1. In this reference the question is whether the cross-objector has to pay any court-fee, and if so, on what amount.
2. The cross-objector filed a suit against the defendants for the recovery o a sum of about Rs. 18,000. The suit was decreed, but interest on the suit claim from the date of the institution of the plaint was not awarded. The judgment-debtors filed C. C. C. A. No. 11 of 1959. The plaintiff-decree-holder filed under Order 41, Rule 22, C.P.C. a Memorandum of Cross-objections and has not paid any court-fee thereon.
3. The office raised an objection that inasmuch as the interest claimed from the date of the Institution of the plaint till the filing of the cross-objections is an ascertainable sum and as it forms the subject-matter of the cross-objections an ad valorem fee thereon should be paid.
4. The cross-objector on the contrary has contended that no court-fee is leviable on the cross-objections for the reason that in respect of the future interest which is wholly discretionary, no court-fee need be paid in the suit and, therefore, in the appeal. Similarly inasmuch as the court-fee payable on the cross-objections is the same as the one payable on the Memorandum of appeal, no court-fee need be paid in this case.
5. The question that falls to be determined is whether in this case the court-fee is payable on the Memorandum of cross-objections.
6. By Notification in G. O. 563 dated 31-3-1958, the Government of Andhra Pradesh have extended the provisions of the Court-fees and Suits Valuation Act of 1956 to Telangana area with effect from 1-4-1958. Under Section 49, Explanation (3) of the Andhra Court-fees and Suits Valuation Act, 1956, any claims which include the award of interest subsequent to the institution of the suit, the interest accrued during the pendency of the suit till the' date of decree shall be deemed to be part of the subject-matter of the appeal except where such interest is relinquished.
7. If the provisions of this Act should apply, the matter would be beyond controversy. But the suit having been instituted prior to the extension of the provisions of the Act to the Telangana area, the said provisions would not have retrospective operation. In Eswaramma v. Seethamma, : AIR1955AP221 , a Full Bench of the Andhra High Court has held that the fee payable on a Memorandum of Appeal should be ascertained with reference to the value of the subject-matter in dispute as under the rules of valuation which were in force at the time of the presentation of the plaint, (vide also Seshadri v. Province of Madras, : AIR1954Mad543 ). Therefore, the question has to be decided with reference to the provisions of the Hyderabad Court-fees Act (Act VI of 1324F).
Section 3 of that Act provides that no document-chargeable with fees under the first or second schedule to that Act, shall be filed, received or furnished unless in respect of such document there be paid a fee of an amount not less than that prescribed therefor in the first or second schedule, Section 4 provides for the computation of fees payable in certain suits. The first schedule, provides for ad valorem court-fee payable on plaints, memorandum of appeal (not otherwise provided for in this Act) or cross-objections. Schedule II provides for cases where a fixed court-fee is payable. Article 1 of Schedule 1 provides the court-fee at the rate mentioned should be paid on the value of the subject-matter in dispute.
8. The question, therefore, is whether the subject-matter of the present claim is an ascertainable amount. Under Section 34 of the Civil Procedure Code, the award of interest is discretionary. Interest may be awarded by court at such rate as it deems reasonable on the principal amount adjudged from the date of the suit to the date of the decree. In addition to the interest adjudged on the principal sum for any period prior to the institution of the suit, the Court may also grant further interest at such rate as it deems reasonable on the aggregate sum adjudged from the date of the decree to the date of the payment or to such an earlier date as the court thinks fit. In a case where a plaintiff filed a suit for the recovery of money, he need not pay court-fee on the amount of future interest for two obvious reasons : firstly, that at that stage he cannot compute with precision a sum due to him prospectively, and secondly: because the grant of such interest is wholly discretionary.
9. Mr. Sivarama Sastri, the learned counsel for the cross-objector has strongly relied upon the decision of the Madras High Court in Srioivasa Rao y, Raniaswamy Chetty, 10 Mad LJ 144. The facts in that case were that the plaintiff instituted a suit for the recovery of money. The District Munsiff dismissed the suit. The plaintiff appealed fixing the valuation of the subject-matter of the appeal at the same amount as in the plaint and adding nothing for the interest that accrued subsequently. It was held that the plaintiff was not obliged to assess prospectively and pay court-fee upon the amount of interest. It was, however, pointed out that the case would be entirely different if future interest has been given by a decree of the trial court and an appeal is lodged against the decree. The reasoning upon which this distinction is based is obvious.
