Revision Application No. 729 of 1999

25th October, 1999

Petitioner Counsel: Mr.HASMUKH N. SHAH
Respondent Counsel: Mr.PARIMAL K. SHROFF

Cases Cited:
Commissioner of Wealth Tax, Assam v. Mahadeo Jalan, , AIR 1973 SC 1023 [Para 10]
Bajrang Prasad Jalan v. Mahabir Prasad Jalan , AIR 1999 Calcutta 156 [Para 10]
Rajbans Behari Lal v. Janki Devi, AIR 1965 Punjab 314. [Para 10]
Mohan Meakin Breweries v. Oceanic Imports & Exports Corporation, 1980 M.L.J. 803 [Para 10]
Indumatiben v. Union of India, AIR 1969 Bombay 423 [Para 11]
Fali Phirojshah v. Phirojshah Pestonji , AIR 1963 Gujarat 207 [Para 13]
Vishnu Pratap Sugar Works v. Chief Inspector of Stamps, U.P., AIR 1968 S.C. 102 [Para 14]
Jeswantrai v. State of Bombay, AIR 1956 SC 575. [Para 14]
Jafferali v. M/s S.R. Dossa & Co., (1967) 70 B.L.R. 859 [Para 15]
Sunni Masjid and Madrassa Trust v. Abdul Kadar, , 1979 M.L.J. 821 [Para 15]
Art Commercial Advertising P. Ltd. v. Vicco Laboratories, AIR 1990 Bombay 123 [Para 16]
Maria Philomina Pereira v. M/s Rodrigues Construction, AIR 1991 Bombay 27 [Para 18]

JUDGMENT

JUDGMENT:- This revision application seeks to challenge the judgment and order dated 6th March 1999 passed by a learned Judge of the City Civil Court at Mumbai in Short Cause Suit No. 512 of 1998. The petitioners herein are the defendants No.1 and 2 in that suit and they raised an issue on 8th June 1998 contending under Section 9A of the Civil Procedure Code (which section is a Maharashtra addition) that the City Civil Court does not have the pecuniary Jurisdiction to try and entertain the said suit. That application came to be rejected by the impugned oral judgment and order dated 16th March 1999 passed by the learned Judge. Being aggrieved by that judgment and order, this Revision Application has been filed. There was an accompanying Appeal from order arising out of the ad-interim and interim orders in that suit being Appeal from Order No. 537 of 1999. This Revision Application was placed along with that Appeal from order before me since both were connected matters. Subsequently the Appeal from Order was dismissed by me by a speaking order dated 1st July 1999. This Revision Application was however again placed before me by the order of the Hon'ble Chief Justice since I had heard that Appeal from order on earlier occasion and the Revision Application is now being disposed of after hearing the learned counsel for both the parties.

2. Mr. Shah has appeared for the petitioners and Mr. Shroff has appeared for the respondents No.1 to 3. Both the learned counsel have taken me through the pleading or record as also various authorities to decide as to whether the Judgment and order of the learned Judge was right or otherwise.

3. The respondents No. 1 to 3 to this revision have filed the above referred suit. The petitioners herein are defendants no.1 and 2 in that suit and respondent No.4 herein is the defendant No.3 in that suit. The said plaintiffs No.1 and 2 are the shareholders and directors of plaintiff No.3 company. It is an undisputed fact that plaintiffs No.1 and 2 had the shares of defendant No.3 Bank valued at more than Rs. 4 crores at the time of filing of the plaint (as per para 3 of the plaint). These shares were pledged with defendant No.1 to enable the plaintiff No.3 to take a loan of Rs.3 crores sometimes in December 1995. It is the case of the defendants No.1 and 2 that the loan was not repaid till about July 1997 though an amount of Rs. 70 lacs therefrom was returned. The defendant No.2 floated shares sometimes in August 1997. It is the case of the plaintiffs that the defendants No.1 and 2 are sister companies and both are closely held by one Mahesh Pawani who in fact is said to be owning, controlling, managing and administering these two companies as stated in para 1 of the plaint. On defendant No.2 floating shares in August 1997, it is the case of the plaintiffs that plaintiff No.1 invested money in these shares. According to the plaintiffs, they invested an amount of Rs.3.8 crores, whereas, according to the defendants, the shares which were issued were worth around Rs.3.6 crores. On 21st July 1997, the plaintiffs asked for further time till 31st July 1997 to return the balance of the loan amounts. Since the amount of loan was not returned, the defendant No.1 gave the last legal notice on 11th December 1997 calling upon the plaintiffs to repay the loan of Rs. crores or else they will proceed to sell the shares which were pledged with them. In fact, the defendant No.1 sent the shares for transfer on 15th January 1998. It was at that stage that this suit was filed by the plaintiffs on 28th January 1998 seeking an injunction restraining the defendants from in any manner dealing with and transferring these shares (6,29,900 equity shares) which were pledged with the defendant No.1. An ad-interim injunction came to be granted on 29th January 1998 which has been running since then and which continues to run in view of the dismissal of the Appeal from order referred to earlier.

