Shri Suneal Mangal vs M/s. Prime Maxi Mall Management and Another

V.K. Jain, J.

IA 12291/2011(u/S. 5 for condonation of delay of 19 days in filing appeal)

For the reasons stated in the application, the delay in filing appeal is condoned.

IA 12291/2011 stands disposed of accordingly.

OA 107/2011(against the order dt. 21.03.2011 of JR)

This appeal is directed against the order of the Joint Registrar dated 21st March, 2011 whereby he dismissed the application filed by the

petitioner under Order 33 of the CPC seeking permission to sue as an indigent person. A perusal of the petition would show that the petitioner is

seeking to recover a sum of Rs. 61 crores from the respondents. The court fee which was payable on the amount of Rs. 61 crores on the date of

filing of the petition comes to about Rs. 61 lakhs. The case of the petitioner is that he does not possess sufficient means to pay the prescribed court

fee.

The learned Joint Registrar while dismissing the application took the following facts into consideration:-

(a) The schedule to the petition clearly discloses that the petitioner had fixed deposits of Rs. 25 lacs with Indian Bank and he had paid Rs. 5 lac

Insurance Policy. Based on the above fixed assets, the petitioner had the means to raise the court fee.

(b) The petitioner though claimed that he does not have immovable property, had deposed that he is working as the Managing Director with

approximate monthly income of Rs. 60,000/-.

(c) The above facts would clearly establish that the petitioner is not a person having no sufficient means to raise the cash for payment of the court

fee.

(d) The report of the Revenue Officials show that the petitioner is residing in a luxurious accommodation with all luxury items and his living

standards are of very high status.

The learned counsel for the petitioner/appellant has pointed that though the petitioner has fixed deposit of Rs. 25 lakhs with Indian Bank, he had

as on the date of filing of this petition taken an over-draft of Rs. 15 lakhs against that FDR. According to the learned counsel, the amount of over-

draft has since reached about Rs. 20 lakhs. Even if only the over-draft amount as on the date of filing of the petition is taken into consideration, the

surplus in the FDR of the petitioner would be less than Rs. 10 lakhs.

It has next been pointed out by the learned counsel for the petitioner that the LIC policies obtained are scheduled to mature between the years

2024 to 2039. Even if the petitioner is permitted by LIC to close these policies, the paid-up value which he would get towards these policies

would be only a small fraction of the requisite court fee of Rs. 61 lakhs which is required to be paid on the claimed amount of Rs. 61 crores.

As regards the house occupied by the appellant, the learned counsel has pointed out that it is an accommodation which has taken on lease by the

Company in which the appellant is Managing Director. The premises, therefore, does not belong to the petitioner/appellant.

The learned Joint Registrar noted that as per the report of the SDM, the petitioner/appellant was living in a luxurious accommodation. The

report of the SDM does not give any particulars of the fittings and fixtures installed in the premises occupied by the petitioner/appellant. Therefore,

it is difficult to ascertain as to on what basis the SDM termed the furniture fittings etc., installed in the premises of the petitioner/appellant to be

luxurious. The photographs filed by the petitioner/appellant indicate that the furniture and gadgets etc. available in the premises occupied by the

petitioner/appellant cannot be said to be luxurious by any standard. Even the TV set which is shown in the photographs filed by the

petitioner/appellant appears to be an old outdated TV. I can also see seepage on the walls of the accommodation occupied by the

petitioner/appellant. In nut shell, there is no evidence which would indicate that the petitioner/appellant was leading a luxurious life.

As regards income of the petitioner/appellant, it has come in evidence that he is getting salary of about Rs. 60,000/- per month. According to

the learned counsel for the petitioner/appellant, he filed income tax return for the assessment year 2010-2011, wherein he disclosed income of Rs.

5,72,433/-. The petitioner/appellant is not expected to sell everything he has with him, to pay the prescribed Court fee. He need not be a pauper

to obtain permission to sue as an indigent person. What needs to be seen in such cases is as to whether, after excluding the assets, which are

exempt from attachment and the belongings which are necessary to lead a dignified life, considering his family and social background, the

petitioner/appellant is in a position to pay the prescribed Court fee or not. In the case before this Court, prima facie, it appears to me that even if all

the assets of the petitioner are taken into consideration, though the law excludes from consideration those assets which are exempt from

attachment, the figure will not even close to Rs. 61 lakh which is prescribed court fee payable on the claimed amount.

The petitioner, therefore, is entitled to grant of permission to sue as an indigent person.

For the reasons stated hereinabove, the impugned order is hereby set aside and the petitioner/appellant is permitted to sue as an indigent person.

The petition be registered as a plaint.

The OA 107/2011 stands disposed of in terms of this order.

CS(OS) No. 2012

Written statement be filed within four weeks and replication within two weeks thereafter.

List before Joint Registrar on 1st February, 2013 for admission/denial of documents.

List before Court on 18th March, 2013 for framing of issues.