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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SHALINI PHANSALKAR-JOSHI, J.
Kiran Suresh Bhagiya – Petitioner
Versus
M/s. Kakade Construction Co. Pvt. Ltd. & Another – Respondents
Civil Revision Application No. 483 of 2017
Decided On : 09-01-2018
Bombay Court Fee Act - Section 6(iv) (d) - Code of Civil Procedure1908 - Section 115 - Petitioner is challenging order - Seeking relief of declaration of exclusive - Possession over suit property - Trial Court rejected said contention and held that as suit claim is for declaration of exclusive ownership and possession of suit flat valuation has to be made on market price of said flat - Trial Court accordingly also called for report from about valuation which is reported as lacs and hence directed petitioner to pay court fee stamp accordingly - It was further directed that if pecuniary jurisdiction of Court exceeds appropriate order will be passed -Held, In present case as stated above specific performance of agreement which the petitioner is claiming, is executed under the provisions of Sections 3 and 4 of MOFA Act - Thus by this suit petitioner is seeking compliance of obligation cast upon respondent under said Act - Therefore it being a suit for compliance of statutory obligation valuation made by petitioner on notional valuation under Section 6(iv) (j) of Bombay Court Fees Act is required to be held as just - As regards grievance of respondent that petitioner has availed some loan amount from bank and has not paid entire consideration under agreement therefore his agreement is terminated all those contentions pertain to merits of suit claim - They have got nothing to do with valuation of suit claim and in valuation clause of plaint petitioner has categorically stated how he has paid Court Fee stamp on notional valuation - Revision Application is allowed
The petitioner filed a civil revision application under Section 115 of the CPC challenging the trial court's order dated 12th April 2017 in Regular Civil Suit No. 434 of 2016, which held that the suit valuation was improper and required valuation under Section 6(iv)(d) of the Bombay Court Fees Act. [4000558620003][4000558620005]
The suit seeks declaration of exclusive ownership and possession over a suit flat, described as a suit for permanent injunction, declaration, and possession under Sections 3 and 4 of the Maharashtra Ownership of Flats Act (MOFA). [4000558620004][4000558620009][4000558620011]
The agreement to sale dated 20th November 2006 was executed under Sections 3 and 4 of MOFA, imposing statutory obligations on the respondent to execute and register the agreement and facilitate society formation under Rule 8 of MOFA Rules. [4000558620005][4000558620009] (!) (!) (!) [4000558620010]
The trial court directed payment of court fees based on market value of Rs. 30 lakhs as reported by Nazir and indicated potential transfer if pecuniary jurisdiction exceeded. [4000558620005]
The suit enforces statutory obligations under MOFA arising from the agreement, making it incapable of monetary valuation, thus properly valued on a notional basis under Section 6(iv)(j) of the Bombay Court Fees Act. [4000558620006][4000558620011][4000558620017]
Contentions regarding petitioner's mortgage of the flat, non-payment of full consideration, and termination of agreement relate to merits of the claim, not suit valuation. [4000558620008][4000558620018]
The plaint's valuation clause specifies payment of court fees on notional valuation, which is correct for enforcing statutory compliance under MOFA. [4000558620018]
The High Court quashed the trial court's order, allowed the revision application, and upheld the notional valuation. [4000558620019][4000558620020]
1. Heard learned counsel for the petitioner and respondents.
2. Rule.
3. Rule made returnable forthwith with the consent of the both the learned counsels.
4. By this Revision Petition, filed under Section 115 of Code of Civil Procedure, the petitioner is challenging the order dated 12th April, 2017, passed by the Joint Civil Judge Senior Division, Pune, in Regular Civil Suit No.434 of 2016, below Application Exh.42, thereby holding that the valuation of the suit made by the petitioner-plaintiff is not proper and the suit claim should have been valued as per Section 6(iv) (d) of the Bombay Court Fee Act.
5. The said application was filed by the respondents under Section 9-A of Code of Civil Procedure, contending inter-alia that the suit property is commercial premises and the plaintiff is seeking relief of declaration of exclusive ownership and also the possession over the suit property, therefore, he should have valued the suit on the market value of the suit property and the requisite court fee as per Section 6 (iv) (d) the Bombay Court Fees Act, is required to be paid.
6. Though the present petitioner brought to the notice of the trial Court that the suit was filed under Sections 3 and 4 of the Maharashtra Ownerships of Flats Act, 1963 (for short called as, “MOFA Act”) for specific performance of agreement dated 20th November, 2006, and accordingly affixed Court fee as required under Section 6(4) (j) of the Bombay Court Fees Act, the trial Court, rejected the said contention and held that as the suit claim is for declaration of exclusive ownership and possession of the suit flat, the valuation has to be made on the market price of the said flat. The trial Court, accordingly, also called for the report from Nazir about the valuation, which is reported as Rs.30 lacs and hence directed the petitioner to pay court fee stamp accordingly. It was further directed that if pecuniary jurisdiction of the Court exceeds, appropriate order will be passed.
7. While challenging this impugned order of the trial Court, submission of learned counsel for the petitioner is that when the suit is filed specifically for performance of the statutory obligation under the MOFA Act, then the suit has to be valued in view of the provisions of section 6(4) (j) of the Bombay Court Fees Act on notional valuation, as held by this Court, in case of Vrindavan (Borivali) Co-operative Housing Society Ltd -vs- Karmarkar Brothers and ors 1983 (2) Bom CR 267, and Maria Philomina Pareira -vs- M/s Rodrigues Construction a Partnership Firm, AIR 1991 Bom. 27.
8. Per contra, learned counsel for respondents has drawn attention of this Court to section 11 of the MOFA Act and has submitted that the suit is not for the performance of the statutory obligation on the part of the respondents, but for the declaration of exclusive ownership and possession over the suit flat and hence, the trial Court has, after having regard to the relevant prayer clauses, rightly held that the suit should have been valued on the market consideration of the suit flat.
9. Learned counsel for respondents also points out that petitioner has already mortgaged the said flat to Jalgaon Peoples Cooperative Bank Ltd and availed loan of some lacs of rupees which is against the terms and conditions of the agreement. The petitioner has also not paid the entire consideration amount of the agreement. As a result, respondent was even constrained to terminate the agreement and that is the reason why petitioner is not seeking the specific performance of the agreement or for performance of the obligation arising under the provisions of MOFA Act, but relief of declaration of his exclusive ownership and possession and seeking possession of the suit flat. According to learned counsel for respondent, therefore, the trial Court has rightly considered the prayers in the suit and directed the petitioner to pay the Court fee on the market value as per provisions under Section 6(iv)(d) of the Maharashtra Court Fees Ac
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