cra-122.12 with cacs-376.12&590.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.122 OF 2012
1] M/s.Eagle Soraj Townships Private Ltd ]
A Private Limited company having its ]
Registered office at 5th Floor, ]
5th Avenue Building, Dhole Patil Road, ]
Pune-411 001 represented through ]
its Managing Director, ]
Mr.Lakshman Kariyaa ]
Age 43 years, address as above ]
]
2] Mr.Lakshman Gopichand Kariyaa,
ig ]
Age about 43 years, Occ. Business, ]
Residing at Z-803, Le Meirage, ]
16, Boat Club House, ]
Pune-411 001 ]
]
3] M/s.Shirdi Estates ]
a partnership firm having its office at ]
5th Floor, 5th avenue Bldg. ]... Applicants.
Dhole Patil Road, Pune-411 001 ]
versus
M/s.Eagle Agro-Farm Private Limited ]
A Private Limited company having its ]
Registered office at Eagle Estate, ]
Village Talegaon Dabhade, ]
Pune-410507 ]
Represented through its ]
Managing Director, ]
Riaz Padamsee, Age 62 years ] ... Respondent
Address as above ]
WITH
CIVIL APPLICATION NO.376 OF 2012
IN
CIVIL REVISION APPLICATION NO.122 OF 2012
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M/s.Eagle Agro-Farm Private Limited ]
a Private Limited company having ]
its registered office at Eagle Estate, ]
Village - Talegaon Dabhade, Pune-410507 ]
represented through its Managing ]... Applicant.
Director, Mr.Riaz Padamsee, Age 62 years ] (org.Respondent)
address as above ]
versus
1] M/s.Eagle Soraj Townships Private ]
Limited, a Private Limited company ]
th
having its registered office at 5 Floor, ]
5th Avenue Building, Dhole Patil Road, ]
Pune-411 001 represented through its ]
Managing Director, Mr.Lakshman Kariyaa]
Age 43 years, address as above ]
]
2] Mr.Lakshman Gopichand Kariyaa, ]
Age about 43 years, Occ. Business, ]
Residing at Z-803, Le Mirage, 16, Boat ]
Club House, Pune-411 001 ]
]
3] Satpal Sitaram Malhotra, ]
Age about Adult, Occupation Business ]
]
4] Smt.Rajinder Mohini Satpal Malhotra ]
Age about Adult, Occupation Business ]
]
5] Mr.Baldevraj Sitaram Malhotra, ]
Age about Adult, Occupation Business ]
]
Nos.3 to 5 residing at Malhotra Bhavan ]
116, Koregaon Park, Pune-411 001 ]
]
6] Mr.Mukesh Satpal Malhotra, Age about ]
Adult, Occupation Business ]
r/at. A-9, Forest Park, Lohagaon ]
Pune-411 014. ]
]
7] Mr.Ashwini Baldevraj Malhotra, ]
Age about Adult, Occupation Business ]
A-8, Forest Park, Lohagaon, Pune-411014]
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]
8] Sou.Urvashi Sahni Nee Urvashi Malhotra ]
Age about Adult, Occupation Not Known ]
r/at. 7-A, Vivekanand Marg, Lucknow ]
]
9] Sou.Pooja Sood Nee Baldevraj Malhotra ]
Age about Adult, Occupation Not Known ]... Respondents
r/at S-155, Panchsheel Park, New Delhi ] (Org.Applicants)
WITH
CIVIL APPLICATION NO.590 OF 2012
IN
CIVIL REVISION APPLICATION NO.122 OF 2012
M/s.Eagle Agro-Farm Private Limited ]
a Private Limited company having ]
its registered office at Eagle Estate, ]
Village - Talegaon Dabhade, Pune-410507 ]
represented through its Managing ]... Applicant.
Director, Mr.Riaz Padamsee, Age 62 years ]
address as above ]
IN THE MATTER OF
M/s.Eagle Agro-Farm Private Limited ]
a Private Limited company having ]
its registered office at Eagle Estate, ]
Village - Talegaon Dabhade, Pune-410507 ]
represented through its Managing ]... Applicant.
