ORAL JUDGMENT

1. 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 2 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 2 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 7 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 7 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) Cooperative 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 Fee