Smt. Taran Jeet Kaur vs Shri G.S. Bhatia & Others
2009 Latest Caselaw 123 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS)No.1307/2006




%16.01.2009               Date of decision:16th January, 2009

SMT. TARAN JEET KAUR ........................ Plaintiff
                             Through: Mr. Rajeev Awasthi, Advocate

                                Versus

 SHRI G.S. BHATIA & OTHERS ............... Defendants
                               Through: Mr. Mukesh M. Goel, Advocate
                                       for the defendants No. 1&2
                                       Ms. Ruchi Kohli & Ms. P. Jain,
                                       Advocates for the defendant No.3



CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?   Yes

2.    To be referred to the reporter or not? Yes

3.    Whether the judgment should be reported
      in the Digest?                        Yes


RAJIV SAHAI ENDLAW, J.

1. Issues No.1 as under framed on 22nd August, 2008 and ordered

to be treated as a preliminary issue, falls for adjudication.

"1. Whether this court has no pecuniary jurisdiction to try the present suit and whether the suit is liable to be returned to the plaintiff? OPD"

2. The suit is for the relief of specific performance of agreement

to sell and purchase dated 9th September, 2005. As per the

averments in the plaint, the said agreement was for a total sale

consideration of Rs.16,40,000/- out of which the plaintiff claims to

have paid part sale consideration of Rs.3,57,000/- prior to the

institution of the suit. The plaintiff, besides the relief of specific

performance claimed in prayer paras (a) & (b) also claims alternate

relief in prayer para (c) of the plaint. In the light of the arguments

addressed by the counsel for the plaintiff, it is deemed expedient to

set out herein below the prayer paragraph (c) of the plaint.

"In the event this Hon‟ble Court comes to the conclusion that specifically performance cannot be decreed then and only then in alternative of specific performance this Hon‟ble Court may be pleased to grant a decree of damages to the plaintiff to the tune of Rs.8,60,000/- being the difference between today‟s value of Rs.25,00,000/- and agreed price of Rs.16,40,000/- and the refund of part payment of Rs.3,57,000/- along with interest @ 24% per annum or such higher some as this Hon‟ble Court may deem fit and property against the defendant jointly and severally. The plaintiff undertakes to pay agreed fee on the amount so awarded in favour of the plaintiff;"

3. The plaintiff has in the plaint, in para 16 thereof relating to

the valuation stated as under:-

"16. That the suit is valued for the purpose of the court fee and jurisdiction for Rs.21,00,000/- on which the advoloram court fee is affixed by the plaintiff."

4. The suit besides against the defendants No.1&2 as agreement

sellers was also instituted against the defendant No.3 Allahabad

Bank. It is the pleading of the plaintiff that the plaintiff after the

agreement to sell and after paying advance sale consideration to the

defendants No.1&2 learnt that the title documents of the property

agreed to be sold had been deposited by the defendants No.1&2

with the defendant No.3 bank by way of equitable mortgage and

against which the plaintiff had learnt, a sum of Rs.9,35,000/- was

outstanding. The plaintiff in the plaint expressed willingness to pay

the said monies directly to the defendant No.3 Allahabad Bank.

5. In this regard, it may also be stated that the summons of the

suit were ordered to be issued to the defendants on 14th June, 2006

and vide ex parte order of that date the defendants were restrained

from alienating, parting with possession and or creating any third

party rights in the property. On the next date i.e. 19th September,

2006 though the counsel for the defendants No.1&2 and the counsel

for the defendant No.3 appeared but the defendants No.1&2 had

neither filed any written statement nor applied for extension of time

for filing the same; on the statement of the counsel for the plaintiff

on that date that the plaintiff was prepared to discharge the liability

of the bank, this court allowed the plaintiff to discharge the liability

of the defendant No.3 bank on account of mortgage of suit property

on behalf of defendants No.1&2 by depositing the amount due with

the defendant No.3 bank. The amount so deposited was ordered to

be subject to adjustment against sale consideration. In order dated

9th January, 2007, it is recorded that the counsel for the plaintiff

submitted that the plaintiff had deposited a sum of Rs.9.27 lacs with

the defendant No.3 bank. In the order dated 10th December, 2007 it

is recorded that the counsel for the defendant No.3 bank stated that

an amount of Rs.20,966/- was further due as on 12th October, 2007.

