JUDGMENT :- The appeal arises from a suit for realisation of money. First defendant is the appellant. 2. The suit O.S. 95/1987 before Sub Court, Parur was filed by 1st respondent claiming an amount of Rs. 27250/-with interest at the rate of 12% per annum. The claim is based on a promissory note executed by defendants on 9-3-1984 in favour of the plaintiff for an amount of Rs. 20,000/- First defendant admitted the execution of the promissory note, but disclaimed liability contending that the claim is barred by limitation. It was also contended that plaintiff is an unregistered firm and the signatory to the plaint is not the managing partner. He further denied having received any consideration. He contended that Sri P. P. Joseph, who has presented the plaint as the managing partner had arranged supply of cement for construction of a building. On knowing about the inferior quality of the cement, 1st defendant informed Sri Joseph that he did not require cement. It was then that claim was made on the promissory note. Though he had promised to return the promissory note, he did not do so. The 2nd defendant in his written statement raised identical contentions. 3. Plaintiff was examined as P.W. 1 and 1st defendant as D.W. 1. On an appreciation of the oral evidence and the documents on the side of plaintiff, the court below granted a decree for the plaint claim with future interest at 6% and cost of suit. First defendant assails that judgment in this appeal. 4. Heard counsel on both sides. 5. One of the grounds raised in the appeal memorandum is regarding the non-payment of the full court-fee on the date of presentation of the suit. The deficit court-fee was paid only after the period of limitation and the objection is that the suit was barred by limitation by the time the full court-fee was paid. Another ground raised is regarding competency of the signatory; to the plaint to represent the firm, which, according to the appellant, is an unregistered firm. The claim should have been rejected for want of proof of payment of consideration by the plaintiff, according to appellant. On the basis of the grounds raised in the appeal memorandum, the following points require consideration in this appeal:- 1. Whether the claim is barred by limitation? 2. The claim should have been rejected for want of proof of payment of consideration by the plaintiff, according to appellant. On the basis of the grounds raised in the appeal memorandum, the following points require consideration in this appeal:- 1. Whether the claim is barred by limitation? 2. Whether plaintiff is a registered firm and proved to be a partner of the firm ? And 3. Whether the promissory note is supported by consideration and whether payment of consideration has been proved ? Point No. 1. 6. The promissory note is dated 9-3-1984. The suit was presented on 9-3-1987. The plaint was returned on the same day for representation after curing the defect pointed out, viz., insufficiency of court-fee. Together with the deficit court-fee the plaint was represented on 24-3-1987 and it was thereafter registered as O.S. 95/1987. Learned Counsel for the appellant has raised a contention that the claim has become barred by the date on which the deficit court-fee was paid. Appellant had by that time gained an advantage, the claim having got barred in the meanwhile. In support of this contention counsel relied on the decision in Sukhnandan Prasad v. Baburam Maheswar Lal, AIR 1952 Vindhya Pradesh 12. It was held that the proper way of ascertaining the date of institution is to find out whether while tendering the plaint the plaintiff has done all that he has to do in compliance with Orders 4,5 and 7 of C.P.C. If there is any defect to be removed and the court had granted time and the defect is remedied, the suit would normally be deemed to have been instituted not on the latter day, but the day of the tendering itself because the court in its discretion has, as it were, condoned the delay. This condonation is at the discretion of the court. The court further held that at all events the other party should have the right of urging that the Court's granting time for removal of defect has not affected the advantage he might have gained in the interval. The contention is that a vested right was derived by the appellant consequent to the non-payment of the full court-fee on the date of presentation of the plaint and the making up of the deficit after the period of limitation. The contention is that a vested right was derived by the appellant consequent to the non-payment of the full court-fee on the date of presentation of the plaint and the making up of the deficit after the period of limitation. This contention is unsustainable and no reliance can be placed on this decision in view of the principle laid down by the Supreme Court and the various High Courts on the question of the power of the court to allow any person to make up the deficiency of court-fees. 7. The Court-fees Act, 1870 lays down an embargo on the court by virtue of the provisions contained in Sections 4 and 6 therein from receiving any document including a plaint and a memorandum of appeal, if it is not properly stamped. But Sec. 149, C.P.C. empowers the court to make up the deficiency of court-fees. That section reads (at page 1379 of AIR SC) : "Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance." 8. After referring to