J.Geetha v. The Manager, State Bank of Travancore Palayam Branch, Kozhikode; The Chief General Manager, State Bank of Travancore; V.B. Prem Nazir

_**OP(C).1206/21**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 15[TH] DAY OF DECEMBER 2021 / 24TH AGRAHAYANA, 1943** **OP(C) NO. 1206 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OS 1228/2014 OF ADDl MUNSIFF COURT,KOZHIKODE-II** ## **PETITIONER/S:** J.GEETHA AGED 58 YEARS D/O. JAYARAMAN, RESIDING AT 51 MOOR COURT, NEW CASTLE, NE 34YD, UNITED KINGDOM, NOW RESIDING AT 2/1783, GOUREESAPATTOM, THIRUVANANTHAPURAM-695 004 BY ADVS. V.V.SURENDRAN P.A.HARISH SANIKA.V.S. DONA PAUL ## **RESPONDENT/S:** 1 THE MANAGER, STATE BANK OF TRANVANCORE PALAYAM BRANCH, KOZHIKODE, NOW STATE OF BANK OF INDIA, ANNIE HALL ROAD BRANCH, KOZHIKODE-673 002 2 THE CHIEF GENERAL MANAGER, STATE BANK OF TRAVANCORE, HEAD OFFICE, POOJAPPURA , THIRUVANATHAPURAM-695 012 3 V.B.PREM NAZIR AGED 71 YEARS, S/O V.A BAHSKARAN, RESIDING AT SUGUNALAYAM, 3B, KAYALORAM APARTMENTS, EDAKOCHI,KOCHI682 010 BY ADVS. BINDUMOL JOSEPH S.V.BALAKRISHNA IYER (SR.) V.V.NANDAGOPAL NAMBIAR P.ANITHA SRIVIDYA K THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _**OP(C).1206/21**_ 2 ## **V.G.ARUN, J.** ## **----------------------------------------------O.P(C).No. 1206 of 2021 ----------------------------------------------Dated this the 15[th] day of December, 2021** ## **JUDGMENT** The petitioner is the plaintiff in O.S.No.1228 of 2014 of the Munsiff's Court-II, Kozhikode. The suit is filed for a declaration that only the petitioner is entitled to operate the joint account which she, along with her former husband late T.K. Ramachandran, had opened in the State Bank of India and to restrain respondents 1 and 2 from disbursing the amount to the 3[rd] respondent. The essential facts are as under; The petitioner was the legally wedded wife of late T.K.Ramachandran. During subsistence of their marriage the spouses opened a savings bank account jointly, with mode of operation as 'either or survivor'. Marital discord arose among the spouses and they parted ways after obtaining a decree of divorce by mutual consent. Even after divorce, the joint account continued. While so, the petitioner shifted residence to the United Kingdom and T.K.Ramachandran passed away on 31.7.2008. As on 31.7.2008, there was a balance amount of Rs.38,84,463/- in the joint account. Later, on the strength of a will executed by T.K.Ramachandran, the 3rd _**OP(C).1206/21**_ 3 respondent obtained an order of Letter of Administration. On coming to know about the order, the petitioner filed a review petition and got the order clarified to the effect that the account being in the joint names of the testator and his divorced wife(petitioner) as per the Bank's records, the party who does not agree with the records can take steps to prove the nature of the account by examining bank officials. The 3[rd] respondent filed W.P(C).No.10252 of 2010 and got the order passed in the review petition set aside by this Court, with an observation that, if the petitioner was apprehensive about her entitlement for the amount in deposit , it is open for her to initiate other appropriate proceedings as provided under law. Accordingly, the petitioner filed O.S.No.248 of 2011 before the Munsiff's Court, Thiruvananthapuram, showing the valuation for the relief of declaration as Rs.1,000/- and paid a court fee of Rs.40/-. The plaint was returned by the learned Munsiff, finding that the cause of action being with respect to the joint account maintained at the Palayam Branch of SBT, Kozhikode, the Munsiff's Court at Thiruvananthapuram lacks territorial jurisdiction. Thereupon, the plaint was taken back and presented before the Munsiff's Court-II, Kozhikode. The 3[rd] respondent entered appearance in the suit and filed written statement refuting the factual averments in the plaint and contending that the suit is undervalued. In view of the contention regarding valuation, that _**OP(C).1206/21**_ 4 question was considered as the preliminary issue. The court passed Exhibit P4 order holding that the court fee has to be calculated on the amount in deposit and the relief should be valued at Rs.38,82,463/-, as the petitioner is seeking a declaration that she is the only person entitled to operate the account. Having thus found the market value of the property to be in excess of the pecuniary jurisdiction of the court, learned Munsiff returned the plaint for presentation before the proper court. The petitioner sought review of the order, albeit with a delay of 469 days. The application for condonation of delay was dismissed by Exhibit P10 order. Consequently the review petition was dismissed by Exhibit P11 order. The challenge in this original petition is against Exhibits P4, P10 and P11 orders. 