IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
APPELLATE JURISDICTION.
APPEAL FROM ORDER NO. 978 OF 2011
M/s.Nandanvan Cooperative Housing
Society Ltd., a registered Cooperative
Housing Society bearing Registration No.
BOM/WKE/HSG/TC/11265/200102
... Appellant.
V/s.
Nandanvan Cooperative Housing
Society Ltd., a registered Cooperative
Housing Society under Registration No.
BOM/WKE/HSG/TC/1’1636/200203
and others. ... Respondents.
N.V.Walawalkar, Senior Advocate with R.D.Soni i/b.
Ram & Co. for the appellant.
S.S.Kanetkar i/b. Yogini Bharade for respondent No.1.
Nitin G. Thakkar, Senior Advocate with Gobindo C. Mohanty
i/b. Mohanty & Associate for respondent No.2.
Ms.K.K.Soran for respondent No.3.
CORAM: R.M.BORDE, J.
DATED:
P.C. :
In this appeal from order, the appellant is taking exception to the order passed by the Judge,
2. The respondent/ plaintiff presented suit claiming the declaration that the plaintiff is entitled to a deed of conveyance in respect of plot of land admeasuring 3,250 sq.yards equivalent to 2,717 sq.meters bearing Survey No.27, Hissa No.1 corresponding to C.T.S.No. 287, 287/1 to 35 of villageVileParle (East) together with the building known as Nandanvan-A consisting of ground plus three upper floors and building known as Nandanvan-B consisting of ground plus sixth floor and part seventh floor. The substantial reliefs claimed in the suit are to be found in prayer clauses (a) to (d), which read thus:
(a) That it be declared by this Honourable Court that subdivision of C.T.S. No. 287 into C.T.S. No. 287A and 287B being Final Plot Nos. A1 and A2 in respect of the plot of land admeasuring 3250 sq. yards equivalent to 2712 sq.mts. bearing Survey No. 27 Hissa No. 1 corresponding to C.T.S.No. 287, 287/1 to 35 of Village Vile Parle (East) and situated near Bhuta High School, Shahaji Raje Marg, Vile Parle (East), Mumbai – 400 057 together with the building-A knows as Nandanvan-A consisting of ground and three upper floors and Building B consisting of ground plus six floors and part seventh floor known as Nandanvan-B, is badin0law, illegal and inoperative as contrary to the provisions of the Maharashtra Ownership Flats Act, 1963;
(b)That it be declared by this Honourable Court hat a Deed of Conveyance dated
(c) that it be declared by this Honourable Court that the Agreement of Development dated
(d) That it be declared by this Honourable Court that the Plaintiffs are entitled to a Deed of Conveyance being executed in their favour by the Defendants No. 2 in respect of land admeasuring 3250 sq. yards equivalent to 2717 sq.mts. bearing Survey No. 27 Hissa No. 1 corresponding to C.T.S.No. 287, 287/1 to 35 of Village Vile Parle (East) and situated near Bhuta High School, Shahaji Raje Marg, Vile Parle (East), Mumbai – 400 057 together with the building-A knows as Nandanvan-A consisting of ground and three upper floors and Building-B consisting of ground plus six floors and part seventh floor known as Nandanvan B in pursuance of the representations made by the Defendants No. 2 to the members of the Plaintiffs while executing the Agreements of Sale of Flats in the building of the Plaintiffs and as per the provisions of the Maharashtra Ownership Flats Act, 196;”
3. An objection was raised by the defendants to the maintainability of the suit on the ground that the suit is not valued properly and prayer clauses (a) to (c) are not within the competence of the trial Court. According to the defendants, the deeds in respect of which relief of declaration is sought for are required to be valued in crores of rupees and the valuation put by the plaintiff in respect of prayer clauses (a) to (c) is incorrect and the suit is beyond the pecuniary limits of the trial court.
4. Considering the objection raised by the defendants, the trial Court framed two preliminary issues reading as under:
1. Whether the suit is not maintainable for want of notice under section 164 of the Maharashtra Cooperative Societies Act and also under section 91 of the said Act?
2. Whether the subject matter of the suit is under valued and this Court has no jurisdiction to entertain and decide the suit?
5. The trial Court has given affirmative finding on issue No.2 holding that the suit is undervalued and the Court has no pecuniary jurisdiction to entertain and decide the suit, as such, plaint was directed to be returned to the plaintiff for presentation to the proper court.