this section the Supreme Court in Mannan Lal v. Mst. Chhotaka Bibi, AIR 1971 SC 1374, held that the section mitigates the rigour of Sec. 4 of the Court-fees Act and it is for the court in its discretion to allow a person who has filed a memorandum of appeal with deficient court-fee to make good the deficiency and the making good of such deficiency cures the defect in the memorandum not from the time when it is made, but from the time when it was first presented in court. The Supreme Court observed that Sec. 4 of the Court-fees Act is not the last word on the subject and the Court must consider the provisions of the Court-fees Act and the Code of Civil Procedure to harmonise the sets of provisions which can only be done by reading Sec. 149 as a proviso to Sec. 4 of the Court-fees Act by allowing the deficiency to be made good within a period of time fixed by it. If the deficiency is made good, no possible objection can be raised on the ground of the bar of limitation. The Supreme Court further held that the memorandum of appeal must be treated as one filed within the period fixed by the Limitation Act subject to any express provision to the contrary in that Act and the appeal must be treated as pending from the date when the memorandum of appeal was presented in court. It was observed that the memorandum of appeal must be treated as cases pending from the date of presentation not only for the purpose of limitation but also for the purpose of sufficiency as to court-fee under Sec. 149 of the Code. According to Stroud a legal proceeding is "pending" as soon as commenced, and until it is concluded i.e. so long as the court having original cognizance of it can make an order on the matters in issue or to be dealt with therein. The Court then observed that when the deficiency in the payment of court-fees is made good and the document or memorandum of appeal is to be given the force and effect which it would have had if there had been no deficiency, the appeal must be treated as pending on the date of presentation. 9. The power of the Court to grant time to make up the deficiency was considered by the Madras High Court in Garapati Venkanna v. Mullapudi Acchutaramanna, AIR 1938 Mad 542. 9. The power of the Court to grant time to make up the deficiency was considered by the Madras High Court in Garapati Venkanna v. Mullapudi Acchutaramanna, AIR 1938 Mad 542. After referring to the provisions contained in Sec. 149 and O. 7, R. 11, C.P.C., it was held (at page 543): "Where a plaint is written upon paper insufficiently stamped, the Court is bound to give the plaintiff time to make up the deficit; only when he fails to comply with the order, the Court can reject the plaint; that the plaint is presented on the last day of the period of limitation makes no difference, that is the effect of O. 7, R. 11, C.P.C. Again whether the payment of insufficient fee was by design or due to inadvertence, the Court is bound by the mandatory terms of it to give effect to this provision." It was further held that the court's action in giving the plaintiff time originally cannot be questioned. But once the time was fixed, it was no longer open to the plaintiff to demand as a matter of right that the time should be extended. It is observed that the power to grant extension vests in the court either under Sec. 148 or under Sec. 149, C.P.C. In either case the question is one of the court's discretion and not the plaintiff's right. 10. In AIR 1954 Nagpur 224, Baliram v. Chanipat Zamroji, the Court has gone to the extent of holding that under Sec. 149 of the Code even a plaint filed without any court-fee comes within the concession allowed by that section. It is a matter entirely within the discretion of the court to be exercised in the circumstances of each particular case. After referring to Sec. 149 and O. 7, R. 11, C.P.C. it was held that the court is empowered to grant such time as in its discretion it may think fit to grant in order to enable the plaintiff or the party liable to pay the court-fee to make good the requisite amount. 11. The Delhi High Court had occasion to consider a case where a plaint was presented with insufficient court-fee on account of non-availability of stamps for the full amount. 11. The Delhi High Court had occasion to consider a case where a plaint was presented with insufficient court-fee on account of non-availability of stamps for the full amount. While considering that question the Court in Union Bank of India v. Jagan Nath Radhey Shyam and Co., AIR 1979 Delhi 36 observed that there can be no doubt that the appellant has every right to file the appeal even on the last date and also purchase the court-fees stamps on the same date. The discretion conferred on the court in dealing with applications for condonation of delay for making good the deficit in court-fees is normally expected to be exercised in favour of the litigant except in cases of contumacious delay or positive mala fides or for reasons of similar type. In that case the Treasury from where the court-fee stamps had to be purchased was closed on the last day of limitation. The requisite stamp was purchased only a few days thereafter. It was held that the court in its discretion can condone the delay. The effect of the payment of deficit court-fee after the period of limitation was considered by the Rajasthan High Court in Amarsingh v. Chaturbhuj, AIR 1957 Raj 