Umed Malik vs Balwan Singh
2023 Latest Caselaw 20614 P&H

Punjab-Haryana High Court

Umed Malik vs Balwan Singh on 29 November, 2023

Author: Anil Kshetarpal

Bench: Anil Kshetarpal

                                                          Neutral Citation No:=2023:PHHC:151665




            IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH
134                                                          2023:PHHC:151665

                                                  CR-1815-2022
                                                  Date of decision: 29.11.2023

UMED MALIK                                            ..Petitioner
                                    Versus
BALWAN SINGH                                          ..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:      Mr. Jitender Nara, Advocate
              for the petitioner.

ANIL KSHETARPAL, J(Oral)

1. In substance, the dispute involved in the present case is with

regard to the liability to pay the ad valorem Court fee. The trial Court vide

the impugned order has directed the plaintiff (petitioner herein) to affix the

Court fee as per Section 7(ix) of the Court Fees Act, 1870 (hereinafter

referred to as the '1870 Act'), the correctness of the aforesaid has been

challenged in this revision petition.

2. It is the case of the petitioner that the respondent Sh. Balwan

Singh executed the mortgage deed on 03.05.2018, while promising to pay

Rs.50,00,000/- along with the interest at the rate of 2% per month during the

mortgage period i.e. from 03.05.2018 to 05.11.2018 and redeem the rent.

The petitioner claims that the respondent (defendant) has failed to pay the

aforesaid amount and therefore, the conditional sale by mortgage has

become absolute and consequently he is entitled to be recorded as an owner

in the revenue record. He also sought relief of decree for possession of the

property.

3. The trial Court has directed the plaintiff to pay the ad valorem

Court fee on the amount of Rs.50,00,000/- in accordance with Section 7(ix)

of the 1870 Act, which is extracted as under:-

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"7. Computation of fees payable in certain suits.--The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:--

to redeem.-- (ix) In suits against a mortgagee for the recovery of the property mortgaged, to foreclose.-- and in suits by a mortgagee to foreclose the mortgage, or, where the mortgage is made by conditional sale, to have the sale declared absolute according to the principal money expressed to be secured by the instrument of mortgage."

4. The learned counsel representing the petitioner contends that

before filing the suit, the petitioner filed a petition under Section 7 and 8 of

the Bengal Regulations Act XVII of 1806 (hereinafter referred to as the

'1806 Act'). He submits that the aforesaid petition was disposed of as the

respondent did not file reply. He submits that the defendant failed to comply

with the order dated 11.07.2019, and therefore, the petitioner has become

owner of the same. He submits that in this suit, the plaintiff has only sought

decree of declaration that he is entitled to be recorded as an owner of the

property in the revenue record and has sought decree for possession of the

suit property, which is an agricultural land.

5. This Court has considered the submissions of the learned

counsel representing the petitioner.

6. The learned counsel representing the petitioner has produced a

copy of the final order passed by the Court in the petition filed under Section

7 and 8 of the 1806 Act, which reads as under:-

"Counsel for the respondent has made statement at bar that he has not to file any reply and he has given notice of the case to the respondent. Since the respondent is well aware about the petition filed against him, so, no further action is required in this petition under Section 8 of the Bengal Regulation Act. As such, file be consigned to the record room after due compliance"

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7. From the aforesaid order, it is evident that the Court has not

granted any declaration in favour of the petitioner. In substance, the

petitioner is praying for the relief of foreclosure. As per the second part of

Section 7(ix) of the 1870 Act, in a suit filed by mortgagee to foreclose the

mortgage or where the mortgage is made by a conditional sale, to have the

sale declared as absolute, the ad valorem Court fee is payable in accordance

with the principal money expressed to be secured by the instrument of

mortgage. In view of the aforesaid fact, there is no substance in the argument

of the learned counsel representing the petitioner that no ad valorem Court

fee is payable on the principal money expressed in the instrument of

mortgage.

8. The learned counsel representing the petitioner relies upon the

judgment passed in Satpal Vs. Vinod Kumar and another, 2011(1) PLR

463.

9. On a careful reading of the judgment, it is evident that the issue

of liability to pay the ad valorem Court fee was not matter in issue before

this Court.

10. Keeping in view the aforesaid facts and discussion, no ground

to interfere is made out.

11. Dismissed accordingly.

12. All the pending miscellaneous applications, if any, are also

disposed of.

November 29th, 2023                                    (ANIL KSHETARPAL)
Ay                                                          JUDGE

Whether speaking/reasoned         :        Yes/No
Whether reportable                :        Yes/No

                                                           Neutral Citation No:=2023:PHHC:151665

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