The relief of cancellation of sale deeds is ancillary to the substantive relief of specific performance, and does not require separate ad valorem court fees.

Sanjeev Sachdeva, J.

IA No. 20314/2013 in CS(OS) 1843/2013 (By Defendant No. 2 under Order 7 rule 11 CPC)

1. The Defendant No. 2 has filed the present application under order 7 rule 11 of the Code of Civil Procedure (Hereinafter referred to as the CPC) seeking rejection of the plaint on the ground that the Plaintiff has not correctly valued the suit for the purposes of Court fees and jurisdiction and has not paid the requisite court fees on the same.

2. The Plaintiff has filed the present suit for specific performance of agreement to sell dated 15.09.2003. Along with the relief of specific performance the Plaintiff has claimed cancellation of five sale deeds dated 20.04.2004, 05.07.2004 and 11.06.2004. The sale deeds the cancellation of which has been sought by the Plaintiffs have been executed after the agreement to sell in favour of the Plaintiff.

3. As per the applicant/Defendant No. 2, the Plaintiff has sought cancellation of five sale deeds which are registered at different values and the Plaintiff has valued the relief for cancellation of the sale deeds at Rs.200/-each and not at the values mentioned in the respective sale deeds and has not paid the requisite Court fees on the same. As per the applicant, since the Plaintiff is not in possession of the property, the suit should have been valued on the basis of the consideration mentioned in the respective sale deeds and ad valorem court fees should have been paid there on.

4. The Plaintiff has opposed the application and has contended that the Plaintiff has to value the suit for substantive relief of specific performance and the consequential/ancillary reliefs of cancellation of sale deed are all covered in the main relief of specific performance and do not require separate ad valorem court fees.

5. Learned counsel for the Plaintiff has relied on the judgment of the Bombay High Court in the case of DILIP BASTI MAL JAIN V. BABBAN AIR 2002 BOMBAY 279 to contend that in a suit for specific performance substantive relief is the relief of specific performance of contract and the declaration of invalidity of the sale deeds in favour of the subsequent transferees is nothing but an ancillary relief and it is not necessary for the Plaintiff to ask for any declaration for cancellation of the sale deeds and as such there was no question of payment of Court fees in respect of the said relief and the relief of cancellation of sale deeds would be superficial and unnecessary.

6. Learned counsel for the Defendant has relied upon the judgment in case of JASMEET VERSUS S. SURENDER SINGH; (2009) 159 DLT 517 to contend that in a suit for cancellation and declaration of sale deeds as null and void, the Plaintiff is bound to pay court fees on value of jurisdiction and pay ad valorem court fees.

7. To settle the controversy, it is necessary to determine the nature of the suit filed by the Plaintiff and the nature of reliefs claimed. The Plaintiff has sought specific performance of an agreement to sell and further cancellation of the sale deed of the purchasers subsequent to the agreement to sell in favour of the Plaintiff. If the two reliefs were independent of each other then the Plaintiff would necessarily have to value the suit based on the two independent reliefs and pay the appropriate court fees thereon.

8. In terms of section 7 (x) of the Court Fees Act, 1870, the Plaintiff has valued the relief of specific performance on the basis of the sale consideration mentioned in the agreement to sell. The issue relates to the court fees paid on the relief seeking cancellation of the sale deeds executed in favour of the purchasers post the date of the agreement to sell.

9. The relief of cancellation of the sale deeds is a relief completely dependent on the relief of specific performance. The relief of cancellation of sale deeds cannot be granted independent of the relief of specific performance. If the relief of specific performance is refused then the relief of cancellation would automatic