Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Bom) 236

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J. KATHAWALLA, MILIND N. JADHAV, JJ.
Zuberahmed Maqbool Ansari – Appellant
Versus
Messrs Devkaran and Co. Pvt. Ltd. – Respondent
Appeal (L) No. 3786 of 2020, Interim Application (L) No. 3787 of 2020
Decided On : 24-03-2021

Advocates:
Advocate Appeared:
For the Appellants: Dr. Abhinav Chandrachud, Mr. Uttam S. Rane.
For the Respondent: Mr. Karl Tamboly.

Point of Law: Interim Application - Contract for sale - Court-fee value and jurisdictional value to be same in certain suits - When there is a reasonable doubt with respect to quantum of court fees, the benefit must go to him who says that lesser court fee alone be paid, is in context of two parties who were in joint possession and seeking partition and separate possession of their respective share in the suit property as heirs of the deceased.

Headnote:
Maharashtra Court Fees Act, 1959 - Sections 6, 6(iv)(d) and 6(iv)(ha) - Bombay Stamp Act, 1958 - Section 32(1)(b) - Suits Valuation Act, 1887 - Section 8 - Registered agreement for sale - Value of property - Ownership etc. of immovable property, etc. - Ad-interim order - Challenged - Interim Application granting a temporary protective injunction in favour of Respondent No. 1/original Plaintiff - Principal and only ground on which the order impugned in present Appeal has been assailed before us, is that the suit is not maintainable in this court due to want of pecuniary jurisdiction - Plaintiff had permitted Respondent Nos. 4 and 5/original Defendant Nos. 4 and 5 to occupy suit premises for purpose of carrying on their respective businesses - Defendant No. 4 has been using a part of suit premises for storing iron girders since past ten years, for his business run in the name and style of A.H. Traders. Defendant No. 5 has been using another portion of the suit premises to run a furniture store in name and style of K. G. N. Furniture since past five years.
Finding of the Court:
This provision provides that the value as determinable for computation of court fee and value for purposes of jurisdiction shall be the same. No party to litigation is given any absolute right to put any valuation whatsoever on such relief even though estimation of relief and valuation submitted by party is required to be ordinarily accepted - To interpret “value of property” in reference to suit premises. As alluded hereinabove value of property is the market value of suit premises which is the subject matter of the suit and in the absence of any other cogent material the value of suit premises has to be determined at Rs. 2,52,91,000.00 - Court unable to accept Appellant’s contentions that present suit is principally one for cancellation of agreement for sale or that the other reliefs in the suit are consequential or incidental to the same, or that the suit must be valued as per section 6(iv)(ha) of said Act. Accordingly court do not find that judgments of learned Single Judges of this Court under section 6(iv)(ha) of said Act, are applicable to the facts of this case.
Result: Appeal and Interim Application dismissed Interim.

Judgement Key Points

The suit concerns a gala admeasuring 204 sq. mtrs. (carpet area) at Nenshi Munji Compound, Saki Vihar Road, Saki Naka, Andheri, Mumbai, part of larger property owned by Plaintiff since 1968. (!) [4000643570002]
Plaintiff permitted Defendants 4 and 5 to occupy suit premises for businesses: Defendant 4 for storing iron girders (A.H. Traders, 10 years), Defendant 5 for furniture store (K.G.N. Furniture, 5 years). (!)
Defendants 1 and 2 attempted forcible trespass in 2018 and 2020, leading to police complaints and FIR quashed by consent after admissions in Writ Petition No. 1059/2019 that Defendant 1 not owner. (!) (!)
Plaintiff discovered registered agreement for sale dated 01.08.2019 between Defendants 1 and 2 for suit premises based on fraudulent documents; lodged complaints. (!) (!)
Suit prays: (a) declaration of Plaintiff's absolute ownership; (b) agreement for sale void ab initio; (c) Defendants 1/2 no right/title/interest; (d)-(e) cancellation and record thereof; (f) other documents void; (g)-(h) permanent restraints on reliance/dealing/interference. [4000643570003] (!) (!) (!) (!) (!) (!) (!)
Interim relief granted restraining Defendants 1/2 from dealing/entering suit premises pending suit. [4000643570006]
Appellant (Defendant 2) challenges on pecuniary jurisdiction: suit primarily for cancellation of agreement valued at Rs. 26,50,000/- under S.6(iv)(ha) Maharashtra Court Fees Act, below High Court limit (Rs.1 crore). [4000643570009][4000643570010] (!) (!) (!)
Plaintiff values suit at market value Rs.2,52,91,000/- per ready reckoner/adjudication under S.6(iv)(d), paid max court fee Rs.3,00,000/-. (!) [4000643570011] (!)
Suit principally for declaration of Plaintiff's title/ownership to immovable property with consequential reliefs (cancellation, injunction), falls under S.6(iv)(d): 1/2 ad valorem fee on market value (no possession sought). Not under S.6(iv)(ha) for voiding sale/contract. [4000643570016][4000643570017][4000643570018][4000643570019][4000643570020][4000643570021] (!) (!) (!) (!)
"Value of property" in S.6(iv)(d)/(ha) means market value (ready reckoner Rs.2,52,91,000/-, adjudication/stamp duty Rs.15,17,460/- confirms), not agreement consideration Rs.26,50,000/- (undervaluation). [4000643570022][4000643570023][4000643570024][4000643570025][4000643570026][4000643570027] (!)
S.8 Suits Valuation Act mandates court-fee value = jurisdictional value; court not bound by party's valuation if deliberate undervaluation. [4000643570028] (!)
High Court has pecuniary jurisdiction; appeal/IA dismissed. No opinion on merits. [4000643570033][4000643570034][4000643570035]

