Bombay High Court
Chandrika Chunilal Shah vs Orbit Finances Pvt.Ltd. & Ors on 1 December, 2010
Bench: D.G. Karnik
1 AO No.1271/10
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.1271 of 2010
Chandrika Chunilal Shah ... Appellant
versus
Orbit Finances Pvt.Ltd. & ors.
ig ... Respondents
...
Mr. Uday Warunjikar i/b M/s.Mayur Narendra & Co. for the
appellant.
Mr.A.K.Chauhan for respondent no.1.
Mr. Aspi Chinoy i/b Anil Menon & Associates with Anil Menon for
respondent nos.2 and 3.
CORAM : D.G. KARNIK, J
DATED : 1st December 2010
ORAL JUDGMENT
1. Heard learned counsel for the parties.
2. This appeal is directed against an order dated 20th September
2010 passed by the Judge, City Civil Court, Greater Mumbai
returning the plaint to the appellant (plaintiff) under Order 7 Rule
10 of the Code of Civil Procedure for presentation to proper court.
3. The respondent no.1 proposed to develop the property
bearing final Plot No.952(Part) & 952(Part) Mahim by constructing
a new multi storied building in place of an old structure. By an
agreement of sale dated 2 March 2000, the respondent no.1
agreed to sell and allot to the appellant Unit 401 on the 4 th floor of
the building at a concessional price of Rs.13,50,000/- in view of
the fact the appellant was a tenant of a small portion the old
structure. According to the appellant, the respondent committed a
breach of the agreement and therefore he filed a suit, bearing Suit
3703 of 2007, in the City Civil Court, Mumbai, for a declaration
that the agreement dated 2 March 2000 was valid and for an order
directing the respondent no.1 to carry out his statutory obligations
under the Maharashtra Ownership Flats Act, 1963 (for short the
"MOFA") by putting the appellant in possession of Unit 401. The
suit was valued at Rs.1,000/- under section 6(4)(j) of the Bombay
Court Fees Act. During the pendency of the suit, from the affidavit
in reply of the respondent no.1 the appellant discovered that the
respondent no.1 had already sold the entire 4th floor of the
proposed building to the respondent nos.2 and 3 for a total
consideration of Rs.11,50,00,000/- on 7 August 2006 i.e prior to
the filing of the suit. On discovery of this fact, the appellant
amended the plaint and joined respondent nos.2 and 3 as parties
to the suit. He also amended the prayer clause of the plaint and
sought a declaration that the agreement dated 7 August 2006
executed by the respondent no.1 in favour of respondent nos.2 and
3 was invalid, bad in law and non-est. On service of the writ of
summons of the amended plaint the respondent nos.2 and 3
appeared in the suit, and contended that the City Civil Court had
no jurisdiction to entertain and try the suit as the value of the suit
property was Rs.13,50,000/- as per appellant's own averment in
the plaint. Since the appellant was claiming cancellation of the
sale agreement between the respondent no.1 and respondent nos.
2 & 3, the suit was required to be valued u/s.6(iv)(ha) of the
Bombay Court Fees Act and court fee equal to one half of the ad
voleram fee leviable on the value of the property was required to
be paid. The suit so valued was beyond the pecuniary limit of
jurisdiction of the City Civil Court. The contention of the
respondent nos.2 and 3 was upheld by the City Civil Court which
directed return of the plaint for presentation to the proper court.
That decision is impugned in this appeal.
