Bombay High Court
Housing Society Bearing ... vs Society Ltd. on 19 December, 2011
Bench: R. M. Borde
1 978.11-ao
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
APPELLATE JURISDICTION.
APPEAL FROM ORDER NO. 978 OF 2011
M/s.Nandanvan Co-operative Housing
Society Ltd., a registered Cooperative
Housing Society bearing Registration No.
BOM/WKE/HSG/TC/11265/2001-02 ... Appellant.
V/s.
Nandanvan Co-operative Housing
Society Ltd., a registered Cooperative
Housing Society under Registration No.
BOM/WKE/HSG/TC/1'1636/2002-03
and others. ... Respondents.
N.V.Walawalkar, Senior Advocate with R.D.Soni i/b.
Ram & Co. for the appellant.
S.S.Kanetkar i/b. Yogini Bharade for respondent No.1.
Nitin G. Thakkar, Senior Advocate with Gobindo C. Mohanty
i/b. Mohanty & Associate for respondent No.2.
Ms.K.K.Soran for respondent No.3.
CORAM: R.M.BORDE, J.
DATED : 19th December 2011.
P.C. :
In this appeal from order, the appellant is taking exception
to the order passed by the Judge, City Civil Court, Borivali Division,
Dindoshi on 28th July 2011 in L.C.Suit No.733/2009. The trial Court
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has directed return of plaint to the plaintiff for presentation to the
proper court on the ground that the the prayers made in the plaint are
beyond the pecuniary jurisdiction of the trial Court and that the
valuation of the suit is not correctly recorded in the plaint.
2. The respondent/ plaintiff presented suit claiming the
declaration that the plaintiff is entitled to a deed of conveyance in
respect of plot of land admeasuring 3,250 sq.yards equivalent to 2,717
sq.meters bearing Survey No.27, Hissa No.1 corresponding to C.T.S.No.
287, 287/1 to 35 of village- Vile-Parle (East) together with the building
known as Nandanvan-A consisting of ground plus three upper floors
and building known as Nandanvan-B consisting of ground plus sixth
floor and part seventh floor. The substantial reliefs claimed in the suit
are to be found in prayer clauses (a) to (d), which read thus:
(a) That it be declared by this Honourable Court
that sub-division of C.T.S. No. 287 into C.T.S. No.
287A and 287B being Final Plot Nos. A-1 and A-2
in respect of the plot of land admeasuring 3250 sq.
yards equivalent to 2712 sq.mts. bearing Survey
No. 27 Hissa No. 1 corresponding to C.T.S.No. 287,
287/1 to 35 of Village Vile Parle (East) and
situated near Bhuta High School, Shahaji Raje
Marg, Vile Parle (East), Mumbai - 400 057
together with the building- A knows as
Nandanvan-A consisting of ground and three
upper floors and Building -B consisting of ground
plus six floors and part seventh floor known as
Nandanvan -B, is bad-in0law, illegal and
inoperative as contrary to the provisions of the
Maharashtra Ownership Flats Act, 1963;
(b)That it be declared by this Honourable Court
hat a Deed of Conveyance dated 3rd March, 2008
executed by the Defendants No. 2 in favour of the
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Defendants No. 1 in respect of Sub-Plot No. A-1
bearing C.T.S. No. 287A admeasuring 772.67 sq.
mts. out of the Plot of land admeasuring 3250 sq.
yards equivalent to 2717 sq.mts. bearing Survey
No. 27 Hissa No. 1 corresponding to C.T.S.No. 287,
287/1 to 35 of Village Vile Parle (East) and
situated near Bhuta High School, Shahaji Raje
Marg, Vile Parle (East), Mumbai - 400 057
together with the building- A knows as
Nandanvan-A consisting of ground and three
upper floors and Building -B consisting of ground
plus six floors and part seventh floor known as
Nandanvan -B, is bad-in0law, illegal and
inoperative as contrary to the provisions of the
Maharashtra Ownership Flats Act, 1963;
(c) that it be declared by this Honourable Court
that the Agreement of Development dated 5th
September, 2007 executed by the Defendants No. 1
in favour of the Defendants No. 2 for
redevelopment of Sub-Plot No. A-1 bearing C.T.S.
