Dalmia Cement (Bharat) Ltd vs Hansalya Properties Ltd. & Anr
2012 Latest Caselaw 1012 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of Judgment: 14.02.2012

+                     CM(M) No.557/2008

DALMIA CEMENT (BHARAT) LTD.             ..... Petitioner
                 Through: Mr. D.K. Malhotra, Advocate.

                      versus

HANSALYA PROPERTIES LTD. & ANR.        ..... Respondents
                  Through: Mr. H.L. Tiku, Sr. Advocate with
                           Ms. Yashmeet, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. The order impugned before this court is the order dated

09.04.2008 vide which on a preliminary issue taken up by the Trial

Court, the plaintiff had been directed to pay up the ad-valorem court fee

on the amount of sale consideration of Rs.24,32,950/-.

Plaintiff/petitioner is aggrieved by this finding.

2. Record shows that the present petitioner had filed a suit for

perpetual, mandatory injunction and damages. Plaintiff is a company

registered under the Companies Act; defendant No. 1 is a partnership

firm comprising of defendant Nos. 2 to 4. In 1970, the father of the

defendant No. 2 holding himself out as the owner of property bearing

No. 15, Barakhamba Road, New Delhi and in his capacity as a partner of

Hansalaya Properties Ltd. had made a multi storied building on the

aforenoted premises comprising of floors/flats; undertaking was that

each flat would consist of individual flats and purchase would be on

ownership basis carrying all rights which are necessary for a complete

and proper utilization and enjoyment of the said floors/flats.

Negotiations between the plaintiff and the defendants ensued; letter

dated 30.09.1970 as also another communication dated 01.10.1970 was

exchanged between the parties. Pursuant thereto, the plaintiff had

acquired rights of 11th and 12th floor of the said building; these rights

had been purchased by the plaintiff. Other communications as noted in

the plaint were also exchanged between the parties. Possession of the

aforenoted flats was given to the plaintiff on 01.04.1977 and thereafter

the parking area sold to the plaintiff was also handed over to the

plaintiff-Company on 01.04.1978. Contention in the plaint is that the

possession of the two floors was handed over to the plaintiff on

01.04.1977 and not on 31.03.1973 which was the stipulated date.

Further contention in the plaint is that in spite of the entire sale

consideration having been paid by the plaintiff to the defendant, in fact

an excess amount had been paid, sale deed has not been executed by the

defendant in favour of the plaintiff. Cause of action has been detailed in

para 22 and the valuation of the suit for the purposes of court fee and

jurisdiction is detailed in para 23 which reads as follows:-

"23. That the value of the suit for the purposes of court fees is detailed below:-

i) For damages as claimed in prayer d). Rs. 394.00

ii) For injunction as prayed in prayer (a), as Rs. 20.00 it is not subject to any valuation under Article 17 Schedule II of the Court Fees Act, valued at Rs. 200/-

iii) For injunction as prayed in prayer b) Rs. 13.00 value at Rs. 130/-.

      iv) For injunction as prayed in prayer c)
      valued at Rs. 130/-.                                           Rs.13.00
                                                                   Rs. 440.00

That the value of the suit for the purposes of jurisdiction exceeds Rs.1,00,000/- and hence the Hon‟bleCourt has the pecuniary jurisdiction to try and entertain this suit."

3. The prayers made in the plaint are as follows:-

"In the premises it is, therefore, respectfully prayed that this Hon‟ble court be pleased:_

a) to pass a decree of mandatory injunction or such other appropriate orders/directions in favour of the plaintiff company against

the defendants directed them to execute a formal deed of conveyance and register the same in respect of the complete 11th and 12 the floors of the building in question and the parking area in the basement of the building which area is shaded in green in Anexure „G‟, and thereby perfect the title of the plaintiff company which deed of conveyance will incorporate and include within itself the averments contained in para 17 in the plaint;

b) To pass/grant a decree in favour of the plaintiff company against the defendants in the nature of perpetual/prohibitory injunction or any other injunction, in the nature, facts and circumstances of the present case, directing the defendant of the presence case, directing the defendants not to create or attempt to create any disturbance or threat to the peaceful enjoyment of the aforesaid complete 11th and 12th floors and parking area in the basement which are shaded in green in Annexure „C‟ and the pass/make any other orders/directions/reliefs which this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case;

c) to grant a decree of mandatory injunction in favour of the plaintiff company against the defendants directing them to demolish the obstructions, barricades on the portion of the Eastern side ofhte building (the side facing the Tolstoy Marg);

d) To pass a decree for a sum of Rs. 3,000/- as nominal damages as prayed for in para 18 of the plaint;

e) to award the cost of the present proceedings and proceedings incidental thereto in favour of the plaintiff company against the defendants; and

f) and to pass such other orders and/or directions which in the fact and circumstances of the case may deem fit and proper to this Hon‟ble Court."

