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Judgment
Vinay Joshi, J
Rejection of petitioners’ claim for refund of Court Fees, has occasioned them to invoke inherent extraordinary writ jurisdiction of this Court
under Article 226 and 227 of the Constitution of India.
The petitioner No. 1 is a Cooperative Society registered under the provisions of Maharashtra Cooperative Societies Act, 1960 and is doing banking
business. The Petitioner â€" Bank has resorted the mode of recovery of loan amount from its debtors through respondent No. 2 Debts Recovery
Tribunal under the provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short “the Act of 1993â€). Naturally, in
the said recovery proceeding, the petitioner Bank deposited requisite Court Fees Stamp as per Rule 7 of the Debts Recovery Tribunal (Procedure)
Rules, 1993. The Supreme Court ruled that the Cooperative Bank constituted under the provisions of the Maharashtra Cooperative Societies Act, 1960
does not fall within the meaning of “Banking Company†as defined in Section 5(c) of the Banking Regulations Act, 1949. In turn, the provisions of
the Act of 1993 does not apply.
In view of the settled legal position, the petitioners’ Original Application before the Debts Recovery Tribunal, Nagpur was returned for
presentation before the competent Forum vide order dated 13.03.2008.
After return of proceeding, the petitioner â€" Bank applied to the respondent No. 2 for refund of Court Fees of Rs. 1,27,000/- vide MA No.
39/2008. After hearing the petitioner â€" Bank, the learned Presiding Officer, Debts Recovery Tribunal, Nagpur has declined to refund the Court Fee
vide impugned order dated 10.06.2008 which is the subject matter of challenge in this petition. The only short question involves for consideration is
about petitioners’ entitlement for refund of Court Fees on return of proceeding.
Heard both learned counsel on the disputed question. So far as legal position is concerned, there is no dispute that recovery proceeding by
Cooperative Bank, is not maintainable before the Debts Recovery Tribunal. It is also not in dispute that petitioners’ original application for
recovery of outstanding dues came to be returned for presentation before the competent Forum. In the light of said position, the question needs to be
answered about petitioners’ entitlement for refund of Court Fee.
The impugned order was passed on 10.06.2008 when the Debts Recovery Tribunal (Procedure) Rules, 1993 were in existence. Admittedly, these
Rules nowhere contains the provision about refund of Court Fees. During course of time, Debts Recovery Tribunals (Refund of Court Fees) Rules,
2013 came in existence containing specific Clause No. 4 about the refund of Court Fees. It provides that there shall be refund of 50 percent of the
Court Fees, if the matter is settled prior to the commencement of the hearing before the Tribunal. Likewise, there shall be refund of 25 percent of the
Court Fees where the matter is settled at any stage of the proceeding before the final order is passed. However, there is no specific legible provision
about the refund of Court Fees on the return of proceeding. In absence of such provision, one has to turn to the general provisions of liability.
Learned counsel appearing for petitioners would submit that since the plaint was returned on account of the jurisdiction, the petitioners are entitled
for refund of full Court Fees. In this regard, he relied upon reported case of Rhoda Jal Mehta and others Vs. Homi Framroze Mehta and others, 1989
Mh.L.J. 124 . In the said case, the plaintiffs had filed a suit without obtaining requisite leave under Clause 12 of the Letters Patent (Bombay). In the
said decision, this Court has referred Full Bench decision in the case of Prabhakarbhat Vs. Vishwambhar Pandit, ILR Vol.8, 1883 at Pp. 313 wherein
it is observed as herein below:-
“Where a Court fee on the institution of a suit has been paid in a Court which cannot possibly afford the relief sought, it does not seem consistent
with sound principle that the plaintiff should be condemned to lose the fees thus paid, or that he should not be allowed to ask without paying a second
fee for an adjudication from a Court which can really give one.â€
On the same line, petitioners further relied on the decision of the Supreme Court in case of Dr. (Col.) Subhash Chandra Talwar Vs. T. Choithram and
sons and others, decided on 25.10.2019, wherein it is expressed that in case of return of plaint, there is no order on the merits of the suit and therefore,
the party is entitled to refund of the Court Fees so as to he can fix the Court Fees at another place and accordingly entire Court Fees was ordered to
be refunded. Then the petitioners relied on the decision of this Court in case of Chandra Prem Shah and others Vs. K. Raheja Universal Pvt. Ltd. and
another, 2015(5) Mh.L.J. 714, wherein this Court has directed to return entire Court Fees on return of plaint.
On the same line, reliance is placed on one more decision of this Court in case of the Anglo-French Drug Co. (Eastern) Ltd Vs The State of
Bombay and another, AIR 1951 BOMBAY 130 , wherein it is ruled that while returning the plaint under Order VII Rule 10 of the Code of Civil
Procedure, the Court can refund Court Fees by its inherent power under Section 151 of the Code of Civil Procedure .
Admittedly, by virtue of decision of the Supreme Court, Debts Recovery Tribunal has no jurisdiction to entertain proceeding and accordingly, plaint
was returned for proper presentation. In other words, Debts Recovery Tribunal had no jurisdiction to adjudicate the claim and therefore, by declining
to entertain the petition, it was returned for presentation before the appropriate Forum. There is no order on merits but it is a simple return of the
proceeding for want of jurisdiction. Naturally, the petitioners are required to remit the requisite Court Fees before the appropriate Forum for redressal
their grievance.
The Supreme Court in reported case of Allahabad Bank, Calcutta Vs. Radha Krishna Maity and others, AIR 1999 SC 342 6expressed that the
Tribunal has wider powers than the Code of Civil Procedure and it can even go beyond the Code as long as it passes orders in conformity with
principles of natural justice. The Court should put liberal interpretation of fiscal statute like Court Fees Act so as to lessen and not to add burden to the
litigation. We may reiterate that there is simple return of the proceedings and therefore, we do not see any logic in depriving the petitioners from
refund of Court Fees particularly when the Tribunal is not competent to decide the lis. The Tribunal has referred Rule 7(1) of the Central Treasury
Rules and Regulations of practice but, we do not find any express provision which could deprive the Tribunal from refunding the Court Fee amount.
Nor it was brought to our notice by respondents any absence of authority to refund Court Fee after deposit in Government Treasury.
Reverting to the facts, the lis has not been decided on merit by Tribunal. Naturally, the petitioners have to deposit requisite Court Fee before the
competent Forum. In the circumstances, the impugned order of declining refund of Court Fee is not sustainable in the eyes of law. Hence, we set
aside the same and allow the MA No. 39/2008 for refund of entire Court Fee deposited while presentation of the original application. The Tribunal
shall take necessary steps in that regard. We are not inclined to grant any interest.
Rules is made absolute in aforesaid terms. No order as to costs.