4. The case of the plaintiffs has been that the defendants No.1 and 2 are both sister companies owned and controlled by the same person and in view of their investing monies worth Rs. 3.8 crores in defendant No.2 company, nothing survives to be paid further to the defendant No.1. As against that, the stand of the defendants No.1 and 2 is that it is not so and that defendants No.1 is entitled to the return of the amounts which were given under the loan. It is also the stand of defendant No.1 that under the document of loan, the shares have been pledged and under clause 2.7 thereof in the event of any default, the defendant No.1 was entitled to sell and dispose of those shares. It is also their stand that as disclosed in clause 2.8 of the loan document that they had complete authority to collect the dividend, interest, etc. from those shares and in the event there was a dispute between the parties, it was provided in clause 6.6 thereof that the Bombay High Court shall have exclusive jurisdiction in the event of a dispute relating to the matter covered by that agreement. Clause 2.1 of the agreement describes the deposit of shares as a pledge specifically.

5. The principal prayers in the suit were prayers (a) and (b) which read as follows:-

"(a) the Defendant No.1, their servants and agents be restrained by a permanent order and injunction of this Hon'ble Court from in any manner dealing with including transferring or selling 6,29,900 Equity Shares of face value of Rs. 10/- each of Defendant No.3 and owned by Plaintiff Nos.1 and 2 or using the blank share Transfer Forms, blank sale Deeds or any other Documents got executed by Defendant No.1 from plaintiff Nos.1 and 2.

(b) the Defendant No.1, their servants and agents be directed by a Mandatory Order of injunction of this Hon'ble Court to hand over to the plaintiff Nos. 1 and 2 the said 6,29,900 Equity shares of face value of Rs.10/- each of Defendant No.3 and owned by Plaintiff Nos. 1 and 2 along with blank share transfer Forms, blank Sale Deeds and all other Documents held by Defendant No.1"

As far as the valuation of the suit and the court fees are concerned, in para 19 of the plaint it is stated as follows :

"19. The plaintiffs submit that the claim of the Plaintiffs in the above suit is not susceptible to monetary evaluation and the Plaintiffs therefore value their claim under Section 6(iv)(j) of the Bombay Court Fees Act at Rs.600/- and pay the fix Court Fees of Rs. 60/- thereon."

6. Defendants No.1 and 2 denied various averments made in the plaint and that apart, as stated above, by a specific application dated 8th June 1998 they raised a preliminary issue that the City Civil Court did not have jurisdiction to try and entertain the suit. As against the above plea of the plaintiffs that Section 6(iv)(j) of the Bombay Court Fees Act, 1959 could apply, the contention of the defendants has been that it would be either Section 6(iii) of the Act would apply (since shares are movable property with market value) or it would be Schedule 1 Article 7 (governing suit preventing monetary loss) of the Act which will govern the field for the purposes of the court fees and valuation. The plaintiffs in their rejoinder specifically contended that the suit would be covered under Article 23(f) of Schedule 11 to the Bombay Court Fees Act governing subject matters otherwise not provided for. They are no longer pressing that the suit would be governing under Section 6(iv)(j) of the said Act. Since the defendants were pressing for a determination on this preliminary issue, they had come in Revision earlier to this Court and by virtue of the order dated 21st January 1999 passed in Civil Revision Application No.19 of 1999, the learned Judge of the City Civil Court was directed to hear and decide this preliminary issue at the outset and that has led to the impugned judgment and order. The learned Judge of the City Civil Court accepted the submissions of the plaintiffs with respect to valuation and held that he had the jurisdiction to try and entertain the suit.