367. Therein it was held that when a party pays deficit court-fees beyond the time fixed, and has not asked the court to extend the time, but the court nevertheless admits the appeal and receives the fees, the only reasonable interpretation is that the court has, implicitly though not explicitly, extended the time within the meaning of Sec. 149 even though the period of limitation has expired. The High Court had also explained the phrase "at any stage" occuring in Sec. 149, C.P.C. That contemplates that the court can order a deficiency in stamps to be made good, even after the period of limitation for filing an appeal has expired. Upon such payment, the document in respect of which the deficiency is to be made good must have the same force and effect as if such fee has been paid in the first instance. The plea that grant of time to make good the deficit court-fee will deprive the defendant of his valuable right to plead the bar of limitation was repelled by the Supreme Court in Mahasay Ganesh Prasad Ray v. Narendra Nath Sen, AIR 1953 SC 431. The plea that grant of time to make good the deficit court-fee will deprive the defendant of his valuable right to plead the bar of limitation was repelled by the Supreme Court in Mahasay Ganesh Prasad Ray v. Narendra Nath Sen, AIR 1953 SC 431. It is observed that the question of payment of court-fees is primarily a matter between the Government and the person concerned and therefore where the High Court in the exercise of its discretion allows the appellant to amend his memorandum of appeal and grants time for payment of deficit court-fee under Sec. 149, the other party cannot attack the order on the ground that it takes away his valuable right to plead the bar of limitation. 12. The question whether the exercise of discretion will deprive the opposite party of the vested rights came up for consideration before the Rajasthan High Court in Gulam Abbas v. Shri Kalyan Finance Co., AIR 1975 Raj 150. It was held that where the court exercises the discretion under Sec. 149 in favour of a party, it does not thereby deprive the other party of any of the vested rights as such right might become vested only when either there is no application under Sec. 149 or when such application is filed, the discretion is not exercised in favour of the party making the application. Drawing a distinction between the exercise of a discretion under Sec. 149 and the rejection of the plaint under Rule 11© of Order 7, it is observed that under R. 11© the court is bound to grant some time to supply the deficit court-fee whereas there is no such obligation on the court under S. 149 to grant time for making good the deficiency. In such a case the court has a discretion under Sec. 149 to allow court-fee to be paid at any stage. 13. A Full Bench of the Allahabad High Court consisting of five Judges had considered in detail the scope of Sec. 149, C.P.C. and Sec. 4 of the Court-fees Act, 1870. In such a case the court has a discretion under Sec. 149 to allow court-fee to be paid at any stage. 13. A Full Bench of the Allahabad High Court consisting of five Judges had considered in detail the scope of Sec. 149, C.P.C. and Sec. 4 of the Court-fees Act, 1870. In Wajid Ali v. Isar Bano, AIR 1951 All 64, observing that Sec. 149, C.P.C. has to be read as a proviso to Sec. 4 of the Court-fees Act in order to avoid contradiction between the two sections, the law was stated thus (at page 67): (1) Ordinarily a document insufficiently stamped is not to be received, filed, exhibited or recorded in a Court. (2) When, however, an insufficiently stamped document is presented to the Court, the Court has to decide whether it will exercise its discretion in allowing time to the party presenting the document to make good the deficiency. (3) If it decides that time should not be granted, it will return the document as insufficiently stamped. (4) If it decides that time should be granted, it will give time to the party to make good the deficiency, and in order to enable the party to make good the deficiency within the time allowed, the Court will tentatively for that limited purpose receive the document. (5) If the deficiency is made good within the time fixed, the document is to be deemed to have been presented and received on the date on which it was originally filed. (6) If the deficiency is not so made good, the document is to be returned as insufficiently stamped by virtue of Sec. 4 of the Act. The Full Bench then held that the discretion conferred on the Court under Sec. 149, C.P.C. must be a judicial discretion and cannot be arbitrary. 14. The Supreme Court in AIR 1961 SC 83, Mahant Ram Das v. Ganga Das, held that Sections 148 and 149 could be invoked by the applicant when the time had not actually expired. An order extending the time for payment, though passed after the expiry of the time fixed, could operate from the date on which the time fixed expired. 15. A Special Bench of this Court had also considered the scope of Sec. 149 and O. 7, R. 13(c) in the decision in Kathyee Cotton Mills Ltd. v. R. Padmanabha Pillai, AIR 1958 Ker 88. 