Manish Agarwal vs M/S.Chitra Construction Pvt. Ltd
2021 Latest Caselaw 54 Mad

                                                                        C.R.P.(PD)No.1912 of 2015

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 04.01.2021

                                                       CORAM

                                   THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

                                              C.R.P.(PD) No.1912 of 2015
                                                 and M.P.No.1 of 2015

                     1. Manish Agarwal
                     2. A.Deepak Modi                                        ... Petitioners

                                                            Vs.
                     M/s.Chitra Construction Pvt. Ltd.,
                     Rep. by its Managing Director,
                     S.Govindarajan,
                     S/o. R.Gopalakrishnan,
                     Having office at Flat No.207,
                     Shopping Inn, Chitra Avenue,
                     Choolaimedu High Road,
                     Chennai - 600 094.
                     Now at No.9,
                     Choolaimedu,
                     Chennai - 600 094                                 ... Respondent
                     Prayer :- Civil Revision Petition is filed under Article 227 of the
                     Constitution of India to set aside the order and decreetal order dated
                     13.08.2014 in I.A.No.2145 of 2013 in O.S.No.68 of 2013 on the file of the
                     Additional District Munsif Court, Alandur.
                                          For Petitioners   : Mr.R.Subramanian
                                          For Respondent    : No appearance



                     Page 1 of 12


https://www.mhc.tn.gov.in/judis/
                                                                           C.R.P.(PD)No.1912 of 2015

                                                       ORDER

This revision petition has been filed challenging the fair and

decreetal order dated 13.08.2014 made in I.A.No.2145 of 2013 in

O.S.No.68 of 2013 on the file of the Additional District Munsif Court,

Alandur, thereby dismissing the petition filed by the petitioners/defendants

to reject the plaint.

2. The respondent is the plaintiff in the above suit. He filed the

suit for declaration and injunction in respect of the suit properties. The case

of the respondent/plaintiff is that the first petitioner/defendant is a money

lender and he is known to the respondent/plaintiff for the past ten years. He

used to lend money to the companies for financial requirements. While

lending loan, the first petitioner/defendant used to get registered power of

attorney, deposit of title deed and also agreement for sale in respect of the

properties.

3. Accordingly, while borrowing loan, the respondent/plaintiff

executed power of attorney in favour of the second petitioner/defendant in

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.1912 of 2015

respect of plot Nos.96 & 97 viz., the suit schedule properties as directed by

the first petitioner/defendant. Thereafter, the respondent/plaintiff sold out

plot No.96, in favour of one K.Joseph George by a registered sale deed

dated 30.07.2009 vide document No.2808 of 2009 and plot No.97 was sold

out to one D.Raja Singh Prabahar & A.Packia Rani by a registered sale deed

dated 08.01.2010 vide document No.68 of 2010. On the said sale

consideration, the respondent/plaintiff settled the entire amount which was

borrowed by him to the first petitioner/defendant with interest. In fact, by

virtue of construction agreements dated 25.05.2009 & 05.11.2009, the

respondent/plaintiff completed the construction and handed over possession

to the said persons and they are in possession and enjoyment of the suit

schedule properties.

4. After settling the entire amount, the first petitioner/defendant in

order to grab the entire properties, executed a sale deed dated 26.07.2010

vide document No.3907 of 2010 in his favour, through the power of

attorney viz., the second petitioner/defendant. Therefore, the respondent/

plaintiff being the principal of the power of attorney executed in favour of

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.1912 of 2015

the second petitioner/defendant, filed a suit for declaration to declare the

sale deed executed in favour of the first petitioner/defendant through the

second petitioner/defendant is null and void along with the injunction

prayer.