7. Before we go into the rival submissions of the learned counsel, there was some controversy with respect to the manner in which the matter was proceeded in the trial Court. Mr. Shroff, learned counsel appearing for the respondents, submitted that the petitioner herein (i.e. defendants in the suit) had participated in the matter on "demurer". As against that, Mr.Shah, learned counsel appearing for the petitioners, submitted that all that he had said in the trial court was that the plaintiffs were proceeding with the matter on the pleadings as they stood before the Court and did not want to lead any oral evidence. Both the learned counsel have referred to the dictionary meaning of the term "demurer". Mr. Shroff has relied upon the dictionary of modern legal usage by Brayan Garner, 2nd Edition of 1995. He referred to the definition of "demur" as appearing on page 264 which reads thus :

Demur = to file a demurrer, which effectively admits the truth of a fact stated but denies that the complainant is legally entitled to relief.

Then he also referred to the following definition of "demurer" on the next page i.e. on page 265 of that dictionary, which reads as follows:

"A demurrer was a common-law pleading that stated that even if the other party's allegations were proved, the other party would not be entitled to succeed, and therefore that the demurring party was entitled in law to succeed on the facts alleged and admitted by the other."

8. Mr.Shah, learned counsel appearing for the petitioners-defendants, drew my attention to 7th Edition (1997) of the Law lexicon at page 520, wherein he referred to the definition of "demurrer" which reads as follows:

Demurrer was the term formerly applied to the mode of disputing the sufficiency in law of the pleading of the other side. (Bullen and Leake Precedents of Pleading. 6th ed. p.561). This term is derived from the Latin demorari, or the French demorrer, to wait or stay, because it imported that the party pleading it would go no further, but would wait the judgment of the Court as to whether he was bound to answer his opponent's pleading. (Stephen on Pleading, 7th ed. p.43; Tomlins Law Dic.) A demurrer, is an issue upon matter of law. It confesses (or rather supposes for argument) the facts to be true as stated by the opposite party; but denies that by the law arising upon these facts, any injury is done to the plaintiff: or that the defendant has made out a lawful excuse. (Tomlin s Law Dict.)

Mr. Shah particularly emphasised the extract from Tomlin's Law dictionary quoted therein which states that it is a supposition for argument that the facts as stated by the opposite party are true but denies that by the law arising upon those facts, any injury is done to the plaintiff or that the defendant has made out a lawful excuse.

9 With respect to as to what transpired before the learned Judge between the two counsel, I do not intend to go into the controversy and I will accept as correct what the learned Judge has recorded. But the submission of Mr. Shroff that since the defendants were proceeding on demurrer without leading any oral evidence, it will have to be taken that they are accepting the contentions in the plaint to be true, has to be looked into carefully. What Mr. Shroff states is that therefore whatever is contended in the plaint is accepted by the defendants, and by demurrer it is meant that the defendants are proceeding on that footing. Therefore he contended that the plaintiffs submission that the amounts were paid has been accepted by the defendants No.1 and 2. On that footing, he submits that the defendants have no case. It is not possible to accept the submission of Mr. Shroff. When the defendants proceeded on demurrer, they had already filed their affidavit in reply. The parties did not lead any oral evidence. In order to find out whether the concerned court did have the jurisdiction to try and entertain the suit on a pecuniary basis (as contended by the defendants), one has principally to refer to the plaint. For deciding that, one cannot proceed by ignoring what is contended in the affidavit in reply or the denial of the allegations made in the plaint. The plaint proceeds on the footing that the purchases of the shares of defendant No.2 is discharge of the liability towards defendant No.1. That is very much disputed by the defendant No.1 and that is something which is to be tried in the suit. This submission of the plaintiffs is not accepted by defendant No.1 nor is there any document of acceptance or adjustment annexed to the plaint on the basis of which it could be said that the same is the basis for pecuniary consideration of the plaint. When the defendants proceeded on demurrer, it would only mean that they are denying the contentions of the plaintiffs as raised in the plaint and in their view assuming without conceding that those contentions are to be gone into, the Court did not have the pecuniary jurisdiction.