The counsel for the plaintiff sought liberty to pay the amount

without prejudice to rights and contentions of the plaintiff and the

court permitted the said amount also to be paid and further ordered

the defendant No.3 to deposit the title documents of the property in

this court. The said title documents being the original sale deed of

the property in favour of defendants No.1&2 have since been

deposited by the defendant No.3 bank in this court and the

defendant No.3 bank having been left with no interest in the suit

has vide order dated 18th December, 2008 been ordered to be

deleted from the array of defendants and it has been further

ordered that the title deeds shall remain on record and shall not be

released to any party without express order of this court.

6. The defendant No.3 on being served with the summons of the

suit filed a written statement dated 8th September, 2006 in which in

preliminary submissions and objections in para 7 it was stated that

the plaintiff has not properly valued the suit for the purposes of

court fees and the suit was liable to be dismissed on this short

ground alone. Similarly, in para 16 of the reply on merits also, the

said preliminary objection was repeated.

7. The defendants No.1&2 filed a written statement dated 27th

September, 2006. In said written statement in preliminary

objection No.2 it was stated that the agreement to sell of which

specific performance was claimed being for a sum of Rs.16,40,000/-,

and the minimum pecuniary jurisdiction of this court being in excess

of Rs.20 lac, this court had no jurisdiction to try and entertain the

suit and the valuation of Rs.21 lac given by the plaintiff was without

any basis and reason. The said plea was reiterated in reply to para

16 of the plaint also. The written statement though filed on 27th

September, 2006, for the reason of delay in filing the same, was

finally ordered to be taken on record only vide order dated 10th

December, 2007. Be that as it may, the plaintiff, from the written

statement of defendant No.3 and defendants No.1&2, immediately

after the institution of the suit, had notice of the objection as to the

pecuniary jurisdiction of this court.

8. After the written statement of the defendants No.1&2 was

ordered to be taken on record, the plaintiff was granted permission

to file replication within four weeks of 10th December, 2007. The

plaintiff sought adjournment on 29th February, 2008 & 7th May, 2008

and the replication was ultimately filed on 20th May, 2008 to the

written statement of the defendants No.1&2. In response to the

preliminary objection of the defendants No.1&2 with respect to the

pecuniary jurisdiction of this court, the plaintiff pleaded that though

the sale consideration was Rs.16,40,000/- but apart from that,

because of non performance by the defendants No.1&2 of their part

of obligation, defendants have caused the financial loss to the

plaintiff who has cleared the debts by way of paying interest to the

borrowers and the plaintiff has also made payments to contractor

for the purpose of renovation of the said house after the agreement

to sell and upon assurance of the defendants that they will hand

over the possession by 15th October, 2005; it was also pleaded that

"apart from this the plaintiff has also prayed for damages".

9. With respect to the aforesaid plea of the plaintiff in

replication, it may be stated that though the plaintiff in para 10 of

the plaint pleaded financial loss owing to breach by the defendants

No.1&2 of their part of the agreement but neither was the amount

thereof specified, nor in the prayer paragraph of the plaint, any

relief for recovery of compensation in addition to the relief of

specific performance was claimed. Only the relief of damages in

alternative to the relief of specific performance was claimed. In the

replication also the plaintiff did not specify as to what were the

damages suffered by her on account of breach by the defendants

and which the plaintiff was claiming in addition to the relief of

specific performance. It may also be noted that even at the stage of

arguments the counsel for the plaintiff has not relied upon the said

plea in the replication. It may also be recorded that no documents

evidencing the said losses have been filed.

10. It was in the aforesaid state of pleadings that the preliminary

issue aforesaid was framed. As aforesaid, the reliefs claimed in the

plaint are only two i.e. of specific performance of the agreement of

sale of immovable property and in the alternative for damages.

11. The relief of specific performance is prescribed under Section

7(X) of the Court Fees Act to be valued at the sale consideration as

set out in the agreement. The said sale consideration is

Rs.16,40,000/-.

12. The alternative relief claimed only in the event of the plaintiff

being found not entitled to the relief of specific performance is for

recovery of damages of Rs.8,60,000/- being the difference in the

value of the property on the date of institution of the suit i.e. Rs.25

lacs and the agreed price of the property Rs.16,40,000/-. The

plaintiff has also claimed the refund of part sale consideration of

Rs.3,57,000/- paid to the defendants. The total of damages of

Rs.8,60,000/- and refund claim of Rs.3,57,000/- is Rs.12,17,000/-.

