w w w . L a w y e r S e r v i c e s . i n



Balashankar Traders through Partner Rahul & Others v/s Jhanwar Ice & Cold Storage through Partner Anil Kumar Jhanwar & Others


Company & Directors' Information:- R J COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1992PTC049659

Company & Directors' Information:- S. D. COLD STORAGE PRIVATE LIMITED [Active] CIN = U15132UP1995PTC018791

Company & Directors' Information:- H M ICE AND STORAGE PRIVATE LIMITED [Active] CIN = U63022DL1999PTC101275

Company & Directors' Information:- D G COLD STORAGE PRIVATE LIMITED [Active] CIN = U45209WB2001PTC092809

Company & Directors' Information:- N P S COLD STORAGE PRIVATE LIMITED [Active] CIN = U15549WB1997PTC085229

Company & Directors' Information:- P G ICE AND COLD STORAGE PRIVATE LIMITED [Active] CIN = U15435UP2015PTC070434

Company & Directors' Information:- G M COLD STORAGE PVT LTD [Active] CIN = U63022WB1986PTC041010

Company & Directors' Information:- G C G COLD STORAGE PRIVATE LIMITED [Active] CIN = U01400MH2012PTC235712

Company & Directors' Information:- L P COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1997PTC021864

Company & Directors' Information:- P D COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900UP2010PTC039698

Company & Directors' Information:- N R S COLD STORAGE PVT LTD [Active] CIN = U63022WB1978PTC031524

Company & Directors' Information:- B JHANWAR & CO PVT LTD [Active] CIN = U51219WB1986PTC041531

Company & Directors' Information:- S M COLD STORAGE PVT LTD [Active] CIN = U63022WB1986PTC040843

Company & Directors' Information:- A TO Z COLD STORAGE PRIVATE LIMITED [Active] CIN = U15122UP2010PTC040956

Company & Directors' Information:- A-1 COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900TG2015PTC100777

Company & Directors' Information:- D N COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1989PTC010708

Company & Directors' Information:- P S COLD STORAGE PRIVATE LIMITED [Active] CIN = U15139UP2001PTC026373

Company & Directors' Information:- N L COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022ML2001PTC006536

Company & Directors' Information:- K H I COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022DL1999PTC100373

Company & Directors' Information:- K J COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1996PTC018274

Company & Directors' Information:- S J ICE AND COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1997PTC022564

Company & Directors' Information:- V K COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022RJ1998PTC014964

Company & Directors' Information:- R M COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1999PTC024532

Company & Directors' Information:- S L P COLD STORAGE PRIVATE LIMITED [Converted to LLP] CIN = U00063KA1997PTC022544

Company & Directors' Information:- M D COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP2001PTC025987

Company & Directors' Information:- S N COLD STORAGE PVT LTD [Active] CIN = U15132WB1977PTC031040

Company & Directors' Information:- A K COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1999PTC024374

Company & Directors' Information:- G. T. COLD STORAGE PRIVATE LIMITED [Active] CIN = U70101UP1999PTC024239

Company & Directors' Information:- S R ICE AND COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1988PTC030645

Company & Directors' Information:- G L ICE & COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U15122UP2012PTC052836

Company & Directors' Information:- G D COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022WB1997PTC084601

Company & Directors' Information:- J S COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1997PTC020250

Company & Directors' Information:- B C COLD STORAGE PRIVATE LIMITED [Active] CIN = U45302PB1997PTC019355

Company & Directors' Information:- ANIL KUMAR COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1999PTC022749

Company & Directors' Information:- G S P COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1995PTC069618

Company & Directors' Information:- R R COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022TZ1995PTC006478

Company & Directors' Information:- H J COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022WB1999PTC089452

Company & Directors' Information:- J M C ICE AND COLD STORAGE PVT LTD [Strike Off] CIN = U63020MH1980PTC023218

Company & Directors' Information:- B K COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1997PTC020070

Company & Directors' Information:- J T S COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900UP2011PTC044733

Company & Directors' Information:- COLD STORAGE CORPORATION OF INDIA LIMITED [Active] CIN = U25193UP1946PLC001472

Company & Directors' Information:- INDIA COLD STORAGE AND ICE COMPANY LIMITED [Strike Off] CIN = U15133UP1946PLC001591

Company & Directors' Information:- ICE COLD TRADERS PRIVATE LIMITED [Active] CIN = U52100MP2020PTC051684

Company & Directors' Information:- M K R S S COLD STORAGE PRIVATE LIMITED [Active] CIN = U63090WB2020PTC241530

