[7/18, 13:01] Patty Jeganathan Mhc Advt: சேகர், முடிந்தது முடிந்தது தான் கதம் கதம். யார் சொன்னது சேகர். இந்த வழக்கு பாரதி பொது நல வழக்காக போட்டது. டெண்டர் கிரிமினல் வழக்குகளுக்கு 6 வழி பாதை உண்டு. தி.மு.க . கதம் கதம் என்று தப்பிக்க விடாது. கழக வழக்கறிஞர்களை கதம் கதம் என்று நினைக்காதே சேகர். இந்த வழக்கு உச்ச நீதிமன்றம் போகும். தீர்ப்பு சட்டப்படி திருத்தப்படும் சேகர். [7/18, 13:11] sekarreporter1: 💐
[7/18, 13:01] Patty Jeganathan Mhc Advt: சேகர், முடிந்தது முடிந்தது தான் கதம் கதம். யார் சொன்னது சேகர். இந்த வழக்கு பாரதி பொது நல வழக்காக போட்டது. டெண்டர் கிரிமினல் வழக்குகளுக்கு 6 வழி பாதை உண்டு. தி.மு.க . கதம் கதம் என்று தப்பிக்க விடாது. கழக வழக்கறிஞர்களை கதம் கதம் என்று நினைக்காதே சேகர். இந்த வழக்கு உச்ச நீதிமன்றம் போகும். தீர்ப்பு சட்டப்படி திருத்தப்படும் சேகர்.
[7/18, 13:11] sekarreporter1: 💐
![IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.12.2023 CORAM THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR E.P.NOS.72 AND 73 OF 2019 M/s.Gowpatt Associates Represented by its Proprietor Mr.P.Arun Kumar #5/F1, 1st Street, Gopalapuram, Chennai – 600 086. .. Petitioner / Decree Holder in both EPs’ Versus 1.The Superintending Engineer National Highways Salem Circle Omalur Main Road, Narosithipatty, Salem – 636 004. .. 1st Respondent / Judgment Debtor in both EPs’ 2.Syndicate Bank Transport Bhavan 1, Parliament Street, New Delhi – 110 001. .. 2nd Respondent / Garnishee in both EPs’ 3.Registrar General Madras High Court Chennai – 600 104. (R3 – suo motu impleaded as per order dated 08.11.2023 in E.P.Nos.72 & 73 of 2019) .. Respondents in both EPs’ PRAYER: Execution Petitions filed seeking to issue a Prohibitory Order under Order XXI Rule 46 of the Code of Civil Procedure, 1908, restraining the operation of Current Account No.90623100000014 standing in the name of e-Payment National Highways, the National Highways being the employer/principal of the Judgment Debtor, the details of which are morefully set out hereunder and direct that the sums lying therein, so much thereof as may necessary to satisfy the decretal sum to be paid into the account of the instant execution petition. For Petitioner / Decree Holder : Mr.Sharath Chandran in both EPs’ for Mr.V.Raghavachari For Respondent-1 / Mr.R.Ramanlaal Judgment Debtor : For Respondent-2 / Additional Advocate General assisted by Mr.A.Edwin Prabhakar Special Government Pleader (CS) Garnishee : Mr.A.Abdul Wahab for M/s.K.V.Subramaniam Associates For Respondent-3 : Mr.B.Vijay COMMON ORDER These Execution Petitions are filed as against the first respondent / Judgment Debtor in respect of the Award amount passed in O.P.Nos.62 and 63 of 2015. The said Award was originally challenged by the first respondent / Judgment Debtor before the Commercial Division in O.P.Nos.456 and 457 of 2018. A learned Single Judge of this Court, by order dated 02.04.2019 dismissed both the Original Petitions. The common order of the learned Single Judge was confirmed by a Division Bench of this Court in O.S.A.Nos.197 and 198 of 2019 on 24.03.2021. The judgment of the Division Bench was challenged before the Hon’ble Supreme Court. While admitting the matter, the Hon’ble Supreme Court by order dated 22.10.2021 in SLP (C) No.16040 of 2021 directed the first respondent / Judgment Debtor to deposit the entire award amount before the Executing Court and a direction was also issued to the Executing Court to transfer the said amount in an interest bearing Fixed Deposit in a Nationalized Bank. Thereafter, it appears that the Registry of this Court has deducted 2% as commission and 0.2% as an Audit Fee on the amount deposited before the Executing Court. Thereafter, the Hon’ble Supreme Court vide order dated 27.09.2023 dismissed the Special Leave Petition filed by the first respondent and directed the Executing Court to pay out the dues as per the Award. When the petitioner sought to withdraw the said amount as per the direction of this Court, the Registry has deducted a sum of 2% as commission and 0.2% as Audit Fee. 2.At this stage, Mr.Sharath Chandran, learned counsel for the petitioner vehemently contended that the Registry has deducted such percentage invariably in all the cases even though such deposit is made pursuant to the orders of this Court in a Nationalized Bank. 3.Considering the nature of the dispute involved, this Court has impleaded the Registrar General of this Court as a party to these proceedings by order dated 08.11.2023. 4.It is the contention of Mr.Sharath Chandran, learned counsel for the petitioner / decree holder that when the amounts are deposited in a Nationalized Bank as per the direction of this Court, deduction @ 2% as commission and 0.2% as Audit Fee cannot be permissible under law. Further, it is the contention of the learned counsel that only the investments made in Government Securities alone are chargeable @ 2% as per the Madras High Court Original Side Rules, 1956. However, the Registry has invariably deducting 2% on the other deposits made in the Nationalized Banks citing the Madras High Court Original Side Rules, 1956, which is not permissible under law. According to him, Civil Court deposits are governed by Order XXXI of the Madras High Court Original Side Rules, 1956. Appendix II of the Madras High Court Original Side Rules, 1956, deals with the Court Fees and Fees to be levied by the Registrar of High Court, whereas, Articles 38 and 39 deal with fees payable for investment with privity of the Registrar of High Court and the Audit Fee payable to the Suitors’ Fund account. Hence, it is the contention that the Registry is invoking these provisions and making deductions in each and every deposit. 5.The learned counsel for the petitioner further contended that only in the case of investment in Government Securities, such deduction is permissible under law. He has also drawn attention of this Court to the definition of the ‘Government Securities’ in The General Clauses Act, 1897. 