Director, Mr.Riaz Padamsee, Age 62 years ] (org.Respondent)
address as above ]
versus
1] M/s.Eagle Soraj Townships Private ]
Limited, a Private Limited company ]
th
having its registered office at 5 Floor, ]
5th Avenue Building, Dhole Patil Road, ]
Pune-411 001 represented through its ]
Managing Director, Mr.Lakshman Kariyaa]
Age 43 years, address as above ]
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]
2] Mr.Lakshman Gopichand Kariyaa, ]
Age about 43 years, Occ. Business, ]
Residing at Z-803, Le Mirage, 16, Boat ]
Club House, Pune-411 001 ]
]
3] Satpal Sitaram Malhotra, ]
Age about Adult, Occupation Business ]
]
4] Smt.Rajinder Mohini Satpal Malhotra ]
Age about Adult, Occupation Business ]
]
5] Mr.Baldevraj Sitaram Malhotra, ]
Age about Adult, Occupation Business ]
]
Nos.3 to 5 residing at Malhotra Bhavan ]
116, Koregaon Park, Pune-411 001 ]
]
6] Mr.Mukesh Satpal Malhotra, Age about ]
Adult, Occupation Business ]
r/at. A-9, Forest Park, Lohagaon ]
Pune-411 014. ]
]
7] Mr.Ashwini Baldevraj Malhotra, ]
Age about Adult, Occupation Business ]
A-8, Forest Park, Lohagaon, Pune-411014]
]
8] Sou.Urvashi Sahni Nee Urvashi Malhotra ]
Age about Adult, Occupation Not Known ]
r/at. 7-A, Vivekanand Marg, Lucknow ]
]
9] Sou.Pooja Sood Nee Baldevraj Malhotra ]
Age about Adult, Occupation Not Known ]... Respondents
r/at S-155, Panchsheel Park, New Delhi ] (Org.Applicants)
Mr. P S Dani with Mr. V P Tapkir for the Applicants in CRA and Respondent
Nos.1 and 2 in both the Civil Applications.
Ms.Chandana Salgaonkar for the Respondent in CRA and Applicant in
both the Civil Applications.
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CORAM : R. M. SAVANT, J.
Judgment Reserved on : 9th October 2012
Judgment Pronounced on : 2nd November 2012
JUDGMENT :
1 The Applicants have invoked the Revisionary Jurisdiction of this Court being aggrieved by the order dated 19/1/2012 passed by the learned Joint Civil Judge, Junior Division, Vadgaon-Maval by which order the preliminary issue raised by the Applicants herein as regards the valuation of the suit has been rejected, and it has been held that the suit has been properly valued, and thus maintainable. The issue which therefore arises in the above Civil Revision Application is as regards the valuation of the suit.
2 The facts necessary to be cited for adjudication of the above Civil Revision Application can be stated thus; The Respondent herein i.e. Eagle Agro-Farm Private Limited is the original Plaintiff who has filed the suit in question being Regular Civil Suit No.12 of 2011 and the substantive relief claimed therein is in prayer clause (a) of the suit in question which is reproduced herein under for the sake of convenience.
"Defendants and/or the persons claiming through the defendants including the family members of the defendants no.2 i.e. his brothers, etc. and/or any other persons including staff, security, servants, agencies, contractors, affiliates, architects etc. of the defendants lgc 5 of 25 ::: Downloaded on - 09/06/2013 19:21:11 ::: cra-122.12 with cacs-376.12&590.12 may please be permanently restrained from entering into the suit property; and/or disturbing vacant, peaceful and physical possession of the plaintiff and/or carrying out any activities on the suit property and/or in respect of the FSI/TDR/flats, units tenements, etc. in pursuance thereof and/or otherwise acting as the representative/s of the plaintiff etc and/or doing any acts, matters, deeds, things as the case may be in respect of the suit property and/or any part thereof and/or in pursuance of the said development agreement/or of attorney dated 23 rd of May 2006, and/or any other document/s, as the case may be;"
3 The parties would be referred to as per their status in the suit in question. The suit in question is founded on the fact that the Plaintiff is the exclusive and absolute owner of the suit property mentioned in Para 1 of the plaint. It is the case of the Plaintiff that as there was a loss in the business of poultry, the Plaintiff decided to develop its own property by constructing various buildings, amenity spaces, play grounds, colonies. etc. To fulfill the said objective, a Joint Venture Agreement was executed between the Plaintiff and the Defendant No.2 by forming a Special Purpose Vehicle (SPV) by constituting a Private Limited Company under the name and style of M/s.Eagle Soraj Township Pvt. Ltd which is the Applicant No.1 i.e. the Defendant No.1 in the suit. The Plaintiff accordingly executed a Development Agreement dated 23/5/2006 as also a Power of Attorney in favour of the Defendant No.2 so as to carry out the purposes of the Joint Venture Agreement. The said Development Agreement and the Power of Attorney are registered documents which have been registered with the office of the Sub-Registrar, Maval, Pune.