6. I have heard the arguments advanced by learned counsel for the respective parties.
7. It is vehemently contended by leaned counsel for the appellant that the reliefs claimed in the suit are required to be valued under the provisions of section 6(iv)(j) of the Bombay Court Fees Act, 1959 as those reliefs relate to the obligations to be performed by the defendants under the Maharashtra Ownership of Flats Act, 1963 (MOFA). Pointing out prayer clauses contained in the plaint, more specifically prayer clauses (a) to (c), it is contended that the reliefs claimed in pursuance to the obligations cast on the defendants under the MOFA and are required to be valued under section 6(iv)(j) of the Bombay Court Fees Act. Reference is made to the judgment in the case of of Maria Philomina Pereira v. Rodrigues Construction, 1990 Mh.L.J. 445 = AIR 1991 Bom. 27 and Vrindavan (Borivali) Cooperative Housing Society Limited v. Karmarkar Bros., 1982 Mh.L.J. 607. It is, thus, contended that since the prayers relate to the obligations cast under the provisions of the MOFA the valuation for the jurisdiction as well as valuation of court fees would be governed by the provisions of section 6(iv)(j) of the Bombay Court Fees Act and the suit has been properly valued.
8. On perusal of the prayer clauses contained in the plaint, it is evident that the prayer clause (b) relates to the declaration that the deed of conveyance dated 3rd March 2008 executed by defendant No.2 in favour of defendant No.1 is bad in law, illegal and inoperative, whereas prayer clause (c) relates to the declaration that the agreement of development dated 5th September 2007 executed by defendant No.1 in favour of defendant No.2 is bad in law, illegal and inoperative. The declarations sought, I am afraid, would not be covered by the provisions of the MOFA as the reliefs sought do not relate to the obligations arising out of the said Act. A reference can be made to the judgment in the case of Chandrika Chunilal Shah v. Orbit Finances Pvt.Ltd., 2011 (1) Mh.L.J. 898. In the reported matter, initially, the suit was presented for mandatory order of performance of the statutory obligation under the MOFA and relief was property valued under section 6(iv)(j) of the Court Fees Act. However, the additional prayer made in the plaint seeking declaration that the agreement executed by respondent No.1 therein in favour of other respondents in respect of property was invalid and bad in law was held to be not covered by the provisions of the MOFA and the relief was required to be valued in consonance with the provisions of section 6(iv)(ha) of the Bombay Court Fees Act. The relevant observations are to be found in paragraph6 of the judgment which read thus:
“6. Sub Clause (ha) of clause (iv) of section 6 of the Bombay Court Fees Act relates to the computation of the Court fee in a suit for avoidance of a sale or a contract for sale. It says, in suits for a declaration that any sale or a contract for sale or termination of a contract for sale of any movable or immovable property is void; the Court fee would be one half of advoleram fee leviable on the value of the property. In my view, the prayer (bi) squarely falls under sub clause (ha) of clause (iv) of section 6 of the Bombay Court Fees Act inasmuch as the appellant has claimed a relief that the contract for sale executed by Respondent No.1 in favor of Respondent Nos. 2 and 3 on 7th August 2006 was invalid and bad in law (void) and non est. The appellant was therefore required to value the relief claimed under prayer (bi) under section 6(iv) (ha) of the Bombay Court Fees Act.”
It is also observed by this Court in paragraph9 of the judgment that after amendment, the suit contains not only the prayer for performance of a statutory obligations under the MOFA but also contains a prayer for cancellation of an agreement of sale executed by respondent No.1 in favour of respondent No.2 therein prior to filing of the suit and, for such prayer, the suit is required to be valued under section 6(iv)(ha) of the Bombay Court Fees Act. Similar parallel can be drawn in the instant matter so far as the relief of declaration sought for in respect of documents stated to have been executed between defendant No.1 and defendant No.2. The said documents are required to be valued under section 6(iv)(ha) of the Bombay Court Fees Act.
9. It is contended by learned counsel appearing for the appellant that even if the prayers are required to be valued under section 6(iv)(ha) of the Bombay Court Fees Act, there would be nochange in the valuation of the plaint as well as court fees for the reason that the documents which are subject matter of prayer clauses (b) and (c) do not refer to the value of the property. The suit property has not been valued at all in the said documents and that the transaction made by defendant No.1 in favour of defendant No.2 is without any monetary consideration. It is, thus, contended that since the monetary consideration has not been mentioned in the documents, the valuation put by the plaintiff in respect of prayer clauses (b) and (c) is correct and need not be revised. It is also urged that the term `value’ appearing in section 6(iv)(ha) is distinguishable from the `market value’ appearing in section 6(iv)(j) of the Bombay Court Fees Act. It is contended that section 6(v) makes reference to the value of the subject matter whereas section 6(iii) makes reference to the market value of the property whereas section 6(iv)(ha) refers to the value of the property. Since the documents do not disclose monetary valuation of the property, the suit presented by the plaintiff cannot be stated to have been undervalued. Reliance is placed on the judgment of Asha Sopan Maithane v. Ramkrushna Punaji Wanare, CDJ 2010 BHC 1747. In paragraphs11 and 12 of the judgment, it is observed thus:
11. The respondents have tried to show its market value of the suit property on the date of institution of suit on which court fee ought to have been computed. The trial Court has referred to provisions of Section 6(iv)(ha) of the Act to uphold this contention. The perusal of said provision shows that when suit is for declaration, any ale or contract for sale of any immovable property is vo8d, one half of ad valorem fee leviable on the value of the property is required tobe paid. The trial Court has accepted that this value of th property has to be its market value on the date of the institution of the suit.