4. The suit as it was originally filed contained only the relief of
a declaration that the agreement in favour of the appellant was
valid and for a direction to the respondent no.1 to perform his
statutory obligation under the MOFA. In the case of Maria
Philomina Pereira Vs. Rodriques Construction, AIR 1991 Bom.27,
this Court has taken a view that a suit though styled as a suit for
specific performance of an agreement of sale executed by a
promoter in favour of a flat purchaser is in fact a suit for
compelling the promoter to perform his statutory obligation under
the MOFA of executing the conveyance and handing over the
possession of the suit property and was incapable of monetary
valuation and would have to be valued under section 6(iv)(j) of
the Bombay Court Fees Act. Even earlier in Vrindavan (Borivali)
Co-operative Housing Society Limited Vs. Karmarkar Bros. and
others, 1982 Mh.L.J 607, this Court had taken a similar view and
had held that a suit for specific performance of an agreement of
sale executed by a promoter in favour of a flat purchaser was
governed by section 6(iv)(j) of the Bombay Court Fees Act. These
decisions are consistently followed by this Court and as such it
must be held that the suit as originally framed was properly valued
under section 6(iv)(j) of the Bombay Court Fees Act at Rs.1,000/-.
Consequently, the City Civil Court had the jurisdiction to entertain
and try the suit as was originally filed. The short question that
arises for my consideration is whether in view of the amendment
of the plaint, the jurisdiction of the City Civil Court is ousted.
Dated 2 nd December 2010
4. The prayer (b-i) introduced in the plaint by the amendment
reads thus:
(b-i) that this Honourable Court may be
pleased to declare that the said Agreements
dated 07.08.2006 between the Defendants
interse in respect of the suit unit is invalid bad
in law and non est and that the Defendants
no.2 and 3 have no right, title and interest in
the suit unit.
Mr.Warunjikar, learned advocate for the appellant submitted that
this prayer is also incapable of any monetary valuation and is
required to be valued under section 6(iv)(j) of the Bombay Court
Fees Act. He further submitted that the prayer was ancillary to the
main prayer viz. mandatory direction to the respondent no.1 to
perform its statutory obligations under the MOFA and therefore,
the suit was not required to be separately valued for this prayer. I
am unable to agree. Section 18 of the Bombay Court Fees Act says
where the suit embraces two or more distinct subjects, the plaint
or memorandum of appeal, shall be chargeable with the aggregate
amount of the fees to which the plaints or memorandum of
appeals in suits embracing separately each of such subjects would
be liable under this Act. The effect of section 18 is that in case of a
multifarious suits which contain two or more reliefs the suit
would be required to be valued separately for the purposes of
Court fees for each of the reliefs i.e the Court fee would be
required to be calculated separately for each of the reliefs claimed
in the plaint and then the aggregate of the court fees so computed
for different reliefs would be the court fee payable.
5.
The relief initially claimed in the suit was of a mandatory
order of performance of statutory obligation by the respondent no.
1 under the MOFA. As I have already held that this relief was
properly valued u/s.6(iv)(j) of the Bombay Court Fees Act. The
additional prayer (b-i) introduced by an amendment was of a
declaration that the agreement executed by the respondent no.1 in
favour of respondent nos.2 and 3 on 7 August 2006 in respect of
suit property was invalid and bad in law. This was a distinct and
separate relief. Such a declaration did not arise out of any
statutory obligation cast on the respondent no.1 under the MOFA.
The plaint was therefore required to be separately valued for the
purposes of court fees for the reliefs claimed under prayer clause
(a) and (b-i)
6. Sub-Clause (ha) of clause (iv) of section 6 of the Bombay
Court Fees Act relates to the computation of the Court fee in a suit
for avoidance of a sale or a contract for sale. It says, in suits for a
declaration that any sale or a contract for sale or termination of a
contract for sale of any movable or immovable property is void, the
Court fee would be one half of ad-voleram fee leviable on the
value of the property. In my view, the prayer (b-i) squarely falls
under sub-clause (ha) of clause (iv) of section 6 of the Bombay
Court Fees Act inasmuch as the appellant has claimed a relief that
the contract for sale executed by respondent no.1 in favour of
respondent nos.2 and 3 on 7th August 2006 was invalid and bad in
law (void) and non est. The appellant was therefore required to
value the relief claimed under prayer (b-i) under section 6(iv) (ha)
of the Bombay Court Fees Act.
