The court clarified that the language of the Act did not imply payment of court fee on counter claims and that the amendment to Rule 7 was not retrospective in nature, establishing that no court fee is payable for counter claims filed between 17-1-2000 and 21-1-2003.

Siri Jagan, J.

An interesting question regarding payment of court fee on counter claims filed before the Debt Recovery Tribunal during the interregnum between 17-1-2000. Which is the date of introduction of sub-section (8) in Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act. 1993 (for short the Act’) allowing filing of counter claims by defendants and 21-1-2003, which is the date of amendment of Rule 7 of the Debt Recovery Tribunal (Procedure) Rules, 1993 (‘for short the Rules’) prescribing court fee for application to counter claim arises in this case. The facts necessary for the disposal of this appeal which lie in a very narrow compass are as follows.

2. The appellant-Federal Bank filed O.A.No.161/2002 before the Debt Recovery Tribunal. Ernakulam for recovery of certain amounts due from the 1st respondent herein. On 22-7-2002 the 1st respondent filed a counter claim raising money claims against the Bank in accordance with Section 19(8) of the Act. At that time the Rules did not contain any specific provision for payment of court fee on counter claims. With effect from 21-1-2003. Rule 7 of the Rules was substituted prescribing court fee for counter claims also. On 19-10-2004 the Debt Recovery Tribunal passed an order directing the 1st respondent herein to pay court fee on the counter claim. Challenging the said order the 1st respondent filed W.P.(C) No.34318/2004. A learned Single Judge of this Court allowed the writ petition and held that no court fee is payable in respect of counter claims filed before 21-1-2003. i.e. the date of amendment of Rule 7 of the Rules. This judgment is under challenge in this writ appeal at the instance of the Bank.

3. The appellant-Bank raises three contentions in this appeal.

(1) First is that the writ petition was not maintainable and the learned Single Judge ought not to have interfered in the writ petition but ought to have relegated him to the alternate remedy by way of an appeal to the Debt Recovery Tribunal under Section 20 of the Act.

(2) Second is that even without the amendment of the Rules with effect from 21-1-2003 the provisions in the Act and Rules as it stood when Section 19(8) was incorporated, itself impliedly warranted payment of court fee.

(3) The third is that the right to file counter claim not being a vested right but only a procedural right Rule 7 amending the provision for payment of court fee on counter claim is retrospective in nature and therefore for all counter claims filed subsequent to the introduction of Section 19(8) of the Act court fee as provided under the amended Rule 7 is payable.

4. While countering these contentions counsel for the 1st respondent would take a preliminary objection regarding the maintainability of the appeal itself since according to him court fee is a matter strictly between the 1st respondent and the State and therefore the appeal filed by the Bank in the matter of court fee is not maintainable. Both sides cited decisions in support of their arguments for an against the maintainability of the appeal. Although the argument of the 1st respondent merits consideration since we propose to agree with the learned Single Judge on the question of law posed in this case we are not inclined to go into the said contention regarding the maintainability of the appeal itself especially in view of the substantial question of law of general importance involved.

5. We shall deal with the contentions in seriatim.

6. According to counsel for the appellant since under Section 20 of the Act the 1st respondent had a right of appeal to the Debt Recovery Tribunal the writ petition challenging the order directing payment of court fee is not maintainable. In this regard we would note that existence of an alternate remedy is not always a bar for entertaining a petition under Article 226 of the Constitution of India in appropriate cases. Further we note that the appellant had in fact filed a statement of objections dated 10-12-2004