6.The learned counsel for the petitioner also brought to the notice of this Court The Government Securities Act, 2006. According to him, as per the said Act, ‘Government Securities’ means securities created and issued by the Government for the purpose of raising a public loan or for any other purpose as may be notified by the Government in the Official Gazette. Hence, according to him, mere deposit in the Nationalised Bank as per the orders of this Court, it cannot be said that there was an investment in Government Securities to invoke Articles 38 and 39 of Appendix II of the Madras High Court Original Side Rules, 1956, which deals with the Court Fees and Fees to be levied by the Registrar of High Court. It is the further contention that even explanation to Article 38 clearly shows that the term ‘investment’ occurring in this item would mean investment in Government securities through the Reserve Bank of India or any Scheduled Bank or in such private institutions as may be specified in the order of Court directing the investment. Therefore, it is the contention that the investment in Government Securities would be through different modes viz., one by Reserve Bank of India or by any Scheduled Banks or by any Private Institutions. Therefore, the very explanation makes it very clear that only when investments are made in Government Securities, deductions under Articles 38 and 39 of Appendix II of the Madras High Court Original Side Rules, 1956 is permissible. According to him, for word ‘means’ no other meaning can be assigned other than contained in the definition itself. 7.In support of his submission, the learned counsel for the petitioner has relied upon the following judgments of the Hon’ble Supreme Court: (i) THE SOUTH GUJARAT ROOFING TILES MANUFACTURERS ASSOCIATION VS. THE STATE OF GUJARAT [1976 (4) SCC 601] (ii) P.KASILINGAM VS. P.S.G. COLLEGE OF TECHNOLOGY [1995 SUPP (2) SCC 348] (iii) RANBAXY LABORATORIES LIMITED VS. UNION OF INDIA AND OTHERS [2011 (10) SCC 292] 8.Further, it is the contention of the learned counsel for the petitioner that deduction @ 0.2% as Audit Fee is permissible only when the money is paid to the Manager of the Reserve Bank of India. However, the Registry has deducted 2% commission not only on the principal but also on the accumulated interest, which is not permissible under law. 9.The learned counsel for the petitioner has also brought to the notice of this Court the Standing Orders 145 of the High Court to buttress his argument that all investments in securities should go to the Suitors Fund with the privity of the Registrar and all other cash deposits should go to the Civil Court deposits. Only when the cash is converted into Government Securities, it should go to the Suitors’ Fund. Therefore, every deposits cannot be construed as investments in Government Securities. 10.Mr.B.Vijay, learned counsel appearing for the third respondent – Registrar General, High Court, vehemently contended that all moneys paid into the Court under a decree or order will go to the Suitors’ Fund. Hence, it is the contention that as per Order XXXI Rule 8 of the Madras High Court Original Side Rules, 1956 and Appendix IV of the Rules, even the Fixed Deposit in any of the Nationalized Bank is treated as securities. Therefore, that the practice of deduction is vogue in time memorial and constitution of the rules has not been challenged and therefore, at this stage, the petitioner cannot raise objection for the deduction in the absence of challenging the very Rules. It is his further contention that Article 38 of Appendix II of the Madras High Court Original Side Rules makes it clear that upon all the moneys received for investment with privity of the Registrar General of High Court, a commission is permissible. According to the term ‘investment’ mentioned in the explanation in Article 38 is very clear that not only investment in the Government Securities but also the amounts deposited in Scheduled Banks or even in any Private Institutions. Therefore, his contention is that interpretation should be given a liberal meaning and the the word term ‘investment’ should be given a liberal meaning and the Court cannot interpret beyond the explanation contained in Article 38. Hence, it is the contention that explanation to Article 38 is not a substantial provision in any sense but it is only an explanation clarified certain ambiguities. It does not enlarge the scope of original section which it explain only, makes the meaning clear beyond the dispute. 11.It is submitted by Mr.B.Vijay, learned counsel that Order XXXI Rule 8 makes it clear that the investment made in securities referred to in Appendix IV is also chargeable. According to him, Appendix IV even deals with the deposits as securities. In support of his submission, he has relied upon the following judgments of the Hon’ble Supreme Court: (i) S.SUNDARAM PILLAI AND OTHERS VS. V.R.PATTABIRAMAN AND OTHERS [1985 (1) SCC 591] (ii) DR.M.K.SALPEKAR VS. SUNIL KUMAR SHAMSUNDER CHAUDHARI AND OTHERS [1988 (4) SCC 21] (iii) SMT.BHAGWANTI VS. UNION OF INDIA [1989 (4) SCC 397] (iv) PATEL ROADWAYS LIMITED BOMBAY VS. PRASAD TRADING COMPANY [1991 (4) SCC 270] (v) UNION OF INDIA AND OTHERS VS. IND-SWIFT LABORATORIES LIMITED [2011 (4) SCC 635] 12.The learned counsel for the third respondent has also brought to the notice of this Court the judgment of the learned Single Judge of this Court in SUN TV NETWORK LIMITED VS. SRI VENKATESWARA CREATIONS AND OTHERS [A.No.558 of 2021 in O.A.No.314 of 2020 in C.S.(Comm.Div.) No.187 of 2020 dated 01.04.2021] in support of his contentions. 13.In the light of the above submissions, now the point arises for consideration is that whether the deductions @ 2% on the investment on the Nationalized Banks and 2% on the interest accrued and 0.2% as Audit Fee made by the Registry routinely on every deposit made in the Nationalized Banks on the orders of this Court is in order and valid as per law? 14.It is relevant to note that the payment of moneys to the credit of Civil Court deposits and account of Suitors’ Fund is governed under Order XXXI of the Madras High Court Original Side Rules. Rules 2, 3, 4, 5 and 8 of the Rules are extracted hereunder: “R.2.Any person desirous of paying money into Court under a decree or order of Court shall present a lodgment schedule to the Section Officer of the Accounts Department of the High Court for the issue of a challan to enable the party to make payment into the Reserve Bank of India, with a copy of the decree or order directing the payment of money into Court. R.3.If, for any valid reason, it is not possible to produce a