No. 287A admeasuring 772.67 sq. mts. out of the
Plot of land admeasuring 3250 sq. yards
equivalent to 2717 sq.mts. bearing Survey No. 27
Hissa No. 1 corresponding to C.T.S.No. 287, 287/1
to 35 of Village Vile Parle (East) and situated near
Bhuta High School, Shahaji Raje Marg, Vile Parle
(East), Mumbai - 400 057 together with the
building- A knows as Nandanvan-A consisting of
ground and three upper floors and Building -B
consisting of ground plus six floors and part
seventh floor known as Nandanvan -B, is bad-
in0law, illegal and inoperative as contrary to the
provisions of the Maharashtra Ownership Flats Act,
1963;
(d) That it be declared by this Honourable Court
that the Plaintiffs are entitled to a Deed of
Conveyance being executed in their favour by the
Defendants No. 2 in respect of land admeasuring
3250 sq. yards equivalent to 2717 sq.mts. bearing
Survey No. 27 Hissa No. 1 corresponding to
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C.T.S.No. 287, 287/1 to 35 of Village Vile Parle
(East) and situated near Bhuta High School,
Shahaji Raje Marg, Vile Parle (East), Mumbai -
400 057 together with the building- A knows as
Nandanvan-A consisting of ground and three
upper floors and Building -B consisting of ground
plus six floors and part seventh floor known as
Nandanvan -B in pursuance of the representations
made by the Defendants No. 2 to the members of
the Plaintiffs while executing the Agreements of
Sale of Flats in the building of the Plaintiffs and as
per the provisions of the Maharashtra Ownership
Flats Act, 196;"
3.
An objection was raised by the defendants to the
maintainability of the suit on the ground that the suit is not valued
properly and prayer clauses (a) to (c) are not within the competence of
the trial Court. According to the defendants, the deeds in respect of
which relief of declaration is sought for are required to be valued in
crores of rupees and the valuation put by the plaintiff in respect of
prayer clauses (a) to (c) is incorrect and the suit is beyond the
pecuniary limits of the trial court.
4. Considering the objection raised by the defendants, the
trial Court framed two preliminary issues reading as under:
1. Whether the suit is not maintainable for want of
notice under section 164 of the Maharashtra Co-
operative Societies Act and also under section 91 of
the said Act?
2. Whether the subject matter of the suit is under valued
and this Court has no jurisdiction to entertain and
decide the suit?
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5. The trial Court has given affirmative finding on issue No.2
holding that the suit is undervalued and the Court has no pecuniary
jurisdiction to entertain and decide the suit, as such, plaint was
directed to be returned to the plaintiff for presentation to the proper
court.
6. I have heard the arguments advanced by learned counsel
for the respective parties.
7. It is vehemently contended by leaned counsel for the
appellant that the reliefs claimed in the suit are required to be valued
under the provisions of section 6(iv)(j) of the Bombay Court Fees Act,
1959 as those reliefs relate to the obligations to be performed by the
defendants under the Maharashtra Ownership of Flats Act, 1963
(MOFA). Pointing out prayer clauses contained in the plaint, more
specifically prayer clauses (a) to (c), it is contended that the reliefs
claimed in pursuance to the obligations cast on the defendants under
the MOFA and are required to be valued under section 6(iv)(j) of the
Bombay Court Fees Act. Reference is made to the judgment in the
case of of Maria Philomina Pereira v. Rodrigues Construction, 1990
Mh.L.J. 445 = AIR 1991 Bom. 27 and Vrindavan (Borivali) Co-
operative Housing Society Limited v. Karmarkar Bros., 1982
Mh.L.J. 607. It is, thus, contended that since the prayers relate to the
obligations cast under the provisions of the MOFA the valuation for the
jurisdiction as well as valuation of court fees would be governed by the
provisions of section 6(iv)(j) of the Bombay Court Fees Act and the suit
has been properly valued.
