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IN THE HIGH COURT OF ALLAHABAD
J. C. Mishra, J.
BUCKEYE MACHINE (P)LTD. - Appellant
Versus
CANARA BANK - Respondents
Civil Revision 463 Of 1998
Decided On : 11/25/1998
COURT FEES - SUIT FOR MANDATORY INJUNCTION - COURT FEE PAYABLE - RELIEF OF DECLARATION WITH CONSEQUENTIAL RELIEF - COURT FEE PAYABLE AD VALOREM.
Fact of the Case:
Plaintiff filed a suit seeking a mandatory injunction directing the defendant bank to prepare an OCC account after giving due credit to damages caused to the plaintiff. The trial court held that the relief claimed involved a declaration that the defendant suffered damages of Rs. 94,41,000 and directed the plaintiff to pay ad valorem court fee.
Finding of the Court:
The court held that the relief sought was only for a mandatory injunction and not for a declaration. It relied on the Supreme Court decision in Vishnu Pratap Sugar Works (P.) Ltd. v. Chief Inspector of Stamps, U. P., AIR 1968 SC 102, which held that if only a substantive relief is prayed for, it is not open to the court to add or read a declaratory relief also into it and treat it as a declaratory relief with a consequential relief.
Issues: Whether in a suit where only relief sought is award of permanent injunction in mandatory form and no declaration is called for, the Court can in view of real intention contained in the plaint require the plaintiff to pay the court fee on declaration with consequential relief.
Ratio Decidendi: The court held that the trial court erred in requiring the plaintiff to pay ad valorem court fee. It held that the relief sought was only for a mandatory injunction and not for a declaration. The court relied on the Supreme Court decision in Vishnu Pratap Sugar Works (P.) Ltd. v. Chief Inspector of Stamps, U. P., AIR 1968 SC 102, which held that if only a substantive relief is prayed for, it is not open to the court to add or read a declaratory relief also into it and treat it as a declaratory relief with a consequential relief.
Final Decision: The court stayed the operation of the trial court's order and consequential dismissal of the suit under Order VII, Rule 11, C. P. C. till further orders.
( 1 ) THIS revision has been filed against the order passed by 1st Additional Civil Judge (Senior division), Aligarh holding that the court fee paid is insufficient and directing the plaintiff to pay ad-valorem court fee at Rs. 94,41,000.
( 2 ) THE opposite party has filed copy of the plaint along with counter-affidavit. The revisionist filed suit with following reliefs : (a) By passing a decree for mandatory injunction the defendants be directed to prepare the OCC account of plaintiff after giving due credit to the damages, caused to the plaintiff and strictly in accordance with the circulars issued by R. B. I. from time to time within the time specified by the court. (b) Cost of the suit be awarded to the plaintiff and against the defendants. (c) Any other relief which the Honble Court may deem fit under the circumstances of the case be also given to the plaintiff and against the defendants.
( 3 ) THE plaintiffs case is that he had suffered damages on account of the action, inaction, negligence and violation of rules to the tune of Rs. 94,41,000. The details are furnished in paras 18 to 29 and some other paragraphs. Cause of action has been stated in para 23 of the plaint. It states that the plaintiff asked the defendants to prepare the O. C. C. account of the plaintiff after giving due credit to the damages caused to the plaintiff and strictly in accordance with the circulars issued by R. B. I. from time to time but on 10th October, 1998. they finally refused. Thus the relief claimed is of mandatory injunction directing the defendant-bank to prepare the O. C. C. account of the plaintiff after giving due credit to the damages caused to the plaintiff.
( 4 ) SO far as the opening of the account is concerned as indicated in para 4 of the counter-affidavit, there appears to be no dispute. It has been stated that the bank has already sanctioned an open cash credit limit to the extent of Rs. 35 lacs. The real controversy appears to be regarding damages. The defendant may not accept that the plaintiff has suffered damages as stated in the plaint. It ts also apparent that before granting relief as prayed, the Court will have to determine whether the plaintiff is entitled to damages.
( 5 ) THE defendant filed objection in the trial court stating, that the court fee paid is insufficient and the plaint is liable to be rejected under Order VII, Rule 11, C. P. C. The trial court held that the relief claimed by the plaintiff involves declaration that the defendant has suffered damages to the tune of Rs. 94,41,000 and the defendant is liable to accept this liability and adjust It by incorporating it in the account. He, therefore, held that the real intention of the plaintiff is to exonerate him from the liability of payment of Rs. 94,41,000, i. e, he is liable to pay only the balance amount, if any, after adjusting the damages. He held that. in fact, the suit is for declaration with consequential relief and, therefore, the defendant is liable to pay the court fee ad valorem.
( 6 ) AGGRIEVED with the order directing the plaintiff to make up the deficiency in court fee good by 30th November. 1998, the plaintiff has preferred this revision.
( 7 ) I have heard Sri Vibhav Bhushan Upadhyaya, learned Senior Advocate assisted by Sri Manish goyal. learned counsel for the revisionist and Sri A. K, Roy, learned counsel for the opposite party.
( 8 ) THE learned counsel for the revisionist contended that the plaintiff has sought relief of mandatory injunction only and, therefore, the trial court had no jurisdiction to require the plaintiff to pay court fee on the relief of declaration which was not asked for. He challenged the correctness of the decisions relied on by the learned civil Judge.
( 9 ) THE learned counsel for the opposite party relied on a decision of single Judge, decided by honble R. R K, Trivedi, J. in Dinesh Kumar v. Additional District Judge, Roorkee. district haridwar and others, (1991) 1 CRC 197. In the said case, o
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