10. Mr. Shah, learned counsel appearing for the petitioners, drew my attention to a few judgments on this point. He firstly drew my attention to the judgment of the Supreme Court in the case of Commissioner of Wealth Tax, Assam v. Mahadeo Jalan, reported in AIR 1973 SC 1023, where the Court held that the shares in a public limited company when quoted on the stock exchange and when there are dealings in them, the price prevailing on the valuation date is the value of the shares. He relied upon a Division Bench judgment of the Calcutta High Court in the case of Bajrang Prasad Jalan v. Mahabir Prasad Jalan reported in AIR 1999 Calcutta 156, where also in para 39 the Division Bench took the view that the price quoted in Calcutta Stock Exchange should hold the field for the purposes of valuation when transfer of shares is involved. Mr. Shah therefore submitted that the shares were capable of valuation. They were movable properties which were capable of valuation and therefore Section 6(iii) of the Bombay Court Fees Act would be the relevant section to apply. Section 6(iii) reads as follows:

"6. 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:

(i) .......

(ii) .......

(iii) for other movable property having a market value.

In suits for movable property other than money, where the subject-matter has a market-value- according to such value at the date of presenting the plaint.

Mr. Shah submitted that as stated in para 3 of the plaint itself, the market value of these shares was worth Rs. 4 crores as on the date of the filing of the suit. He submitted that this cannot be ignored. Mr. Shah criticised the reliance of the learned Judge on the judgment of a single judge of the Punjab High Court in the case of Rajbans Behari Lal v. Janki devi reported in AIR 1965 Punjab 314. In that matter, the Court had held that where the shares are in the hands of a third party who is in wrongful possession, the suit for recovery of such shares would be governed by Section 7(iv)(a) of the Court Fees Act providing for suits for movable property where the subject matter has no market value. Mr. Shah pointed out that in that matter the shares belonging to the respondent had been removed from her custody without lawful authority. Mr. Shah therefore drew my attention to para 7 of that Judgment and rightly so where the Court had held that when a third person is in illegal possession of the shares and where somebody stealthily or wrongfully removes them from the custody of the real owner, then the person cannot be said to be in legal possession thereof. It was in that context that the learned Judge held that since they are merely documents relating to title and have no market value to the third party, a suit for recovery thereof would be governed by Section 7(iv)(a) and not Section 7(iii) of the Court fees Act. Mr. Shah also pressed into service the judgment of a Single Judge of this Court (P.B. Sawant J. as he then was in this Court) in the case of Mohan Meakin Breweries v. Oceanic Imports & Exports Corporation reported in 1980 M.L.J. 803 to contend that in a suit for injunction and declaration restraining the bank from making payment and selling property under charge as also restraining the party from demanding payment from the bank, the court fees would be payable under Schedule I Article 7 of the Act. This was the alternative submission of Mr. Shah. Article 7 of Schedule 1 reads as follows:

"Any other plaint, application or petition (including memorandum of appeal), to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss, including cases wherein application or petition is either treated as a plaint or is described as the mode of obtaining the relief as aforesaid."

This Article 7 deals with a situation where the plaint, application or petition is for obtaining substantive relief capable of being valued in terms of monetary gain or to prevent a monetary loss. Mr. Shah submitted that in the instant case, at the highest it could be said that the plaintiffs were trying to prevent a monetary loss which would occur to them in the event the shares would be disposed of by the defendants and hence the judgment in Mohans Meakin's case would squarely apply.