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8. On perusal of the prayer clauses contained in the plaint, it
is evident that the prayer clause (b) relates to the declaration that the
deed of conveyance dated 3rd March 2008 executed by defendant No.2
in favour of defendant No.1 is bad in law, illegal and inoperative,
whereas prayer clause (c) relates to the declaration that the agreement
of development dated 5th September 2007 executed by defendant No.1
in favour of defendant No.2 is bad in law, illegal and inoperative. The
declarations sought, I am afraid, would not be covered by the
provisions of the MOFA as the reliefs sought do not relate to the
obligations arising out of the said Act. A reference can be made to the
judgment in the case of Chandrika Chunilal Shah v. Orbit Finances
Pvt.Ltd., 2011 (1) Mh.L.J. 898. In the reported matter, initially, the
suit was presented for mandatory order of performance of the statutory
obligation under the MOFA and relief was property valued under
section 6(iv)(j) of the Court Fees Act. However, the additional prayer
made in the plaint seeking declaration that the agreement executed by
respondent No.1 therein in favour of other respondents in respect of
property was invalid and bad in law was held to be not covered by the
provisions of the MOFA and the relief was required to be valued in
consonance with the provisions of section 6(iv)(ha) of the Bombay
Court Fees Act. The relevant observations are to be found in
paragraph-6 of the judgment which read thus:
"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 advoleram fee leviable on
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the value of the property. In my view, the prayer
(bi) 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 favor 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 (bi) under section 6(iv)
(ha) of the Bombay Court Fees Act."
It is also observed by this Court in paragraph-9 of the judgment that
after amendment, the suit contains not only the prayer for performance
of a statutory obligations under the MOFA but also contains a prayer for
cancellation of an agreement of sale executed by respondent No.1 in
favour of respondent No.2 therein prior to filing of the suit and, for
such prayer, the suit is required to be valued under section 6(iv)(ha) of
the Bombay Court Fees Act. Similar parallel can be drawn in the
instant matter so far as the relief of declaration sought for in respect of
documents stated to have been executed between defendant No.1 and
defendant No.2. The said documents are required to be valued under
section 6(iv)(ha) of the Bombay Court Fees Act.
9. It is contended by learned counsel appearing for the
appellant that even if the prayers are required to be valued under
section 6(iv)(ha) of the Bombay Court Fees Act, there would be no
change in the valuation of the plaint as well as court fees for the reason
that the documents which are subject matter of prayer clauses (b) and
(c) do not refer to the value of the property. The suit property has not
been valued at all in the said documents and that the transaction made
by defendant No.1 in favour of defendant No.2 is without any
8 978.11-ao
monetary consideration. It is, thus, contended that since the monetary
consideration has not been mentioned in the documents, the valuation
put by the plaintiff in respect of prayer clauses (b) and (c) is correct
and need not be revised. It is also urged that the term `value'
appearing in section 6(iv)(ha) is distinguishable from the `market
value' appearing in section 6(iv)(j) of the Bombay Court Fees Act. It is
contended that section 6(v) makes reference to the value of the subject
matter whereas section 6(iii) makes reference to the market value of
the property whereas section 6(iv)(ha) refers to the value of the
property. Since the documents do not disclose monetary valuation of
the property, the suit presented by the plaintiff cannot be stated to have
been undervalued. Reliance is placed on the judgment of Asha Sopan
Maithane v. Ramkrushna Punaji Wanare, CDJ 2010 BHC 1747. In
paragraphs-11 and 12 of the judgment, it is observed thus:
11. The respondents have tried to show its market
value of the suit property on the date of institution
of suit on which court fee ought to have been
computed. The trial Court has referred to
provisions of Section 6(iv)(ha) of the Act to uphold
this contention. The perusal of said provision shows
that when suit is for declaration, any ale or contract
for sale of any immovable property is vo8d, one half
of ad valorem fee leviable on the value of the
property is required tobe paid. The trial Court has
accepted that this value of th property has to be its
market value on the date of the institution of the
suit.