2. Advocate P.A.Harish, learned Counsel for the petitioner, contended that the relief sought in the suit not being capable of valuation, the court fee was correctly computed at Rs.1,000/- as per Section 25(d)(ii) of the Court Fees and Suits Valuation Act. It is contended that if the office had found the valuation to be defective at the time of filing, the plaint ought to have been returned as provided in Rule 32 of the Civil Rules of Practice. Relying on Section 12(2) of the Act it was argued that if the subject matter of the suit was not properly valued or the fees paid was insufficient, the court should have _**OP(C).1206/21**_ 5 provided an opportunity to amend the plaint and to pay the deficit court fees, since the plaint re-presented to the Sub Court without amending the court fee portion will not be accepted in view of the bar under Section 15 of CPC. On the other hand, if the plaint is corrected _suo motu_ and re-presented to the Sub Court, it will amount to institution of a fresh suit and would therefore be barred by limitation. In support of the contention, reliance is placed on the Division Bench decision of this court in _**Major (Rtd.) P.P.S.Pillai v. Catholic Syrian Bank Ltd. and Anr.**_ [2000(3) KLT 629]. Alternatively, it is contended that the trial court dismissed the application for condoning the delay in filing the review petition without considering the explanation offered and thereby denied the opportunity to contest the suit on merits. As a result, the 3[rd] respondent, who is not in any manner entitled for the amount, is getting illegally enriched. 3. Advocate Sri.S.V.Balakrishna Iyer, learned Senior Counsel appearing for the 3rd respondent, raised preliminary objection as to maintainability of the original petition. It is contended that Exhibit P4 order is appealable under Order XLIII Rule 1(a) of CPC. According to the Senior Counsel, the finding of the court below that court fee had to be paid on the market value of Rs.38,82,463/- is well founded and since the market value of the subject matter was above its pecuniary limit, _**OP(C).1206/21**_ 6 the Munsiff had no option but to return the plaint for presentation before the proper court. Once decision is taken to return the plaint, the court becomes _functus officio_ and cannot grant permission to amend the plaint. The objective of Order VII Rule 10 of CPC is to extend the benefit of Section 14 of the Limitation Act and when the plaint is represented after return, it will be treated as a fresh plaint, irrespective of whether the plaint was amended after return or presented as such. The petitioner having failed to offer an acceptable explanation for the delay, the trial court was fully justified in dismissing the application for condonation of delay and consequently, the review petition. 4. An objection as to maintainability having been raised, that has to be addressed first. Indisputably, an order under Order XLIII Rule 1(a), returning the plaint for presentation before the proper court is appealable, except in cases where the procedure prescribed in Order VII Rule 10A has been followed. If the procedure under Rule 10A is followed, the plaintiff is precluded from filing appeal against the order returning the plaint. As far as the case at hand is concerned, in Ext. P4 order it is specifically stated that the procedure under Rule 10A of Order VII is not followed. Being so, the challenge against Exhibit P4 order cannot be entertained. The challenge is therefore confined to the legality of Exhibits P10 and P11 orders. _**OP(C).1206/21**_ 7 5. Even otherwise, for the review petition to be maintainable, there has to be an apparent error on the face of Exhibit P4. In this regard, it is pertinent to note that as per Section 12(2) of the Court Fees Act, once the defendant raises a contention that the subject matter of the suit is not properly valued the court is bound to decide the question before recording evidence. In case the court finds the subject matter to be not properly valued or the fee paid to be insufficient, a date for amending the plaint and for payment of deficit fees should be fixed. In case the plaint is not amended or the deficit fees not paid within the time allowed, the plaint has to be rejected. Order VII Rule 11 of CPC, which is similarly worded, reads as under; “ _11. Rejection of plaint.