Company & Directors' Information:- R G P COLD STORAGE PRIVATE LIMITED [Active] CIN = U74999KA2006PTC039844

Company & Directors' Information:- ICE INDIA PVT LTD [Strike Off] CIN = U72400ML1996PTC004753

Company & Directors' Information:- J P G A COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB2005PTC028831

Company & Directors' Information:- R B COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022BR1979PTC001418

Company & Directors' Information:- N J COLD STORAGE PRIVATE LIMITED [Active] CIN = U63020DL2010PTC207001

Company & Directors' Information:- G M COLD STORAGE PVT LTD [Strike Off] CIN = U63022OR1985PTC001574

Company & Directors' Information:- S V S COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U74999AP1999PTC033134

Company & Directors' Information:- R V COLD STORAGE PVT LTD [Strike Off] CIN = U15133UP1988PTC010122

Company & Directors' Information:- V L S COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63010TG2011PTC072072

Company & Directors' Information:- M K V ICE AND COLD STORAGE PVT LTD [Active] CIN = U63022WB1978PTC031508

Company & Directors' Information:- ICE AND COLD STORAGE COMPANY PRIVATE LIMITED [Strike Off] CIN = U15133UP1949PTC002125

Company & Directors' Information:- M Y COLD STORAGE PRIVATE LIMITED [Active] CIN = U15122UP2012PTC053516

Company & Directors' Information:- K T COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022NL2001PTC006616

Company & Directors' Information:- M M COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63090TG2013PTC090068

Company & Directors' Information:- H. R. COLD STORAGE PRIVATE LIMITED [Active] CIN = U63030GJ2016PTC092718

Company & Directors' Information:- R. KUMAR TRADERS PRIVATE LIMITED [Strike Off] CIN = U25207DL1991PTC043537

Company & Directors' Information:- A K STORAGE PRIVATE LIMITED [Strike Off] CIN = U99999MH1978PTC020884

Company & Directors' Information:- COLD STORAGE (INDIA) LTD. [Dissolved] CIN = U99999MH1922PTC000998

Company & Directors' Information:- INDIA COLD STORAGE CO. LTD. [Not available for efiling] CIN = U99999MH1948PLC006673

    Misc Appeal No. 2376 of 2009

    Decided On, 28 August 2012

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE N.K. MODY

    For the Appellants: M.K. Jain, Advocate. For the Respondents: S.G. Gokhle, Advocate.



Judgment Text

N.K. Mody, J:

1. Being aggrieved by the order dated 21/07/09 passed by XIII ADJ, Indore in MJC No.44/07 whereby application filed by appellants under Order 33 Rule 1 Civil Procedure Code was dismissed, present appeal has been filed.

2. Short facts of the case are that the appellants filed a suit on 03/10/07 for recovery of a sum of र2,41,16,400/-. Alongwith the suit an application under Order 33 Rule 1 Civil Procedure Code was filed alleging that for a suit of the aforesaid amount requisite Court fee is of र19,57,800/-. It was alleged that appellants are having no means to pay such a huge Court fee, therefore, appellants be permitted to prosecute the suit as indigent person. The application was opposed by the respondents. After hearing the parties learned trial Court dismissed the application, against which present appeal has been filed.

3. Learned counsel for the appellants argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that the report was called from the Collector, Ujjain, but without waiting for the report, impugned order has been passed. It is submitted that the evidence lead by the appellants were completely ignored by the learned Court below. Learned counsel placed reliance on a decision of this Court in the matter of Parasram v. Mst. Ratiabai, 1982 MPWN, 461 wherein hut of small value not given in schedule of property and the value of hut was wholly insufficient for payment, this Court held that non-disclosure is of no consequence. Further reliance is placed on a decision in the matter of Janak Kumari v. Land Acquisition Officer, 1998(I) MPWN, 164 wherein Divisional Bench of this Court has taken into consideration the explanation of Order 33 Rule 1 Civil Procedure Code and held that indigent person is a person not having sufficient means to pay Court fees. It was further held that while considering the application for property and income of spouse is irrelevant and extraneous. Reliance is also placed on a decision in the matter of Hukumchand v. Kailash, 1988-II MPWN, 58 wherein this Court held that suppression of property not malafide and also not sufficient to pay Court fees and application cannot be thrown out. Further reliance is placed on a decision in the matter of Vishnu v. Purkha, 1983 MPWN, 357 wherein Court fee payable was of र4,130/- and the appellant was in possession of a house of र500/-, this Court held that the appellant is indigent person. Reliance is also placed on a decision in the matter of Kishan v. Godawaribai, 1988-II, MPWN, 65 wherein this Court held that share in property does not amount means to pay Court fee. Learned counsel further submits that inspite of fact that respondents are party to the suit, respondents did not appear in witness box to explain that appellants were having sufficient means to pay Court fee, therefore, adverse inference ought to have been drawn against respondents. For this contention learned counsel placed reliance on a decision in the matter of Vidhyadhar v. Mankikrao, AIR 1999 SC 1441 wherein Hon'ble Apex Court held that not entering the witness box give rise to inference adverse against him. On the strength of aforesaid position of law learned counsel submits that the appeal filed by the appellants be allowed and impugned order passed by the learned Court below be set aside and appellants be permitted to prosecute the suit as an indigent person.