copy of the decree or order, the applicant may obtain a certificate from Registrar, or from the Deputy Registrar, Original Side, on the lodgment schedule as to the amount to be paid and the time within which it should be paid. R.4.On the presentation of the lodgment schedule, challan in duplicate specifying the amount and the date within which it should be paid shall be issued by the Accounts Department to the person desirous of making the payment who will deliver the challan to the bank which will, retain the original and deliver the duplicate duly signed to the person making the payment. R. 5.On the production of the duplicate from the bank duly signed, the person making the payment shall be given credit in the books maintained in the High Court for the amount paid into the bank. R.8. The Registrar, Original Side, shall make in a register to be kept by him causewise, hereinafter referred to as the money order book, an entry of every decree or order for transfer of money or effects from civil courts deposits to the Suitors’ Fund Account in the Reserve Bank of India for investment in securities referred to in Appendix IV of these rules, or for delivery into or out of the Reserve Bank of India of any securities, or for sale of such securities, and shall before delivery of the copy of the decree or order to the person or persons entitled to the same or his or their advocate, mark “entered”at the foot of such copy and subscribe his name thereto” 15.A careful perusal of the above Rules makes it very clear that when the deposits are made by way of lodgment schedule, a challan has to be issued to enable the party to make payment in the Reserve Bank of India. A careful perusal of Rule 8 makes it very clear that the Registrar shall make an entry in a Register in this regard and also make an entry as to the order for transfer of money or effects from Civil Court deposits to the Suitor’s Fund in the Reserve Bank of India for investment in securities referred to in Appendix IV of this Rules. 16. The above Rules makes it clear that there must be an entry by the Registrar as to the order for transfer of money or effects from Civil Court deposits to the Suitors’ Fund. This, in fact, indicates that only when the Civil Court deposits, transfered to the Suitor’s Fund account in the Reserve Bank of India for the purpose of investment in securities referred to in Appendix IV, it can be said that only such investment made as referred in Appendix IV, the fees or deductions can be effected. 17. It is relevant to note that the concept of the Suitors’ Fund came from the Letters Patent issued in the year 1800 while establishing the Supreme Court of Judicature at Fort St. George. Same is based on the system prevailing in England. In the United Kingdom, the judiciary comprised the King’s Bench, the Court of Chancery, the Court of Common Pleas, the Court of Exchequer, the Court of Probate, and the High Court of Admiralty. The Court of Chancery had jurisdiction over all matters on the equity side including matters relating to Trusts, guardianship, and the estate of lunatics. 18. The Suitors’ Fund was a fund established in the Court of Chancery. The nature of the Fund is explained in the Report of the Commissioners (1860) as under: “It is the practice of the Court of Chancery, in the exercise of its ordinary jurisdiction, upon the application of any party to a suit, to order the property which is the subject of dispute to be brought into court, and there retained until is thus brought into court, the suitors interested therein may apply to have it laid the rights of the litigant parties can be ascertained and determined. When money out in the purchase of stock and upon such application-or, in some cases, in the stock purchased on every such investment is placed to the account of the cause exercise of its own discretion-the court directs the money to be so invested. The stock purchased on every such investment is placed to the account of the cause or matter to the credit of which the money in- vested was standing, and the risk of the investment is borne by the parties to whom the fund may ultimately be adjudged to belong, the intermediate interest being from time to time accumulated, or otherwise disposed of, for the benefit of the parties interested, as the court may direct. At the date of the last return (1st October, 1859) the securities thus placed under the control of the court amounted to no less a sum than 47,040,8857. 78. 8d., the greater portion of which was invested in 37. per Cent. Consols; and the whole of this large sum, income as well as capital, is the absolute and exclusive property of the particular suitors by whom the original payments into court were made, or to whom, on the termination of each cause or proceeding, it may be judicially decreed to belong.” 27. It will thus be seen that there are, in effect, two distinct funds under the control of the Court of Chancery belonging to the suitors of the court – one consisting of stock, the whole of which, income as well as capital, is the exclusive property of the suitors; the other consisting partly of stock and partly of cash, (but the whole of which, as between the suitors and the court, is treated as cash). the capital of which represents the money from time to time paid in by the suitors, and, to the extent of the money so paid in, belongs exclusively to them, but to the income or profit arising from the employment whereof such suitors can make no claim. 28. It is to the latter of these two funds, which is known as the Suitors’ Fund, and it is to this alone, that the following observations are intended to apply.” 39. It was found that the fees authorised to be taken in the office of the Accountant-General were disproportionate and unequal, and in small transactions a great burden to the suitors. It was also found, that as all monies paid into court by the suitors, as well as those arising from the rates and duties before mentioned, were required to be accounted and taken as one common and there had always been a large accumulation of suitors’ cash lying dead and unemployed in the Bank of England. In the year 1739, therefore, an act was passed (the 12 Geo. 2, c. 24), by which the Court of Chancery was authorised to lay out in Government securities a sum not exceeding 35,000., part of the then certain fixed salaries were to be paid to the Accountant-General and his clerks, unemploved cash balance, and out of the interest arising from the investment in lieu of fees, the surplus interest being treated as part of the suitors’ common and general cash Under the authority given by this act, and in pursuance of an order of the Court of Chancery of the 2nd July, 1739, ( a copy of which will be found in the Appendix), the sum of 34,9391. 