Shri Vijay Singh @ Bijender Singh vs Shri Narinder Singh
2004 Latest Caselaw 632 Del

JUDGMENT

Vikramajit Sen, J.

IA No.1511/2003 in CS (OS) No.568/2001

1. This is an application filed by the Plaintiff invoking Order VII Rule 11 read with Section 151 of the CPC for rejection of the Counter Claim filed by the Defendant. My attention has been drawn to paragraph 15 of the Counter Claim which reads thus:-

"15. That parties are in joint occupation and/or symbolic possession of the suit properties, therefore, for the purposes of Jurisdiction is valued at Rs.Two Crores, however for the purpose of court fee fixed court fee of Rs.20 has been affixed on fixed valuation. The suit as regards the relief of rendition of Account is valued at Rs.18,54,500, however fixed court of Rs. 20 has been affixed on the fixed valuation. The counter claimant undertakes to pay ad-valorem court fee on the amount adjudicated upon by this hon'ble court on rendition of account by defendant No.1. The counter claimant shall pay the required stamp duty at the time of passing of the final decree of partition as provided under the law".

2. Predicated on these pleadings it is contended by Mr. Mann, learned counsel for the Plaintiff, that since the Defendant has himself stated in the Counter Claim that the Suit as regards the relief for Rendition of Accounts is valued at Rs. 18,54,500/-, ad-valorem Court Fee on this sum must be paid.

3. Mr. Sharma, learned counsel for the Defendant, on the other hand, relies on the asseverations made in paragraph 10 of the Counter Claim which is re-produced:-

"10. That to the estimate of the counter claimant the total amount of the rent recovered and realised by the defendant/plaintiff Shri Vijay Singh from the tenants in the aforesaid properties is a sum of Rs. 18,34,500/- (Eighteen lakhs thirty four thousand five hundred). The counter claimant is entitled to 1/6th share in the amounts of the rent thus realised by the plaintiff/defendant Sh. Vijay Singh from the tenants in the suit properties mentioned above which comes to Rs. 3,05,750/-. However the actual amount shall be ascertained on rendition of Accounts by the defendant/plaintiff and accordingly the entitlement of counter claimant shall be Adjudicated upon and quantified. The counter claimant undertakes to pay advalorem court fee on the amount so decreed or adjudicated upon by this hon'ble court on rendition of Account by defendant No.1, Shri Vijay Singh".

4. Mr. Sharma further contends that if the substance of the Counter Claim is looked into, it will be evident that only a tentative valuation has been carried out.

5. Reliance has been placed on behalf of the Plaintiff on a decision of this Court in Haresh Pharma-Chem vs. Max GB Ltd., , in which an injunction in respect of a Bank Guarantee for a sum of Rs. 45.51 lacs had been prayed for. There was nothing indefinite so far as the amounts that were involved before the learned Single Judge in that case and, therefore, he has relied and concluded that ad-valorem Court Fee must be paid on the sum of Rs. 45.51 lacs . The situation in the case at hand is, however, entirely different.

6. On a holistic reading of the pleadings, which is in consonance with the observations that has been made in a catena of judgments including the one relied on by learned counsel for the Plaintiff, that is, Haresh Pharma-Chem vs. Max GB Ltd. (supra), it is evident that a definite, ascertained and liquidated amount has not been claimed in the Counter Claim. On a reading of this pleading it is plain that the Defendant actually intended that the exercise of rendition of accounts should be undertaken. The case that applies would be the Division Bench decision of this Court in M/s. Commercial Aviation and Travel Co. (Inc.) and others vs. Vimla Panna Lal, in which the Full Bench decision in Smt. Sheila Devi Versus Kishan Lal Kalra, 2nd (1974) 2 Delhi 491 was discussed and followed. An understanding of these decisions lead to the conclusion that the Defendant is not liable, at this stage of the proceedings, to pay ad-valorem Court Fee on the sum of Rs. 18,54,500/- or Rs.3,05,750/- since the correctness of both these sums is yet to be arrived at. In cases of this nature the interests of the Exchequer are adequately safeguarded in that an undertaking is given for the payment of ad-valorem Court Fee as and when it is found due.

7. The application is without merit and is dismissed.

CS(OS) No.568/2001

8. Reply to the Counter Claim be filed within four weeks. Final opportunity to file document within four weeks is granted.

9. Renotify for admission/denial of documents before the Joint Registrar on 8.10.2004 and before the Court for framing of Issues on 25.10.2004.