Anuradha Gupta vs Veena Devi
2017 Latest Caselaw 3542 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CM(M) No. 1069/2016
      ANURADHA GUPTA                                              ..... Petitioner
                           Through:     Mr. Gaurav Seth, Adv.
                                 Versus
      VEENA DEVI                                              ..... Respondent
                           Through:     None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                         ORDER

% 24.07.2017

1. This petition under Article 227 of the Constitution of India impugns the order dated 17th September, 2016 in CS No.10747/2016 of the court of ACJ/CCJ/ARC (Shahdara), Karkardooma, Delhi directing the petitioner/plaintiff to value the relief of cancellation/declaration qua the sale deed dated 15th April, 2014 as per the sale consideration mentioned in the sale deed i.e. Rs.2,27,80,000/- and further observing that upon the failure of the petitioner/plaintiff to comply with the order will result in rejection of the plaint under Order VII Rule 11(b) and (c) of the CPC.

2. The petition came up first before this Court on 24 th October, 2016 when the same was entertained. Notice thereof ordered to be issued to the respondent and operation of the impugned order stayed.

3. The respondent did not appear despite service on 10 th March, 2017. None appears for the respondent today also. Rather it appears that the order impugned in the suit was also of the Court's own volition and at the stage of

admission of the suit, before issuing summons to the respondent/defendant. The respondent is proceeded against ex parte.

4. The counsel for the petitioner/plaintiff has been heard.

5. The counsel for the petitioner/plaintiff on enquiry states that in pursuance to the impugned order, till 24th October, 2016, the plaint had not been rejected.

6. I may observe that had the plaint be rejected, such an order would have been deemed to be a decree within the meaning of Section 2(2) of the CPC and would have been appealable as such and this petition under Article 227 would not have been maintainable.

7. The learned Commercial Judge in the impugned order, relying on Suhrid [email protected] Sardool Singh Vs. Randhir Singh (2010) 12 SCC 112 has directed the petitioner/plaintiff as aforesaid.

8. The petitioner/plaintiff, instituted the suit from which this petition arises, pleading -(a) that the petitioner/plaintiff, in the month of March 2014, was in urgent need of funds and had sought financial assistance to the tune of Rs.50 lakhs from the respondent/defendant for a period of two years;

(b) that the respondent/defendant asked the petitioner/plaintiff to hand over the title deeds of the petitioner/plaintiff's immovable property No. 19B, Jhilmil Tahirpur, Dilshad Garden, Delhi and to sign certain documents for the security of the amount which the respondent/defendant would advance to the petitioner/plaintiff as loan; (iii) that the respondent/defendant assured the petitioner/plaintiff that as and when the loan amount would be repaid, the

original title deed of the property would be returned to the petitioner/plaintiff and the documents which would be got signed from the petitioner/plaintiff would be either cancelled or torn; (iv) that the petitioner/plaintiff in the second week of April, 2014 had handed over the original title deeds of his aforesaid property to the respondent/defendant; (v) the respondent/defendant also got certain documents signed from the petitioner/plaintiff which were represented to be documents of mortgage of the property; (vi) that the petitioner/plaintiff repaid the loan amount on 20 th March, 2016 and the respondent/defendant returned the original title deeds of the immovable property to the petitioner/plaintiff; (vii) the respondent /defendant however neither returned the documents got signed from the petitioner/plaintiff nor showed the same in cancelled mode to the petitioner/plaintiff; (viii) that the petitioner/plaintiff in the month of April, 2016 for the first time realised that in the guise of mortgage, a registered sale deed of the said immovable property had been got executed by the respondent/defendant from the petitioner/plaintiff; (ix) that the sale consideration mentioned in the said sale deed dated 15th April, 2014 registered with the office of Sub-Registrar IVA, Shahdara, was never paid by the respondent/defendant to the petitioner/plaintiff; (x) that the respondent/defendant is not entitled to claim any right in the property under the said sale deed got executed from the petitioner/plaintiff fraudulently; (xi) that the petitioner/plaintiff is in custody of the original title documents of the property and in physical possession of the property.

9. The petitioner/plaintiff, in the suit, claimed the reliefs of (i) cancellation and declaration of the sale deed by issuing direction to the Sub-

Registrar with whom the sale deed is registered; and, (ii) permanent injunction restraining the respondent/defendant from using the said sale deed or creating third party interest in the property. The petitioner/plaintiff valued the said suit for the purposes of reliefs of cancellation and declaration at Rs.200/- each and for the relief of permanent injunction at Rs.130/-.

10. The counsel for the petitioner/plaintiff before this Court also, as before the learned Commercial Civil Judge, has relied upon Surjit Singh Vs. Karamjit Kaur 2012 SCC Online P&H 3438 and on Iqbal Singh Vs. Lakhwinder Kaur 2014 SCC Online P&H 22824.

11. As far as the first of the aforesaid judgments is concerned, the same, though relies on Suhrid Singh @ Sardool Singh supra but owing to the fact of the plaintiff being in possession of the suit premises and the transfer sought to be set aside being without consideration, held the petitioner/plaintiff not liable to pay ad valorem court fees.

12 Iqbal Singh supra however is against the petitioner/plaintiff and reliance by the counsel for the petitioner/plaintiff thereupon is not understood; in that case also the petitioner/plaintiff was in possession of the property, sale deed whereof was sought to be set aside. It was held that ad valorem court fees is payable. Reliance was placed on judgment of the Division Bench of the High Court of Punjab and Haryana in Tarsem Singh Vs. Vinod Kumar 2011 SCC Online P&H 8146.

13. It thus transpires that the view taken by the Hon'ble Judge of Punjab and Haryana High Court in Surjit Singh supra is not in consonance with the view of the Division Bench of that Court and different from the view taken

in Iqbal Singh supra.

14. Be that as it may in the light of the judgment of the Supreme Court in Suhrid [email protected] Singh supra, paras 7 & 8 whereof are 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 the 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."

the issue does not require any further debate. It has been lucidly held by the Supreme Court that if the executant of the deed seeks cancellation thereof he has to pay ad volarem court fees on the consideration stated in the sale deed; Supreme Court has not made payment of ad valorem court fees dependent upon the fact whether the executant, on the date of suit had possession of the property or not. Only in the case of a suit by non-executant of a sale deed, is the factum of possession relevant i.e. the non-executant not in possession is required to pay ad valorem court fees but if in possession is not required to pay ad valorem court fee and can pay fixed court fees.

15. The order of the learned Commercial Civil Judge is in consonance with law.

16. No ground for interference in exercise of power under Article 227 is made out.

Dismissed.

No costs.

RAJIV SAHAI ENDLAW, J

JULY 24, 2017 'M'..