18. 6d. cash was invested in the purchase of 36,8501. Exchequer Tallies, which in 1752 were exchanged for the same amount of Bank 31. per Cent. Annuities. And this was, in fact, the foundation and commencement of that particular fund which bears the name of, and is known as, the “Suitors’ Fund.” From the above report it is clear that from the earliest time (ie., at least from 1739) funds lying in the Suitor’s Fund were to be used for purchase of Government Securities and the Accountant General was paid a fixed sum for the services rendered by him in making these investments. 19.The Supreme Court of Madras was established and empowered to exercise equitable jurisdiction on the same lines as the Court of Chancery. Suitor’s money paid into Court was paid into the Governor of the East India Company as there was no Central Bank like the Reserve Bank at that point of time. The two clauses of the Letters Patent of the Supreme Court of Madras, 1800 reads as follows: “An equitable Jurisdiction is then given to the Court of Chancery. And it is our further Will and Pleasure, and We do hereby for Us, our Heirs, and Successors, grant, ordain, and establish, That the said Supreme Court of Judicature at Madras shall also be a Court of Equity, and have Equitable Jurisdiction over the person or persons herein-before described and specified, or limited for its ordinary Civil Jurisdiction as aforesaid, subject to the restrictions and exceptions hereinbefore, in that behalf, express or contained, and not otherwise; and shall and may have full Power and Authority to administer Justice, in a summary manner, according, or as near as may be, to the Rules and Proceedings of Our High Court of Chancery in Great Britain. And said Court, to compel the appearance, and answer upon oath, of the parties upon a Bill filed, to issue Subpoenas and other Process, under the Seal of the therein complained against, and obedience to the Decrees and Orders of the said Court of Equity in such manner and form, and to such effect, as Our High Chancellor of Great Britain doth or lawfully may, under Our Great Seal of Great Britain, or as near the same as the circumstances and condition of the places and persons under their Jurisdiction, and the laws, manners, customs and usages of the Native Inhabitants will admit. Suitor’s money and securities to be deposited with the Company’s cash. “And We do further will and ordain, That all the monies, securities, and effects of the suitors of the said Court, which shall be ordered into Court, or to be paid, delivered, or deposited for safe custody, shall be paid or delivered unto, or deposited with the Governor, or President and Council at Fort St. George, to be by them kept, and deposited with the cash and effects of the said Supreme Court of Judicature at Madras shall, from time to time, think fit to make, concerning the same, for the benefit of the Suitors; the said United Company being responsible for the said monies, securities, and effects, in such manner, and subject to the same exceptions, as is mentioned in the said in part recited Charter of Our said Royal Grandfather, with respect to the monies, securities, or effects, to be deposited with the said Governor or President and Council, under the authority of the Mayor’s Court thereby erected.” 20. After the Indian Constitution, the position is governed by Article 284 of the Constitution which reads as follows: “Custody of suitors deposits and other moneys received by public servants and courts All moneys received by or deposited with (a) any officer employed in connection with the affairs of the Union or of a State in his capacity as such, other than revenues or public moneys raised or received by the Government of India or the Government of the State, as the case may be, or (b) any court within the territory of India to the credit of any cause, matter, account or persons, shall be paid into the public account of India or the public accountof the State, as the case may be” It is under the aforesaid provision that all the monies paid into the High Court are deposited into the Public Account of India through the RBI. 21. When the Indian High Courts Act, 1861 was enacted by the British Parliament, Section 9 declared that the new High Court was to exercise the same powers and jurisdiction as the erstwhile Supreme Court. Clause 19 of the Letters Patent of 1865 reads as follows: “By the High Court in the exercise of Ordinary Original Civil Jurisdiction.– And We do further obtain that, with respect to the law or equity to be applied to each case coming before the said High Court of Judicature at Madras, in the exercise of its Ordinary Original Civil Jurisdiction, such law or equity shall be the law or equity which would have been applied by the said High Court to such case if these Letters Patent had not issued.” The above makes it clear that this Court exercises equity jurisdiction in several matters like guardianship and estate of lunatics and trust etc., as that of Court of Chancery in England. Only in that practice, the Suitors Fund for the Madras High Court was established to deal with investments. 22. Order XXXI of the Madras High Court Original Side Rules deals with payment of money into the Court. As already discussed, Rule 8 makes it very clear that to make an investment in the Government securities, the specific order for transferring of money or effects from Civil Courts Deposits to Suitors’ Fund in Reserve Bank of India for investment in securities is required. Therefore, for any investment in securities the money has to be transferred from the Civil Court deposit. 