lgc 6 of 25 ::: Downloaded on - 09/06/2013 19:21:11 ::: cra-122.12 with cacs-376.12&590.12 It is the case of the Plaintiff that though the said documents were executed and registered, they were not acted upon and therefore did not come into effect, and ultimately the Plaintiff informed the Defendants about the cancellation of the said Development Agreement and the said Power of Attorney, and also informed the Income Tax Authorities about the said Development Agreement not brought into force and the same being cancelled by the Plaintiff by a letter dated 20/3/2009. The cancellation of the said Development Agreement and the Power of Attorney was communicated to the Defendants by the Plaintiff by a letter dated 18/12/2009. It is the case of the Plaintiff that despite the above cancellation, the Defendant No.1 continued to keep its staff in the suit property. The Plaintiff therefore asked the Defendant No.1 to remove its staff.
However on the Defendant No.1 failing to do so, that the suit in question came to be filed for injunction against the Defendants with the main substantive prayer as reproduced in the earlier part of this judgment.
4 It seems that in the said suit after the summons were served, the Defendants appeared and filed an Application invoking Section 9A of the Code of Civil Procedure which Application was marked as Exhibit 27 contending that the concerned Court i.e. the learned Civil Judge, Junior Division, Vadgaon did not have pecuniary jurisdiction to entertain and try the suit inasmuch as the suit was for possession and since the valuation of the suit property is to the extent of Rs.140.00 crores, the Defendants prayed for framing of a preliminary lgc 7 of 25 ::: Downloaded on - 09/06/2013 19:21:11 ::: cra-122.12 with cacs-376.12&590.12 issue. The said preliminary issue, framing of which was sought by the Defendants, was accordingly framed. The Plaintiff has filed its reply which was marked as Exhibit 31. It was the case of the Plaintiffs that the jurisdiction of the Civil Court Vadgaon was not ousted and therefore prayed for rejection of the said Application (Exhibit 27).
5 The said preliminary issue was decided by the Trial Court by order dated 15/4/2011 by which order the said Application (Exhibit 27) filed by the Defendants came to be rejected and it was held that the said Court has jurisdiction.
6 The Defendants challenged the said order by way of filing a Civil Revision Application No.422 of 2011 in this Court. This Court by order dated 30/9/2011 set aside the said order dated 15/4/2011 passed by the learned Civil Judge, Junior Division, Vadgaon, and directed the Trial Court to frame an Issue under Order XIV Rule 2(2) of the Code of Civil Procedure as regards the valuation of the suit property. On the said Civil Revision Application being disposed of, the Defendants filed an Application (Exhibit 48) under Order VII Rule 11(d) of the Code of Civil Procedure r/w Section 291 of the Companies Act and prayed for rejection of the plaint. The said Application (Exhibit 48) filed by the Defendants was replied to by the Plaintiff. The Trial Court on the basis of the material on record passed the impugned order whereby the Trial lgc 8 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 Court held that the suit is properly valued and maintainable, and accordingly the Application (Exhibit 48) filed by the Defendants in respect of the rejection of the plaint on the ground of undervaluation of the suit came to be rejected as also on the ground that the suit was not barred under the provision of Section 291 of the Companies Act.
7 The gist of reasoning of the Trial Court is that considering the averments made in the plaint, it is crystal clear that the Plaintiff has come with a case that it is the owner of the suit land, as it has purchased the same in the year 1991, and is in possession thereof. However, on account of the activities of the Defendants, there is an apprehension to its possession. The Trial Court has held that there is no whisper in the averments that the Plaintiff is seeking possession from the Defendants. Hence as per the Defendants case there is no question of recovery of possession, and therefore, the suit valued on the basis of the injunction sought and fixed court fees of Rs.1000/- paid thereon cannot be faulted with. The Trial Court therefore held that the Plaintiff had properly valued the suit.