5. The learned counsel appearing for the petitioners/defendants

would submit that even according to the respondent/plaintiff, he sold out the

suit schedule properties by the registered sale deeds dated 30.07.2009 and

08.01.2010. Therefore, the respondent has no title or right over the suit

schedule properties, as such there is absolutely no cause of action to the

respondent/plaintiff to file the present suit against the petitioners/defendants

herein. He would further submit that the suit is valued under Section 25(d)

of the Tamilnadu Court Fees and Suit Valuation Act instead of valuing the

suit properties under Section 40 of the Court Fees Act, since the properties

are valued at Rs.12,80,000/- as per the sale deed dated 26.07.2010 vide

document No.3907 of 2010. Therefore, the petitioners/defendants filed an

application in I.A.No.2145 of 2013 to reject the plaint. The trial Court

without considering the above facts dismissed the said application.

Aggrieved by the same, the present Civil Revision Petition.

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.1912 of 2015

6. Though notice was served on the respondent/plaintiff herein

and his name was printed in the cause list, none appeared on behalf of the

respondent by person or through pleader.

7. Admittedly, the respondent was the absolute owner of the

properties comprised in Plot Nos.96 and 97 viz., suit schedule properties.

According to the respondent/plaintiff while availing loan, he executed

power of attorney in respect of the suit schedule properties in favour of the

second petitioner/defendant as directed by the first petitioner/defendant.

Even after settling the entire loan after selling the properties by the

registered sale deeds dated 30.07.2009 and 08.01.2020, the second

petitioner/ defendant executed sale deed in favour of the first

petitioner/defendant. Though the suit schedule properties were sold out in

favour of one K.Joseph George, D.Raja Singh Prabahar & A. Packia Rani, if

there is any encumbrance in the properties, the respondent/plaintiff has to

clear the encumbrance according to the sale deed. Therefore, the

respondent/plaintiff is constrained to file the present suit to declare the sale

deed executed in favour of the first defendant by the second defendant as

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.1912 of 2015

null and void. Therefore, the trial Judge rightly rejected the contention that

there is no cause of action arose for the respondent/plaintiff to file the suit.

8. In respect of the another contention that the suit should have

been valued under Section 40 of Tamilnadu Court fees and Suit Valuation

Act instead of Section 25(d) of the said Act is concerned, the learned

counsel appearing for the petitioners/defendants relied upon the judgment

reported in 2014(6) CTC 67 in the case of Sri Krishnaswamy Education

Trust Vs. Jabely Edward & others, in which this Court held as follows :-

"14.Per contra, the learned counsel for the revision Petitioners relied on two decisions in support of their contentions.

1.AIR 1974 Madras 152(Rajam Ammal .vs. V.N.Swaminathan and others), in which , para 4 reads as follows:

4...... In view of this, the question for consideration will be whether the Full Bench Judgement inferred to above construing Section 7(iv-A) of the Court Fees Act, 1870, as amended by the Madras Court Fees(Amendment) Act, 1922, can be overlooked or ignored for construing Section 40 of the Madras Court fees and Suits

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.1912 of 2015

Valuation Act, 1955. In the Full Bench Decision also the suit was for a decree setting aside a conveyance which the plaintiff had executed and for possession of the land covered by the deed, pleading that he had been induced to sign the instrument as a result of undue influence and fraud. The question was whether that has to be valued under Section 7(iv-A) for the purpose of the court fee and court fee should be paid on the market value of the properties involved as on the date of the plaint. The arugment that was advanced on behalf of the plaintiff in that case was that since a prayer for possession of the properties had been made the suit had to be valued under Section 7(v) and not under Section 7(iv-A).The Full Bench negatived the contention and agreed with the view of Venkatasubba Rao,J., in Bali Reddi .vs. Khatipulal Sab, ILR 59 Mad 240:(AIR 1935 Mad 863) and held that the court fee has to be paid on the market value of the properties as on the date of the plaint. The Full Bench held that--

The Court fee is to be calculated on the amount or the value of the properties and to give the

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.1912 of 2015

wording of para (iv-A) its plain meaning the valuation must be the valuation based on the market value of the properties at the date of the plaint.