23.Much emphasis has been made to Appendix IV of the Madras High Court Original Side Rules, 1956. The very heading of the Appendix IV deals with the Securities in which Trust Moneys, Moneys To Provide For Legacies, and Moneys Belonging To Wards, May Be Invested. It is relevant to extract Appendix IV Madras High Court Original Side Rules, 1956, which reads as follows: “APPENDIX IV SECURITIES IN WHICH TRUST MONEYS, MONEYS TO PROVIDE FOR LEGACIES, AND MONEYS BELONGING TO WARDS, MAY BE INVESTED (a)Promissory notes, debentures, stock or other securities of any State Government or of the Government of India; (b)Stock or debentures of, or shares in companies the interest whereon is guaranteed by the Government of India; (c)Debentures or other securities for money issued by or on behalf of, any municipal or local body, under the authority of any Act of a legislature established in India; (d)First mortgage of immovable property situate in India provided that the property is not a lease-hold for a term of years and that the value of the property exceeds by one-third, or if consisting of buildings, exceeds by one-half the mortgage money; and (e)Deposit in the Post Office Savings Bank when the amount to be invested does not exceed Rs.1,000. (f)Fixed Deposit in the State Bank of India for a period of not less than twelve months; (g)Fixed Deposit in the Madras Co-operative Central House Mortgage Bank, for a period of not less than twelve months; (h)Deposit in the Madras Industrial Investment Corporation; (i)Fixed Deposit in any of the Nationalized Bank for a period of not less than twelve months; (j)Fixed Deposit in any of the Scheduled Bank for a period of not less than twelve months; (k)Fixed Deposit in the Tamil Nadu State and Central Cooperative Banks and their branches for a period of not less than 12 months; (l)Small Savings Scheme. (m)Tamil Nadu Transport Development Finance Corporation Ltd. (n)Housing Development Finance Corporation Ltd.” 24.The very heading of the Appendix IV makes it very clear that it deals with the Trust Moneys and moneys provided for legacies and money belonging to the wards may be invested in the manner indicated in the Appendix IV. Only the Trust moneys and moneys to provide for legacies and moneys belonging to the wards may be invested as securities wherein it indicates that even a fixed deposit in any of the Nationalized Banks or Schedule Bank is construed as securities. Therefore, Appendix IV cannot be given extended meaning to hold that all the moneys deposited in Nationalized Banks should be treated as securities. 25.It is relevant to note that Appendix II of the Madras High Court Original Side Rules, 1956, deals with the Court Fees and Fees to be levied by the Registrar of High Court. Articles 37 and 38 of Appendix II of the Madras High Court Original Side Rules, 1956, reads as follows: APPENDIX II COURT – FEES Serial number Description of document or proceeding Amount (1) (2) (3) 37. Upon all interest actually received on the securities standing the name of the Registrar, High Court, for every Rs.100 (i)Provided that no such fees shall be levied in cases where, under order of Court, such securities are encashed prior to their date, of maturity and where the proceeds by such encashment are less than their face value: 5.00 38. Upon all moneys received for investment with the privity of the Registrar of the High Court, for every Rs.100 Provided that no commission shall be levied for the investment of accumulated interest on investments already made or for the reinvestment of securities which have matured. 2.00 Serial number Description of document or proceeding Amount Explanation: The term ‘investment’ occurring in this item would mean investment in Government securities through the Reserve Bank of India or any Scheduled Bank or in such private institutions as may be specified in the order of Court directing the investment. 26.It is relevant to note that a careful perusal of Articles 37 and 38 of Appendix II of the Madras High Court Original Side Rules, 1956, makes it very clear that the term ‘investment’ occurring in this item would mean investment in Government Securities through the Reserve Bank of India or any Scheduled Bank or any such private Institutions as may be specified in the order of the Court directing the investments. A plain reading of the explanation makes it clear that the investment in Government Securities can be made in three modes. One through Reserve Bank of India or any Scheduled Bank or any such Private Institutions as may be specified in the order of the Court directing the investments. Therefore, this Court, on careful perusal of the provision is of the view that only when there is a specific order directing investment in Government Securities in a Scheduled Bank or Private Institutions or Reserve Bank of India, fees can be levied by the Registrar of the High Court upon the money received for investment through the Registrar of High Court. It is relevant to note that the term ‘Government Securities’ has not been defined anywhere in the Madras High Court Original Side Rules. 27.As per The General Clauses Act, 1897, the term ‘Government Securities’ defined in Section 3(24) reads as follows: “3.(24) “Government securities” shall mean securities of the Central Government or of any State Government, but in any Act or Regulation made before the commencement of the Constitution shall not include securities of the Government of any Part B State;” 28.Section 4A of The General Clauses Act, 1897 reads as follows: “4A. Application of certain definitions to Indian Laws— (1) The definitions in section 3 of the expressions “British India”, “Central Act”, “Central Government”, “Chief Controlling Revenue Authority”, “Chief Revenue Authority”, “Constitution”, “Gazette”, “Government”, “Government securities”, “High Court”, “India”, “Indian Law”, “Indian State”, “merged territories”, “Official Gazette”, “Part A State”, “Part B State”, “Part C State”, Provincial Government”, “State” and “State Government” shall apply, unless there is anything repugnant in the subject or context, to all Indian laws. 29.The above sections makes it clear that the definition contained in General Clauses Act, will apply to all Indian laws unless there is anything repugnant in the subject or context. 30. Originally, under The Public Debt Act, 1944, the term “Government security” is defined as follows: “2. Definitions.