Madras High Court
K.Balasubramaniam vs Kavitha on 15 November, 2021
C.R.P.(PD).No.3282 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD).No.3282 of 2016
and
C.M.P.No.16730 of 2016
1.K.Balasubramaniam
2.Kaliamma Devi
3.Saradha Devi
4.Uma Maheswari .. Petitioners
Vs.
1.Kavitha
2.Sethu @ Senkaliappan
3.The Manager,
Indian Bank,
New Scheme Road,
Pollachi. .. Respondents
Prayer: This Civil Revision Petition is filed under Article 227 of
Constitution of India, against the fair and decreetal order dated 08.08.2016
made in I.A.No.814 of 2013 in O.S.No.170 of 2013 on the file of the 1 st
Additional District and Sessions Court, Coimbatore.
For Petitioners : Mr.M.S.Krishnan, Senior Counsel
for Mr.R.Bharath Kumar
1/12
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.3282 of 2016
For Respondents : Mr.V.Lakshmi Narayanan for
Mr.V.Raghavachari for R1 & R2
No appearance for R3
ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
This Civil Revision Petition is filed against the fair and decreetal order
dated 08.08.2016 made in I.A.No.814 of 2013 in O.S.No.170 of 2013 on the
file of the 1st Additional District and Sessions Court, Coimbatore.
2.The petitioners are the defendants 1 to 4, the respondents 1 and 2 are
the plaintiff and 3rd respondent is the 5th defendant in O.S.No.170 of 2013 on
the file of the 1st Additional District and Sessions Court, Coimbatore. The
respondents 1 and 2 filed the said suit for declaration, injunction and other
reliefs in respect of the suit property. In the said suit, the petitioners filed
I.A.No.814 of 2013 under Order VII Rule 11 of Civil Procedure Code, to
reject the plaint. In the affidavit, the petitioners denied the various averments
and allegations made in the plaint. According to the petitioners, the
respondents 1 and 2 filed the suit based on the Memorandum of
Understanding or family arrangement dated 30.12.2011. In the said
Memorandum of Understanding, there are default clauses and only when the
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C.R.P.(PD).No.3282 of 2016
conditions are complied with by the respondents 1 and 2, the same will be
acted upon. The respondents 1 and 2 have not complied with the conditions
within the prescribed time and violated the clauses of agreement. Hence, the
said Memorandum of Understanding has become unenforceable. The
petitioners by notice dated 18.10.2012 issued through their Advocate, have
canceled the Memorandum of Understanding. In view of the same, the
respondents 1 and 2 cannot seek any remedy in the suit based on the
Memorandum of Understanding dated 30.12.2011. The respondents 1 and 2
are claiming right over the immovable property based on the Memorandum of
Understanding, which is not stamped and registered. The respondents 1 and 2
cannot rely on the unstamped and unregistered documents for claiming right
over the immovable property. The unregistered agreement dated 30.12.2011
is unenforceable and there is no legal value. Hence, the respondents 1 and 2
have no cause of action for filing the suit. The petitioners have mentioned
various litigations between the parties and some of the judgments dismissing
the suit filed by the 1st respondent. The petitioners further contended that the
respondents 1 and 2 have undervalued the suit, not paid proper Court fee and
prayed for rejection of the plaint.
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C.R.P.(PD).No.3282 of 2016
3.The respondents 1 and 2 have filed counter affidavit, denied all the
averments and submitted that the petitioners have admitted the Memorandum
of Understanding, but their contention is that the respondents 1 and 2 have
not complied with the conditions imposed in the Memorandum of
Understanding. Whether the Memorandum of Understanding is enforceable
or whether the respondents 1 and 2 have breached the conditions imposed in
the said Memorandum of Understanding are question of facts, which cannot
be decided in the present application.
4.The learned Judge considering the averments made in the affidavit
and counter affidavit, dismissed I.A.No.814 of 2013 holding that the plaint
discloses cause of action and whether the Memorandum of Understanding is
enforceable or not are question of facts and the same can be considered only
by letting in evidence. Further, the learned Judge held that the petitioners
have not produced any materials to show that the respondents 1 and 2 have
undervalued the suit and whether the respondents 1 and 2 have not paid
proper Court fee can be decided only along with the main suit.
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C.R.P.(PD).No.3282 of 2016
5.Against the said order of dismissal dated 08.08.2016 made in
I.A.No.814 of 2013, the petitioners have come out with the present Civil
Revision Petition.
6.The learned Senior Counsel appearing for the petitioners contended
that the trial Court ought to have allowed the application filed for rejection of
plaint as respondents 1 and 2 deliberately undervalued the suit for unjust
enrichment. The entire suit claim is based on an unregistered Memorandum
of Understanding dated 30.12.2011 with regard to the immovable property,
which requires compulsory registration under Section 17(1) of the
Registration Act, 1908. The suit is barred by law. The respondents 1 and 2
filed the suit for the relief of mandatory injunction, directing the petitioners to
hand over the property and discharge the mortgage created over the suit
property. For the relief sought for in the suit, the respondents have not
properly valued the suit and Court fee paid is not correct. The respondents 1
and 2 ought to have filed the suit for specific performance as per the
provisions of Specific Relief Act, valued the suit under Section 42(c) of the
Court Fee Act and paid correct fee. The learned Judge failed to see that
allowing the frivolous and vexatious suit to be continued further would
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C.R.P.(PD).No.3282 of 2016
certainly waste the precious time of this Court. The order of the learned Judge
is liable to be set aside on the ground of error of law, mis-appropriation of the
facts and for not considering the judgments relied on by the petitioners and
prayed for allowing the Civil Revision Petition.