15. A Special Bench of this Court had also considered the scope of Sec. 149 and O. 7, R. 13(c) in the decision in Kathyee Cotton Mills Ltd. v. R. Padmanabha Pillai, AIR 1958 Ker 88. On the scope of Sec. 148 and Sec. 149, C.P.C. the Bench held that these sections give absolute power and discretion to the court to grant time and later extend the same to such period as it may think fit. But a party is not, as of right, entitled under Section 148 to get an extension or an enlargement of a period fixed or granted by the court. That is a matter entirely within the discretion of the court though no doubt such discretion should be exercised judicially and not capriciously or arbitrarily. 16. The principles emerging from the aforesaid decisions can be stated thus: Section 149, C.P.C. empowers the court to allow any person by whom court-fee is payable to pay the whole or part, as the case may be, of such court-fee. Upon such payment the document in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance. Section 149 has to be treated as an exception to Ss. 4 and 6 of the Court-fees Act, 1870 and serves as a proviso to those sections by allowing the deficit to be made good within the time fixed by the court. But the power is subject to the discretion of the court to be exercised in accordance with judicial principles and cannot be claimed as of right. If the court has received the deficit court-fee and admitted the plaint or the court has impliedly extended the period, the payment of deficit shall take effect from the date of presentation of the plaint or appeal, as the case may be. The words "at any stage" in Sec. 149 contemplates that the deficiency can be ordered to be made good even after the period of limitation for filing appeal, the suit or has expired. The discretion can be exercised even in the case of a plaint without any court-fee. The words "at any stage" in Sec. 149 contemplates that the deficiency can be ordered to be made good even after the period of limitation for filing appeal, the suit or has expired. The discretion can be exercised even in the case of a plaint without any court-fee. When the court allows the plaintiff or the appellant time to pay deficit court-fee in exercise of its discretion, the other party cannot attack the order on the ground that it takes away his right to plead the bar of limitations; nor can he claim to have derived a vested right by the non-payment of the court-fee. Under the latter part of Sec. 149 the defective plaint or appeal memorandum is validated with retrospective effect if the deficit court-fee is subsequently made up. The power to permit the party to pay the deficit court-fee is not in any way affected by any bar of limitation. The section is general in its terms and applies to all documents chargeable with court-fee under the Court-fees Act including plaints, appeal memorandum etc. 17. Under Order 7, Rule 1 l(c) the court is bound to grant some time to supply the deficit court-fee on a plaint insufficiently stamped. The plaint is liable to be rejected under that sub-rule only if the plaintiff has failed to supply the requisite stamp paper within the time as required by the court. The court has therefore an obligation to require the party to make good the deficiency in the case of a plaint. The discretion conferred on the court under Sec. 149 is over and above this obligation under Rule 11 of Order 7. In the case of an appeal the discretion under S. 149 applies. The proper provision under which time may be granted or extended is Sec. 149 and not Order 7, Rule 11 which only states the circumstances in which the plaint shall be rejected. In other words, Rule 11 of Order is, not an enabling provision, but only a disabling one. 18. In the light of the principles enunciated in the foregoing paragraphs, the plea of appellant that the claim is barred by limitation cannot be sustained. The suit has been filed on the last day of limitation and the deficiency in court-fee has been made good as required by the court. 18. In the light of the principles enunciated in the foregoing paragraphs, the plea of appellant that the claim is barred by limitation cannot be sustained. The suit has been filed on the last day of limitation and the deficiency in court-fee has been made good as required by the court. The plaint is therefore not liable to be rejected under R. 11 (c) of O. 7. It necessarily follows that the plaint has to be registered as a suit. Even otherwise the court has granted time to make good the deficiency. The discretion contemplated in Sec. 149 was exercised by the court in favour of the plaintiff. That direction having been complied with, the payment of the deficit court-fee shall be deemed to have been made on the date of presentation of the plaint. In any case therefore the suit was properly laid and proper court-fee has been paid by the plaintiff. 19. Moreover, this question is not seen to have been raised in the written statement of defendants. There is only a bald averment that the suit is barred by limitation. The issue is seen to have been framed on this averment. When the court below has exercised the discretion in a proper manner, interference in appeal is not called for. The appellate Court should not interfere with a discretion exercised by the court below unless it is in violation of recognised principles or its exercise caused grave injustice. That is not the case here. It is not therefore open to the appellant to challenge in appeal the order of the court below granting time to pay the deficit court-fee and in registering the plaint as a suit. The point is answered against the appellant. Point No. 2. 