— In this Act, unless there is anything repugnant in the subject or context,— (1) … (2)“Government security” means— (a) a security, created and issued, 10[by the Government] for the purpose of raising a public loan, and having one of the following forms, namely :— (i)stock transferable by registration in the books of the Bank; or (ii) a promissory note payable to order; or (iii) a bearer bond payable to bearer; or (iv) a form prescribed in this behalf; (b)any other security created and issued by the Government in such form and for such of the purposes of this Act as may be prescribed;” 31.The said Act has now ceased in view of The Government Securities Act, 2006. As per The Government Securities Act, 2006 (Act No.38 of 2006) the term ‘Government Securities’ is defined as follows: “2. Definitions. (a)… … (f)“Government security” means a security created and issued by the Government for the purpose of raising a public loan or for any other purpose as may be notified by the Government in the Official Gazette and having one of the forms mentioned in section 3; (g)“prescribed” means prescribed by regulations made under this Act; (h)“promissory note” includes a treasury bill; (i)“specified” means specified by the Bank in the Official Gazette. 3.Forms of Government securities.—A Government security may, subject to such terms and conditions as may be specified, be in such forms as may be prescribed or in one of the following forms, namely:— (i) a Government promissory note payable to or to the order of a certain persons; or (ii) a bearer bond payable to bearer; or (iii) a stock; or (iv) a bond held in a bond ledger account. Explanation.—For the purpose of this section, “stock” means a Government security,— (i)registered in the books of the Bank for which a stock certificate is issued; or (ii)held at the credit of the holder in the subsidiary general ledger account including the constituents subsidiary general ledger account maintained in the books of the Bank, and transferable by registration in the books of the Bank.” 32.Therefore, when the Government Securities specifically defined under the said Act which has overriding effect under Section 13 of the said Act, this Court is of the view that there cannot be extended meaning for Government Securities other than one contained in the Government Securities Act. The explanation under Article 38 of the Madras High Court Original Side Rules indicate that word ‘mean’ investment in Government Securities should be understood in the context of its object, i.e., only if the investment is made in Government Securities, such deduction is permissible. 33. The Rule 145 of the Standing Orders of the High Court reads as follows: “145. All investments in securities should go to the Suitors Fund (with the privity of the Registrar) and only cash should go to Civil Court Deposits, and when cash is converted into Government Securities it should go into the Suitors Fund” The above Rule makes it clear that the only Suitors Fund in the High Court is meant for the deposit in government securities by way of investments (as was done in the Chancery) and not for money as case which is to be deposited into the Civil Court Deposits. 34.In this regard, it is useful to refer the judgment of the Hon’ble Supreme Court in THE SOUTH GUJARAT ROOFING TILES MANUFACTURERS ASSOCIATION VS. THE STATE OF GUJARAT [1976 (4) SCC 601] wherein it is held as follows: “It is clear from the Explanation to entry 19 that there could be no other way or manner of “processing” besides what is stated as included in that expression. Though include’ is generally used in interpretation clauses as a word of enlargement, in some cases the context might suggest a different intention…” 35. Considering the above settled position of law, when the collection of commission is like fiscal legislation, the meaning contained in the Rule has to be understood as it is. It cannot be given extended meaning to contend that mere deposit in the Nationalized Bank at the orders of this Court such deposit also constitute investment in Government Securities. 36. In the judgment relied on by Mr.B.Vijay, learned counsel for the third respondent in UNION OF INDIA AND OTHERS VS. IND-SWIFT LABORATORIES LIMITED [2011 (4) SCC 635] it is held as follows: “17.A statutory provision is generally read down in order to save the said provision from being declared unconstitutional or illegal. Rule 14 specifically provides that where CENVAT credit has been taken or utilized wrongly or has been erroneously refunded, the same along with interest would be recovered from the manufacturer or the provider of the output service. The issue is as to whether the aforesaid word “OR” appearing in Rule 14, twice, could be read as “AND” by way of reading it down as has been done by the High Court. If the aforesaid provision is read as a whole we find no reason to read the word “OR” in between the expressions `taken’ or `utilized wrongly’ or `has been erroneously refunded’ as the word “AND”. On the happening of any of the three aforesaid circumstances such credit becomes recoverable along with interest.” 37. In the judgment of the Hon’ble Supreme Court in PATEL ROADWAYS LIMITED BOMBAY VS. PRASAD TRADING COMPANY [1991 (4) SCC 270] it is observed as follows: “12.We would also like to add that the interpretation sought to be placed by the appellant on the provision in question renders the explanation totally redundant. If the intention of the legislature was, as is said on their behalf, that a suit against a corporation could be instituted either at the place of its sole or principal office (whether or not the corporation carries on business at that place) or at any other place where the cause of action arises, the provisions of clauses (a), (b) and (c) together with the first .part of the explanation would have completely achieved the purpose. Indeed the effect would have been wider. The suit could have been instituted at the place of the principal office because of the situation of such office (whether or not any actual business was carried on there). Alternatively, a suit could have been instituted at the place where the cause of action arose under clause (c) (irrespective of whether the corporation had a subordinate office in such place or