JUDGMENT
This appeal illustrates the evils which arise from the deplorable and very wide spread practice of presenting a plaint in Court with a palpably inadequate Court-fee. The appellant was indebted to the plaintiff on a mortgage under which on the date of the suit Rs. 2435-8-0 was due. The appellant had been asking for time and promising to pay within 2 or 3 days. The plaintiff, as he was quite entitled to do, decided to wait no longer and filed the suit. Instead of affixing the proper Court-fee which was Rs. 225 and odd, the plaint was presented with a Court-fee of only four annas. I need not emphasise the truth that, unless there are exceptional circumstances such as an inability to purchase stamps owing to a lack of stock in the depot, the presentation of a plaint with such a ludicrously inadequate Court-fee is a most reprehensible practice. To my mind the trial Court erred in granting as long as eight days in which to supply the deficiency. Conceding that when there has been a bona fide mistake in calculating the Court-fee, the Court will ordinarily allow sufficient time for the plaintiff to procure the necessary funds in order to pay the balance, such considerations do not arise when the plaintiff has shown his contempt for the law by putting on his plaint a Court-fee which on no possible view of the rules would have any real relation to the proper fee. To my mind the proper course, in the event of such an unwarrantable procedure being adopted without adequate excuse, is to return the plaint for re-presentation within 24 hours. The plaint in this case was actually presented on 25th July 1932 and it was re-presented with the proper Court-fee on 4th August 1932 the last day of the time allowed. Meanwhile the defendant-appellant had filed a petition in the same Court on 30th July 1932 purporting to be under S. 83 of the Transfer of Property Act and had deposited the amount which he calculated to be due on the mortgage with interest upto that date. At the same time he sent notice, not through Court, to the plaintiff's Advocate intimating that this amount had been deposited and requiring him to take it in full discharge of the mortgage. It will be noticed that nothing was deposited towards the costs of the suit which had already been instituted. In spite of this notice the plaintiff paid the deficient Court-fee amounting to Rs. 224-11-0 and the suit was duly filed. The defendant filed a written statement on 1st October 1932, in the course of which he prayed that the plaintiff should be asked to take the amount which had been deposited in the petition under S. 83 of the Transfer of Property Act. But it was not until 20th December 1932 that the defendant filed a petition praying for transfer of this deposit to the credit of this suit. Apparently by inadvertence, no notice was given to the plaintiff of this petition. The transfer was ordered on 19th January 1933. Although there is no evidence on the point, seeing that the plaintiff knew all about the deposit of the money in Court, it is not unlikely that he was also fully aware that the amount had been transferred to the credit of this suit. Certainly he was aware of it at the time when the suit was actually argued. The judgment was pronounced on 3rd March 1933 and in the decree the defendant is given credit for the amount deposited in Court but, in spite of this fact, interest is decreed on the full amount of the principal upto the date fixed for payment which was four months after the date of the decree. The respondent concedes that this calculation of interest on the full amount after the date of the decree is indefensible. The appellant appealed against the decree so far as it related to the interest and costs and prayed that the deposit if not valid under S. 83 of the Transfer of Property Act should at least be treated as a valid deposit under O. 24 of the Civil Procedure Code. His appeal was dismissed and hence the second appeal. I do not think it is possible in view of the decisions of this Court for the appellant to contend successfully that a deposit made under S. 83 of the Transfer of Property Act after a suit on the mortgage has been instituted with an insufficient court-fee and before the plaint has been re-presented can be a good deposit. Were the matter res integra, I should have been inclined to hold that in the circumstances of this case such a deposit, if it included a reasonable fee for the expenses of filing the suit, would be one which complied with the provisions of S. 83 of the Transfer of Property Act; but there is a directly contrary ruling of a Bench of this Court by which I am bound. I refer to the case in Thiagaraja Ayyar v. Ramaswami Ayyar(1), where it was held that a deposit made after a plaint had been put into Court and before it was re-presented with amendments, was not valid under S. 83 of the Transfer of Property Act, the reason being that when once the suit has been instituted, the amount due on the mortgage cannot be ascertained until the decree is passed providing for costs, interest etc. In view of this authority it is not open to the appellant to contend that because this plaint was filed with a ridiculously inadequate court-fee and because the plaintiff deliberately incurred the quite unnecessary expenditure of the full amount of the court-fee after he knew of the deposit, the deposit should be treated as valid under S. 83.
It is further contended that the deposit can be regarded as a good deposit under O. 24 of the Civil Procedure Code. The objection to this is that up till 19th January 1933 the amount deposited was not standing to the credit of the mortgage suit and even on this date although the plaintiff at least knew that a sum of money was in Court, he had not been given the prescribed notice which would enable him to draw that money out of Court, without prejudice to the balance of his claim. It is contended for the respondent with considerable force that the plaintiff cannot treat this deposit under S. 83 of the Transfer of Property Act as a deposit under O. 24 and that if he had drawn the money out of Court, under S. 83 of the Transfer of Property Act he would have run the risk of being non-suited as having accepted this amount in full discharge of his claim, in which case he would have lost his right to the costs of the suit. While I am inclined to think that the plaintiff has pursued his remedy with a degree of zeal which is not altogether to his credit, I am unable to hold that he was legally bound to recognise this payment into Court as an amount available for him to draw at any time before the date on which judgment was pronounced. He was legally entitled to the costs of filing his plaint in the first instance. Though there is a suggestion that the appellant was willing to pay a reasonable amount for the expenses of the first institution of the suit, there was no deposit towards costs and consequently in my opinion the plaintiff, whatever one might think of his lack of generosity towards the defendant, was legally entitled to incur further expenditure in prosecuting his suit for the balance of the amount due. Until he was legally informed of the fact that the appellant's deposit was standing to the credit of his suit, I do not think that O. 24 would have any application. The appellant relies on a case reported in Satyanandan v. Mangayya in support of his contention that when a plaintiff knows all about the deposit formal notice is not necessary. The facts of that case were peculiar in that the deposit was made in the presence of the plaintiff and on a challenge from the plaintiff. Obviously in such circumstances a formal notice to the plaintiff would be an act of supererogation. In the present case the facts are different. The plaintiff knew that the money was in Court. It is not proved that he knew that the money was credited to the suit and available for him to draw under the conditions laid down in O. 24, at any rate until the date of the actual hearing of the suit. But I have already indicated there is no ground whatever for mulcting the defendant with interest on the full amount of the principal for the four months succeeding that date.
The appeal will therefore be allowed in part and the decree will be modified, the plaintiff being given a mortgage decree for the amount claimed with costs and interest on the principal amount up till the date of the preliminary decree of the trial Court on which date credit will be given for the amount deposited by the defendant in Court; thereafter interest will run on the balance of the principal amount up till the date fixed for redemption, which is four months hence. As to costs in this Court and in the lower appellate Court, I think the proper order is that the parties shall pay and receive costs proportionate to their failure or success.
Decree modified.
N.R.R