JUDGMENT :

1. Heard Dr. Abhinav Chandrachud, Advocate for the Appellant and Mr. Karl Tamboly, Advocate for Respondent No. 1.

2. By the present Appeal, the Appellant/original Defendant No. 2 has challenged the legality and validity of the ad-interim order dated 24.09.2020 passed by the learned Single Judge of this Court in Interim Application No. 2653 of 2020 in Suit (L) No. 2648 of 2020 granting a temporary protective injunction in favour of Respondent No. 1/original Plaintiff. The principal, and only ground on which the order impugned in the present Appeal has been assailed before us, is that the suit is not maintainable in this court due to want of pecuniary jurisdiction.

3. Before we advert to the submissions made by the respective parties, it would be apposite to briefly refer to the following relevant facts:

“3.1. The present suit bearing lodging no. 2653 of 2020 has been filed by Respondent No. 1/original Plaintiff Company in respect of a Gala ad-measuring 204 sq. mtrs. (carpet area) consisting of ground plus mezzanine floor, situated at Nenshi Munji Compound, Saki Vihar Road, Opp. Ansa “C” Building, Saki Naka, Andheri, Mumbai 400 072 (hereinafter referred to as “the suit premises”). Briefly stated, the case of Respondent No. 1/Orig. Plaintiff in the plaint, is as follows.

3.2. According to the Plaintiff, it is the sole owner of land admeasuring 4,862 sq. mtrs. Bearing CTS No. 679 (old Survey No. 40) situated at Saki Vihar Road, Opp. Ansa “C” Building, Saki Naka, Andheri, Mumbai 400 072 (“the larger property”). The Plaintiff had purchased the larger property under a registered indenture of sale dated 27.12.1968 bearing registration No. 816/69 of Book No. 1 from the original owners namely trustees of the Last Will and Testament of Ardeshir Hormasjee Wadia. The suit premises is situated on the eastern boundary of the larger property. The Plaintiff is the owner of the suit premises.

3.3. That the Plaintiff had permitted Respondent Nos. 4 and 5/original Defendant Nos. 4 and 5 to occupy the suit premises for the purpose of carrying on their respective businesses. Defendant No. 4 has been using a part of the suit premises for storing iron girders since the past ten years, for his business run in the name and style of A.H. Traders. Defendant No. 5 has been using another portion of the suit premises to run a furniture store in the name and style of K.G.N. Furniture since the past five years.

3.4. According to the Plaintiff, sometime in the year 2018, Respondent No. 2/original Defendant No. 1 attempted to forcibly trespass upon the suit premises, claiming that he had purchased the same. Thereafter, on 12th November 2018 Defendant No. 1 once again tried to illegally take possession of the suit premises with the help of Defendant No. 2 and one Rajesh Chindarkar. This led to Defendant Nos. 4 and 5 filing a police complaint with the Powai Police Station, and a First Information Report (FIR) came to be registered against Defendant Nos. 1 and 2 and Rajesh Chindarkar. Subsequently, upon Defendant Nos. 1 and 2 and Rajesh Chindarkar giving assurances that they would not interfere with the suit premises, Defendant Nos. 4 and 5 agreed for quashing of the FIR. Defendant Nos. 1 and 2 and Rajesh Chindarkar filed Writ Petition No. 1059 of 2019 before this Court for quashing the FIR, in which they admitted that Defendant No. 1 was not the owner of the suit premises. This Court by an order dated 3rd April 2019 thereafter quashed the FIR by consent of Defendant Nos. 4 and 5 and Defendant Nos. 1 and 2 and Chindarkar.

3.5. According to the Plaintiff, for some time Defendant Nos. 1 and 2 stuck to their assurances and did not interfere with the suit premises. However, sometime in October 2019, the Plaintiff became aware of a registered agreement for sale dated 01.08.2019 executed between Defendant Nos. 1 and 2 under which Defendant No. 1 had purported to sell the suit premises as the alleged owner thereof to Defendant No. 2 on the basis of manufactured and fr

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2021 Supreme(Bom) 236

IN THE HIGH COURT OF JUDICATURE AT BOMBAYS.J. KATHAWALLA, MILIND N. JADHAV, JJ.Zuberahmed Maqbool Ansari – AppellantVersusMessrs Devkaran and Co. Pvt. Ltd. – RespondentAppeal (L) No. 3786 of 2020, Interim Application (L) No. 3787 of 2020Decided On : 24-03-2021

Cases Referred (5)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J. KATHAWALLA, MILIND N. JADHAV, JJ.
Zuberahmed Maqbool Ansari – Appellant
Versus
Messrs Devkaran and Co. Pvt. Ltd. – Respondent
Appeal (L) No. 3786 of 2020, Interim Application (L) No. 3787 of 2020
Decided On : 24-03-2021