not). This was, Therefore, not the purpose of the explanation. The explanation is really an explanation to clause (a). It is in the nature of a clarification on the scope of clause (a) viz. as to where the corporation can be said to carry on business. T’his, it is clarified, will be the place where the principal office is situated (whether or not any business actually is carried on there) or the place where a business is carried on giving rise to a cause of action (even though the principal office of the corporation is not located there) so long as there is a subordinate office of the corporation situated at such place. The linking together of the place where the cause of action arises with the place where a subordinate office is located clearly shows that the intention of the legislature was that, in the case of a corporation, for the purposes of clause (a), the location of the subordinate office, within the local limits of which a cause of action arises, is to be the relevant place for the filing of a suit and not the principal place of business. If the intention was that the location of the sole or principal office as well as the location of the subordinate office (within the limits of which a cause of action arises) are to be deemed to be places where the corporation is deemed to be carrying on business, the disjunctive “or” will not be there. Instead, the second part of the explanation would have read “and in respect of any cause of action arising at any place where it has a subordinate office, also at such place”. The above judgments deals with the amended explanation to Section 20 of the Civil Procedure Code. A careful perusal of the entire judgment, this Court is of the view that above judgment is not applicable to the facts of the case. 38.In the judgment in SMT. BHAGWANTI VS. UNION OF INDIA [1989 (4) SCC 397] it is observed that an explanation, may only explain and may not expand or add to the scope of the original section. 39.The judgment in DR.M.K.SALPEKAR VS. SUNIL KUMAR SHAMSUNDER CHAUDHARI AND OTHERS [1988 (4) SCC 21] deals with the explanation and Clause 13(3)(v) of the Rent C.P. And Berar Letting of Houses and Rent Control Order, 1949, wherein it is held that an explanation cannot be construed to narrow down the scope of the first category of the cases where the tenant secured alternative accommodation. It is not possible to split the main sub-clause so as to apply it to non-residential buildings where the tenant leaves the area for four months and at the same time exclude it where he secures alternative accommodation. The above judgment is also not applicable to the issue involved in this case. 40.In the judgment in S. SUNDARAM PILLAI AND OTHERS VS. V.R.PATTABIRAMAN AND OTHERS [1985 (1) SCC 591] it is observed as follows: “45.So far as the Act in question is concerned, the matter does not rest only on the question of wilful default, but by an amendment (Act No. 23 of 1973) an Explanation, in the following terms, was added to the proviso to section 10 (2) of the Act: “Explanation-For the purpose of this sub-section, default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two months’ notice by the landlord claiming the rent.” 46.We have now to consider as to what is the impact of the Explanation on the proviso which deals with the question of wilful default. Before, however, we embark on an enquiry into this difficult and delicate question, we must appreciate the intent, purpose and legal effect of an Explanation. It is now well settled that an Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision. Sarathi in ‘Interpretation of Statutes’ while dwelling on the various aspects of an Explanation observes as follows: “(a)The object of an explanation is to understand the Act in the light of the explanation. (b)It does not ordinarily enlarge the scope of the original A section which it explains, but only makes the meaning clear beyond dispute.” 47.Swarup in ‘Legislation and Interpretation’ very aptly sums up the scope and effect of an Explanation thus: “Sometimes an explanation is appended to stress upon a particular thing which ordinarily would not appear clearly from the provisions of the section. The proper function of an explanation is to make plain or elucidate what is enacted in the substantive provision and not to add or subtract from it. Thus an explanation does not either restrict or extend the enacting part; it does not enlarge or narrow down the scope of the original section that it is supposed to explain .. The Explanation must be interpreted according to its own tenor; that it is meant to explain and not vice versa.” 41.Absolutely there is no dispute about the settled position. The very object of the explanation is to understand the Act in the light of the explanation, absolutely there is no doubt in the above proposition. 42.Admittedly, the word ‘Government Securities’ is not defined anywhere in the Madras High Court Original Side Rules. But for easy understanding, explanation has been appended and particularly, the meaning for ‘Government Securities’ and the manner in which such investment is made makes it clear that only when the deposits made in Government Securities, the fees can be charged either under Article 37 or 38. Explanation further makes it very clear that the very purpose is for investment of the money deposited in the Civil Court deposit into Government Securities by three modes either by Reserve Bank of India or by Scheduled Banks or by Private Institutions as directed by the Court. Therefore, this Court is of the view that other than the above understanding no other extended interpretation could be given to countenance the submission of the learned counsel appearing for the third respondent to hold that for every deposit made in fixed deposit in a Nationalized Bank at the orders of the Court, the fees is chargeable. The very purpose of charging the fees is for providing service. Therefore, mere deposit in the Nationalized Bank, this Court is of the view that charging such exorbitant amount and paying the same to the Reserve Bank of India is in fact, infringe the constitutional right of the litigant namely the property rights. In a given case, a sum of Rs.107 Crores have been deposited and more Rs.4 Crores already deducted and still the Registry is insisting upon the 2% deduction on the interest which is also impermissible even under Article 37 of the Madras High Court Original Side Rules. A careful reading of Rule 8 of Order XXXI makes it very clear that Appendix IV will apply for making investments in Government Securities only when there is an order for transfer of amount or effects from the CCD for the very purpose of making investments in Government Securities. 