Bombay High Court
M/S.Eagle Soraj Townships ... vs Managing Director on 2 November, 2012
Bench: R. M. Savant
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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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:
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SCHEDULE-I
AD VALOREM FEES
Number Proper fee
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
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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
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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
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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
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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
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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
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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
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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
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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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