4. Prayer 'a' is relevant for the controversy between the parties.

5. In the written statement an objection had been raised by the

defendant about the maintainability of the suit in the present form;

contention of the defendant was that the ad-valorem court fee is liable to

be paid by the plaintiff and not a fixed court fee. A preliminary issued

had accordingly been framed on 29.01.2008which reads as under:-

"2. Whether the suit has been property valued for the purpose of court fee and jurisdiction? OPP

6. The impugned order has returned a finding that ad-valorem court

fee is liable to paid by the plaintiff as the averments made in the plaint

in fact discloses that the plaintiff is seeking a relief of specific

performance which has been couched a relief for mandatory injunction

yet this is not so.

7. Petitioner is aggrieved by this finding. This grievance of the

petitioner appears to be well founded. There is no dispute to the

proposition that while dealing with this question i.e. whether the suit

has been properly valued for the purposes of court fee and jurisdiction is

a question which has to be considered in the light of the allegations

which are made in the plaint and its decision cannot be influenced either

by the pleas in the written statement or by the final decision of the suit

on its merits. It is only the material allegations in the plaint which have

to be construed and taken as a whole. There is no dispute to this

proposition.

8. A wholesome reading of the plaint negatives the findings

returned by the Trial Court. The averments as disclosed in the plaint

clearly show that pursuant to negotiations and discussions and exchange

of letters between the plaintiff and the defendant which had taken place

including the communications dated 30.09.1970 and 01.10.1970 and

thereafter, the plaintiff having paid the complete purchased money was

handed over possession of these premises i.e. the 11th and 12th floor in

April 1977; his grievance was that the stipulated dated was 31.03.1973

but the premises had been handed over to him only on 01.04.1977 in

spite of the fact that complete payment had been made by him and only

the formality of the execution of the sale deed had remained; the sale

deed had till the filing of the suit not been executed by the defendant.

Accordingly relief of mandatory injunction directing the defendant to

execute the sale deed as also damages for not handing over the disputed

premises in time to the plaintiff has been made. There is no quarrel on

the relief for injunction prayed for the plaintiff.

9. This wholesome reading of the plaint clearly shows that what the

plaintiff had sought was not a relief of specific performance but it was a

direction to the defendant to execute the formality of the sale deed

which he had not cared to do in spite of his obligation under Section

55(1)(d) of the Transfer of Property Act. It is not in dispute that the

defendant had received the entire purchase money; and had also handed

over possession of the flats to the plaintiff; Admittedly, the plaintiffs

were in possession of the suit property at the time when the suit was

filed. In these circumstances, the court fee appended to the plaint which

was as per the valuation made by the plaintiff suffers from no infirmity.

10. There is also no quarrel to the proposition that the value for the

purposes of court fee and jurisdiction is based on the substance which is

contained in the plaint; the mere astuteness in drafting the plaint will not

be allowed to stand in the way of the court looking at the substance of

the relief which is asked for. The substance of the relief which is sought

for in the present case is clearly to the effect that the formality of the

sale deed be executed by the defendant in favour of the plaintiff in view

of the admitted position that complete purchase money has been made

by the plaintiff to the defendant and he had also been handed over

possession of the suit premises; in spite of this as also in view of the

provisions of Section 55(d) of the Transfer of Property Act the said

formality has not been completed.

11. In this factual scenario, the impugned order holding that what the

plaintiff was seeking was the relief of specific performance is an

illegality; this finding is liable to be reversed; it is accordingly set aside.

12. Reliance placed upon by the petitioner that the on the judgment

on the Full Bench of this Court titled as Jugal Kishore vs. Des Raj Seth

reported in DLT 1986 (iv) 571 is misplaced. This was a case where the

plaintiff was not in possession; Court was of the view that the plaintiff is

seeking a relief of possession; it was in that scenario that the plaintiff

had been directed to pay ad-valorem court fee. This judgment is wholly

inapplicable.

13. Petition is allowed and disposed of accordingly.

14. LCR be returned.

INDERMEET KAUR, J FEBRUARY 14, 2012 rb