4. Learned counsel for respondents submits that since the fact that the appellants are having sufficient means to pay Court fee is evident from the evidence adduced by the appellants itself, therefore, there was no necessity for the respondents to enter into witness box. It is submitted that the report of Collector was also not necessary as the fact that appellants are having sufficient means to pay Court fee is proved from the facts stated in the application and evidence adduced by the appellants. It is submitted that the appellants are in trade. It is submitted that the firm of appellants was dissolved long back and the appellants are doing transactions in lacks, which is proved from the record itself. It is submitted that in the facts and circumstances of the case, appeal filed by the appellants has no merits and the same be dismissed.

5. From perusal of the record it is evident that earlier position of law was that advelorem Court fee was payable. The Court Fee Act is amended vide Court Fees Madhya Pradesh Amendment Act No.6/08 w.e.f. 02/04/08 whereby restriction of र1,50,000/- as ad valorem Court fee has been put in Schedule-I of Article 1-a of the Act. The effect of Court Fee Act is whether prospective or retrospective was considered by this Court in the matter of Fatehchand v. Land Acquisition and Rehabilitation, 2009(4) MPLJ 50 Divisional Bench of this Court held that amendment putting restriction of र1,50,000/- on ad valorem payment of Court fee is not retrospective in nature. Order 33 Rule 1 Civil Procedure Code reads as under:-

6. Suits by indigent persons -1. Suits may be instituted by (indigent person).- subject to the following provisions, any suit may be instituted by (an indigent person).

[Explanation I.-A person is an indigent person,-

(a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or

(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.

Explanation II.- Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.

Explanation III.- Whether the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity]

7. From perusal of the record it is evident that the suit was filed on 03/10/07. In Para-10 of the plaint it is alleged that the outstanding amount comes to र1,56,60,000/-, on which amount of interest comes to र84,56,400/- and the payable amount outstanding comes to र2,41,16,400/-. In the plaint it is no where stated that interest calculated is with what rate. Similarly it is not stated that the interest calculated is for which period. In the application filed under Order 33 Rule 1 Civil Procedure Code itself the prayer is that the suit filed by the appellant be decreed. Alongwith the application under Order 33 Rule 1 Civil Procedure Code schedule of property of appellant Nos. 1, 2 & 3 has been filed, wherein there is no description of immovable property of appellant Nos. 1 & 2. While in the schedule of property filed on behalf of appellant No.3 it is alleged that the appellant No.3 is owner of a land bearing survey No.230/1 measuring 1 bigha, which is mortgaged with Bank of India against loan of र7,00,000/-, while the value of the property is र8 lakh. It has come in evidence that during pendency of litigation the dues of Bank has been cleared. The suit was filed on 03/10/07. Amendment in Court fees Act has come on 02/04/08. Since the suit was filed prior to amendment of Court fees Act, therefore, the Court fees which is payable comes to र19,57,800/-, while after the amendment which came in force w.e.f. 02/04/08 appellants are liable to pay Court fee of र1,50,000/-.

8. Keeping in view that the correct market value of the property owned by appellants is not on record and no enquiry was also conducted by getting the report from Collector of the concerned Distr

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ict, the appeal filed by the appellants is allowed and the impugned order passed by the learned Court below is set aside and the case is remanded to the learned Court below with a direction that in case appellants pay the Court fee of र1,50,000/- within a period of four weeks and also give an undertaking to the effect that appellants shall not transfer any of the property till the suit is finally decided and furnish a fresh schedule of properties describing complete details of all the properties alongwith current market value, then the learned Court below shall get the valuation report of the property through Collector and shall decide the application afresh. Parties are directed to remain present before the learned Court below on 08/10/2012. 9. With the aforesaid observations, appeal stands disposed of. 10. No order as to cost. Appeal allowed.
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