8 In so far as the Application under Order VII Rule 11 (d) of the Code of Civil Procedure is concerned, the Trial Court was of the view that in view of the fact that the suit is being filed by the Managing Director and since the suit is of a civil nature in view of the fact that the Plaintiff has approached lgc 9 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 the Court on account of the alleged breach of its civil rights, the provision of Order XXIX Rule 1 coupled with Order VI Rule 14 of the Code of Civil Procedure are applicable to the present suit, and not the provision of Section 291 of the Companies Act. The Trial Court on the touchstone of Order XXIX Rule 1 of the Code of Civil Procedure under which provision the Company Secretary, or the Director or any other Principal Officer of the corporation is empowered to sign the pleadings on behalf of the company or the corporation, and able to depose to the facts of the case, and therefore, the said objection of the Defendants that the suit is not maintainable in view of the breach of provisions of Section 291 of the Companies Act cannot be sustained. The Trial Court therefore rejected the said Application (Exhibit 48).
9 Before coming to the submission of the learned counsel appearing for the Applicants, it would be apposite to refer to the averments made in the plaint. The averments made in the plaint make a reference to the Development Agreement and the Power of Attorney, and the consideration of Rs.10,50,00,000/- (Rupees Ten Crores, Fifty Lacs only) paid by the Defendants to the Plaintiff. The averments in the plaint also advert to the covenants of the Development Agreement. The covenants of the said Development Agreement, apart from mentioning the consideration for the said Development Agreement, also disclose the right which was created in favour of the Defendants pursuant to the said Development Agreement. The said right was to enter into the lgc 10 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 Agreement to Sell, to transfer the building, flats, units etc with the intending purchasers entirely at the discretion of the Developers. The averments also disclose that since the pre-conditions to the said Development Agreement were not fulfilled, that the said Development Agreement has been allegedly terminated by the Plaintiff. The prayer clause in the plaint shows that the relief sought for injunction is in respect of three aspects. Firstly that the Defendants or the persons claiming through the Defendants may be restrained from entering into the suit property or disturbing the vacant, peaceful and physical possession of the Plaintiff. Secondly, the Defendants be restrained from carrying out any activities in the suit property or in respect of the FSI/TDER/flats, units tenements etc in pursuance thereof, and thirdly the Defendants and/or otherwise acting as the representative/s of the Plaintiff etc and/or may be restrained from doing any acts, matters, deeds, things as the case may be in respect of the suit property in pursuance of the Development Agreement or Power of Attorney dated 23/5/2006. The said prayer clause encompasses itself the aforesaid three reliefs.
10 Heard the learned counsel for the Applicants i.e. the original Defendants Shri Dani. The learned counsel for the Applicants would contend that the Trial Court has erred in relying upon the averments made in the plaint and especially the prayer clause thereof which, if read, gives an impression that the suit is one for simplicitor injunction. The learned counsel would lgc 11 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 contend that the Trial Court failed to take into consideration the averments in the plaint wherein a reference is made to the Development Agreement and the Power of Attorney dated 23/5/2006 and the consideration for the same. The said agreement is therefore nothing but a sale deed which was executed in favour of the Defendants i.e. the Applicants herein. The learned counsel would next contend that the Trial Court failed to read the said prayer clause in the suit in its proper perspective. If it was so read, the Trial Court would have found that it is not a suit for simplicitor injunction, but it is a suit for avoidance of the Development Agreement i.e. the sale deed and the Plaintiff is also seeking to avoid the loss that would be caused to it. The learned counsel would contend that in the context of the covenants in the Development Agreement, if the said prayer clause is considered, then it would lead to an irresistible conclusion that the said suit is principally filed for avoidance of the sale deed. The learned counsel would contend that the Trial Court ought to have seen the substance of the suit rather than merely going by the prayer clause. The learned counsel would contend that the suit filed as a suit for injunction was in fact a camouflage for a suit seeking relief qua the Development Agreement and the Power of Attorney, and was therefore one covered by Section 6(iv)(d) or 6(v) of the Bombay Court Fees Act. The learned counsel would contend that the last part of the prayer clause in the suit would make it a suit covered by Article-7 of the Schedule I, and the Plaintiff is therefore liable to value the suit on the said basis. The learned counsel for the lgc 12 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 Applicants in support of his said contention sought to rely upon the judgments of the Division Benches of this Court reported in AIR 1976 Bombay 389 in the matter of Gulam Mohamed Mohamed Yunus and another v/s. Lalchand Chellaram and others, and AIR 1980 Bombay 123 in the matter of Nagin Mansukhlal Dagli v/s. Haribhai Manibhai Patel, and the judgment of a learned Single Judge of this Court reported in 2004(4) Mh.L.J. 245 in the matter of Vinod Vyankat Narsaiyya Gannu v/s. Sunil S/o Diwakar Poshettiwar and others, and also the judgment of a learned Single Judge of this Court reported in 2009(4) Bom.C.R. 462 in the matter of Shakuntala Vasant Agarwal and ors. v/s. Five Star Poultry Farm and ors. The said judgments, according to the learned counsel for the Applicants lay down a proposition that it is the essence or substance of the suit that has to be looked into and not simply go by the averments in the plaint.
