P. Thiruvengada Mudaliar by Partner, P. Nagarathna Mudaliar and Others vs Syndicate Bank and Others <BR>S.S. Sundaram Vs Thangam Theatre

K.B.N. Singh, C.J.—It is the admitted position in this case that two appeals have1 been filled out of time and the court-fee paid also is not

in full. Other defects have also not been rectified, with the result that the memoranda of appeals have not been placed for orders for condoning the

delay or for admission. Learned Counsel for the appellants submits that the appellants do not want to prosecute the appeals, perhaps some

settlement has been arrived at outside the Court--and prays for permission for the refund of the court-fee paid on the two memoranda of appeals.

He has also submitted that the petition for condoning the delay has also not been, placed for orders of the Court.

The relevant provision with regard to the refund of court-fee under the Tamil Nadu Court-fees and Suits Valuation Act, 1955, is Section 66.

Refund in cases of delay in presentation of plaint etc.--(1) Where a plaint or memorandum of appeal is rejected on the ground of delay (1) in

its representation, or where the fee, paid on a plaint or memorandum of appeal is ""deficient (2) and the deficiency is not made good within the time

allowed by law or granted by the Court, or the delay in payment of the deficit fee is not condoned and the plaint or memorandum of appeal is

consequently rejected, the Court shall direct the refund to the plaintiff or the appellant of the fee paid on the plaint or memorandum of appeal which

Was been rejected.

(2) Where a memorandum of appeal is rejected on the ground that it was not presented within the time allowed by the law of limitation, one half of

the fee shall be refunded.

From a reference to Sub-section (1) of Section 66 it will appear that, where the requisite court-fee to be paid on the memorandum of appeal

has not been paid within the time granted by the Court, or the delay in payment of the deficit court-fee has not been condoned and the

memorandum of appeal is rejected, the Court has been given power to order refund of the court-fee payable by the appellant; Sub-section (2)

deals with a situation where an application for condoning the delay in filing the appeal has come up for consideration of the Court, and has been

rejected. In the latter case it is provided that only half the court-fee paid will be refunded. No such limitation is placed where an appeal is rejected

on the ground mentioned in Sub-section (1).

In the instant case the memoranda of appeals have neither been rejected on the ground of delay in representation nor on the ground of

deficiency in the payment of court-fee as envisaged in Sub-section (1) of Section 66, The appellants stand on a better footing than the situation

envisaged in Sub-section (1) of Section 66, as no adverse orders so far have been passed against the appellants, as envisaged in the said

provision. The appellants therefore are obviously entitled to refund of the court-fee u/s 66(1) of the Act, and we do not find any reason why the

advantage envisaged u/s 66(1) of the Act should not be made available to the appellants.

We accordingly direct that the court-fee paid on the memoranda of appeals in the above two cases be refunded to the appellants in each case,

after the usual deduction.