Interpretation of court fees provision and application of the residuary clause for original petitions filed in the High Court.

ORDER :

P.T. Raman Nayar, J.

1.As I have had occasion to observe before, the words “in connection with the winding up of a company” appearing in clause (q) of Article 11 of Schedule II of the Kerala Court Fees and Suits Valuation Act, 1959 appear to have found a place there by some mistake. The clause reads thus:

Now a petition under section 439 or section 440 of the Companies Act, 1955 (the word “Indian’’ is not part of the name of that statute though the clause in question seems to think it is) is a petition for winding up and I am unable to follow how there can be a petition for winding up in connection with the winding up of a company. And, if it is said that so far as section 440 is concerned, such a petition is in connection with the winding up of the company concerned because it is made when the company is already being wound up voluntarily, that must always be so, so that it is difficult to understand what cases the clause seeks to exclude by the words in question. And, in any case, the words make little sense in relation to a petition under section 439. Turning next to section 391, such a petition may be made in the course of a winding up-the section expressly provides for an application in the case of a company which is being wound up-and of such a petition it may perhaps be said that it is made in connection with the winding up of a company though why, in the case of a company which is being wound up, the higher court fee under clause (q) should be paid, while in the case of a company which is functioning, the benefit of the lower court fee under clause (1)(iii) would be available seems ununderstandable. However that might be, the company now in question is not being wound up and I do not think that the present petition can be said to be a petition in connection with the winding up of the company merely because a petition for its winding up which petition might or might not result in a winding up is pending.

In my view this case falls within clause (1) (iii), the residuary clause for original petitions filed in the High Court, and the court fee of Rs. 20 already paid is sufficient.