12. The provisions of section 6 which deal with computation of fees payable in certain suits, the words used are “value of property” and “market value”. For the present purposes, it needs to be noticed that Section 6(v) prescribes Court fee in suits for possession of land, house and gardens. This clause (v) itself shows that such court fee is payable according to the value of the subject matter. It also stipulates that in case of houses or gardens, its market value is deemed to be value of subject matter and where subject matter is land, a sum equal to 40 times or 80 times the survey assessment, it deemed to be its value. The Scheme, therefore, is apparent and Legislature has specifically used the word market value whenever it wanted to employ that work and wanted the plaintiff to pay court fee on such market value. S.6(iii) can also be referred to for this purpose and it prescribes court fee on suits for other moveable properties having market value. Its reading shows that court fee is to be paid on its market value that too at the date of presentation of Suit. Hence, the Legislature has given different meaning to word “value” and “market value” and has not used one or the other to imply same thing. In case of agricultural land, the value is deemed to be at either 40 times or 80 times its survey assessment. Hence, language of Section 6(iv)(ha) assumes importance & it does not use the word “market value” but it only uses the word value of the property. It is not in dispute that sale deed dated 25.06.1998 is for Rs.4,60,000/and accordingly the petitioner – plaintiff valued his suit at Rs.4,60,000/. He is not party to that sale deed.
10. The learned counsel appearing for the respondents invited by attention to the documents in respect of which relief of declaration is sought by the plaintiff and pointed out that subject matter of the suit is susceptible for monetary evaluation and monetary evaluation has already been made in respect property while executing the documents. The first document is an agreement dated
monetary valuation and the valuation of the property as appearing from the transaction appears to be more than one crore and is surely beyond the pecuniary limits of the City Civil Court. My attention is invited to the judgment of Satheedevi v. Prasanna, (2010) 5 SCC 622 which is relied upon by learned single Judge dealing with the matter Sau.Asha Sopan Maithane (supra). So also reliance is placed on the judgment of this Court in the case of Madhorao v. State of Maharashtra, AIR 1972 SC 45. Placing reliance on the said judgments, it is contended that if the Court cannot ascertain whether the suit can be valued in terms of subclauses (a), (b) and (c) of section 6(i)(v) of the Bombay Court Fees Act it would be for the trial Court to decide under which provisions the court fees are to be paid and the appellant shall be required to pay that amount of fee which is payable under the appropriate provision. In the instant matter, such contingency may not arise since the suit claim is susceptible to the monetary evaluation and the same has been evaluated under the documents and that the provisions of section 4(iv)(ha) would be attracted to the facts of the case.
11. It is contended by learned counsel for the appellant that if the suit is held maintainable for part of the reliefs, it is not open for the forum to shut out its doors to the suitor. Reliance is placed on the judgment of the
5. ........... Law is equally settled that if for part of the reliefs the suit is maintainable in the forum where it has been laid, it is not open to the forum to shut out its doors to the suitor............”
In the matter before the
case of Abdul Hamid Shamsi v. Abdul Majid, (1988) 2 SCC 575 wherein it has been observed that when the valuation of relief by the plaintiff is arbitrary and whimsical, it would be liable to be rejected. In this context, a reference can be made to the provision of section 8 of the Suits Valuation Act, 1887 which reads thus:
8. Courtfee value and jurisdictional value to be the same in certain suits.Where in suits other than those referred to in paragraphs (v), (vi) and (x) and clause (d) of paragraph (xi) in section 6 of the Bombay Courtfees Act, 1959 courtfees are payable ad valorem under the Bombay Courtfees Act, 1959 the value as determinable for the computation of courtfees and the value for purposes of jurisdiction shall be the same.
The value as determinable for the computation of court fees and the value for the purposes of jurisdiction shall be the same in respect of suits except those referred to in section 8 of the Suits Valuation Act. In the instant matter, the valuation for the reliefs in respect of prayer clauses (b) and (c) have been grossly undervalued by the plaintiff and the same needs to be corrected and the plaintiffs needs to pay proper court fees in respect of reliefs claimed by him. In my view, the trial
Court has adopted a correct approach in the matter and has rightly directed return of plaint. There is no reason to cause interference in the order passed by the trial Court. The appeal is devoid of any merits.
12. In the result, appeal from order stands dismissed. In view of dismissal of appeal from order, pending civil application does not survive and stands disposed of accordingly.
(R.M.BORDE, J.)