In the former case the subject-matter cannot be ascertained with certainty for the simple reason that at that time the interest could only be computed prospectively. But in the latter case where interest has been given and a defendant seeks to avoid it, the subject-matter would be a definite and ascertainable sum upon which the court-fee has to be paid. To my mind, the same principle would apply to a case where the trial court refused or omitted to give interest and the successful plaintiff files an appeal against the sum which he claims ought to have been allowed, In such a case also the subject-matter of the appeal is a definite and ascertainable amount and upon such amount court-fee has to be paid in accordance with Article 1 of Schedule 1 of the Court-fees Act.
10. In an unreported case of the Madras High Court in Re: Anne Kantamma, S. R. No. 14545 of 1944, Kunhi Raman J., has held that in a case where a plaintiff claims interest at the contract rate from the date of the institution of the plaint he is bound to pay court-fee on the sum claimed at the time of the presentation of the appeal.
11. In Ratanchand v. Gaindsingh, AIR 1937 Nag 95, Vivian Bose J., has held that court-fees are payable on sums which can be ascertained with certainty, but not on those which cannot be so ascertained. In that case a decree was passed on a money bond and it provided for four annual instalments and granted interest on the default of the payment of any one of the instalments for the balance. 'The decree-holder appealed against the decree for future interest and paid Rs. 10/- as court-fee under Article 11 (VI) of Schedule II of the C. F. Act. The learned judge held that in so far as the first period between the date of the decree and the date for the payment of the first instalment is concerned inasmuch as under the decree of the court no interest is payable since he was challenging that decree he has to pay court-fee as it is capable of ascertainment though with, respect to the other instalments a fixed court-fee could be paid as the subject-matter would depend upon the contingency of the default The principle of this decision is that where the subject-matter is capable of definite valuation court-fee has to be paid.
12. In Damodar Pershad v. Hardeo Pershad, AIR 1931 All 351, King J., has taken the view that where the appellant claims among other sums of money a definitely ascertainable sum by way of pendente lite interest which is disallowed by the trial court, the sum must be held to be part of 'amount or value of the subject-matter in dispute' and ad valorem court-fee is payable under Schedule 1, Article 1 on the sum claimed as pendente lite interest. The same view has been taken by Meredith J., of the Patna High Court in Jagarnath Prasad v. Bhala Prasad Singh, AIR 1945 Pat 145. I may also refer to a Full Bench decision of the Lahore High Court in Mehr Din v. Kultilak Ram, AIR 1943 Lah 275-(FB), where a similar view has been taken.
13. Mr. Sastry referred me to a decision of Venkatasubba Rao and Horwill JJ., In re, K. Ekanthalingaswami Koil, AIR 1937 Mad 46. That was a case that turned upon the award of mesne profits for which there is a specific provision in the Civil Procedure Code under Order 7, Rule 2. I do not think that that decision has any direct bearing on this question. Equally inapplicable for the purpose of the present case is the decision of Venkataramana Rao and Somayya JJ. in Rangaswami v. Official Receiver, AIR 1942 Mad 535, That was a case which turned upon the interpretation of Section 110 of the Civil Procedure Code. It was held that for the purpose of determining the valuation for granting leave to appeal to the Privy Council the interest that accrued since the passing of the decree cannot be taken into account. That decision is in accord with the well established principle laid down in Subramania Ayyar v. Sellammal, ILR 39 Mad 843: (AIR 1916 Mad 985), the reasoning of which had been in terms approved by Lord Dunedin speaking for the Privy Council in Mangamma v. Mahalakshmamma, ILR 53 Mad 167: (AIR 1930 PC 44).
14. In this case in his cross-objections the successful plaintiff claims interest at 12 per cent per annum on the suit claim from the date of the institution of the plaint or at such rate as the Court may deem fit. If it is contractual rate there can be no question that from the date of the institution of the plaint till the date of the filing of the cross-objections the amount is capable of precise ascertainment. It is open to the cross-objector to limit his claim to a lesser amount, in which case also the amount is capable of precise ascertainment. In either view, the value of the subject-matter of the cross-objections is a definite and ascertainable sum upon which the court-fee has to be paid.
15. I, therefore, hold that the cross-objector is bound to pay court-fee on the amount of interest claimed on me contractual rate or on such lesser rate to which he limits his claim.
16. The cross-objector will have four weeks' time to pay the court-fee.