11. Mr.Shah then submitted that when it is contended that the shares are incapable of valuation, it would be the residuary jurisdiction of Bombay High Court under Clause 12 of the Letters Patent which would come into force. He relied upon the judgment of a Single Judge of this court in the case of Indumatiben v. Union of India reported in AIR 1969 Bombay 423 and particularly the observation at the end of para 14 thereof which states that if one is not able to estimate the money value of the suit, the City Civil Court will have no jurisdiction and the suit must be filed in the Bombay High Court on its original side by virtue of its residuary jurisdiction under clause 12 of the Letters Patent.

12. Mr. Shah therefore submitted that admittedly the prayer (b) of the plaint is for return of the shares, the valuation whereof as on the date of the filing of the suit was over Rs.4 crores as stated in para 3 of the plaint. It is therefore his submission that the suit is for return of these shares which is a suit for return of the movables and hence it should fall under Section 6(iii) of the Act. Alternatively, if it is a suit for prevention of a loss, it is an item covered under Article 7 of Schedule 1 of the Bombay Court Fees Act. By no Stretch of imagination can it be said that it is a "suit not otherwise provided for" to place it under Article 23(f) of Schedule II of the Act.

13. Mr. Shah lastly relied upon the judgment of a Single Judge of Gujrat High Court in the case of Fali Phirojshah v. Phirojshah Pestonji reported in AIR 1963 Gujrat 207 to contend that where there was an irregularity in the exercise of jurisdiction, the High Court can interfere in that determination in exercise of its revisional powers. He therefore submitted that the present matter was a fit and proper one for this Court to interfere and in fact it was an order which was necessary to be interfered with because the claim of the plaintiffs was for shares valued at more than Rs.4 crores and they had filed the suit by paying the court fees on a notional basis. Mr. Shah submitted that it is the substance of the controversy which has to be seen. The substance of the controversy was the return of the shares. Whatever was the plea of the plaintiffs as to whether an equivalent amount was paid to the defendants or not was an aspect which had not been gone into. It is for the return of those shares and for the necessary injunction that the plaintiffs had filed the suit. That being so, they had to pay the court fees on the claim which they wanted to be decided on the basis of a proper valuation of the shares. Their own averments in the plaint, the provision in the agreement between the parties providing for the specific jurisdiction in the Bombay High Court in prayer (b) of the plaint for return of the shares were the factors which will have to be taken into consideration and which had been ignored by the learned judge of the City Civil Court in holding that he had the jurisdiction.

14. Mr. Shroff, learned counsel appearing for the respondents, on the other hand, defended the judgment by firstly contending that the plaintiffs had gone to the Court by taking a plea that the defendants' action in retaining the shares was void. He relied upon a judgment of the Supreme Court in the case of Vishnu Pratap Sugar Works v. Chief Inspector of Stamps, U.P. reported in AIR 1968 S.C. 102 to contend that it is not the form of the suit which had to be seen but the substance thereof. He submitted that the essential prayer in the suit was prayer (a), namely the one for injunction and not prayer (b). He then relied upon another judgment of the Supreme Court in the case of Jeswantrai v. State of Bombay reported in AIR 1956 SC 575. That was a case of the pledgee bank parting with the property entrusted to it without there being any such sanction for it to do so. The Supreme Court had held in that matter that it would amount to a criminal breach of trust under Section 409 of Indian Penal Code and the person who transfers possession of property to the second party still remains the legal owner of the property and the person in whose favour possession is so transferred has only the custody of the property to be kept or disposed of by him for the benefit of the other party. The submission of Mr. Shroff based thereupon was that the defendants were only in custody of the shares though the plaintiffs were the lawful owners and all that they were seeking was the return thereof. In this connection, Mr. Shah pointed out that the matter before the Apex Court was essentially a case in the context of criminal prosecution and what was material to be noted was that the pledgee bank in that matter had parted with security without there being any reason. In the instant case, Mr. Shah submitted that the defendants were retaining the shares and all that they were saying was that they were entitled to sell and encash the same because the loan amount was not being returned. He therefore submitted that the two situations could not be equated to draw any inference. The submission of Mr. Shroff was that since the action of the defendants was void, Article 23(f) of Schedule II of the Act would be attracted. Now, it has got to be noted that whether an action of the defendants is void or otherwise has got to be determined. The plaintiffs cannot take it as decided for themselves that the action of the defendants is void. It is for the Court to decide whether the action of the defendants is void or not and unless it is so decided, it does not become void. This has been held by a catena of judgments. In the present case, the defendants have already filed their reply and have disputed the contentions of the plaintiffs. That plea is to be tried in evidence when the suit is heard and decided. At the stage of the decision on the notice of motion, the plaintiffs cannot take it for themselves that the action of the defendants is void and therefore on that footing press into service Article 23(f) of Schedule II of the Act.

