JUDGMENT
Kapur, J.
1. This judgment will dispose of the two appeals and two revisions which have been brought by M. S. Chemical Industries Ltd. against two decrees and two orders which have arisen in the following circumstances.
2. Messrs. M. S. Chemical Industries Limited had a cash credit account with the Hindustan Commercial Bank Limited. There was due from them to the Bank a sum of Rs. 23,976/14/3. They alleged in the plaint in the suit which was brought on 5-1-1948 that the Bank had unlawfully demolished their chimney and had thus caused them a loss of Rs. 30,000/-. They claimed a sum of Rs. 6,023/1/9 after deducting the amount due from them on the cash credit account.
3. The Hindustan Commercial Bank Limited brought a suit on 16-4-1948 for the recovery of Rs. 25,000/- being the amount due on the cash credit account. In their written statement Messrs. M. S. Chemical Industries Limited pleaded in para 11 :
“A sum of Rs. 6,023/- is due to this defendant and that on account of plaintiff’s demolishing the furnace this defendant suffered a loss of Rs. 30,000/-. The debit balance on that date was Rs. 23,973/14/3 i.e., a sum of Rs. 6,023/1/9 ought to have been credited to the account of this defendant by the plaintiff Bank. This defendant has filed a separate suit much earlier than the suit filed by the plaintiff for the recovery of the balance amount after adjusting the sum of Rs. 23,976/14/3 out of the total loss of Rs. 30,000/-“. In para 15 they pleaded :
“The suit of the plaintiff is false and frivo
lous to the knowledge of the plaintiff and may be
dismissed with costs *****”
4. in the suit of Messrs. M. S. Chemical Industries Limited a plea was taken by the Bank that the claim was not properly valued and that court-fee was payable on a sum of Rs. 30,000/-which found favour with the learned trial Judge, In the suit which had been brought by the Bank the learned Judge ordered that the defendants should pay a court-fee on Rs. 25,000 /- as that is the amount which they were claiming as a set off.
Thus Messrs. M. S. Chemical Industries Limited were required to pay court-fee on Rs. 30.000/- in their own suit and on Rs. 25.000/- i.e., the amount of the set off which they were alleged to have claimed in the suit brought by the Bank. As the amounts claimed were not paid the suit of Messrs. M. S. Chemical Industries Limited was dismissed and a decree was passed in favour of the Bank in their suit.
Two appeals have been brought against the dismissal of the suit of Messrs. M. S. Chemical Industries Limited and the decree passed against them in the suit brought by the Hindustan Commercial Bank Limited. The two revisions are directed against the order passed by the learned Judge calling upon them to pay court-fee.
5. I shall first take up the suit brought by Messrs. M. s. Chemical Industries Limited. In the relief clause they stated :
“It is therefore prayed that decree for Rs. 6,023/1/9 with costs of the suit be passed in favour of the plaintiff against the defendant and such other relief which the Court may deem fit be granted to the plaintiff against the defendant.”
6. Now, the amount claimed in this suit is Rs. 6,023/1/9 and S- 7(1). Court fees Act provides:
“7. The amount of fee payable under this Act in the suits nest hereinafter mentioned shall be computed as follows:
i. In suits for money (including suits for damages or compensation, or arrears of maintenance of annuities, or of other sums payable periodically according to the amount claimed.” The court-fee is to be paid according to the amount claimed, The question for decision in the present case is what was the amount claimed by Messrs. M. S. Chemical Industries Limited. In my opinion it Is Rs. 6,023/1/9 and it is on that amount that court-fee is payable.
In a case decided by the Punjab Chief Court Qayam-ud-Din v. The Delhi Flour Mills Co Ltd 61 Pun Re 1919 : (AIR 1919 Lah 363 (2) (A)) the plaintiff claimed that Rs. 3,625/- was due to him from the defendant by way of damages for breach of contract and also alleged that Rs. 2,500/- was due by him to the defendants as price of certain goods received, thus claiming Rs. 1,125/4/-, and it was held that the proper court-fee payable was on this sum notwithstanding that the Court had to adjudicate upon the loss sustained by the plaintiff on account of the breach of contract which was estimated at Rs. 3,62574/-.
In the present case also the amount which the plain till Company was claiming was Rs. 6,023/ 1/9 which was made up of Rs. 30,000/- which they claimed as damages minus the amount which was due from them on the cash credit account. This Judgment is on all fours with the present case and I am in respectful agreement with it.
7. In another case which is from Rangoon D.S. Abraham & Co. v. Ebrahim Gorabhoy AIR 1925 Rang 65 (B) it was held that the valuation of a plaint in which a money decree is claimed is based on the actual sum claimed after allowing for deductions, such as sums expressly set-off in the plaint. On principle also, I cannot see how a plaintiff can be called upon to pay court-fee on a sum a decree for which he is not claiming but which he has only alleged in order to arrive at the figure which he wants to be decreed in his favour.
I am therefore of the opinion that the learned trial Judge was in error in calling upon the plaintiff Company to pay a court-fee on Rs. 30,000/-on the plaint presented by them, and I would allow their appeal and set aside the decree of the trial Court dismissing their suit for non-payment of court-fee.
8. Coming now to the suit brought by the Hindustan Commercial Bank, I am of the opinion that the defendants Messrs. M. S. Chemical Industries Limited have not really claimed a set off in para 11 of their written statement. But even if they have, it is really calling upon them to pay a double court-fee. The two suits were consolidated & thus the plaint of Messrs. M. S. Chemical Industries Limited in their suit became the written statement of that Company in the suit brought by the Bank.
Unfortunately in the Code in India there Is
no express provision for consolidation and the
suits are technically treated as two suits although
they are really one. In cases such as these, in my
opinion, the rule laid down by the Madras High
Court in Athimuthu Nadar v. Subramania Nadar,
AIR 1943 Mad 671 (C) would be applicable. There
it was held that where a suit and a cross suit have
both been filed and proper court-fees have been
paid by plaintiffs in both the suits, and the written
statement in the former is practically worded in
the same manner as the plaint in the latter, the
Court in the former suit cannot treat the written
statement as claiming a set off and demand ad
valorem court-fee from the defendant.
The defendant, in other words, cannot be call ed upon to pay a double court-fee, firstly upon the written statement as set-off and secondly again on his plaint in the cross suit. Significantly enough no case was even cited in the Madras case in support of the view which the learned trial Ju’dge in the case before us has taken, nor has any authority been brought to our notice and the researches of counsel have not been successful in assisting the Bank in supporting the plea which they successfully took before the learned trial Judge.
In my opinion the learned Judge was in error in this case also and the defendant Company i.e., Messrs. M. S. Chemical Industries Limited could not be called upon to pay court-fee on their written statement. I am therefore of the opinion that this appeal should also be allowed and the decree of the trial Court set aside.
9. AS a result of this it is not necessary to decide the petitions for revision.
10. The appeals having been allowed the cases must go back to the trial Court for decision in accordance with law.
11. The parties have been directed to appear in the trial Court on 5-4-1954. The court-fee paid by the appellant before us in the two appeals shall be refunded and costs will be costs in the cause.
Khosla, J.
12. I agree.