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In Re: Section 5, Court-fees Act 7 of 1870; in Re: Official Assignee - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1938Cal755
AppellantIn Re: Section 5, Court-fees Act 7 of 1870; in Re: Official Assignee
Cases ReferredOfficial Assignee of Madras v. Ramaswamy Chetty
- .....fee it must be shown that it is a fee payable by virtue of the power conferred by section 15, high courts act, 1861, or section 107, government of india act, 1915. i have examined the gazette of india, and i find the insolvency rules were published therein under notification no. 44 dated 16th january 1910. the notification shows that the high court purported to make the rules under s.112, insolvency act. prima facie therefore the rules were not made by virtue of the powers conferred by section 15, high courts act.3. reference has been made to maung ba thaw v. m. s.v.m.v. chettiar (1935) 22 air rang 460. the facts were as follows: the high court purporting to act under section 107, government of india act, 1915, had prescribed the fees payable in respect inter alia of appeals under.....

Panckridge, J.

1. This matter has been referred to me by the Taxing Officer as the Judge specially appointed in that behalf by the Chief Justice under Section 5, Court-fees Act, 1870. The circumstances are as follows : One Umar Shanker Chatterjee was adjudicated an insolvent by this Court under the Presidency Towns Insolvency Act, 1909 on 13th February 1934. The insolvent was thereafter publicly examined under Section 27, Insolvency Act, his examination being concluded on 17th February 1938. The Official Assignee of Calcutta desires to have a certified copy of the notes of the insolvent's examination for the purpose of taking steps to have a deed of settlement executed by the insolvent on 5th July 1932 set aside. The Registrar in insolvency refuses to furnish the copy except on payment by the Official Assignee of a fee of As. 5 per folio as prescribed by Rule 204 of the Rules made under Section 112 of the Act. The Official Assignee maintains that he is entitled to obtain a copy without charge under Section 115 of the Act.

2. The learned Advocate-General appears instructed by the Solicitor for the Province of Bengal and takes the objection that the reference by the Taxing Officer is incompetent. He points out that under Section 5, Court-fees Act, a reference is only permissible in cases of fees payable under Ch. 2. Accordingly with regard to this particular fee it must be shown that it is a fee payable by virtue of the power conferred by Section 15, High Courts Act, 1861, or Section 107, Government of India Act, 1915. I have examined the Gazette of India, and I find the Insolvency Rules were published therein under Notification No. 44 dated 16th January 1910. The notification shows that the High Court purported to make the Rules under S.112, Insolvency Act. Prima facie therefore the Rules were not made by virtue of the powers conferred by Section 15, High Courts Act.

3. Reference has been made to Maung Ba Thaw v. M. S.V.M.V. Chettiar (1935) 22 AIR Rang 460. The facts were as follows: The High Court purporting to act under Section 107, Government of India Act, 1915, had prescribed the fees payable in respect inter alia of appeals under Clause 13 of the Rangoon Letters Patent, which corresponds to Clause 15 of the Letters Patent of this Court. An unsuccessful litigant desired to appeal against a decree passed by the High Court in the exercise of its ordinary original civil jurisdiction, and objected to pay the fee on the memorandum in accordance with the scale prescribed on the ground that Section 107 gave the Court the power to prescribe fees -with regard to proceedings on the Original Side or to appeals from judgments of the Original Side. Section 107 is as follows:

Each of the High Courts has superintendence over all Courts for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say:

(a) call for returns;

(b) direct the transfer of any suit or appeal from any such Court to any other Court of equal or superior jurisdiction;

(c) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts;

(d) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts; and,

(e) settle tables of fees to be allowed to the sheriff, attorneys, and all clerks and officers of Courts:

Provided that such rules, forms and tables shall not be inconsistent with the provisions of any Act for the time being in force, and shall require the previous approval, in the case of the High Court at Calcutta of the Governor-General in Council, and in other cases of the Local Government.

4. Leach J. accepted the contention that See. 107 only refers to Courts which are subordinate to the High Court, but he held that the power to make rules and orders for the purpose of regulating all proceedings in civil cases conferred by Clause 35 of the Rangoon Letters Patent, corresponding to Clause 37 of our Letters Patent, included the power to impose and collect fees in connexion with the reception of appeals from the Original Side. He further held that the fact that the notification purported to be made pursuant to the provisions of Section 107 (e) made no difference as to its legality.

5. After referring to various authorities he said at page 165:

The Court in issuing the notification referred to undoubtedly intended to exercise the powers vested in it. The reference to Section 107, Government of India Act, may be unfortunate, but for the reasons indicated I do not consider that it invalidates the operative parts of the notification.