—The plaint shall be rejected in the following cases:—_ ## _(a) xxxxxxxxxxx_ _(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so.”_ 6. Order VII Rule 10 on the other hand empowers the court to return the plaint for presentation before the proper court at any stage of the suit. Here, the court found that, on the subject matter of the suit being valued correctly, it will exceed the pecuniary jurisdiction of the _**OP(C).1206/21**_ 8 Munsiff's Court. Hence, the plaint was returned for presentation before the proper Court. In _**Major (Rtd.) P.P.S.Pillai**_ (supra), the question regarding deficiency of court fee was considered at the appellate stage and finding the valuation to be inadequate and the court fees to be deficient, the first appellate court returned the appeal under Order VII Rule 10. Upholding the challenge against that order, the Division Bench held as under; _“S. 12(4) of the Court Fees Act confers jurisdiction on the appellate court to consider either of its own motion or on the application of any of the parties the correctness of the order passed by the trial court affecting the fee payable on the plaint. If the court of appeal decides that the fee paid in the lower court was not sufficient, the appellate court shall require the party liable to pay the deficit court fee within the time as may be fixed by it. The further provision is that if the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower court, the appeal shall be dismissed. In the case on hand therefore the appellate court, after considering the correctness of the finding rendered by the trial court, should have directed the appellant-plaintiff to correct the valuation and to pay the deficit court fee within a time to be fixed by that court and only thereafter could either dismiss the appeal or proceed with it in terms of S. 12(4)(c) of the Court Fees Act. But if at that stage the appellate court finds that it has no jurisdiction to entertain the appeal on the basis of the corrected valuation, it could return the appeal for presentation to the proper court._ _**OP(C).1206/21**_ 9 _The error if any committed by the lower appellate court in this case can only be in not giving the plaintiff-appellant time to correct the valuation and to pay the court fee both on the plaint and on the Memorandum of Appeal and thereafter deal with the appeal in terms of S. 12(4)(b) and (c) of the Court Fees Act and if on correction of the valuation and payment of court fee, it is found that the appeal is beyond the jurisdiction of the court to return the appeal for presentation to the proper court. The return of the appeal straightaway may not be justified.”_ The above findings are based entirely on the interpretation of Section 12(4) dealing with the powers of the appellate court. In _**Varry Mutyalamma v. Dasary Narayanaswamy,**_ [AIR 1949 Mad 719], the challenge was against an order of the Munsiff court allowing amendment to the plaint for bringing the suit within its jurisdiction; _“5. In the circumstances the learned District Munsif should not have allowed this amendment. Although the point of courtfee was not specifically decided, the learned District Munsif seemed to think that proper court-fee was paid on the plaint. The value of the suit property must first be ascertained in accordance with the provisions of Section 7(v) of the Court-fees Act, and if this is found to be in excess of the District Munsif's jurisdiction, he should at once return the plaint for presentation to the proper Court. It is ordinarily not open to a District Munsif, though there may be some exceptional circumstances which may justify this course, to allow an amendment of any plaint which may help to bring a doubtful plaint really within the_ _**OP(C).1206/21**_ 10 _jurisdiction of a higher Court within his own jurisdiction. It is ordinarily his duty to decide his own jurisdiction to try the original plaint filed before him.”_ This court in _**Nanikutty Amma Devaki Amma v. Krishnan Kochunarayanan Nair**_ [AIR 1978 Ker 3] has also held that the trial court cannot order amendment of the plaint after passing an order directing return of the plaint for presentation to the proper court. 7. The legal position being as above, I find no merit in the contention that the learned Munsiff had committed gross illegality by returning the plaint, without affording an opportunity to amend the plaint. The court below could have resorted to such procedure under Order VII Rule 11 only if the suit was maintainable before the Munsiff Court even after correcting the valuation. 