Bombay High Court
M/S. Indrapuram Resort ... vs Mr. Ramniklal A. Jain on 5 October, 2012
Bench: R. M. Savant
1 906.WP.4461.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4461 OF 2012
WITH
WRIT PETITION NO. 2368 OF 2012
WITH
WRIT PETITION NO. 4463 OF 2012
WITH
WRIT PETITION NO. 4467 OF 2012
WITH
WRIT PETITION NO. 4468 OF 2012
WITH
WRIT PETITION NO. 4471 OF 2012
WITH
WRIT PETITION NO. 4481 OF 2012
ig WITH
WRIT PETITION NO. 4482 OF 2012
WITH
WRIT PETITION NO. 4483 OF 2012
WITH
WRIT PETITION NO. 4484 OF 2012
WITH
WRIT PETITION NO. 4485 OF 2012
WITH
WRIT PETITION NO. 4486 OF 2012
WITH
WRIT PETITION NO. 4487 OF 2012
WITH
WRIT PETITION NO. 4488 OF 2012
WITH
WRIT PETITION NO. 4489 OF 2012
WITH
WRIT PETITION NO. 4491 OF 2012
WITH
WRIT PETITION NO. 4807 OF 2012
WITH
WRIT PETITION NO. 4819 OF 2012
WITH
WRIT PETITION NO. 4825 OF 2012
WITH
WRIT PETITION NO. 4966 OF 2012
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WITH
WRIT PETITION NO. 4976 OF 2012
WITH
WRIT PETITION NO. 4977 OF 2012
WITH
WRIT PETITION NO. 4979 OF 2012
WITH
WRIT PETITION NO. 4980 OF 2012
WITH
WRIT PETITION NO. 4981 OF 2012
WITH
WRIT PETITION NO. 4982 OF 2012
WITH
WRIT PETITION NO. 4983 OF 2012
WITH
WRIT PETITION NO. 4984 OF 2012
ig WITH
WRIT PETITION NO. 4985 OF 2012
WITH
WRIT PETITION NO. 4999 OF 2012
WITH
WRIT PETITION NO. 5002 OF 2012
M/s. Indrapuram Resort Apartments,
Through Partners,
M. R. Ashok G. Khushalani and Anr ....Petitioners.
Versus
Mr. Ramniklal A. Jain ....Respondent.
____________
Mr. Dushyant Purekar for the Petitioners in all Writ Petitions.
None for the Respondent.
CORAM: R. M. SAVANT, J.
DATED : OCTOBER 5, 2012.
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ORAL ORDER:
1 The above group of Petitions raises a common issue
and involves identical facts and are, therefore, heard together.
2 In one of the Writ Petitions out of the above group
being Writ Petition No.2368 of 2012, Rule came to be issued on
16th April, 2012 and further proceedings in the concerned Suit
came to be stayed. The rest of the 30 Petitions had come up for
admission thereafter and in view of the Rule issued in the said
Writ Petition No.2368 of 2012, it was ordered that the entire
group of 31 Petitions would be heard finally which included the
30 Petitions which are pending admission. Hence Rule to issue in
the said 30 Petitions made returnable forthwith and heard.
3 In spite of the notice of final disposal, the Respondent
is not appearing and is also not represented.
4 The short question which arises in the above group of
the Petitions is whether the Petitioner is liable to pay Court Fees
under Section 6(iv) (j) of the Bombay Court Fees Act, 1959 or
6(v) of the said Act.
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For the sake of convenience Writ Petition No.2368 of
2012 is treated as a lead matter. The facts necessary to be cited
for adjudication of the above Petitions are therefore taken from
the said Petition.
5 The Petitioner in the said Petition and the companion
matters is the original Plaintiff who has filed the Suits in question,
one of them being Regular Civil Suit No.382 of 2010 which is the
subject matter of Writ Petition No.2368 of 2010. The Petitioner is
a developer and has undertaken the development of a project
known as Indrapuram Resort Apartments being constructed over
Survey No.254, Village Achole, Taluka Vasai.
6 It is the case of the Plaintiff that the Respondent to the
above Petition i.e. Defendant in the said Suit had agreed to
purchase 37 flats from the Petitioners. An agreement to that effect
was entered into on 26.07.2008. The dates of the agreement in
respect of the other suits are different but are near about the same
contemporaneous time. It is the case of the Plaintiff that the
Defendant assured that he would pay the balance price and on
such assurance, according to the Plaintiff, he handed over
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possession of the flat on humanitarian grounds. It is the case of
the Plaintiff that in spite of handing over possession, the
Defendant did not pay the balance amount. The Plaintiff,
therefore, by notices addressed to the Defendant called upon the
Defendant to pay the balance amount,but the said notices did not
evince any response from the Defendant. The Plaintiff ultimately
terminated the agreements. The Plaintiff thereafter filed 31 suits
which are the subject matter of the above group of Petitions.