11 Per contra it is the submission of the learned counsel appearing for the Respondent i.e. the original Plaintiff Ms.Chandana Salgaonkar that the suit in question being simplicitor for injunction, the order of the Trial Court accepting the valuation made by the Plaintiff cannot be faulted with. The learned counsel would contend that for the purposes of valuation, the averments made in the plaint and the reliefs sought are material and not the defence raised by the Defendants. In support of the said contention, the learned counsel sought to rely upon the judgment of the Apex Court reported lgc 13 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 in 1994(4) SCC 349 in the matter of Ram Narain Prasad & Anr. V/s. Atul Chander Mitra and especially Paras 6 to 8 thereof, and the judgment of a learned Single Judge of this Court reported in 2006(4) Bom C.R. 490 in the matter of Sai Samrat Security Services & ors. V/s. Rizvi Builders. The learned counsel would contend that the judgments cited on behalf of the Applicants concern suits which were filed for declaration and not for simplicitor injunction. It is in the said fact situation that the courts opined that the substance of the relief would have to be seen. The learned counsel would therefore further contend that the Court Fees Act is a taxing statute, the same would have to be strictly construed. It is only when the suit falls within a particular entry that the said entry would be applicable and by a long drawn out process the applicability of a particular entry cannot be arrived at. The learned counsel would contend that the Plaintiff continuous to be in possession of the property in question and therefore has sought injunction in the nature and to the extent mentioned in the prayer clause and the suit is therefore covered by Clause 504 of Chapter XXV of the Civil Manual.
12 I have heard the learned counsel for the parties and I have bestowed my anxious consideration to the rival contentions of the parties.
13 In so far as the objection of the Defendants to the maintainability of the Suit in view of the non-compliance of Section 291 of the Companies Act lgc 14 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 is concerned, the Trial Court has held that the suit filed by the Plaintiff through one of the Directors is maintainable. The Trial Court has relied upon various authorities and considered the said issue on the touchstone of the Order XXIX Rule 1 of the Code of Civil Procedure and on such consideration the Trial Court has reached a conclusion that there is no defect in filing of the suit in question, and therefore, the objection raised by the Defendants as regards the maintainability of the suit on account of violation of Section 291 of the Companies Act is not sustainable. The learned counsel appearing for the Petitioners Shri Dani fairly conceded that he would not press the said issue as, according to him, even assuming that there is any defect in filing of the suit on account of the fact that there is no proper authorization to the Director concerned to file the suit, the said defect is curable. In view of the said statement of the learned counsel appearing for the Petitioners Shri Dani, it is not necessary to consider the said aspect.
