Appeal From Order No.1271 of 2010

1st December, 2010

Petitioner Counsel: Mr. UDAY WARUNJIKAR,M/s. Mayur Narendra & Co.,Anil Menon
Respondent Counsel: Mr. A. K. CHAUHAN,Mr. ASPI CHINOY,Anil Menon & Associates

Cases Cited:
Maria Philomina Pereira Vs. Rodriques Construction, AIR 1991 Bom. 27 [Para 4,9]
Vrindavan (Borivali) Co-operative Housing Society Ltd. Vs. Karmarkar Bros., 1982 Mh.L.J. 607 [Para 4]
Abdul Gaffar Vs. Niranjan Kumar, AIR 2005 Bom. 259 [Para 7]

JUDGMENT

JUDGMENT :- Heard learned counsel for the parties.

2. This appeal is directed against an order dated 20th September, 2010 passed by the Judge, City Civil Court, Greater Mumbai returning the plaint to the appellant (plaintiff) under Order 7, Rule 10 of the Code of Civil Procedure for presentation to proper court.

3. The respondent no.1 proposed to develop the property bearing final Plot No.952(Part) & 952(Part) Mahim by constructing a new multi storied building in place of an old structure. By an agreement of sale dated 2nd March, 2000, the respondent no.1 agreed to sell and allot to the appellant Unit 401 on the 4th floor of the building at a concessional price of Rs.13,50,000/- in view of the fact the appellant was a tenant of a small portion the old structure. According to the appellant, the respondent committed a breach of the agreement and therefore he filed a suit, bearing Suit 3703 of 2007, in the City Civil Court, Mumbai, for a declaration that the agreement dated 2nd March, 2000 was valid and for an order directing the respondent no.1 to carry out his statutory obligations under the Maharashtra Ownership Flats Act, 1963 (for short the "MOFA") by putting the appellant in possession of Unit 401. The suit was valued at Rs.1,000/- under section 6(4)(j) of the Bombay Court Fees Act. During the pendency of the suit, from the affidavit-in-reply of the respondent no.1 the appellant discovered that the respondent no.1 had already sold the entire 4th floor of the proposed building to the respondent nos.2 and 3 for a total consideration of Rs.11,50,00,000/- on 7th August, 2006 i.e. prior to the filing of the suit. On discovery of this fact, the appellant amended the plaint and joined respondent nos.2 and 3 as parties to the suit. He also amended the prayer clause of the plaint and sought a declaration that the agreement dated 7th August, 2006 executed by the respondent no.1 in favour of respondent nos.2 and 3 was invalid, bad-in-law and non-est. On service of the writ of summons of the amended plaint the respondent nos.2 and 3 appeared in the suit, and contended that the City Civil Court had no jurisdiction to entertain and try the suit as the value of the suit property was Rs.13,50,000/- as per appellant's own averment in the plaint. Since the appellant was claiming cancellation of the sale agreement between the respondent no.1 and respondent nos.2 & 3, the suit was required to be valued u/s.6(iv)(ha) of the Bombay Court Fees Act and court fee equal to one half of the ad voleram fee leviable on the value of the property was required to be paid. The suit so valued was beyond the pecuniary limit of jurisdiction of the City Civil Court. The contention of the respondent nos.2 and 3 was upheld by the City Civil Court which directed return of the plaint for presentation to the proper court. That decision is impugned in this appeal.

4. The suit as it was originally filed contained only the relief of a declaration that the agreement in favour of the appellant was valid and for a direction to the respondent no.1 to perform his statutory obligation under the MOFA. In the case of Maria Philomina Pereira Vs. Rodriques Construction, AIR 1991 Bom. 27, this Court has taken a view that a suit though styled as a suit for specific performance of an agreement of sale executed by a promoter in favour of a flat purchaser is in fact a suit for compelling the promoter to perform his statutory obligation under the MOFA of executing the conveyance and handing over the possession of the suit property and was incapable of monetary valuation and would have to be valued under section 6(iv)(j) of the Bombay Court Fees Act. Even earlier in Vrindavan (Borivali) Co-operative Housing Society Limited Vs. Karmarkar Bros. and others, 1982 Mh.L.J. 607, this Court had taken a similar view and had held that a suit for specific performance of an agreement of sale executed by a promoter in favour of a flat purchaser was governed by section 6(iv)(j) of the Bombay Court Fees Act. These decisions are consistently followed by this Court and as such it must be held that the suit as originally framed was properly valued under section 6(iv)(j) of the Bombay Court Fees Act at Rs.1,000/-. Consequently, the City Civil Court had the jurisdiction to entertain and try the suit as was originally filed. The short question that arises for my consideration is whether in view of the amendment of the plaint, the jurisdiction of the City Civil Court is ousted.

Dated 2nd December, 2010.

4-A. The prayer (b-i) introduced in the plaint by the amendment reads thus :

"(b-i) that this Honourable Court may be pleased to declare that the said Agreements dated 07.08.2006 between the Defendants interse in respect of the suit unit is invalid bad-in-law and non est and that the Defendants no.2 and 3 have no right, title and interest in the suit unit."