20. Ext. A1 purports to be a copy of the acknowledgment of registration which shows that Periyar Credits has been entered in the register of firms as No. 484 of 1983. The partnership deed has been produced as Ext. A5 from which it is seen that the person who signed the plaint on behalf of the firm is one of the partners of the firm. The suit was therefore properly laid. The objection raised by the appellant was rightly repelled by the court below. This point also is answered against the appellant. Point No. 3. 21. A5 from which it is seen that the person who signed the plaint on behalf of the firm is one of the partners of the firm. The suit was therefore properly laid. The objection raised by the appellant was rightly repelled by the court below. This point also is answered against the appellant. Point No. 3. 21. Payment of consideration has not been proved according to appellant and the decree is assailed on that ground. The execution of Ext. A1 promissory note is admitted by the appellant. In the written statement he has denied the receipt of consideration. The circumstances in which the pro-note was executed are also mentioned by him. The court below found the document to be supported by consideration mainly on the basis of the presumption contained under Sec. 118 of the Negotiable Instruments Act. It is also stated that there is no evidence to prove absence of consideration apart from the interested testimony of the 1st defendant. According to counsel for appellant those circumstances having been spoken to by D.W. 1, the burden shifts to the plaintiff to prove payment of consideration. It is also pointed out that the court below has not made a proper consideration of this plea. True, the learned Subordinate Judge has not considered this aspect in detail, but has only observed about the absence of proper evidence on the side of the defendants. But the burden is heavy on the defendant to prove absence of consideration. The question of the burden being shifted to the plaintiff arises only if defendant is able to discharge that burden. In this connection learned Counsel for appellant has cited the decision in AIR 1961 SC 1316, Kundan Lal Ballaram v. Custodian, Evacuee Property. The Supreme Court held that the presumption under S. 118 of the Negotiable Instruments Act is one of law and thereunder a court shall presume inter alia that the negotiable instrument or the endorsement was made or endorsed for consideration. The burden of proof of failure of consideration is thrown on the maker of the note or the endorser, as the case may be. The evidence required to shift this burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by opposite party. It may comprise circumstantial evidence or presumption of law or fact. The burden of proof of failure of consideration is thrown on the maker of the note or the endorser, as the case may be. The evidence required to shift this burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by opposite party. It may comprise circumstantial evidence or presumption of law or fact. In the case before the Supreme Court the plaintiff sued on a promissory note, the consideraion of which represented the price of goods sold to the defendant. Plaintiff was in possession of the relevant account books regarding the sale of goods. The Supreme Court observed that the burden was on the plaintiff to produce the said account books and if those books are withheld, the court can draw a presumption under Sec. 114 of the Evidence Act to the effect that, if produced, the documents would be unfavourable to plaintiff. The Supreme Court observed that this presumption, if raised by a court, can under certain circumstances rebut the presumption of law raised under Sec. 118 of the Negotiable Instruments Act. The principle laid down by the Supreme Court in the aforesaid decision is not applicable to the present case. Defendant had, no doubt, set up some arrangement between himself and Sri P. P. Joseph regarding sale of cement. The promissory note is alleged to have been executed in that connection without any consideration. Having admitted the execution of the promissory note, the initial burden is on the defendant to prove absence of consideration as well as the proof of the circumstances in which the promissory note happened to be executed without receiving any consideration for the same. As observed by the court below there is only the interested testimony of the 1st defendant in this aspect. The court below has not placed any reliance on his testimony and, according to me, rightly. In the absence of reliable evidence on the side of defendant the burden will not be shifted to the plaintiff. The question of plaintiff producing his account books to prove payment of consideration does not therefore arise. The court below was therefore right in drawing the presumption under Section 113 of the Negotiable Instruments Act and in decreeing the suit. The point is answered against the appellant. The question of plaintiff producing his account books to prove payment of consideration does not therefore arise. The court below was therefore right in drawing the presumption under Section 113 of the Negotiable Instruments Act and in decreeing the suit. The point is answered against the appellant. For the aforesaid reasons the appeal is found to be devoid of merits and, in confirmation of the judgment and decree of the court below, the appeal is dismissed with costs. Appeal dismissed.