14 The question which therefore remains for consideration is, whether the suit is properly valued, as held by the Trial Court. For the said purpose, it would be necessary to revisit the prayer clause in the Plaint;
"Defendants and/or the persons claiming through the defendants including the family members of the defendants no.2 i.e. his brothers, etc. and/or any other persons including staff, security, servants, agencies, contractors, affiliates, architects etc. of the defendants may please be permanently restrained from entering into the suit property; and/or disturbing vacant, peaceful and physical possession of the plaintiff and/or lgc 15 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 carrying out any activities on the suit property and/or in respect of the FSI/TDR/flats, units tenements, etc. in pursuance thereof and/or otherwise acting as the representative/s of the plaintiff etc and/or doing any acts, matters, deeds, things as the case may be in respect of the suit property and/or any part thereof and/or in pursuance of the said development agreement/or of attorney dated 23 rd of May 2006, and/or any other document/s, as the case may be;"
It would also be apposite to refer to Section 6(iv)(ha), Section 6(v) and Article 7 of Schedule 1 of the Bombay Court Fees Act, 1959 :-
"Section 6(iv)(ha) : for avoidance of sale, contract for sale, etc - In suits for declaration that any sale, or contract for sale or termination of contract for sale, of any movable or immovable property is void [one-half] of ad valorem fee leviable on the value of the property;
Section 6(v) :- for possession of lands,houses and gardens.--In suits for the possession of land, houses and gardens--according to the value of the subject- matter; and such value shall be deemed to be, where the subject matter is a house or garden--according to the market-value of the house or garden and where the subject-matter is land, and--
(a) where the land is held on settlement for a period not exceeding thirty years and pays the full assessment to Government--a sum equal to [forty times] the survey assessment;
(b) where the land is held on a permanent settlement, or on a settlement for any period exceeding thirty years,and pays the full assessment to Government a sum equal to 12 [eighty times] the survey assessment;
(c) where the whole or any part of the annual survey assessment is remitted--a sum computed under sub- paragraph(a) or sub-paragraph (b) as the case may be, in addition to 12 [eighty times]the assessment or, the portion of assessment, so remitted:
lgc 16 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 SCHEDULE-I AD VALOREM FEES Number Proper fee 1 2 3 Any other plaint, A fee on the amount of application or petition the monetary gain, or (including memorandum loss to be prevented, of appeal), to obtain according to the scale substantive relief capable prescribed under Article of being valued in terms 1. of monetary gain or ------- prevention of monetary loss, including cases wherein application or petition is either treated as a plaint or is described as the mode of obtaining the relief as aforesaid. 15 It is the submission of the learned counsel appearing for the
Applicants Shri Dani that though the prayer is couched in the manner so as to claim injunction simplicitor against the Defendants, in fact by the said prayer, the Plaintiff is virtually seeking three fold reliefs viz. avoidance of MOU, which is in the nature of the sale deed as also the loss which would be caused to the Plaintiff on account of implementation of the MOU. It is the submission of the learned counsel for the Applicants that the Plaintiff in fact is also seeking possession of the land which has been handed over to the Defendants in pursuance of the said MOU. The learned counsel therefore has placed reliance on the Sections 6(iv)(ha), 6(v) and Article 7 of Schedule 1 of the Bombay lgc 17 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 Court Fees Act so as to contend that the reliefs sought in the suit would fall within the said Sections of the Bombay Court Fees Act, and would have to be valued accordingly.
16 At this stage it would be relevant to refer to the judgments cited on behalf of the Plaintiff i.e. the Respondent No.1 herein. In the case of Ram Narain Prasad (supra) the Apex Court has held that the court fees payable are to be computed on the basis of averment made and relief sought in the plaint and not on the basis of the written statement. The Apex Court was concerned with the suit filed for eviction by the Appellants claiming that they were landlords and Respondents who were their tenants were in arrears of rent. In the said suit the stand taken by the Respondents was denying the landlord-
tenant relationship. The Courts below in view of the said stand taken by the Respondents had held that since the title of the Appellants had to be decided not incidentally but in a full-fledged manner, the Plaintiff-landlords should pay ad volarem court fee on the market value of the suit property. The Apex Court held that the suit would have to be valued on the basis of the relief of eviction sought in the said suit regardless of the fact that the Respondents had denied the Appellants' title to the suit property. The relevant para is para 9 of the report which is reproduced herein under :-
"9 The plaint in this case sought the relief of eviction of the first respondent from the suit property upon the averments that the appellants were the landlords and the first respondent was their tenant and lgc 18 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 he was in arrears of rent. The suit could only be valued as an eviction suit, regardless of the fact that the first respondent had denied the appellant's title to the suit property so that this became an issue in the suit."
