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2013 Supreme(Cal) 40
IN THE HIGH COURT OF CALCUTTA
ASIM KUMAR MONDAL, J.
Amal Banerjee – Appellant
Vs.
Sanjib Kumar Dey – Respondent
C.O. No. 3018 of 2011
Decided On: 29.01.2013
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: Bhaskar Ghosh and Dipankar Aditya
For Respondents/Defendant: None
In a suit for declaration that a deed is invalid and not binding, the court fees payable are to be computed according to the amount at which the relief sought is valued in the plaint, and not on the consideration amount stated in the deed.
Headnote:
COURT FEES - SUIT FOR DECLARATION - COURT FEES ACT, 1970 (WEST BENGAL) - SECTIONS 7(IV)(B) AND 7(IV)(C) - INTERPRETATION - SUIT FOR DECLARATION THAT DEED IS INVALID AND NOT BINDING - WHETHER AD VALOREM COURT FEES PAYABLE ON CONSIDERATION AMOUNT STATED IN DEED.
Fact of the Case:
Plaintiff filed a suit seeking a declaration that a deed of conveyance executed in favor of the defendant was ineffective, invalid, inoperative, void ab initio, and not binding on the plaintiff. The plaintiff also sought a permanent injunction restraining the defendant from exercising any sort of ownership and possession in respect of the suit property.
Finding of the Court:
The court held that the suit was a declaratory suit simpliciter and that the reliefs sought for in the form of a declaration that the deed of sale in question was ineffective and inoperative were consequential relief to the principal relief sought for by the plaintiff/petitioner.
Issues: 1. Whether the suit is a declaratory suit simpliciter or a suit for declaration with consequential relief? 2. Whether ad valorem court fees are payable on the consideration amount stated in the deed in a suit for declaration that the deed is invalid and not binding?
Ratio Decidendi: 1. The court relied on the decision of a coordinate bench of the Calcutta High Court in 2011 (2) CLJ (Cal) 89, which held that a suit for declaration that a deed of sale is ineffective and inoperative is a declaratory suit simpliciter and that the reliefs sought for in the form of a declaration are consequential relief to the principal relief sought for by the plaintiff. 2. The court distinguished the decision of the Supreme Court in 2010 (2) CHN (SO 156, which was relied upon by the trial court, on the ground that the said decision related to the Court Fees Act, 1870 (as amended in Punjab) and not the West Bengal Court Fees Act, 1970.
Final Decision: The court set aside the impugned order of the trial court and held that the plaintiff was not required to pay ad valorem court fees on the consideration amount stated in the deed.
Asim Kumar Mondal, J.
1. The instant revisional application under Article 227 of the Constitution of India is directed against the order dated 7.7.2011 passed by learned Civil Judge (Junior Division), 2nd Court at Howrah in Title Suit No. 42/2009 whereby the learned Trial Judge directed the plaintiff/petitioner to pay the necessary Court fees on the value of the deed impugned being No. 5719/2008 dated 26.3.2008 at A.D.S.R., Ramnagar, Purba Medinipur fixing a date for payment of ad valorem Court fees by the plaintiff. The execution of the deed in question as mentioned above is under challenge in the said suit and as such the petitioner/plaintiff prayed for a decree for declaration that the deed in question is ineffective, invalid, in-operative, void ab initio and not binding upon the plaintiff. In the said suit, the plaintiff/petitioner has also prayed for a permanent injunction restraining the defendant No. 1/opposite party from exercising any sort of ownership and possession in respect of 'A' schedule suit property.
2. The case of the plaintiff/petitioner before the learned Lower Court in short is that all the part and parcel of the bastu land measuring about 4 cottah 8 chitaks 15 sq.ft. together with pucca building being known as "Subhashree Lodge" standing thereon comprised within Dag No. 2034/2170, 2034/2172, 2034/2228 under Khatian Nos. 545, 546/1, 557/1 within Mouza Khadelgobra, P.S. Digha belonged to the present plaintiff/petitioner.
3. The defendant No. 2 is carrying a hotel business by the side of the suit property and in course of time friendship grew in between the plaintiff and the said defendant No. 2.
4. The defendant No. 1 approached the plaintiff to purchase the suit property being aware of the desire of plaintiff to dispossess of the suit property through defendant No. 2. The defendant No. 2 acted as a negotiator in between the plaintiff and the defendant No. 1 in the matter of transfer of the suit property in favour of defendant No. 1 subject to payment of full consideration amount.
5. The plaintiff executed a deed of conveyance on 26.9.2008 on such assurance and promise made by the defendants. After expiry of 7 days as the plaintiff did not get any amount from defendants the petitioner/plaintiff through his learned lawyer, Sri Sanjoy Mukherjee sent a letter dated 4.2.2009 to the defendant No. 2.
6. In reply, the defendant No. 2 through his lawyer Sri Samir Basu Roy Chowdhury sent a letter dated 13.2.2009 denying the claim made by the plaintiff/petitioner and defendant No. 1 did not send any reply till date.
7. After being deceived by defendants, the plaintiff/petitioner sent a demand notice through his lawyer Sri Sanjoy Mukherjee on 4.2.2009 by registered post with A/D. In the meantime, the defendant No. 1 sent a letter with false and concocted averments for which the plaintiff had to file complaint case being No. 196/09 before the learned Chief Judicial Magistrate, Howrah on 26.2.2009.
8. It is the further case of the plaintiff that plaintiff had delivered possession to the defendant No. 1 on good faith and bona fide belief that the full consideration money would be realised after executing the deed of conveyance of the suit property. The defendant No. 1 issued five account payee cheques in favour of the plaintiff/petitioner which described in Schedule 'C' out of which five cheques could not be encashed being dishonoured.
9. Under the facts and circumstances as stated above the plaintiff/petitioner instituted the suit before learned Court below for the reliefs:
(a) Declaration to the effect that the sale deed executed by the plaintiff/petitioner in favour of defendant No. 1 being conveyance No. 5719/2008 is ineffective, invalid, inoperative, void ab initio and not binding upon the plaintiff/petitioner,
(b) Permanent injunction restraining the defendant No. 1 from exercising any sort of ownership and possession in respect of the suit property;
(c) Temporary injunction;
(d) Mandatory injunction directing the defen
