therefore, instituted on or before 6. 12. 2002. It is urged that had the defendant filed the suit on 6. 12. 2002, he would have one month s time to rectify the defects and comply with objections and the court fee could have been thus filed before 6. 1. 2003.
(V)REFERENCE is also made to the suit filed by the present defendant, wherein the plaintiff was entitled to file a counter claim. However, the said suit was dismissed in December, 2002. It is stated that the plaintiff could not have instituted the suit before December, 2002 and hence the cause of action arose
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