8. Though various other legal contentions are raised by the learned counsel on either side, those questions are beyond the scope of this original petition. 9. We now revert back to the question whether the petitioner had given sufficient explanation for the delay of 469 days in filing the review petition. Going by the petitioner's affidavit, the order directing return of the plaint was passed, while the petitioner was abroad and _**OP(C).1206/21**_ 11 she filed the review petition immediately on her return. The 3rd respondent had contended that the actual delay is 534 days and further that the petitioner’s claim of not having returned to Kerala during the interegrum between Ext P4 order and filing of the review petition, as false. In spite of the specific objections, the petitioner did not produce documents to prove her submissions. All that she was required to do, was to produce the relevant pages of the passport. The petitioner having failed to do that, the trial court was justified in refusing to condone the delay on the premise that, except a bald statement that she was in United Kingdom, the petitioner had failed to show sufficient cause for condoning the delay. Having carefully scrutinised the affidavit of the petitioner, I see no reason for coming to a different conclusion. As rightly held by the trial court, an omnibus statement by the petitioner that she was abroad all throughout, without any supporting evidence, cannot be termed as sufficient explanation for the delay of 469 days. In _**Esha Battacharjee v Raghunathpur Nader Academy**_ [(2013) 12 SCC 649], the Apex Court has pointed out the distinction between inordinate delay and a delay of short duration or few days. For the former, the doctrine of prejudice is attracted whereas for the latter it may not be. The first one warrants a strict approach whereas the second calls for a liberal delineation. The delay of 469 days being inordinate, the court below _**OP(C).1206/21**_ 12 cannot be faulted for having adopted a strict approach. For the aforementioned reasons, the original petition is dismissed. Sd/- **V.G.ARUN, JUDGE** _vgs_ _**OP(C).1206/21**_ 13 ## **APPENDIX OF OP(C) 1206/2021** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE PLAINT IN OS 246/2011 ON| |---|---| ||THE FILE OF THE MUNSIFF COURT,| ||THIRUVANANTHAPURAM DATED 10.02.2011| |Exhibit P2|TRUE COPY OF THE PLAINT IN OS 1228/2014 ON| ||THE FILE OF THE MUNSIFF COURT-II, KOZHIKODE| ||DATED 30.09.2014| |Exhibit P3|TRUE COPY OF THE WRITTEN STATEMENT DATED| ||29.09.2015 FILED BY THE 3RD RESPONDENT| |Exhibit P4|TRUE COPY OF THE ORDER PASSED BY THE| ||LEARNED MUNSIFF ON THE PRELIMINARY ISSUED| ||RAISED DATED 25.07.2016| |Exhibit P5|TRUE COPY OF THE MEMORANDUM OF REVIEW FILED| ||BY THE PETITIONER AS IA 813/2018 IN OS| ||1228/2014 DATED 09.02.2018| |Exhibit P6|TRUE COPY OF THE AFFIDAVIT AND PETITION| ||FILED IN SUPPORT OF IA 812/2018 DATED| ||09.02.2018| |Exhibit P7|TRUE COPY OF THE COUNTER STATEMENT FILED BY| ||THE 1ST RESPONDENT TO EXT 05 DATED| ||30.09;.2019| |Exhibit P8|TRUE COPY OF THE COUNTER STATEMENT FILED BY| ||THE 1ST RESPONDENT TO EXT.6 DATED| ||30.09.2019| |Exhibit P9|TRUE COPY OF THE COUNTER STATEMENT FILED BY| ||THE 3RD RESPONDENT EXT.P5 DATED 25.02.2020| |Exhibit P10|TRUE COPY OF THE ORDER IN IA 812/2018 IN OS| ||1228/2014 ON THE FILE OF THE ADDITIONAL| ||MUNSIFF-II, KOZHIKODE DATED 24.02.2021| |Exhibit P11|TRUE COPY OF THE ORDER IN IA 813/2018 IN OS| ||1228/2014 ON THE FILE OF THE ADDITIONAL| ||MUNSIFF-II, KOZHIKODE DATED 24.02.2021| _**OP(C).1206/21**_ 14 ## **RESPONDENTS' EXHIBITS:** EXIBIT R3(a): COPY OF WILL REGISTERED AS DOC.NO.211 OF 2008 SRO ERNAKULAM DATED 24.5.2008. EXHIBIT R3(b): DATED 16.3.2009, COPY OF ORDER IN LAOP.NO.1405 OF 2008 ON THE FILES OF THE II ADDL. DISTRICT COURT, ERNAKULAM. EXHIBIT R3(c): DATED 6.7.2020 COPY OF JUDGMENT IN W.P(C).NO.10252 OF 2010 OF THIS HONOURABLE COURT. EXHIBIT R3(d): DATED 11.7.2011, COPY OF LETTER OF ADMINISTRATION IN LAOP.NO.1405 OF 2008 ON THE FILES OF THE II ADDL.DISTRICT COURT, ERNAKULAM. EXHIBIT R3(e): DATED 23.1.2012, COPY OF ORDER IN OS.NO.246 OF 2014 ON THE FILES OF THE ADDL.MUNSIFF'S COURT-II, THIRUVANANTHAPURAM. EXHIBIT R3(f): DATED 25.2.2020, COPY OF COUNTER AFFIDAVIT IN I.A.NO.812 OF 2018 IN O.S.NO.1228 OF 2014 ON THE FILES OF THE MUNSIFF'S COURT, KOZHIKODE.