Delhi High Court

Sh. Inder Mohan Arora vs Sh. Pawan Kumar Jain on 9 September, 2015

*                  HIGH COURT OF DELHI AT NEW DELHI

+                   C.R.P. No.4/2014 & C.M. No.13795/2014

                                       Decided on : 9th September, 2015

SH. INDER MOHAN ARORA                    ...... Petitioner
              Through: Mr. R.C. Pathak, Advocate with petitioner
                       in person.

                       Versus

SH. PAWAN KUMAR JAIN                               ...... Respondent
             Through:             Mr. Abinash K. Mishra, Advocate.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a revision petition filed by the petitioner against the order

dated 13.9.2013 by virtue of which the application of the petitioner under

Order VII Rule 11 CPC has been dismissed as being devoid of any merit.

2. I have heard the learned counsel for the petitioner and have also gone

through the record.

3. The main contention of the learned counsel for the petitioner is that

the respondent/plaintiff had entered into an agreement for purchase of a

portion of property bearing No.IX/2124, Kailash Nagar, Delhi-31, from the

petitioner/defendant for a total consideration of Rs.35 lacs. Out of this total

amount, an amount of Rs.4 lacs was paid by way of a cheque by the

respondent/plaintiff as earnest money to the petitioner/defendant. On

21.11.2011 when the agreement was executed, a date of 15.3.2012 was fixed

for execution of the sale document and handing over of the possession and

the other connected chain of ownership documents. It is alleged by the

petitioner that the respondent kept on postponing the completion of

transaction for one reason or the other despite the fact that the

petitioner/defendant continued to demand the balance amount of Rs.31 lacs.

Ultimately, the respondent/plaintiff filed a suit for recovery of Rs.8 lacs

being double the amount of earnest money along with interest @ 24 per cent

per annum from the present petitioner/defendant and alternatively also

praying for specific performance of the agreement. It has also been stated

that the respondent/plaintiff had also prayed that the petitioner/defendant be

restrained from selling the property to any person other than the respondent

herein.

4. The petitioner/defendant filed an application under Order VII Rule 11

CPC taking the plea of rejection of plaint on the ground of suit not having

been properly valued for the purpose of court fees as per the provisions of

Court Fees Act. It was the case of the petitioner/defendant that admittedly

the agreement was for a total sale consideration of Rs.35 lacs out of which

only an amount of Rs.4 lacs was paid and therefore, the valuation of the suit

for the purpose of court fees and jurisdiction at Rs.8 lacs being double the

earnest money was not correct. It was contended that the

respondent/plaintiff ought to have valued the suit for Rs.35 lacs and as this

was not done, therefore, rejection of the plaint was prayed for.

5. This plea of the petitioner/defendant was rejected by the learned trial

court to be devoid of any merit because it was observed by the trial court

that while considering the application under Order VII Rule 11 CPC what is

to be considered is only the averments made in the plaint. The

respondent/plaintiff in his plaint had specifically stated that he had paid only

Rs.4 lacs and one of the main prayers in the suit was for payment of double

the amount of the earnest money which was Rs.8 lacs. Accordingly, he had

paid the court fees at Rs.8 lacs. So far as the specific performance of the

contract is concerned, it was stated that as and when the specific

performance is ordered, the balance payment will be made by the

respondent/plaintiff and thus, the application was dismissed. The learned

trial court rejected this plea of the petitioner/defendant in the following

language :-

"18. Perusal of the record shows that the plaintiff has sought to recover an amount of Rs.8 lakhs being double of the earnest money and also sought to restrain the defendant from alienating or transferring property bearing No.IX/2124, Gali No.7-8, Kailash Nagar, Delhi 31, by way of specific performance. Whereas, the learned court for the defendant has submitted that since the plaintiff has filed the suit for specific performance of the agreement and the total value of the property stated in the agreement was Rs.35 lakhs, so, this court is lacking pecuniary jurisdiction to adjudicate upon the present matter, but , as from the perusal of the plaint, it is clear that in the prayer clause, the plaintiff has not sought any direction for the defendant to execute the sale deed of the said property. He has sought relief of recovery of Rs.8 lakhs being double of the earnest money by way of invoking the term 5 of the agreement and as the plaintiff has not sought any direction for the defendant for execution of the sale deed, so, this court is having pecuniary jurisdiction to adjudicate upon the present matter.

19. Ld. counsel for the defendant has also submitted that plaintiff has failed to show/produce any demand draft or cheque to show any proof that he was ready with the remaining amount of Rs.31 lakhs on dated 15.3.2012, whereas, from the perusal of the agreement to sell, it is clear that the sale deed was to be executed and the remaining amount of total consideration was required to be paid up till 15.3.2012 and the ld. counsel for the plaintiff has submitted that the plaintiff had orally asked to the defendant to execute the sale deed dated 12.3.2012 and the plaintiff remained present in the office of Sub Registrar on 12.3.2012 along with the balance amount and his presence is well marked and he has placed on record the receipt showing his presence in the office of Sub Registrar. He has also submitted that even on

15.3.2012 the plaintiff remained present in the office of Sub Registrar, along with the balance amount for the performance of his part and he was ready and willing to pay the remaining amount, but, the defendant did not appear in the office of Sub Registrar for execution of the sale deed and in the given circumstances and in the considered opinion of this court, this is the subject matter of trial, as to whether on o15.3.2012 the plaintiff was ready or willing to perform his part or not and this issue can be decided only after production of evidences by the parties. Since the plaintiff has filed the present suit for recovery of Rs.8 lakhs and sought to enforce the term No.5 of the agreement by way of specific performance in accordance with which, in case of failure on the part of the defendant, for execution of the sale deed by the defendant. The plaintiff was entitled to get Rs.8 lakhs being double of the earnest money and at the time of disposal of the application U/O 7 Rule 11 CPC, only facts mentioned in the plaint are to be looked into and in the prayer clause, the plaintiff has nowhere sought direction for execution of sale deed. He has sought relief of recovery of Rs.8 lakhs and thus this court is having pecuniary jurisdiction to adjudicate upon the present matter."

6. I have carefully considered the submission made by the learned

counsel for the petitioner. I fully approve the reasoning given by the learned

trial court while rejecting the application of the petitioner/defendant under

Order VII Rule 11 CPC. It is well settled that the valuation of the suit

essentially is the prerogative of the plaintiff and once the plaintiff values his

suit for the purpose of court fees and jurisdiction then that has to be accepted

as correct unless and until it is shown to the court that the suit has been

undervalued or overvalued with mala fide intention. The

petitioner/defendant had valued his suit at Rs.8 lacs being double the value

of the earnest money. While considering an application of the

petitioner/defendant under Order VII Rule 11 CPC, the court has to restrict

itself to the averments made in the plaint.