Manoj Kumar Gupta vs Smt. Sheela Devi & Ors.
2014 Latest Caselaw 4082 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            CRP Nos.129/2014, 130/2014,131/2014, 133/2014 & 134/2014

%                                              2nd September, 2014

1.    C.R.P. No.129/2014 & C.M. No.14362/2014 (stay)

MANOJ KUMAR GUPTA                               ......Petitioner
                Through:           Mr. Mohit Kumar, Advocate.

                          VERSUS

SMT. SHEELA DEVI & ORS.                                ...... Respondents

Through:

2. C.R.P. No.130/2014 & C.M. No.14363/2014 (stay)

MANOJ KUMAR GUPTA ......Petitioner Through: Mr. Mohit Kumar, Advocate.

                          VERSUS

SHRI BHAGWAN SINGH & ORS.                              ...... Respondents
                 Through:

3. C.R.P. No.131/2014 & C.M. No.14364/2014 (stay)

MANOJ KUMAR GUPTA ......Petitioner Through: Mr. Mohit Kumar, Advocate.

                          VERSUS

SMT. SHEELA DEVI & ORS.                                ...... Respondents
                   Through:




C.R.P No.129/2014& conn. matters                              page 1 of 7

4. C.R.P. No.133/2014 & C.M. No.14389/2014 (stay)

MANOJ KUMAR GUPTA ......Petitioner Through: Mr. Mohit Kumar, Advocate.

                          VERSUS

SMT. SHEELA DEVI & ORS.                                      ...... Respondents
                   Through:

5. C.R.P. No.134/2014 & C.M. No.14395/2014 (stay)

MANOJ KUMAR GUPTA ......Petitioner Through: Mr. Mohit Kumar, Advocate.

                          VERSUS

SMT. SHEELA DEVI & ORS.                                      ...... Respondents
                   Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of these petitions under Section 115 of

the Code of Civil Procedure, 1908 (CPC) is to the impugned orders of the

trial court dated 7.6.2014 by which the trial court has held that the suit is

properly valued for the purposes of court fee and jurisdiction. In order to

C.R.P No.129/2014& conn. matters page 2 of 7 appreciate the issue in the present case, the reliefs which are claimed in the

plaint are required to be referred to and the same read as under:-

"I.To pass a Decree of Declaration thereby declaring Agreement to sell dated 19.11.2010 executed by the plaintiff in favour of the defendants in respect of her DDA flat No.L-3-B first floor, measuring 30 sq. mtrs. situated in Dilshad Garden, Delhi-110095 which was registered vide registration No.5179 Book No.1, Vol. No.885 on pages 125 to 129 on 22.11.2010 as null and void as the same were executed by the plaintiff in good faith and with sole motive to look after and manage the affairs of the property in favour of the defendants without any consideration, II. To pass a Decree of Permanent Injunction restraining the defendants, their employees attorneys agents, friends, associates relatives etc. from selling, transferring, alienating, mortgaging or creating any third party rights or interest therein in respect of DDA Flat No.L-3-B, first floor, measuring 30 sq. mtrs. situated in Dilshad Garden, Delhi-110095, III. Any other relief(s) which This Hon'ble court deems fit and proper may also be awarded to the plaintiff and the cost of the suit may also be granted to the plaintiff in the interest of justice. It is prayed accordingly."

2. As per these reliefs which are claimed, trial court has made the

following observations in paras 5 and 6 of the impugned judgment dated

7.6.2014 for holding that the suit is properly valued by fixing ad valorem

court fee on the value of the document which is sought to be declared as null

and void and which paras 5 and 6 of the impugned judgment read as under:-

C.R.P No.129/2014& conn. matters page 3 of 7 "5. In view of the judgment of the Hon'ble Supreme Court in Suhrid Singh @ Sardool Singh V. Randhir Singh 2010 AIR (SC) 2807 where the Plaintiff is the executants of the document then the proper relief which ought to be sought by the Plaintiff is not the declaration qua the document, but the cancellation of the document. Be that as it may, this issue has not been agitated before the court, the court is not expressing its opinion on this aspect. The issue before the court is valuation of the suit and for the arguments sake the court is assuming that the Plaintiff has sought the relief of cancellation of documents.