The next judgment is the judgment in Sai Samrat Security Services which is a judgment of the a learned Single Judge of this Court. The learned Single Judge of this Court had rejected the contention raised on behalf of Defendant in the said proceeding that the relief sought in the plaint will fall within the provisions of Article 7 of Schedule I of Bombay Court Fees Act. The learned Single Judge held that since the suit was filed simplicitor for injunction against the Defendants not to disturb the possession, the mere fact that the leave under Order II Rule 2 of the Code of Civil Procedure to claim an amount of Rs.2,93,000/- would not result in the suit being valued as one for recovery of the said amount. What flows from the said judgments is that the averments in the plaint are the deciding factors for computing the court fees.
17 The averments in the plaint, therefore, assume significance and it would therefore be necessary to refer to them in some detail. In the instant case, the suit property is described in Para 1 of the plaint. It has been averred in Para 2 of the plaint that the Plaintiff is the exclusive and absolute owner of the suit property. It is further averred that the Plaintiff has decided to develop the property by causing construction of various buildings, amenity spaces, play grounds, colonies. etc. In Para 3 of the Plaint the establishment of the joint lgc 19 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 venture by confirming a Special Purpose Vehicle (SPV) for carrying out the development and intention of the parties are mentioned, as also execution of the Development Agreement dated 2/5/2006. In Para 4 the terms and conditions of the MOU have been mentioned. Wherein in Clause 4(C) the consideration has been mentioned for the said MOU and payment schedule thereof, The covenant in respect of the rights of the Joint Venture to enter into the Agreement to Sell and otherwise transfer of buildings, flats, etc. has been mentioned. In Para-5 of the plaint it has been averred that the said Development Agreement has not been acted upon, and therefore, the said Development Agreement and the Power of Attorney has become redundant and the Plaintiff accordingly informed the Defendants before cancellation and termination of the said Development Agreement. The Plaintiff also informed the Income Tax Authorities by its letter dated 20 th March 2009 of the said cancellation. In Para 8 of the plaint, the breaches committed by the Defendant No.2 have been pleaded. In Para 9 the fact that the Power of Attorney is incidental to the Development Agreement is pleaded, and cancellation of the same by giving public notice in the newspaper has been pleaded in Para 10. In Para-11 the apprehension of the Plaintiff that the Defendants or the persons claiming through them would obstruct the Plaintiff has been pleaded. In Para 13 the apprehension of the Plaintiff that the Defendant No.2 may claim possession of the suit property is expressed. It is averred in said Para that the Plaintiff is the owner of the suit property and in possession thereof, as also the lgc 20 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 fact that the possession was never parted with in part performance of the contract. The reasons why the suit for injunction is required to be filed is pleaded in the said para and ultimately the prayer clause contains the relief sought in the suit.
18 The averments in the plaint therefore disclose that the MOU as well as the Power of Attorney dated 23/5/2006 have been terminated by the Plaintiff. The averments further disclose that the said termination is attributed to the alleged breach of the terms and conditions committed by the Defendants. The averments further disclose that since the terms and conditions were not fulfilled, the said MOU was never implemented, and the Plaintiff, who is the exclusive owner, continuous to be in possession of the suit property. From the prayer clause it can be seen that there is no prayer seeking any declaration or seeking recovery of possession. The prayer as can be seen is for seeking injunction simplicitor against the Defendants, restraining them from interfering with the property in question.
19 After adverting to the averments in the plaint and the prayer sought in the suit, it would be necessary to refer to the judgments cited on behalf of the Applicants. All the cases involve a declaration sought by the Plaintiffs in the suits filed by them. In the case of Gulam Mohamed Mohamed Yunus (Supra) the Plaintiffs had sought a declaration that the lgc 21 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 mortgage executed by defendants was illegal and void and was not binding on him and the mortgagee did not derive any right or interest in the property and the basis for this was the alleged will under which he claimed the property and it also transpired that there was a previous mortgage to which the testator was a part and the mortgage deed was by way of renewal of the previous mortgage and some of the mortgagors-defendants had admittedly some share in the property and the other mortgagor-defendants were also not total strangers but were preferential heirs to the testator but for the will. It is in the said contest, the said suit was filed where the plaintiff No.1 claimed on the basis of the Will which he had to prove, where the dispute is not only regarding the mortgage deed, but shares the character that some of the interest could be transferred to the first defendant and he could validly put up for auction the suit property. It is in the said context, the Division Bench of this Court held that the reliefs claimed would be falling under Article 7 of Schedule-I.
