Ms. Prabha Sridevan, J
This Appeal has been filed against the decree for a sum of Rs.14,03,884.84 together with interest as agreed.
2. The appellant is the defendant. After filing the Appeal, the Registry returned the papers for compliance and time was granted till 18.12.2009. The matter was listed on that date and the learned counsel appearing for the appellant submitted that the matter has been settled out of Court and therefore refund of Court-tee may be ordered.
3. We posted this today, asking the learned counsel to produce some authority in her support. Today, the learned counsel referred to P. Thiruvengada Mudaliar by Partner, P. Nagarathna Mudaliar and Others v. Syndicate Bank and Others, (1983) 2 MLJ 242, which is almost identical. In that case, the Appeal had been filed out of time and the Court?fee was not paid in full. So the papers were returned. The defects were not rectified, nor had any Application been filed for condonation of delay. At that stage, the learned counsel for the appellant submitted that they do not want to prosecute the Appeal and sought for permission for refund of Court-fee. The First Bench of this Court observed that ?perhaps some settlement has been arrived at outside the Court? and then went through the relevant provisions. The judgment is extracted below at p.243 of MLJ:
?2. The relevant provision with regard to the refund of Court-fee under the Tamil Nadu Court-fees and Suit Valuation Act, 1955, is Section 66.
?66. Refund in cases of delay in presentation of Plain, etc.-(1) Where a Plaint or Memorandum of Appeal is rejected on the ground of delay (1) in its re-presentation, 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 has 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.?
3. From a referred 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 filling 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).
4. 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 under Section 66(1) of the Act, and we do not find any reason why the advantage envisaged under Section 66(1) of the Act should not be made available to the appellants.
5. 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.?
4. In the present case also, the Registry had returned the papers on 4.7.2009 and since it was not complied with, it came up in the default list on 20.11.2009.
5. The First Bench granted time till 18.12.2009 for compliance with the defects. In the decision mentioned above, the Appeal had neither been rejected on the ground of delay in representation nor on the ground of deficiency. So it was held ?they stand on a better footing, as to adverse order had been passed against the appellant and therefore, they are entitled to refund of Court-fee under Section 66(1).?
6. In this case, the First Bench of this Court had given time to the appellant till 18.12.2009 to comply and failing which, the Application would stand automatically rejected. Even on 15.12.2009, before default clause could come into effect, the appellant had prayed for refund of Court-fee. We had
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adjourned the matter today for passing orders, asking the learned counsel to place any authority to support her contentions. Therefore, we think that the appellant herein is entitled to the same benefit as was granted by the First Bench of this Court to the appellant in P. Thiruvengada Mudaliar by Partner, P.Nagarathna Mudaliar and Others v. Syndicate Bank and Others (supra). 7. Accordingly, refund of Court-fee is ordered as prayed for in the name of the learned counsel for the appellant. Ordered accordingly.