15. Mr. Shroff then relied upon a judgment of the Single Judge of this Court in the case of Jafferali v. M/s S.R. Dossa & Co. reported in (1967) 70 B.L.R. 859. That was a case where the subject matter of the suit was a Deed of Assignment which was sought to be set aside. The plaintiffs had sought a declaration that the Deed of assignment was void and therefore they had contended that the same was not susceptible of monetary valuation. It was in that context that the learned Judge accepted the plea of the plaintiff, noting specifically that the subject matter of that suit was not the property itself but only Deed of Assignment in respect of which a declaration was sought. What is to be noted is that in our case there is a specific prayer (b) which seeks a mandatory direction for return of the shares from the defendants. Certainly the facts are on a different footing. Mr. Shroff then relied upon a Division Bench Judgment of this Court in Sunni Masjid and Madrassa Trust v. Abdul Kadar reported in 1979 M.L.J. 821. As held in that matter, that was essentially a suit to enforce a right of pre-emption to a certain property. No doubt the plaintiffs could have sought a higher relief for the property itself, but the plaintiffs went for a lesser relief. The question before the Court was as to whether the plaintiffs could go for such a lesser relief and the Division Bench held that the plaintiffs could not be prevented from claiming the lesser relief. In the instant case, although Mr. Shroff is contending that the principal prayer of the plaintiffs is prayer (a), namely one for injunction, one cannot ignore prayer (b) as well for return of the shares and in fact that is the principal prayer for which the suit is filed for the return of shares and it is in this context that the injunction is sought. If one looks to the plaint in its entirety, this position is very clear. In fact in para 18 of the plaint, there is a specific reference to Order 2 Rule 2 of Civil Procedure Code and then it is stated that the plaintiffs seek leave to omit to sue the defendants for reliefs available on the same cause of action or part of the cause of action in the suit. After seeking this leave, the plaintiffs retained prayers (a) and (b). Having retained these prayers and pressed them into service, it cannot be said that prayer (b) is not an essential prayer for the suit.

16. Mr. Shroff then relied upon a judgment of the Single Judge of this Court in the case of Art Commercial Advertising P. Ltd. v. Vicco Laboratories reported in AIR 1990 Bombay 123. In that case, the respondents in their suit in the City Civil Court asserted their ownership of a T.V. serial "Ye Jo Hai Jindagi". The frame of their suit was such and the relief therein was to restrain the defendants from using that title for any third party. That being the nature of relief in the facts of that case and considering the frame of the suit, the learned Judge held that the suit for injunction simpliciter was maintainable and therefore it would fall squarely under Section 6(iv)(j) and not under Section 6(iv)(b) read with Schedule 1 Article 7 of the Act.

17. Mr. Shroff then submitted that the court fees is essentially a fee and not a tax and therefore referred to the provisions of the Suits Valuation Act, 1887 and particularly Section 9 thereof. Now, Section 9 of the Act reads as follows :

"9. Value of certain suits to be three hundred rupees.

Where the subject-matter of suits other than suits mentioned in the Court-fees Act, 1870, section 7, paragraphs (v) and (vi), paragraph (x), clause (d), or in any corresponding provision of the Court-fees Act, for the time being in force in any area in the State, is such that it does not admit or being satisfactorily value then such suits shall, for the purposes of this Act, and if the High Court with the previous sanction of the State Government, so directs also for the purposes of any other enactment for the time being in force specified in that behalf by the High Court, be treated as if their subject-matter is of the value of three hundred rupees; and the provisions of the last preceding section shall apply as if the Court-fees therein are payable advalor em under the relevant Court-fees Act."

