Sanjay Lagwal vs Shri Ram Ditta Lagwal And Ors.
1998 Latest Caselaw 984 Del

JUDGMENT

Dr.M.K. Sharma, J.

1. In the present suit instituted by the plaintiff praying for a decree for declaration, partition and other reliefs the defendant No. 1 has filed an application under Order 7, Rule 11 of the Code of Civil Procedure which is registered as I.A. No. 3423/1997. The defendant No. 1 has also filed another application under Section 8(1) of the Indian Arbitration and Conciliation Act, 1996 praying for referring all the claims of the plaintiff with respect to the partnership firm -- M/s. R.D. Lagwal & Sons, its assets and rendition of accounts to arbitration in terms of the arbitration agreement between the parties as contained in the Partnership Deed dated 20th November, 1984. By this common order I propose to dispose of the said two applications finally.

2. I have heard the learned Counsel appearing for defendant No. 1 as also for the plaintiff on both the applications.

I.A. No. 3423/1994:

3. In this application under Order 7, Rule 11 of the Code of Civil Procedure the defendant No. 1 has sought for rejection of the plaint on the ground that the reliefs claimed in the suit are under-valued and insufficient Court fee has been paid. Counsel for the defendant No. 1 submitted that the plaintiff for his claim for partition has valued the suit for purposes of jurisdiction at Rs. 3.75 crores but for the purposes of Court fee he has valued the said claim at Rs. 200/-. The Counsel submitted that according to the statement made in the plaint the plaintiff is entitled to 1/6th share in the property and thus his claim for partition is Rs. 62.50 lacs and therefore, as per Section 8 of, the Suits Valuation Act the Court fee is payable ad valorem and was required to be paid on Rs. 62.50 lacs and having not been so valued and paid the plaint is liable to be rejected. He further submitted that the plaintiff has also valued his claim for dissolution of partnership and separation of his share in the firm and rendition of accounts at Rs. 5 lacs for the purposes of jurisdiction and for the purposes of Court fee the plaintiff has valued the plaint at Rs.200/- and thus the plaintiff has under-valued the suit on this account as well.

4. Counsel appearing for the plaintiff however, submitted that the suit has been properly valued and appropriate Court fee has been paid in accordance with the provisions of law. Counsel submitted that the plaintiff had further undertaken to make payment of such additional Court fee or stamp duty as and when directed to do so by the Court in terms of final decree or order passed in the suit. He further submitted that the plaintiff has stated in the plaint that on rendition of accounts of income from property jointly held by the defendant No. 1 the estimate of his share was Rs. 5 lacs, which was also taken as value for purposes of jurisdiction of his claim for rendition of accounts and he has valued the suit claim at Rs. 200/- on which Court fee has been paid. He submitted that there is no question of the plaintiff paying any advalorem Court fee on the jurisdictional value for the simple reason that he is in possession as one of the co-owners of the suit properties and is entitled to separation of his undivided share by a preliminary decree in the suit and that the plaintiff is also entitled to rendition of accounts of the jointly held properties and thus the question of paying ad valorem Court fee does not arise. He also submitted that payment of such Court fee or stamp duty on separation of shares and final decree being passed in the claim for partition and the amount being specified as his entitlement in the claim for rendition of accounts would arise only after passing of the final decree.

5. In the context of the aforesaid submission I have to decide as to whether the plaintiff has under-valued the suit and whether insufficient Court fee has been paid. It is the admitted position that even if the suit has not been properly valued and insufficient Court fee has been paid the suit cannot be straightaway dismissed on that count and the plaintiff has to be given a liberty to make good the deficiency in Court fee, if any. The suit is instituted seeking for partition in the joint family holdings. According to the plaintiff he is entitled to separation of his undivided share in the joint family holdings to the extent of 1/6th share since the property is to be divided between the defendant No. 1, his wife, three sons and one daughter. It is stated that the plaintiff is also entitled to his share in the partnership firm --M/s. R.D. Lagwal & Sons which is the joint family holding. The plaintiff has also stated that he is in join t possession of the entire joint family holding which includes the assets of M/s. R.D. Lagwal and Sons, the partnership firm. The plaintiff has prayed for a decree for partition in favour of the plaintiff and against the defendants to the extent of 1/6th undivided share of the plaintiff in the entire family holdings of which he is in joint possession. The construction of the relief claimed by the plaintiff indicates that the plaintiff has claimed for a declaration simplicitor and not for recovery of possession and thus in my considered opinion the Court fee is required to be paid in the present suit in accordance with the provisions of Article 17(iii) of Schedule II of the Court Fees Act.

6. On perusal of the plaint I find that the plaintiff has paid the Court fee in accordance with the provisions of Article 17(iii) of Schedule II of the Court Fees Act and thus such payment by the plaintiff is held to be sufficient. So far Court fee paid on the relief for rendition of accounts is concerned the plaintiff has stated in his plaint that he undertakes to make payment of such additional Court fee or stamp duty as and when directed to do so. The question of payment of ad valorem Court fee or stamp d u ty, if any, on separation of shares in terms of the relief sought for on account of rendition of accounts would arise only after final decree is passed and the claim for partition and his entitlement in the claim for rendition of accounts is determined. Thus it cannot be said that the plaintiff has in any manner under-valued the suit or that he has paid insufficient Court fee. There is no merit in this objection raised and the application has no merit and is dismissed.

I.A. No. 3424/1997:

7. The defendant No. 1, by this application under Section 8(1) of the Indian Arbitration and Conciliation Act, 1996 seeks for reference of all the claims of the plaintiff in respect to the partnership firm--M/s. R.D. Lagwal & Sons, its assets and rendition of accounts to arbitration in terms of the arbitration agreement between the parties as contained in the Partnership Deed dated 20.11.1984. The plaintiff in the main suit has claimed for partition and rendition of accounts in respect to joint family holdings to the extent of 1/6th share in the said partnership firm M/s. R.D.Lagwal & Sons. It is the admitted position that the aforesaid partnership firm is a part of the Hindu undivided family assets. The plaintiff has claimed 1 /6th share in the said property by way of partition to the entire assets including the assets of the partnership firm which was constituted by a partnership deed which contained an arbitration clause. Ithowever, appears from record that the said partnership firm was re-constituted from time to time. Even otherwise when I find from records that a claim has been made in respect of the entire Hindu undivided family holdings of which assets of the partnership firm is a part, it is not required to refer the claims raised by the plaintiff in respect of the partnership firm to be decided through the process of arbitration. Claim of the plaintiff for rendition of accounts should not be bifurcated and decided piece meal one part of the same claim being decided through the Civil Court and the other through the process of arbitration. Such adjudication through two different modes may also result in complications and conflict of decisions.

8. In my considered opinion, the claim of the plaintiff as raised in the present suit including that in respect of the partnership firm could be effectively decided only through the process of the present suit. Thus this application filed by the defendant has no merit and is accordingly dismissed.

The defendants shall file their written statement within 4 weeks from today. Replication thereto, if any, shall be filed before the next date. Re-notify on 1st March, 1999 for further orders in the suit.