7. Mr.Chinoy, learned Sr. Advocate appearing for the
respondent nos.2 and 3 invited my attention to a decision of this
Court in Abdul Gaffar Vs. Niranjan Kumar AIR 2005 Bom 259.
Therein the defendant no.1 had entered into an agreement with
the plaintiff in respect of a property. However, thereafter some
differences cropped up between the plaintiff and the defendant no.
1 on account of which the defendant no.1 executed some
documents in favour of defendant no.3 who was trying to take
forcible possession of the suit property from the plaintiff. The
plaintiff therefore filed a suit against the defendants in which he
claimed that the agreement for development executed by
defendant no.1 in favour of defendant no.3 was not legal, valid
and was a void document. Plaintiff valued the suit under section
6(iv)(j) of the Bombay Court Fees Act. The defendant filed an
application u/s.8 and 9 of the Bombay Court Fees Act stating that
the land with the construction on it was valued at more than Rs.
4,50,000/- and the suit therefore had not been properly valued.
This Court held that since plaintiff had claimed a declaration that
the agreement was invalid, the suit was covered by sub-clause (ha)
of clause (iv) of section 6 of the Bombay Court Fees Act and was
required to be so valued. In my view, the decision squarely applies
to the facts of the present case and supports the view I have taken.
8. Section 8 of the Suits Valuation Act, 1887 provides that
where, in suits other than those referred to in paragraphs (v),(vi),
(x) and clause (d) of paragraph (xi) of section 6 of the Bombay
Court Fees Act, 1959, the court fees are payable ad-voleram under
the Bombay Court Fees Act 1959, the value as determinable for
computation of the court fees and the value for the purposes of
jurisdiction shall be the same. Thus, in respect of a suit falling
under paragraph (iv)(ha) of Section 6 of the Bombay Court Fees
Act, the valuation for the purpose of court fees and valuation for
the purposes of jurisdiction is the same. The valuation for the
purpose of court fees in the present suit would thus exceed Rs.
50,000/- which is the pecuniary limit of the jurisdiction of the City
Civil Court. The City Civil Court, therefore, would not have
jurisdiction to try the present suit as amended and containing
prayer (b-i). After the prayer clause (b-i) was introduced by an
amendment, the City Civil Court ceased to have jurisdiction to
entertain and try the suit. Therefore, the direction of the City Civil
Court to return the plaint to the plaintiff under Order 7 Rule 11 of
the Code of Civil Procedure for presenting it to proper Court is
legal and valid. For these reasons, there is no merit in the appeal
which is hereby dismissed.
9. Mr.Warunjikar submitted that the object of the MOFA would
be defeated if the flat purchaser is required to file a suit for specific
performance, by paying the full court fee stamp. In my view, the
contention has no merit. The suit only for enforcement of the
obligations cast upon a promoter under the MOFA, as stated earlier
would be valued u/s.6(iv)(j) of the Bombay Court Fees Act as has
been held by this Court in the case of Maria Philomina Pereira Vs.
Rodriques Construction (supra). In the present case, after
amendment suit contains not only the prayer for performance of a
statutory obligations of the respondent no.1 under the MOFA but
also contains a prayer for cancellation of an agreement of sale
executed by the respondent no.1 in favour of respondent no.2
prior to the filing of the suit. For such prayer, the suit is required
to be valued u/s.6(iv)(ha) of the Bombay Court Fees Act.
10. After this order was pronounced in the open Court. Learned
counsel for the appellant submitted that this order may be stayed
for a period of four weeks. He invited my attention to the order of
stay which was passed by the trial Court on 13 October 2010
earlier. In my view, it would be appropriate to stay the operation
of this order for some time to enable the appellant to pursue his
remedies. Accordingly this order confirming the order for return
the plaint is stayed for a period of four weeks. It is further
directed that the respondents shall not create any third party
interest in the suit premises for a period of four weeks.
(D.G.KARNIK, J)