The said relief is to be valued advaluram. Thus, it will be seen that

both, the relief of specific performance as well as the relief of

recovery of damages and refund of sale consideration paid, claimed

in the alternative are both below Rs.20 lacs which was at the time of

institution of suit and still is the minimum pecuniary jurisdiction of

this court. The figure of Rs.21 lac at which the suit was valued is

nowhere to be found in the plaint except in the paragraph relating

to valuation and is not co-relatable to the averments in the plaint.

13. Section 15 of the CPC mandates that every suit shall be

instituted in the court of the lowest grade competent to tried. The

court of the lowest grade competent to try the suit was/is the court

of the District judge Delhi. Section 21 of the CPC may also be

noticed. The same inter-alia provides that no objection as to the

competence of a court with reference to pecuniary limits of its

jurisdiction shall be allowed by any Appellate or Revisional court

unless such objection was taken in the court of first instance at the

earliest possible opportunity and, in all cases where issues are

settled at or before such settlement. Both sets of defendants in the

present case i.e. defendants No.1&2 as well as the defendant No.3,

took the objection as to pecuniary jurisdiction at the earliest

possible opportunity and which thus has to be adjudicated.

14. It is not as if this court lacks jurisdiction to try suits, the

valuation whereof is less than Rs.20 lacs. The object of Section 15 is

that courts of higher grades shall not be over burdened with suits.

The plaintiff in the present case in spite of being informed soon

after the institution of the suit as to the objection aforesaid has

persisted in pursuing the suit before this court. Arguments on the

preliminary issues were heard on 21st November, 2008. Though the

hearing was concluded on that date but on the request of the

counsel for the plaintiff the matter was adjourned to 15th December,

2008. On 15th December, 2008 there was a request for adjournment

on behalf of the plaintiff. The counsel for the plaintiff made his

further submissions on 18th December, 2008.

15. The contention of the counsel for the plaintiff is that there is

no bar to the plaintiff valuing the suit at more than that prescribed

in law. The other submission made on 18th December, 2008 was

that on a reading of prayer paragraph „(c)‟ in the plaint as set out

herein above, the damages claimed were in fact of 25 lacs and thus

this court is the court of minimum pecuniary jurisdiction. However,

the said submission is totally contrary to the paragraph set out

herein above where Rs.8,60,000/- only as difference between the

prevalent price and the agreed price have been claimed as

damages, besides the relief of refund of Rs.3,57,000/-.

16. As far as the first submission (Supra) is concerned, as

aforesaid, it is not as if the court of a grade higher than minimum

competent to try the suit, lacks jurisdiction to try the suit. However,

once the legislature has mandated that the suit "shall be instituted"

in the court of the lowest grade competent to try, the same has to be

adhered to. As far as the plea of the plaintiff being entitled to value

at more than prescribed is concerned, the same also does not find

favour with me. Once the law has prescribed valuation to be done

in a manner, valuation has to be done in that manner only and in no

other. If the same was permitted, it will lead to a situation of chaos

where people would indulge in forum shopping and which ought not

to be encouraged. Wherever the legislature in its wisdom deemed it

appropriate to leave the discretion as to valuation to the plaintiff,

the legislature has provided so, as in suits for injunction, which as

per the discretion of the plaintiff and subject to appropriate

valuation can be instituted in either of the three levels of courts in

Delhi i.e. in the court of the Civil Judge or Additional District Judge

or this court. However, the legislature has in relation to specific

performance as well as in relation to recovery of monies, provided

the formula for valuation and if as per the said valuation, the court

of the lowest/minimum jurisdiction competent to try the suit is the

court of the District Judge, the plaintiff cannot be permitted to over

value so as to bring the suit to this court. Permitting the plaintiff to

do so would be vesting discretion in the plaintiff and which the

legislature has not provided for.

17. A similar question arose in Smt. Nandita Bose Vs. Ratan

Lal Nahata 1987 (3) SCC 705. The plaintiff in that case had let out

his flat in Calcutta on a monthly rent of Rs.1400/-. The plaintiff after

determination of tenancy of the tenant sued for possession and for

recovery of arrears of rent of Rs.11200/- and of Rs.78,000/- by way

of mesne profits. The total valuation for the three reliefs i.e. for the

purposes of possession, recovery of arrears of rent of Rs.11200/-

and recovery of mesne profits of Rs.78,000/- being Rs.1,06,000/-,

the suit was instituted in the High Court of Calcutta which could

entertain suits for the valuation of in excess of Rs.1,00,000/-. The

Calcutta High Court however held that the plaintiff was not entitled

to claim mesne profits of Rs.78,000/- @ Rs.7,800/- per month but

was entitled to mesne profits @ Rs.1400/- per month only. The

claim of Rs.78,000/- was thus found to be untenable and the total

valuation on the basis of mesne profits @Rs.1400/- per month being

of less than Rs.1 lacs, the plaint was returned to be filed in the court

of minimum pecuniary jurisdiction. The plaintiff in that case took up

the matter to the apex court.