In the case of Nagin Mansukhlal Dagli (supra), the relief claimed was a declaration that the defendant was a trespasser and had no right, title or interest to remain in the flat and for mandatory injunction to vacate and handover possession. It is in the said context, the Division Bench of this Court held that the prayer clause (b) in the suit, in the guise of a prayer for a mandatory injunction against the defendant to remove himself from the said flat, is in substance none other than a prayer for the recovery of possession of lgc 22 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 the said flat. It is in the said context, the Division Bench held that the suit was capable of monetarily valued.
In so far as the judgment in Vinod Vyankat Narsaiyya Gannu (supra) is concerned, the main prayer in the said suit was a declaration that the defendant No.1 is not entitled to carry out C and F agency business of defendants No.2 and 3 which were being carried out by M/s. P G Pharma of which plaintiff and defendant No.1 are partners, either in the name of defendant No.1 or in any other name or in the name of M/s. Dhanlaxmi Medicaments of which he is the sole unless the entire accounts are settled and the defendant No.1 is discharged from his liability by making entire payments due against defendant No.1 are made by him. In the context of the said relief and the averments made in the plaint, a learned Single Judge of this Court came to a conclusion that the entire tenor of the averments show that unless and until the plaintiff's accounts are settled by the defendant No.1, the defendant No.1 should not be permitted to carry on, with the carrying and forwarding business with defendant Nos.2 and 3. The learned Single Judge of this Court was of the view that in the guise of seeking declaration, the plaintiff is in fact trying to seek a relief for restraining the defendant No.1 for carrying on his business, until his accounts are settled and the amount payable to him is paid. The learned Single Judge was of the view that therefore the amount which the Plaintiff was claiming can be calculated in monetary terms, and lgc 23 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 therefore Item No.7 of Schedule-I of the Bombay Court Fees Act would be attracted.
In so far as judgment in Shakuntala Vasant Agarwal (supra) is concerned, in the said case the suit was filed seeking declaration that the plaintiff is entitled to possess the suit house as a legal heir of the original owner and also seeks certain consequential reliefs in the nature of perpetual injunction. It is in the said context, the learned Single Judge of this Court held that the case must fall under clause (d) of section 6(iv) as the suit was for recovery of possession of the house, and the plaintiff was therefore required to pay half of the ad valorem fee.
20 As indicated above, in the instant suit no declaration is sought as also there is no prayer for recovery of possession sought by the Plaintiff. It is the case of the Plaintiff that the MOU has not been given effect to and has also been terminated. It is on the said basis that the suit simplicitor for injunction has been filed. It is therefore not possible to accept the contention of the learned counsel for the Applicants that the relief sought in the plaint is virtually seeking avoidance of the sale deed or also to avoid the loss that would be caused to the Plaintiff, and therefore, the suit has to be valued under Section 6(iv)(ha) or Article 7 of Schedule-I of the Bombay Court Fees Act. It would have been another matter if the Plaintiff had sought the relief of lgc 24 of 25 ::: Downloaded on - 09/06/2013 19:21:12 ::: cra-122.12 with cacs-376.12&590.12 recovery of possession and also sought injunction as prayed for in the prayer clause. The trial Court therefore has rightly come to a conclusion that the present suit being filed for simplicitor injunction, the relief claimed is not susceptible of monetary evaluation, and therefore, the payment of court fees under Section 6(iv)(j) cannot be faulted with. There is no error of jurisdiction or any other illegality or infirmity committed by the Trial Court for this Court to interfere with the impugned order in its revisionary jurisdiction. The above Civil Revision Application is accordingly dismissed.
21 In view of dismissal of the above Civil Revision Application, the Civil Application No. 376 of 2012 and the Civil Application No.590 of 2012 do not survive and the same are disposed of as such.
[R.M.SAVANT, J]
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