Ashvin Shah And Others vs Rsn Balaji Realtors Pvt. Ltd. And ...
2013 Latest Caselaw 30 Bom

                                       1 of 4                     APP(L).364.2013


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                        
                ORDINARY ORIGINAL CIVIL JURISDICTION

                     APPEAL (L) NO.364 OF 2013




                                                
                                IN
                  CHAMBER SUMMONS NO.260 OF 2013
                                IN
                        SUIT NO.181 OF 2012




                                               
     Ashvin Shah and others                                       Appellants
          versus
     RSN Balaji Realtors Pvt. Ltd. And others                     Respondents




                                   
     Mr.Ralston Fernandes for Appellants.
                      
     Mr.Akshay Vani for Respondents.
                     
                       CORAM : DR.D.Y.CHANDRACHUD AND
                               M.S.SONAK, JJ.

                       DATE     : 15 October 2013
      

     PC :
   

1. The appeal arises from an order of the learned Single Judge dated 1 April 2013 on a Chamber Summons which was taken out by

the Appellants for setting aside an order of the Taxing Master in regard to the payment of court fees on the counter claim. The First Respondent has filed a suit based on an agreement to assign dated 30

December 2010. According to the First Respondent, there were seven co-owners of the property having a one third share in the property. Out of them, only four of the executants of the deed of assignment appeared before the sub-registrar to admit the execution of the document. The three Appellants did not appear before the sub- registrar. Hence, the First Respondent, inter alia, sought a decree

2 of 4 APP(L).364.2013

against the Appellants to admit the execution of the agreement to

assign. The Appellants filed a counter claim in the suit. By the counter claim, the Appellants seek a declaration that the agreeement

to assign dated 31 December 2010 is void and unenforceable; a decree directing the Second, Third and the Fourth Defendants to provide to the First and Second Appellants a residential flat/flats

admeasuring 850 sq.ft. of carpet area; and a decree against the First Defendant to pay to the Appellants their share in the rent collected from the tenants.

2.

An order was passed by the Taxing Master determining the court fees payable on the counter claim. The Appellants filed a

Chamber Summons in order to challenge the order. The learned Single Judge held that in respect of prayer clause (a) where the Appellants seek a declaration in respect of the agreement to assign

dated 31 December 2010 as being void and unenforceable, the court

fees would be payable as required under Section 6(ha) of the Bombay Court Fees Act, 1959. As regards prayer clause (b) where the

Appellants seek a decree for being provided with a residential flat admeasuring 850 sq.ft. of carpet area, it has been held that court fees would have to be paid under Section 6(v)(b). In regard to prayer clause (c) which is for a share in the rent, the Appellants have been

called upon to file an undertaking to pay the court fees on the amount as determined.

3. The Appellants are aggrieved by the directions in regard to the payment of court fees on prayer clauses (a) and (b) of the counter claim.

3 of 4 APP(L).364.2013

4. Now, by way of prayer clause (a), the Appellants seek a declaration that the agreement to assign dated 31 December 2010 is

void and unenforceable. The submission of the Appellants is that the relief which they seek is not in regard to the entirety of the agreement to assign insofar as other co-sharers are concerned, but only in respect

of the share of the Appellants and the Appellants undertake to pay the amount under prayer clause (a) of the counter claim.

5. Section 6(iv)(ha) of the Bombay Court Fees Act, 1959 refers to

suits for declaration that any sale or contract for sale or termination of a contract for sale is void. The court fee is one half of the ad-valorem

court fees leviable on the value of the property.

6. In this view of the matter, subject to the Appellants amending

prayer clause (a) of the counter claim in terms of the statement made

before the Court and confining their challenge to the agreement to assign only insofar as it affects their share, we direct that computation

of the court fees under Section 6(iv)(ha) shall be on the value of the property insofar as the share of the Appellants is concerned.

7. Insofar as prayer clause (b) is concerned, we find merit in the

contention of the Appellants that since the Appellents seek enforcement of the obligation which has been conferred under the Maharashtra Ownership of Flats Act, 1963, the valuation would have to be in accordance with the provisions of Section 6(iv)(j) having due regard to the judgment of this Court in Maria Philomina

4 of 4 APP(L).364.2013

Pereira Vs. M/s.Rodrigues Construction1. The order passed by the

learned Single Judge shall accordingly stand modified in these terms. The Appellants undertake to carry out an amendment in respect of

prayer clause (a) of the counter claim as stated earlier within a period of two weeks from today and to pay court fees thereon within a period of four weeks thereafter, failing which the counter claim shall

stand dismissed without further reference to the Court. The appeal stands disposed of. There shall be no order as to costs.

                          ig         (DR.D.Y.CHANDRACHUD, J.)
                        
                                             (M.S.SONAK, J.)
     MST
      
   






     1 AIR-1991-BOM-27