Mr. Warunjikar, learned advocate for the appellant submitted that this prayer is also incapable of any monetary valuation and is required to be valued under section 6(iv)(j) of the Bombay Court Fees Act. He further submitted that the prayer was ancillary to the main prayer viz. mandatory direction to the respondent no.1 to perform its statutory obligations under the MOFA and therefore, the suit was not required to be separately valued for this prayer. I am unable to agree. Section 18 of the Bombay Court Fees Act says where the suit embraces two or more distinct subjects, the plaint or memorandum of appeal, shall be chargeable with the aggregate amount of the fees to which the plaints or memorandum of appeals in suits embracing separately each of such subjects would be liable under this Act. The effect of section 18 is that in case of a multifarious suits which contain two or more reliefs the suit would be required to be valued separately for the purposes of Court fees for each of the reliefs i.e. the Court fee would be required to be calculated separately for each of the reliefs claimed in the plaint and then the aggregate of the court fees so computed for different reliefs would be the court fee payable.

5. The relief initially claimed in the suit was of a mandatory order of performance of statutory obligation by the respondent no.1 under the MOFA. As I have already held that this relief was properly valued u/s.6(iv)(j) of the Bombay Court Fees Act. The additional prayer (b-i) introduced by an amendment was of a declaration that the agreement executed by the respondent no.1 in favour of respondent nos.2 and 3 on 7th August, 2006 in respect of suit property was invalid and bad-in-law. This was a distinct and separate relief. Such a declaration did not arise out of any statutory obligation cast on the respondent no.1 under the MOFA. The plaint was therefore required to be separately valued for the purposes of court fees for the reliefs claimed under prayer clauses (a) and (b-i)

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 ad-voleram fee leviable on the value of the property. In my view, the prayer (b-i) 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 favour 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 (b-i) under section 6(iv)(ha) of the Bombay Court Fees Act.

7. Mr. Chinoy, learned Sr. Advocate appearing for the respondent nos.2 and 3 invited my attention to a decision of this Court in Abdul Gaffar Vs. Niranjan Kumar, AIR 2005 Bom. 259. Therein the defendant no.1 had entered into an agreement with the plaintiff in respect of a property. However, thereafter some differences cropped up between the plaintiff and the defendant no.1 on account of which the defendant no.1 executed some documents in favour of defendant no.3 who was trying to take forcible possession of the suit property from the plaintiff. The plaintiff therefore filed a suit against the defendants in which he claimed that the agreement for development executed by defendant no.1 in favour of defendant no.3 was not legal, valid and was a void document. Plaintiff valued the suit under section 6(iv)(j) of the Bombay Court Fees Act. The defendant filed an application u/ss.8 and 9 of the Bombay Court Fees Act stating that the land with the construction on it was valued at more than Rs.4,50,000/- and the suit therefore had not been properly valued. This Court held that since plaintiff had claimed a declaration that the agreement was invalid, the suit was covered by sub-clause (ha) of clause (iv) of section 6 of the Bombay Court Fees Act and was required to be so valued. In my view, the decision squarely applies to the facts of the present case and supports the view I have taken.

8. Section 8 of the Suits Valuation Act, 1887 provides that where, in suits other than those referred to in paragraphs (v), (vi), (x) and clause (d) of paragraph (xi) of section 6 of the Bombay Court Fees Act, 1959, the court fees are payable ad-voleram under the Bombay Court Fees Act 1959, the value as determinable for computation of the court fees and the value for the purposes of jurisdiction shall be the same. Thus, in respect of a suit falling under paragraph (iv)(ha) of Section 6 of the Bombay Court Fees Act, the valuation for the purpose of court fees and valuation for the purposes of jurisdiction is the same. The valuation for the purpose of court fees in the present suit would thus exceed Rs.50,000/- which is the pecuniary limit of the jurisdiction of the City Civil Court. The City Civil Court, therefore, would not have jurisdiction to try the present suit as amended and containing prayer (b-i). After the prayer clause (b-i) was introduced by an amendment, the City Civil Court ceased to have jurisdiction to entertain and try the suit. Therefore, the direction of the City Civil Court to return the plaint to the plaintiff under Order 7, Rule 11 of the Code of Civil Procedure for presenting it to proper Court is legal and valid. For these reasons, there is no merit in the appeal which is hereby dismissed.

9. Mr. Warunjikar submitted that the object of the MOFA would be defeated if the flat purchaser is required to file a suit for specific performance, by paying the full court fee stamp. In my view, the contention has no merit. The suit only for enforcement of the obligations cast upon a promoter under the MOFA, as stated earlier would be valued u/s.6(iv)(j) of the Bombay Court Fees Act as has been held by this Court in the case of Maria Philomina Pereira Vs. Rodriques Construction (supra). In the present case, after amendment suit contains not only the prayer for performance of a statutory obligations of the respondent no.1 under the MOFA but also contains a prayer for cancellation of an agreement of sale executed by the respondent no.1 in favour of respondent no.2 prior to the filing of the suit. For such prayer, the suit is required to be valued u/s.6(iv)(ha) of the Bombay Court Fees Act.

10. After this order was pronounced in the open Court. Learned counsel for the appellant submitted that this order may be stayed for a period of four weeks. He invited my attention to the order of stay which was passed by the trial Court on 13th October, 2010 earlier. In my view, it would be appropriate to stay the operation of this order for some time to enable the appellant to pursue his remedies. Accordingly this order confirming the order for return the plaint is stayed for a period of four weeks. It is further directed that the respondents shall not create any third party interest in the suit premises for a period of four weeks.

Ordered accordingly.