7.The learned counsel appearing for the respondents 1 and 2 reiterated
the averments made in the counter affidavit and contended that the petitioners
filed the present I.A.No.814 of 2013 only on the ground that the plaint does
not disclose the cause of action and the suit is undervalued. The learned
Judge considering the averments made in the plaint and documents filed
along with the plaint, held that the plaint discloses cause of action and
whether the suit is undervalued or not can be decided only along with the
main suit. The learned Judge has given valid reason for dismissing the
I.A.No.814 of 2013 and prayed for dismissal of the Civil Revision Petition.
8.Though the 3rd respondent entered appearance through counsel, there
is no representation for them, when the matter is taken up for hearing.
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C.R.P.(PD).No.3282 of 2016
9.Heard the learned Senior Counsel appearing for the petitioners as
well as the learned counsel appearing for the respondents 1 and 2 and perused
the entire materials available on record.
10.From the materials available on record, it is seen that the
respondents 1 and 2 have filed the suit for declaration, injunction and other
reliefs in respect of the suit property based on the Memorandum of
Understanding dated 30.12.2011 executed between the petitioners and the
respondents 1 and 2. The execution of Memorandum of Understanding is
admitted by the petitioners. In the Memorandum of Understanding, certain
conditions were imposed on the respondents 1 and 2 i.e., the respondents 1
and 2 have to withdraw the suit and the appeal filed by them within the time
limit and also to give consent for sale of the trust property. The respondents 1
and 2 have failed to comply with the said conditions and therefore, the
Memorandum of Understanding cannot be enforced and the petitioners by
notice dated 18.10.2012 issued through their Advocate, have canceled the
Memorandum of Understanding. The further case of the petitioners is that the
respondents 1 and 2 filed the suit claiming declaratory relief of title with
regard to the immovable property based on an unregistered and unstamped
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C.R.P.(PD).No.3282 of 2016
Memorandum of Understanding, which is not maintainable as the document
has to be registered compulsorily. The respondents 1 and 2 have undervalued
the suit and Court fee paid is not correct. It is well settled that while
considering the application filed under Order VII Rule 11 of Civil Procedure
Code, the averments in the plaint and the documents filed along with the
plaint alone can be taken into consideration for deciding the application. The
averments in the written statement, documents and affidavit filed in support
of the application filed under Order VII Rule 11 of Civil Procedure Code
cannot be considered at this stage. Even though the petitioners have made
averments in the affidavit filed in support of the above I.A before the trial
Court, that plaint does not disclose cause of action in the grounds raised in
the present Revision, there is no averments with regard to the cause of action.
12.The main contention of the learned Senior Counsel for the
petitioners is that the suit is undervalued and Court fee paid is not proper and
correct. According to the learned Senior counsel for the petitioners, the
respondents 1 and 2 ought to have filed the suit for specific performance and
paid court fee under Section 42(c) of Tamil Nadu Court Fee and Suit
Valuation Act, 1995. It is not for the petitioners/defendants 1 to 4 to dictate
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C.R.P.(PD).No.3282 of 2016
the terms to the plaintiffs to what relief they should claim in the suit filed by
them. It is for the respondents 1 and 2 to decide the nature of relief sought
for, make necessary averments in the plaint and substantiate the same in the
trial by letting in oral and documentary evidence.
13.As far as the undervaluation of suit is concerned, it is the case of the
petitioners that as per the Memorandum of Understanding, the respondents 1
and 2 are claiming right over the immovable property. In view of such relief,
they have to pay the Court fee for the value of the suit property especially
when they seek declaration that mortgage deed is 'null' and 'void'. Whether
the respondents 1 and 2 acquired title over the suit property on the date of
Memorandum of Understanding or they will acquire right on future dates, the
said Memorandum of Understanding is binding on the petitioners or the
respondents 1 and 2 have violated the conditions imposed in the
Memorandum of Understanding are question of facts and the same can be
decided only by letting in oral and documentary evidence during Trial. The
said issue cannot be decided in the application under Order VII Rule 11 of
CPC for rejection of plaint.
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C.R.P.(PD).No.3282 of 2016
14.Further, the learned Judge has taken note of the fact that the
petitioners have not produced any materials to prove their case with regard to
undervaluation and held that the said issue will be decided along with the
other issues in the suit. The learned Judge considering all the materials and
documents, dismissed the I.A.No.814 of 2013 by giving cogent and valid
reason. There is no error or irregularity in the said order of the learned Judge
warranting interference by this Court.
15.The learned Senior Counsel appearing for the petitioners submitted
that liberty may be given to the petitioners to raise the question of
undervaluation of the suit and payment of deficit Court fee as preliminary
issue. It is open to the petitioners to raise such a plea before Trial Court by
filing appropriate application and if any such application is filed by the
petitioners, the learned Judge is directed to consider and pass orders in
accordance with law after giving opportunity to the respondents, without
being influenced by the order dated 08.08.2016 made in I.A.No.814 of 2013
and order of this Court passed in the Civil Revision Petition.
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C.R.P.(PD).No.3282 of 2016
16.With the above direction, this Civil Revision Petition is dismissed.
Consequently, the connected Miscellaneous Petition is closed. No costs.
15.11.2021
vkr
Index : Yes / No
Internet : Yes / No
To
I Additional District and Sessions Judge,
Coimbatore.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.3282 of 2016
V.M.VELUMANI, J.
vkr
C.R.P.(PD).No.3282 of 2016
and
C.M.P.No.16730 of 2016
15.11.2021
https://www.mhc.tn.gov.in/judis