43.Admittedly, no amount has come from the CCD and orders have been passed by the Courts regularly directing fixed deposit in the Nationalized Bank. Such being a position, the question of transferring any amount from CCD to make it as an investment in Government Securities does not arise at all. 44.Therefore, the submission of the learned counsel for the third respondent – Registrar General that as per Rule 8 investment has to be made only as per the Appendix IV has also no legs to stand. Rule 8 basically deals with the procedure which has been followed by the Registrar. In fact, it contemplates Registrar to make an entry and keep the record in-tact, by making entry of the order of transfer of amount from CCD or it effects for the purpose of investment in Government Securities. In the absence of any order for transfer or it effects from CCD Appendix IV cannot be pressed into service by the Registrar General to deduct such amounts. As already discussed, the very Appendix IV deals with 3 categories namely, the moneys of Trust and moneys payable to legacies and moneys belonging to the wards. 45. Similarly, the deduction of .02% Audit Fee is permissible only when the money is paid to the Manager of the Reserve Bank of India. In this connection, Entry 39 of Appendix II of the High Court Fee Rules, 1956 must be read in conjunction with Order XXXI Rule 18 of the Original Side Rules which reads as follows: “[R. 18.] The accounts of the Suitors’ Fund shall be audited annually by the Examiner of Local Fund Accounts, Madras, and he shall be entitled to a fee of the Reserve Bank of India with the privity of the Registrar of the High Court decimal two per cent, on the gross receipts of all moneys paid to the Manager of This fee shall be levied by the Registrar of the Court and paid to the said Examiner. Entry 39 and Order XXXI Rule 18 make it clear that an audit fee is payable to audit the funds lying in the Suitors Fund. In the instant case, the deposit was to an interest-bearing account in a Nationalised Bank and not to the Suitors Fund with the RBI. Consequently, there can be no deduction on this score as well. 46. Similar provisions exist in Order XXIV Rule 9 of the Original Side Rules, 1914 of the Culcutta High Court which reads as follows: “9. Where any cash in deposit in the Reserve Bank in the Personal Ledger Account of the Accountant-General of the Court, on account of any suit, appeal, matter or other proceedings shall exceed Rs. 600 over and above what may be required for periodical or other payments, the Reserve Bank shall, if so ordered by the Court or a Judge, under the direction and with the privity of the Accountant-General of the Court, and subject to the provision contained in Rule 10 hereafter, remit a sufficient amount to the Bank for the purchase of Government Promissory Notes including the Bank’s Commission.” The above makes it very clear that only the amounts utilised for the purchase of Government Promissory Fee is chargeable, wherein, in the Madras High Court Rule, it specifically deals with investments in Government Securities as discussed earlier, unless the amount is deposited in the Government Securities, Articles 37, 38 & 39 cannot be pressed into service to deduct such huge amounts. 47. It is also brought to the notice of this Court the order of the learned Single Judge of this Court in a similar occasion in SUN TV NETWORK LIMITED VS.SRI VENKATESWARA CREATIONS AND OTHERS [CS (Commercial Division) No.187 OF 2020 decided on 01.04.2021] wherein the similar issue has been raised by one of the counsels questioning the deduction made by the High Court. Learned brother Judge has upheld the contention of the Registrar General relying upon Rules 37, 38 and 39 of the Rules. It is relevant to note that learned Single Judge has also relied on Madras High Court Original Side Rules of 1956. In fact, the Madras High Court Original Side Rules 1956 has been superseded by the Madras High Court Original Side Rules 1994. In fact, Appendix III reflects the repealing clause which has not been brought to the notice of the learned Single Judge. Further, it is not brought to the notice of the learned Single Judge about the Government Securities Act and the definition of the Government Securities as contained in General Clauses Act and explanation is also not brought to the notice of the learned Single Judge of this Court. As the main definition of the Government Securities is not dealt by the learned Single Judge and it is not brought to the notice of the learned Single Judge about the Government Securities I am unable to follow the above judgment. 48. Accordingly, in the above discussions narrated above, this Court directs as follows: (i)Registry is not entitled to deduct 2% commission and 0.2% as Audit Fee for each and every deposits made in the Nationalized Banks as per the orders of this Court. (ii) Articles 37, 38 and 39 could be invoked only when the amount has been invested in the Government Securities as discussed above. (iii) In the absence of the amount has been transferred from the CCD account and invested in Government Securities, the Registry has no power to deduct 2% commission and 0.2% Audit Fee. (iv) And the petitioner is certainly entitled to all the monies deducted in this regard and the Registry is directed to repay such amounts to the petitioner. 12.12.2023 Index : Yes/No Neutral Citation: Yes/No Speaking / Non-speaking Order TK/dhk To 1.The Superintending Engineer National Highways Salem Circle Omalur Main Road, Narosithipatty, Salem – 636 004. 2.Syndicate Bank Transport Bhavan 1, Parliament Street, New Delhi – 110 001. 3.Registrar General Madras High Court Chennai – 600 104. N.SATHISH KUMAR, J. TK/dhk E.P.NOS.72 AND 73 OF 2019](https://sekarreporter.com/wp-content/themes/hueman/assets/front/img/thumb-medium-empty.png)