7 In the context of the issue that arises in the Petition, it
would be apposite to reproduce the prayers in the Suit.
(a) that the Hon'ble Court be pleased to order,
decree and declare that the Plaintiff was and is
ready and willing to perform its part of the
contract upon the terms and conditions
incorporated in the agreement dated
12.06.2008 in respect of the suit flat.
(b) that the Hon'ble Court be pleased to order,
decree and declare that in spite of the receipt
of the possession of the suit flat, the Defendant
has not paid the balance consideration and has
not obeyed and contravened the terms and
conditions incorporated in the agreement
dated 12.06.2008 in respect of the suit flat and
that shows that the Defendant was and is not
ready and willing to perform his part of the
contract.
(c) that the Hon'ble Court be pleased to
order, decree and declare that in spite of the
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receipt of the notice dated 3 rd August, 2010 the
Defendant has failed to comply with the
demands and requisitions made in the said
notice within the stipulated time and therefore,
by notice dated 3rd August, 2010, the Plaintiff
has rightly terminated the said agreement.
(d) that the Hon'ble Court be pleased to
order, decree and direct the defendant to hand
over the vacant and peaceful possession of the
suit flat to the Plaintiff.
(e) that the Hon'ble Court be pleased to issue
an order of permanent injunction restraining
the Defendant, his agents, servants, or any
other person or persons claiming through the
Defendant from creating any third party
interest as well as incurring any liability in
respect of the suit flat by whatsoever nature
and/or by whatsoever manner."
8 Hence by prayer clause (a), the Plaintiff is seeking
declaration that he is ready and willing to perform his part of the
contract incorporated in the agreement dated 26.07.2008 in
respect of the flat in question. In terms of prayer clause(b), the
Plaintiff seeks a declaration that the Defendant was and is not
willing to perform his part of the contract. By prayer clause (c),
the Plaintiff is seeking a declaration that the agreement in
question has been rightly terminated and by prayer clause (d), the
Plaintiff is seeking an order directing the Defendant to hand over
the vacant and peaceful possession of the suit flat to the Plaintiff.
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9 Significantly, in the plaint or the prayer clauses, there
is no reference to the provisions of the Maharashtra Ownership of
the Flats Act, 1963 or the failure of the Respondent to fulfill his
obligations. The said prayers, as can be seen, revolve around the
agreement dated 26.07.2008 in respect of which an unusual
positive declaration is sought, as also a negative declaration, and
the recovery of possession of the flat which has been handed over
to the Defendant. It is required to be noted that the said reliefs
are sought by the Plaintiff after terminating the agreement in
question in respect of each of the flats covered by each of the
suits.
10 In the context of the prayers sought in the Suit, the
Trial Court, it seems suo-moto framed the issue as to whether the
Suit was properly valued. The Suit, it seems had progressed and
that the Defendant was proceeded with exparte as in spite of
summons being served he did not appear. The Trial Court on a
consideration of the prayers in the Suit and having regard to
Section 6(iv) (j) of the Bombay Court Fees Act (the said Act, for
short), under which the Plaintiff had valued the Suit on the
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ground that he was only seeking a declaration held, that
considering the prayers in the Suit,the Suit was susceptible to
monetary valuation and will have to be valued under Section 6(v)
of the said Act. The Trial Court, has therefore, directed the
Plaintiff to correct the valuation of the Suit and pay the requisite
Court fees thereon within the time stipulated in its order dated 9 th
February, 2012. As indicated above, it is the said order which is
impugned in the present Petitions.
11 Heard Shri. Purekar, the learned counsel appearing for
the Petitioner in each of the above Petitions.
12 The principal contention of the learned counsel for the
Petitioner is that the Suits in question have been filed by the
Plaintiff for the enforcement of the obligation of the Defendant in
each of the Suits under MOFA. The learned counsel would seek
to buttress the said submission relying on the prayers made in the
said Suit. The learned counsel would contend that under Section
12 of the MOFA, it is the obligation of the flat purchaser to make
the payment for the flats which is agreed to be sold to him.
However, in the instant case, since there is a failure on the part of
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the flat purchaser to make the payment that the Suit in question
has been filed. The learned counsel would contend that the fact
that the possession of the flat in question has been sought by the
Plaintiff would not impinge upon the fact that the Suit is
essentially one for enforcement of the obligation of the flat
purchaser under the MOFA. The learned counsel in support of his
submission would seek to rely upon two judgments of two learned
Single Judges of this Court, one of which judgment is reported in
AIR 1991 Bombay Page 27 in the matter of Maria Philomina
Pereira v/s. M/s. Rodrigues Construction and the other
judgment is reported in 2004 (3) ALL MR P.388 Shri. Rajaram
B. Tiwari v/s The Municipal Corporation of Greater Mumbai
and Ors. The learned counsel would contend that the said
judgments involve cases where the statutory obligations under
MOFA and Slum Act were sought to be enforced, and therefore,
the valuation as per Section 6(iv) (j) was addressed.