2.Another decision reported in 2005(5) CTC 190(Chellakannu .vs.Kolanji),in which, para 15 reads as follows:

15.The allegation on the Plaint in substance amounts to cancellation of the document. Though the prayer is couched in the form of seeking declaration that the document is not valid and not binding, the relief in substance indirectly amounts to seeking for cancellation of the Sale Deed. Learned District Munsif was right in ordering payment of Court Fee under Section 40 of the Act. This Revision petition has no miets and is bound to fail.

15. In view of the above said observations in the above said decisions, in the instant case, from the entire pleadings and prayer sought for in the plaint, respondents 1 to 6 should have value and to be paid the court fee under Section 40 of the Act. As rightly pointed out by the learned counsel for the revision Petitioners,the trial Court

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.1912 of 2015

has not at all considered the pleadings in the plaint and contention raised by the revision Petitioners. Therefore the findings of the trial Court are perverse and illegal as rightly pointed out by the learned counsel for the revision Petitioners.

16. In the result, the order passed by the trial Court in I.A.No. 1551 of 2002 in O.S.No.269 of 2002 on the file of the Principal District Munsif Court, Cuddalore is set aside and the respondents 1 to 6 are directed to represent the plaint and also directed to pay the court fee under Section 40 of the Act within one month from the date of order before the concerned Court which is having the jurisdiction to try the suit. Failing which, directed to reject the plaint immediately and the Civil Revision Petition is ordered accordingly. Consequently, connected Miscellaneous Petition is closed. No order as to costs."

9. In the case on hand, even according to the respondent/plaintiff,

the second petitioner/defendant executed sale deed in favour of the first

petitioner/defendant for the sale consideration of Rs.12,80,000/-. Though

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.1912 of 2015

the second petitioner is the power of attorney, the respondent is the

principal of the said power of attorney. Therefore, the properties originally

stand in the name of the respondent herein and the respondent executed

power of attorney in favour of the second petitioner. On the strength of the

said power of attorney, the second petitioner executed sale deed in favour of

the first petitioner herein. Therefore, the respondent is also a party to the

sale deed which is under challenge in the suit. Therefore, the respondent

ought to have valued the suit according to the value of the sale deed.

10. Unfortunately, the Court below erred in holding that the

respondent is not a party to the document which is under challenge in the

suit and as such the respondent paid nominal fee and valued the suit under

Section 25(d) of the Tamil Nadu Court Fees and Suit Valuation Act.

Therefore, the respondent should have valued the suit under Section 40 of

the Tamil Nadu Court Fees and Suit Valuation Act. The above case cited by

the learned counsel appearing for the petitioners is squarely applicable to

the case on hand and as such the finding of the trial Court in respect of the

valuation of suit is perverse and illegal and the trial Court has no pecuniary

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.1912 of 2015

jurisdiction to try the suit.

11. In view of the above discussion, the order dated 13.08.2014

passed by the learned Additional District Munsif, Alandur in I.A.No.2145

of 2013 in O.S.No.68 of 2013 is hereby set aside. The respondent/plaintiff is

directed to value the suit under Section 40 of the Tamil Nadu Court Fees

and Suit Valuation Act and re-present the plaint before the jurisdictional

Court, which is having pecuniary jurisdiction to try the suit, within a period

of 30 days from the date of receipt of copy of this Order, failing which the

trial Court is directed to reject the plaint forthwith.

12. Accordingly, this Civil Revision Petition is allowed. There

shall be no order as to costs. Consequently, connected miscellaneous

petition is closed.

04.01.2021

Internet : Yes Index : Yes/No Speaking order/Non-speaking order rts

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.1912 of 2015

G.K.ILANTHIRAIYAN, J.

rts To

1. The Additional District Munsif, Alandur

2. The Section Officer, V.R. Section, Madras High Court, Chennai.

C.R.P.(PD) No.1912 of 2015 and M.P.No.1 of 2015

04.01.2021

https://www.mhc.tn.gov.in/judis/