P.R. Raman, J.

Both these Writ Petitions raise common questions of fact and law and hence they are disposed of by this common judgment.

2. Petitioner in WP(C).19073/2004 is a Private Ltd. Company who is a respondent in O.A.335/2002 before the Debt Recovery Tribunal (hereinafter referred to as DRT), Ernakulam. The said O.A. was filed by the first respondent -- State Bank of India, for obtaining a certificate of recovery under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The said O.A. was filed by the Bank on 10.7.2002 an 11.11.2002, petitioner herein filed a written statement in which he also raised a counter claim. By Ext.P1 proceedings under date 21.10.2003, the Debt Recovery Tribunal directed the defendants to pay court fee on a counter claim. Thereupon, petitioner preferred I.A.1047/2003 seeking review of the said order contending that in the absence of any statutory provision for levying court-fee on the counter claim on the date on which-it was filed, he was not liable to pay any court fee. This was objected to by the respondent Bank and by Ext.P4 order dated 22.4.2004 the review petition was dismissed by the Debt Recovery Tribunal. The Tribunal took the view that the provision for raising a counter claim was introduced by sub-s.(8) of Act 1 of 2000 with effect from 17.1.2000 amending S.19 of the Parent Act. The Tribunal also accepted the fact that the rules were amended only in 2003 incorporating a specific provision for payment of court fee on the counter claim. But according to the Tribunal, a counter claim will have the same effect of a cross suit and hence it has to be treated as an O.A. and court fee being payable on an O.A. as per the unamended provision of R.7, it thought that the said provision will apply even to a counter claim for payment of court fee. It was on the above reasoning that the review application was rejected.

3. In W.P.(C) 34318/2004, petitioner is the first defendant in O.A.161/2002 pending before the Debt Recovery Tribunal, Ernakulam. The O.A. was filed on 11.1.2002 by the first respondent Bank. Petitioner herein filed his written statement before the Debt Recovery Tribunal on 22.7.2002. Among other things, the defendant also raised a counter claim against the Bank. Here also, by Ext.P1 order dated 19.10.2004 defendant was directed to pay court fee on the counter claim under S.19(1) of the Act read with R.7 of the Rules as it stood on 22.7.2002 adopting the same reasoning. Thus, challenging the orders passed by the Tribunal directing payment of court fee on the counter claims, these Writ Petitions are preferred.

4. The short question that arises for consideration is as to whether any court fee is payable on the counter claim raised in the written statement filed by the defendants in the O.A. pending before the Tribunal filed by the respective Banks?

5. Admittedly, R.7 was amended incorporating a provision for payment of court fee on counter claim, only with effect from 21.1.2003 a date later than the date on which the counter claim was preferred by the respective petitioners in these cases, namely, in the case of the petitioner in W.P.(C) 34318/2004 on 22.7.2002 and in W.P.(C) 19073/2004 on 11.11.2002.

6. Learned counsel appearing on behalf of the petitioners contended that the provision permitting to raise a counter claim was introduced with effect from 17.1.2000 by Act 1/2000 amending the parent Act and by substituting S.19(8) (in the present form). Though R.7 as it stood then, provides for payment of court fee on the O.A. filed by the Bank, R.7 was amended only later with effect from 21.1.2003. Hence in the absence of any provision for providing for payment of court fee on the counter claim during the interregnum period, it must be held that no court fee is payable on the counter claim filed prior to 21.1.2003. According to them, the view taken by the Tribunal that a counter claim stands in the same position of a counter suit and the same pr