13 Having heard the learned counsel for the Petitioners, I
have bestowed my anxious consideration to the contentions
advanced on behalf of the Petitioners.
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14 As indicated above, the question which arises for
consideration is whether the Plaintiff is exigible to the payment of
the Court fess under Section 6(iv) (j) of the said Act or 6(v) of the
said Act? It would therefore be gainful to reproduce the relevant
provisions:
"6(iv)(j): for other declarations.--In suits where
declaration is sought, with or without injunction
or other consequential relief and the subject-
matter in dispute is not susceptible of monetary
evaluation and which are not otherwise provided
for by this Act[ ad valorem fee payable, as if the
amount or value of the subject-matter was [one
thousand rupees].
In all suits under clauses (a)to (i) the plaintiff
shall state the amount at which he values the
relief sought, with the reasons for the
valuation;
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)---
(b)---
(c)---"
15 There can be no gainsaying of the fact that when the
Suit is not susceptible to monetary evaluation then the provisions
of Section 6(iv) (j)would come into play. The enforcement of the
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statutory obligations under a statute would be one such situation
where the Plaintiff would be entitled to value his Suit under
Section 6(iv) (j) of the said Act. The question is whether in the
instant case the Plaintiff is so entitled to value the Suit. Though
ostensibly, as contended by the learned counsel for the Petitioners
the Suit is filed for seeking enforcement of the MOFA obligations.
As indicated above, except the valuation clause there is not a
whisper in the plaint as regards the breach of the obligation by the
Defendant imposed by Section 12 of the said Act. The prayers as
noted herein above are revolving around the declaration sought in
respect of the agreement in question in the present Suit which is
both a negative and positive declaration. This is a case where
most unusually a positive declaration is sought by the developer
that a declaration be issued that he is ready and willing to comply
with the obligations imposed by the agreement. Why such a
declaration is sought therefore begs an answer. Hence though by
way of prayer clauses (a), (b) and (c) the declarations both
positive and negative are sought, it appears that the Suit has been
essentially filed for recovery of the possession of the flat in
question in each of the Suits from the Respondent who is the
Defendant in each of the Suits. The said reliefs are sought after
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the Plaintiff has terminated the agreements in question in each of
the suits. How the possession of the flat was handed over to the
Defendant without he making payment, therefore, begs an
answer. The said fact by itself casts a suspicion on the nature of
the transaction entered into by the Plaintiff and the Defendant. It
is impossible to believe that a party hands over the possession of
the flat when payment is due from the flat purchaser. Be that as it
may, the fact remains that the Plaintiff is seeking recovery of
possession of the flat which is the subject matter of each of the
Suits. The other reliefs it seems are merely a ruse adopted by the
Plaintiff to get the benefit of Section 6(iv) (j) of the said Act.
16 Having regard to Section 6(v) of the said Act,the
Plaintiff would be liable to pay Court Fees in terms of the said
provision as the Plaintiff is seeking to recover the possession of the
flat in each of the Suits. The Trial Court, therefore, rightly came
to a conclusion that the Suit is under valued and the Plaintiff has
to carry out the correction in the valuation of the Suit in terms of
the valuation of the flat.
17 Insofar as the judgments relied upon by the learned
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counsel for the Petitioners are concerned, the first judgment in
Maria Pereira's case(supra) concerns a Suit filed by a flat
purchaser against the developer for enforcement of the obligation
under MOFA. It is in the said context that the learned Single
Judge has held that the Suit is liable to be valued under Section
6(iv) (j) of the said Act. The second judgment is the judgment in
Rajaram Tiwari's case (surpa) wherein the statutory obligation of
the developer in the matter of making allotment of permanent
alternative accommodation to a slum dweller was sought to be
enforced. It is in the said context that the learned Single Judges
have held that the Suit is not susceptible of monetary evaluation,
and therefore, is liable to be valued and payment of Court fees is
liable to be paid under Section 6(iv)(j) of the said Act. The facts
of the present case stand apart from the facts of the cases in the
aforesaid cases(supra). In that view of the matter, there is no
merit in each of the above Petitions, they are accordingly
dismissed, Rule discharged.
18 The Plaintiff shall apply to the Trial Court for time to
comply with the directions within three weeks from date. The
Trial court may pass appropriate orders thereon. If the Plaintiff
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does not apply for time to comply in terms of this order, the Trial
Court may then pass appropriate orders including one dismissing
the suits for non-compliance.
(R. M. SAVANT, J.)
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