IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1040 of 2010()
1. S.VINOBHA,S/O.SIVARAMAN,KIZHAKKEVILA
... Petitioner
Vs
1. M/S.MAHARASTRA APEX CORPORTION LTD.,
... Respondent
2. THE BRANCH MANAGER,M/S.MAHARASTRA APEX
3. THE ARBITRATOR,ASN HEBBER,ADVOCATE AND
4. M.SHAMSUDHEEN,S/O.MUHAMMED MUSTAFA,
5. T.SANJEEVAN,S/O.THANKAPPAN,VALLASSERIL
For Petitioner :SRI.VINOY VARGHESE KALLUMOOTTILL
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :05/10/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
-------------------------------
R.S.A.NO.1040 OF 2010
-----------------------------------
Dated this the 5th day of October, 2010
J U D G M E N T
The learned counsel for the appellant seeks permission to
withdraw the appeal without prejudice to his right to impeach
the validity of the agreement, which was challenged in the suit,
in appropriate legal proceedings and also the jurisdiction of the
Arbitration Tribunal, in case any award is passed by the Tribunal
on the basis of reference under such agreement. The learned
counsel for the appellant also submitted that before the lower
appellate court, the court fee paid was much in excess than what
was due on the memmorandum of appeal, and so much so, an
order may be passed permitting for refund of the excess amount
paid. The decision rendered by this Court in Thanappan v.
Hassan Kappor (2003 (2) KLT 39) is relied by the counsel to
contend that a fixed court fee as covered by the Court Fees Act
alone need be paid and not ad valorem court fee on the suit
R.S.A.NO.1040/2010 2
claim when an appeal is preferred against the rejection of a
plaint for non-payment of the balance court fee. Since the
present appeal is dismissed as withdrawn, as requested for by
the appellant, it is not possible to pass any order for refund of
the court fee, which is stated to have been paid in excess before
the lower appellate court. However, it is open to the appellant to
seek refund of the excess court fee, if any, paid, from the court
below, if so provided by law. Since the suit has been dismissed
for default, no reservation as canvassed for, appears to be
necessary, as it is open to the appellant to raise whatever
defences available under law if a claim is raised against him.
Appeal dismissed as withdrawn.
S.S.SATHEESACHANDRAN
JUDGE
prp
R.S.A.NO.1040/2010 3