The apex court held that:-

"Ordinarily, the valuation of a suit depends upon the reliefs claimed therein and the plaintiff‟s valuation in his plaint determine the court in which it can be presented. It is also true that the plaintiff cannot invoke the jurisdiction of a court by either grossly over valuing or grossly under valuing the suit. The court always has the jurisdiction to prevent the abuse of the process of law. Under Order 7 Rule 10 of the code the plaint can be returned at any stage of the suit for presentation to the court in which the suit should have been instituted"

Having held so, the apex court however found that the

question whether the plaintiff in that case would be entitled to

mesne profits at Rs.1400/- or @ Rs.7,800/- per month as claimed

was not free from doubt. Thus in the facts of that case it was held

that till that question was adjudicated, the plaint could not be

returned and in the facts of that case it could not be said that the

plaintiff had dishonestly and intentionally inflated the value of the

suit in order to invite the jurisdiction of a particular court which has

no jurisdiction otherwise.

18. This court also in Narinder Kumar Vs. Sun Shine

Roadways 1999 Rajdhani Law Reporter 201 upon finding the relief

for possession being over valued or valued in excess of as provided

in law ordered the plaint to be returned holding that a party cannot

whimsically choose a ridiculous figure for filing the suit most

arbitrarily where there are positive material and or objective

standards of valuation of the relief appearing on the face of the

plaint or where the court can reasonably value the relief correctly

on certain definite and positive material available before the court

to fix the value for purposes of jurisdiction and the plaintiff cannot

be permitted to put an arbitrary value so as to bring the suit within

the jurisdiction of this court.

19. This court again in Trans Asia Auto and General Finance

Ltd. Vs. Dharmendar Kumar 2001 VII AD (Delhi) 598 returned

the plaint where though the reliefs claimed were of the value of less

than Rs.5 lac, the then minimum pecuniary jurisdiction of this court,

the suit was valued at more than Rs.5 lac.

20. The matter arising for determination therefore in this case is

not res integra. The valuation as per the reliefs claimed and

alternative relief claimed in the plaint is of less than Rs. 20 lac;

merely because the plaintiff in the mandatory valuation paragraph

in the plaint values the suit at more than Rs.20 lac and pays court

fee thereon will not make this court the court of minimum pecuniary

jurisdiction to try the suit. In relation to the provisions of Order 7

Rule 11 of the CPC it has been held that the reading of the plaint

has to be meaningful. On a meaningful reading of the plaint in the

present case, the valuation of the suit at Rs.21 lacs is found to be

exaggerated and arbitrary. The correct valuation for the higher of

the two alternative reliefs claimed being of Rs.16,40,000/-, there is

no option but to order the return of the plaint for filing in the court

of appropriate pecuniary jurisdiction, if so, desired by the plaintiff.

It is ordered accordingly.

21. However, as aforesaid, monies have been paid by the plaintiff

to the erstwhile defendant No.3 bank in pursuance to the orders

made when the suit was pending before this court. The title deeds

of the suit property also stand deposited in this court by the said

bank. Provision has to be made for the same. If the plaintiff files the

returned plaint in the court of the appropriate jurisdiction, it is

directed that the file of this suit be also on requisition being

received from that court, be sent to that court, since proceedings till

the framing of issues have already been undertaken. The sale deed

aforesaid lying deposited on this file shall then be released to

whosoever is found entitled thereto by such court. The plaintiff

shall then also have the benefit of the monies paid to the bank in

pursuance to the orders made herein. However, if the plaintiff does

not file the returned plaint in the court of appropriate jurisdiction,

in such case, the sale deed be retained on the present file for a

period of three years from today and if no requisition for this file at

the instance of the plaintiff is received from any court till then,

thereafter the sale deed is ordered to be returned to the defendants

No.1&2.

22. The preliminary issue is thus decided in favour of the

defendants and against the plaintiff. The plaint be returned to the

plaintiff under Order 7 Rule 10 of the CPC in accordance with law.

RAJIV SAHAI ENDLAW (JUDGE) January 16, 2009 PP