6. The question as to the applicability of Section 5, Court-fees Act, does not appear to have been raised and the discussion proceeded on the assumption that the Section could be utilized to test the legality of any court-fee prescribed by the High Court. I do not think that that assumption is correct, and I agree with the Advocate-General that before Section 5 can be applied, it must be shown that the subject-matter of the reference is a fee covered by Section 3. On the other hand, I think, it is right to give a reasonably wide construction to Section 3 and I consider that if a particular fee could have been imposed under the High Courts Act or the Government of India Act, it is payable by virtue of the power conferred by that Act within the meaning of the Section, even although the High Court purported to impose the fee under a power derived' from some other source.

7. The question is therefore whether Rule 120 of the Insolvency Rules could have been made under Section 15, High Courts Act, which for this purpose may be regarded as identical with Section 107, Government of India Act, 1915. Leach J., as has been seen, held that the Sections only apply to Courts under the superintendence of the High Court. In so holding he differed from Coutts-Trotter J. who held in Mahomed Ishak Sahib v. Mahomed Moideen (1922) 9 AIR Mad 421, (a case where the question of the applicability of Section 5, Court-fees Act, was specifically raised) that in making rules for imposition and collection of court-fees the High Court Was acting under the general rule-making power conferred by Section 15. Coutts-Trotter J. states that such fees are not 'fees to be allowed to the sheriff, attorneys and all clerks and officers of Courts', but considers that the table of fees derives its validity from the High Court's power to make and issue general rules for regulating the practice and proceedings of such Courts. I incline to the view that where the Section used the words 'such Courts' it refers only to those Courts which are subject to the appellate jurisdiction of the High Court and over which the High Court has superintendence. On the other hand when the words 'all clerks and officers of Courts' are used, all Courts in the Province are meant including the High Court. This is the more natural construction grammatically. Moreover, if the High Court is to be excluded, the mention of the sheriff and attorneys becomes unnecessary. I do not agree with Coutts-Trotter J. that 'fees allowed' refers exclusively to those fees which the clerks and officers could formerly claim as a perquisite. I see no reason why the phrase should be limited in this way. It cannot have that meaning in Section 107 (e), Government of India Act 1915, as that statute was enacted long after the system of remuneration by fees had given place to remuneration by salaries. My conclusion therefore is that Rule 204 of the Insolvency Rules could have been made by the High Court under the powers conferred on it by Section 15, High Courts Act, and the fees prescribed thereby are accordingly covered by Section 3, Court-fees Act.

8. With regard to Section 115, Insolvency Act, I have come to a conclusion adverse to the contention of the Official Assignee. The only Indian authority cited, Official Assignee of Madras v. Ramaswamy Chetty (1920) 7 AIR Mad 664, has little if any bearing on the matter. There it was held that an attorney acting for the Official Assignee was entitled to obtain without payment of any fee a copy of an order against which the Official Assignee desired to appeal. The reason for the decision was that the issuing of the copy was the issuing of the order under Section 115 (2). To turn to Sub-section (i) I agree with the Official Assignee that a copy of the note of the insolvent's examination under Section 27 is a copy of proceedings before the Court : see In Re: Beall (1894) 2 QB 135.

9. No light is thrown on the matter by Section 148, English Bankruptcy Act of 1914, as fees prescribed by the bankruptcy statutes are expressly excluded from its operation. I do not however consider that Section 125, Insolvency Act, gives the Court power to prescribe a fee in respect of a matter covered by Section 115. The purpose of Section 115 is clearly to save as much as possible of the insolvent's estate for distribution amongst the creditors. It would however be in my opinion erroneous to give it the wide application for which the Official Assignee contends. If he is right, not only the Official Assignee but all other persons as well are entitled to obtain an unlimited number of copies of insolvency proceedings, it may be for purposes in no way connected with the insolvency concerned. This cannot in my opinion have been the intention of the Legislature. I think that by copy is meant a copy necessary under the provisions of some law or rule having the force of law for some step in the administration of the insolvent's estate. For example it may be necessary to prove the order of adjudication in a Civil Court by the production of a certified copy. This test is not satisfied in the present case. It is not even clear that the Official Assignee after he has perused the notes will use them for the purposes of his application. It is possible that the notes will convince him that it is not worth while proceeding further. However, even if it is assumed that in this particular case the notes will show that the insolvent has made admissions which will help the Official Assignee to set aside the deed, and that a certified copy of it is still true, that production of a copy is not the only possible method of proof. The admissions may be proved by the affidavit of a person who was present when they were made or by the production of notes taken by some one who has inspected the original record. I therefore decide that the Official Assignee is only entitled to these copies on payment of the prescribed fee. I think however that having regard to the vagueness of the language used in Section 115 (i) his contentions were not unreasonable. Accordingly I make no order as to costs except that he may have his costs out of the insolvent's estate.

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