6. The documents in issue are the agreement to sell dated 19.11.2010 executed by the Plaintiff in favour of the Defendants with respect to DDA Flat No.L-3-B first floor, measuring 30 sq. mtrs. situated in Dilshad Darden, Delhi-110095. In view of the Section 54 of Transfer of Property Act, mere execution of agreement to sell with respect to the suit property does not create any right, title interest in the immovable/suit property. At best only right which is created on the execution of agreement to sell is the right sue when the terms and conditions of the agreement to sell are not adhered to by any of the parties to the suit. When no right, title or interest in the suit property has been created by the impugned agreement to sell dated 19.11.2010 with respect to the suit property, the court is of the opinion that the suit had it been even for the cancellation of the impugned document was not liable to be valued according to the market value of the suit property, but the suit was liable to be valued according to the value of the document sought to be cancelled. The impugned document prima-facie mentions consideration amount of Rs.2,60,000/- and this is the amount on which the suit has been valued for the purpose of relief of declaration. The court is of the opinion that the suit has been properly valued for the purpose of court fee and jurisdiction. There is no merit in the present application, hence the same is dismissed."

3. Supreme Court in the judgment in the case of Suhrid Singh

alias Sardool Singh Vs. Randhir Singh and Ors. (2010) 12 SCC 112, and

C.R.P No.129/2014& conn. matters page 4 of 7 which has been referred to by the trial court in para 5 of the impugned order,

has held in paras 7 and 8 as under:-

"7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non- est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' -- two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If `B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act.

8. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7." (underlining added)

C.R.P No.129/2014& conn. matters page 5 of 7

4. A reading of the aforesaid judgment shows that where a person

is party to a document of which cancellation is sought, such a person must

pay ad valorem court fee on the consideration as stated in the document. Of

course, Supreme Court further notes in last line of para 8 of the judgment

that in a suit for declaration with consequential relief with respect to

immovable property, the property must be valued at the market value of the

property.

5. Learned counsel for the petitioner placing reliance upon the last

line of para 8 as aforesaid of the judgment in the case of Suhrid Singh alias

Sardool Singh (supra) argues that since the suit is for declaration with

consequential relief the suit should have been valued at the market value of

the property as per Section 7(v) of the Court Fees Act, 1870 and Court fees

be accordingly paid.

6. In the present case, though in form the suit is for declaration for

declaring the subject document/agreement to sell as null and void, such a

declaration is prayed for by a party to that document being the plaintiff.

Accordingly since a party to a document is seeking his cancellation,

therefore, as per the ratio in the case of Suhrid Singh alias Sardool Singh

(supra) as given in para 7 of the judgment, the suit for cancellation of the

C.R.P No.129/2014& conn. matters page 6 of 7 document will have to be as per the consideration as mentioned in the

document. The respondent/plaintiff has admittedly fixed court fee as per the

consideration mentioned in the document and the only error of the

respondent/plaintiff is that he has called the suit as a suit for declaration to

declare the document as null and void instead of the suit being titled as one

for cancellation of the document/agreement to sell. However, it is settled

law that the form/heading of the suit is not material and it is the substance

which has to be seen, and when we see the substance, it is clear that the suit

is for cancellation of the document/agreement to sell and suit has been

correctly valued by paying the ad valorem court fee on the consideration as

stated in the document. Accordingly, no fault can be found with the

valuation of the suit as fixed by the plaintiff which is actually seeking a

relief of cancellation of the document/agreement to sell though concluded in

declaratory form.

7. In view of the above, there is no merit in the petitions, which

are therefore dismissed, leaving the parties to bear their own costs.

                                                    VALMIKI J. MEHTA, J
SEPTEMBER 02, 2014
Ne


C.R.P No.129/2014& conn. matters                                        page 7 of 7