TMI Blog2005 (1) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... on a counter claim. Thereupon, petitioner preferred I.A. 1047/2003 seeking review of the said order contending that in the absence of any statutory provision for levying court-fee on the counter claim on the date on which it was filed, he was not liable to pay any court fee. This was objected to by the respondent Bank and by Ext.P4 order dated 22.4.2004 the review petition was dismissed by the Debt Recovery Tribunal. The Tribunal took the view that the provision for raising a counter claim was introduced by Sub-section (8) of Act 1 of 2000 with effect from 17.1.2000 amending Section 19 of the Parent Act. The Tribunal also accepted the fact that the rules were amended only in 2003 incorporating a specific provision for payment of court fee on the counter claim. But according to the Tribunal, a counter claim will have the same effect of a cross suit and hence it has to be treated as an O.A. and court fee being payable on an O.A. as per the unamended provision of Rule 7, it thought that the said provision will apply even to a counter claim for payment of court fee. It was on the above reasoning that the review application was rejected. 3. In W.P.(C) 34318/2004, petitioner is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to be governed strictly in accordance with the provisions of the Act and the Rules thereafter and the court fee being one payable as per a condition imposed by the Statute, in the absence of any express provision, there is no warrant for implied levy of court fee. The learned counsel appearing for the respective Banks, on the other hand, contended that since the Bank is obliged to pay court fee on the O.A. filed before the Tribunal, a counter claim raised by the defendant as permitted by law can only be treated as a counter suit and it should be treated in the same manner as an O.A. filed under Section 19(1) of the Act and hence even in the absence of any express provision (though separately made later by amending Rule 7), court fee is payable by the defendant on the counter claim. In other words, the provision for payment of court fee on the O.A. filed by the Bank will equally apply to the counter claim, even in the absence of any separate provision. 7. Before Considering the rival contentions raised by the parties, it will be useful to refer to the relevant provisions contained in the Act and Rules. Section 19 of the Act to the extent it is relevant is as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written statement shall have the same effect as a plaint in a cross suit so as to enable the Tribunal to pass a final order in respect both of the original claim and of the set-off. (8) A defendant in an application may, in addition to his right of pleading a set-off under Sub-section (6), set up, by way of counter claim against the claim of the applicant, any right or claim in respect of a cause of action accruing to the defendant against the applicant either before or after the filing of the application but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not. (9) A counter-claim under Sub-section (8) shall have the same effect as a cross-suit so as to enable the Tribunal to pass a final order on the same application, both on the original claim and on the counter-claim. (10) The applicant shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Tribunal. (11) Where a defendant sets up a counter-claim and the applicant contends that the claim thereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) as the case may be. Therefore, a counter claim by itself is liable to be adjudicated and power is conferred in the Tribunal by virtue of Section 19(8) read with Section 19(9) of the said Act without any reference to Section 19(1) or (2), as the case may be. Rule 7 underwent an amendment with effect from 21.1.2003. Rule 7 as it stood prior to the amendment reads as follows: 7. Application fee-- (1) Every application under Section 19, interlocutory application or application for review of a decision of the tribunal shall be accompanied with a fee provided in Sub-rule (2) and such fee may be remitted either in the form of crossed demand draft drawn on a nationalised bank in favour of the Registrar and payable at the station where Registrar's Office is situated or remitted through a crossed Indian Postal Order drawn in favour of the Registrar and payable in Central Post Office of the Station located at any place within local limits of the jurisdiction of a Tribunal. (2) The amount of fee payable shall be as follows: Sl. No. Nature of application Amount of fee payable XXX XXX XXX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97 Delhi 355, brought a distinction between payment and adjustment and held that the broad distinction between a payment and the adjustment is that in an act of payment one party deals with the other, while in the case of adjustment it is an act of the party himself prior to the filing of the written statement though the benefit of both is claimed by raising a plea in the written statement. But a plea of adjustment is to be distinguished from the plea of set off or counter claim since the adjustment like payment is relatable to a period anterior to the date of such plea being set out before the Court. A counter claim or a plea of set off is a claim made by the defendant. It does not extinguish the plaintiff's claim; it exonerates the defendant from honouring plaintiff's claim though upheld and such plea if raised will be gone into by the Court if permitted by law and would have the effect of decree in favour of the defendant taking away plaintiff's right to realise such amount as has been upheld in favour of the defendant. Further every cause action including one constituting a plea of set off or plea of counter claim must be placed before the Court as an indepe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well, in the matter of payment of fee there was no reason to restrict the effect of the counter claim as merely enabling the tribunal to pass orders on the same application and to treat the counter claim for that purpose only as a counter suit. Further, even the rule making authority, by the subordinate legislation by amending Rule 7 and providing for a different rate of court fee on the counter claim was brought to force with effect from 21.1.2003 and did not choose to give any retrospective operation to the rule atleast from the date on which Act 1/2000 came into force. In such circumstances, to treat a counter claim as though it was an application made under Section 19(1) and to hold that the fee prescribed for an application would equally apply to a counter claim as well will be contrary to the intention of the Legislature. It is settled law that when the Code is complete in itself, there is no room for any import and has to be given effect to the express provision contained therein. Fee is a matter provided for under the Act and the Rules. But until Rule 7 was amended it provided payment of fee only to claims to be made by the Bank or other financial institutions under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Legislature in introducing the rule from a prospective date and by interpreting the rule as redundant the result will be to give retrospectivity to the said rule. An interpretation having the effect of the rule redunded should be avoided and if only the rule is given full effect to, it can be seen that provision for payment of court fee on counter claim was made prospectively. 12. In State of Bombay v. Supreme General Films Exchange Ltd. MANU/SC/0007/1960 : AIR 1960 SC 980, while considering the court fee payable as per the Court Fees (Bombay Amendment) Act 12 of 1954, the Apex Court held that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment. It was also held that court fee is payable according to the law in force on the date of filing of the suit and not according to the law in force at the date of filing of the memorandum of appeal. 13. In Usha v. Food Corporation of India 1997 (1) KLT 264 a Division Bench of this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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