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


M/s. Ganiga Earth Movers & Sand Supplies, Represented By Its Proprietor, Preeta Jayaram Sapaliiga, Dakshina Kannada v/s M/s. DBM Geotechnics & Constructions Pvt. Ltd., Represented by its Managng Director, Mumbai & Others

    Writ Petition No. 2 of 2021 (GM-CPC)
    Decided On, 05 April 2022
    At, High Court of Karnataka
    By, THE HONOURABLE MR. JUSTICE E.S. INDIRESH
    For the Petitioner: G. Ravishankar Shastry, Advocate. For the Respondents: R3, K. Shobha, HCGP.


Judgment Text
(Prayer: This Writ Petition is filed under Article 227 of Constitution of India praying to set aside the order dated 01st October, 2020 in Com.OS.No. 1 of 2020 passed by the IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, on IA filed under Section 151 of Code of Civil Procedure seeking refund of Court Fee certified copy of which is produced at Annexure-A and consequently by allowing the application a direction may be issued to the court below for refund of court fee paid on the plaint.)

1. This Writ Petition is filed by the plaintiff in Com.OS No.1 of 2020 on the file of the IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru challenging the order dated 01st October, 2020 dismissing the interlocutory application filed by the plaintiff seeking refund of the Court fee.

2. Relevant facts for adjudication of this Writ Petition are that the plaintiff has filed suit against the defendants in Com.OS No.1 of 2020 seeking recovery of money and the said suit came to be disposed of by order dated 07th February, 2020 as the suit is not maintainable and consequently, the trial Court directed the plaintiff to exhaust the remedy available under the provisions of Arbitration and Conciliation Act, 1996 (for short, hereinafter referred to as 'Act'). In the said suit, the plaintiff has paid the court fee and since the suit came to be disposed of as not maintainable, the plaintiff has filed an application as per Annexure-E seeking refund of court fee. The trial Court, after considering the material on record, by impugned order 01st December, 2020 dismissed the application and being aggrieved by the same, plaintiff has presented this Writ Petition.

3. Sri Ravishankar Shastry G, learned counsel appearing for the petitioner submitted that the suit came to be disposed of reserving liberty to the plaintiff to approach the Arbitrator under the provisions of the Act as the suit is not maintainable and therefore, the trial Court ought to have refunded the court fee to the plaintiff. In this regard, he relied upon the judgment of the Hon'ble Apex Court in the case of SLP(C) No.18102 of 2013 decided on 25th October, 2019 produced at Annexure-F to the writ petition and contended that the the trial Court ought to have refunded the court fee to the plaintiff.

4. Smt. K. Shobha, learned High Court Government Pleader, supported the impugned order.

5. Taking into consideration the arguments advanced by the learned counsel appearing for the plaintiff and the observation made by the Hon'ble Apex Court in the aforementioned case, I am of the view hat the trial Court ought to have refunded entire court fee to the petitioner/plaintiff, as the trial Court has come to a conclusion that the suit is not maintainable and relegated the plaintiff to approach Arbitrator in terms of the arbitration clause

Please Login To View The Full Judgment!
in the agreement. In that view of the matter, I am of the view that the impugned order dated 01st October, 2020 is liable to be set aside and IA.I in filed Com.OS No.1 of 2020 is allowed and the trial Court is directed to refund the court fee to the plaintiff after due identification. Writ Petition is accordingly allowed.
O R