12. The provisions of section 6 which deal with
computation of fees payable in certain suits, the
words used are "value of property" and "market
value". For the present purposes, it needs to be
noticed that Section 6(v) prescribes Court fee in
suits for possession of land, house and gardens.
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This clause (v) itself shows that such court fee is
payable according to the value of the subject matter.
It also stipulates that in case of houses or gardens,
its market value is deemed to be value of subject
matter and where subject matter is land, a sum
equal to 40 times or 80 times the survey assessment,
it deemed to be its value. The Scheme, therefore, is
apparent and Legislature has specifically used the
word market value whenever it wanted to employ
that work and wanted the plaintiff to pay court fee
on such market value. S.6(iii) can also be referred
to for this purpose and it prescribes court fee on
suits for other moveable properties having market
value. Its reading shows that court fee is to be paid
on its market value that too at the date of
presentation of Suit. Hence, the Legislature has
given different meaning to word "value" and
"market value" and has not used one or the other to
imply same thing. In case of agricultural land, the
value is deemed to be at either 40 times or 80 times
its survey assessment. Hence, language of Section
6(iv)(ha) assumes importance & it does not use the
word "market value" but it only uses the word value
of the property. It is not in dispute that sale deed
dated 25.06.1998 is for Rs.4,60,000/- and
accordingly the petitioner - plaintiff valued his suit
at Rs.4,60,000/-. He is not party to that sale deed.
10. The learned counsel appearing for the respondents invited
by attention to the documents in respect of which relief of declaration
is sought by the plaintiff and pointed out that subject matter of the suit
is susceptible for monetary evaluation and monetary evaluation has
already been made in respect property while executing the documents.
The first document is an agreement dated 5th September 2007. The
property has been valued, while executing the document, at
Rs.3,38,16,000/- and stamp duty of Rs.3,38,160 has been paid. The
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document has been valued for the purpose of payment of stamp duty in
respect of property transacted under the document dated 5th September
2007. Similar is the case in respect of deed of conveyance dated 3rd
March 2008. The property transacted under the document has been
valued at Rs.1,17,01,000/- and stamp duty of Rs.4,46,000/- has been
paid while executing the document. Thus, it is contended that the
property in respect of which transaction has been entered into is
evaluated and proper stamp duty has been paid while executing the
documents. The valuation of the property at Rs.3,38,16,000/- and Rs.
1,17,01,000/- is surely beyond the pecuniary limits of the City Civil
Court. Thus, it is contended that the neither the suit claim has been
valued properly nor the proper court fees have been paid. The property
in respect which reliefs are claimed is surely susceptible to the
monetary valuation and the valuation of the property as appearing
from the transaction appears to be more than one crore and is surely
beyond the pecuniary limits of the City Civil Court. My attention is
invited to the judgment of Satheedevi v. Prasanna, (2010) 5 SCC 622
which is relied upon by learned single Judge dealing with the matter
Sau.Asha Sopan Maithane (supra). So also reliance is placed on the
judgment of this Court in the case of Madhorao v. State of
Maharashtra, AIR 1972 SC 45. Placing reliance on the said
judgments, it is contended that if the Court cannot ascertain whether
the suit can be valued in terms of sub-clauses (a), (b) and (c) of section
6(i)(v) of the Bombay Court Fees Act it would be for the trial Court to
decide under which provisions the court fees are to be paid and the
appellant shall be required to pay that amount of fee which is payable
under the appropriate provision. In the instant matter, such
contingency may not arise since the suit claim is susceptible to the
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monetary evaluation and the same has been evaluated under the
documents and that the provisions of section 4(iv)(ha) would be
attracted to the facts of the case.