Now what is again material to be noted is that the provisions of this section will apply where the subject matter of the suit is such that it does not admit of being satisfactorily valued. In the instant case, the position is that the plaintiffs themselves say in their plaint that according to them the shares are worth more than Rs.4 crores. Could it be said that the subject matter of the suit is not capable of valuation ?

18. Mr. Shroff lastly referred to the provisions of Section 160 of the Contract Act to contend that it was a bailment and his right under that section is violated. He therefore referred to another judgment of a Single Judge of this Court in the case of Maria Philomina Pereira v. M/s Rodrigues Construction reported in AIR 1991 Bombay 27. In that matter, in a case concerning Maharashtra Ownership Flats Act, 1963 the learned Judge had taken a view that a suit filed to enforce the obligations under that Act will have to be construed as one filed under Section 6(iv)(j) of the Bombay Court Fees Act. The view therein was taken on a footing that it was a special agreement and certainly obligations which are not specifically provided for in terms of money are sought to be enforced. A comparison of the right under that Act with the enforcement of the alleged right of the plaintiffs under Section 160 of the Contract Act is clearly misplaced.

19. In the circumstances, in my view, the view taken by the learned judge of the City Civil Court is totally erroneous. It is essentially a suit filed for the return of the shares and hence it is a suit for the movable having market value and hence Section 6(iii) of the Bombay Court Fees Act would get attracted. Alternatively, in any case, it is a suit for prevention of a loss which would occur to the plaintiffs in which case the dicta of P.B. Sawant, J. (as he then was in this Court) in the case of Mohan Meakin Breweries (supra) would apply and in that event it would be a case governed by Article 7 of Schedule 1 of the Bombay Court Fees Act.

20. In the circumstances, in my view, the learned Judge has committed a error by holding that he has the jurisdiction which he does not have to try and entertain the matter. It is an error on the face of record and hence under Section 115 of Civil Procedure Code this revision will have to be entertained. Accordingly the impugned order passed by the learned Judge is hereby quashed and set aside. This revision is accordingly allowed and the order dated 16th March 1999 is quashed and set aside.

21. Inasmuch as I have held that the City Civil Court did not have jurisdiction to entertain and try the suit, the plaint will be returned to the party for presenting it to this Court on the original side under order 7 Rule 10 of Civil Procedure code.

22. Prayer (a) of this revision seeks setting aside of the orders dated 29th January 1998 and 21st April 1999 which are orders concerning injunction which the respondents-plaintiffs had obtained in the above suit and the appeal against them, namely Appeal from Order No. 537 of 1999, has already been dismissed by me by my order dated 1st July 1999. Mr. Shah however submits that in view of the fact that the revision is being allowed, those injunction orders must also be vacated because they are without any jurisdiction. That will be so however after granting reasonable time to plaintiffs to present the plaint to proper court. The plaintiffs may do the needful in two weeks failing which after expiry of two weeks from today the injunction order will stand vacated. It will however be open to plaintiffs to apply to the proper court to continue the injunction.

23. Ms. Iyer, appearing for the respondents, seeks stay of my order for a period of 8 weeks. Mr. Shah opposes the request. Inasmuch as a question of jurisdiction has been raised and a point of law has sought to be agitated, it would be desirable that the plaintiffs-respondents ought to be given an opportunity, if they want to avail of. Hence this order will remain stayed for a period of 8 weeks from today. That will mean that in the meanwhile the ad-interim injunction, which was granted in that matter and which was continued subsequently by the order dated 21st April 1999 by dismissing Appeal from order, will continue to be available to the plaintiffs-respondents.

24. Mr. Shah presses for costs of this revision. Costs will be cost in the cause.

25. In the event, the respondents seek to challenge this order, they will give a notice of clear 4 days in advance to the petitioners.

26. Parties to act on the copy of this order authenticated by the personal secretary of this Court.

Revision allowed.