11. It is contended by learned counsel for the appellant that if
the suit is held maintainable for part of the reliefs, it is not open for
the forum to shut out its doors to the suitor. Reliance is placed on the
judgment of the Apex Court in the case of Ishar Singh v. National
Fertilizers, AIR 1991 SC 1546. In paragraph-5 of the judgment, it is
observed thus:
........... Law is equally settled that if for part
of the reliefs the suit is maintainable in the forum
where it has been laid, it is not open to the forum to
shut out its doors to the suitor............"
In the matter before the Apex Court, the relief in respect of declaration
of correctness of date of birth was sought so also claim in respect of
back wages which is required to be dealt with under the provisions of
the Industrial Disputes Act, 1947. The Apex Court observed that so far
as relief claimed in respect of payment of back wages is concerned the
same shall have to be presented before the forum prescribed under the
Industrial Disputes Act whereas so far as prayer in respect of
declaration of correctness of date of birth is concerned, the said dispute
is triable by the civil Court. In the instant matter, it is not the case of
either of the parties that some of the reliefs claimed in the plaint are
triable by any of the forum except civil Court. If, for certain reliefs,
higher court is required to be approached, the higher court can surely
take into consideration and decide the claim which can be lodged
before the lower court. Even if some of the reliefs can be considered by
the City Civil Court, for claiming reliefs in respect of declaration as
12 978.11-ao
claimed under the prayer clauses (b) and (c) suit would be beyond the
pecuniary limits of the City Civil Court and the claim has to be lodged
before the forum which is competent to deal with those reliefs and such
forum can also deal with other prayers contained in the plaint.
Reference can be made to the judgment of this Court in the case of
Nilima S. Navalkar v. Nipun I. Thakkar, 2010 ALL MR (Supp.) 297;
wherein it has been observed that the valuation of the suit made by the
plaintiff is ordinarily liable to be accepted in view of the judgment of
the Apex court in the case of Smt.Tara Devi v. Sri Thakur Radha
Krishna Maharaj, AIR 1987 SC 2085. It is, however, held that when
the Court finds on a consideration of the facts and circumstances that
the valuation is arbitrary, unreasonable and the plaint has been
demonstratively undervalued, the Court can examine the valuation and
revise the same. Similar observation is made by the Apex Court in the
case of Abdul Hamid Shamsi v. Abdul Majid, (1988) 2 SCC 575
wherein it has been observed that when the valuation of relief by the
plaintiff is arbitrary and whimsical, it would be liable to be rejected.
In this context, a reference can be made to the provision of section 8 of
the Suits Valuation Act, 1887 which reads thus:
8. Court-fee value and jurisdictional value to be
the same in certain suits.- Where in suits other
than those referred to in paragraphs (v), (vi) and
(x) and clause (d) of paragraph (xi) in section 6 of
the Bombay Court-fees Act, 1959 court-fees are
payable ad valorem under the Bombay Court-fees
Act, 1959 the value as determinable for the
computation of court-fees and the value for
purposes of jurisdiction shall be the same.
13 978.11-ao
The value as determinable for the computation of court fees and the
value for the purposes of jurisdiction shall be the same in respect of
suits except those referred to in section 8 of the Suits Valuation Act. In
the instant matter, the valuation for the reliefs in respect of prayer
clauses (b) and (c) have been grossly undervalued by the plaintiff and
the same needs to be corrected and the plaintiffs needs to pay proper
court fees in respect of reliefs claimed by him. In my view, the trial
Court has adopted a correct approach in the matter and has rightly
directed return of plaint. There is no reason to cause interference in
the order passed by the trial Court. The appeal is devoid of any merits.
12.
In the result, appeal from order stands dismissed. In view
of dismissal of appeal from order, pending civil application does not
survive and stands disposed of accordingly.
(R.M.BORDE, J.)
