1. The petitioner has filed this present writ petition being aggrieved by the order dated 20.6.2016 passed by the Civil Judge, Class-II, Indore. The petitioner/plaintiff has filed the suit for permanent injunction along with the application under Order 39 rules 1 and 2 of CPC. The respondent No.1/Bank filed reply to the application under order 39 rules 1 and 2 of CPC. The respondent has orally raised objection in the suit that the plaintiff has not properly paid the court-fees on the basis of the relief claim. The objection taken by the respondent was upheld vide order dated 20.6.2016 and the plaintiffs were directed to pay the court-fees @ 12% per annum i.e. Rs. 52,800/-, hence the present writ petition before this Court.

2. Counsel for the petitioner submits that the petitioner has only claimed relief of permanent injunction and, therefore, they are liable to pay the fixed court-fee @ Rs.820/- and not ad valorem court-fees.

3. Counsel for the respondent Shri Sinhal, submits that the plaintiffs have not only claimed the relief of permanent injunction, but also direction to the defendant, not to sell or transfer the subject house. These consequential relief cannot be granted unless the relief of declaration is granted. It is further submitted that the value of the subject house is about Rs.10 lacs and an appropriate court-fees would be Rs.1.50 lacs i.e. maximum court-fees.

4. I have heard the learned counsel for the parties

5. As per avernments in the plaint, plaintiff No.1 is wife and plaintiffs No.2 to 6 are son and daughters of Shri Harprasad Pandey. The said house was purchased by Shri Parmanand Pandey in the year 1958 in the name of his son Shri Harprasad Pandey and since then, they all are residing in the said house and according to them, hence they all have become owner of the said property. One Gajendra Pandey/plaintiff No.2 took a loan of Rs.3,50,000/- in the year 1999 under the employment scheme and it is alleged that defendant No.1/Bank have given loan of Rs.8 lacs in the year 2013 on the basis of the forged sale deed to defendants No.2 and 3 and since they did not pay the loan amount, therefore, they were declared as defaulter. In the year 2016, over draft of Rs.4 lacs was granted and without any enquiry and investigation, the said house was mortgaged in the Bank. When the said house was purchased, Shri Harprasad Pandey was not doing anything and his father had purchased the property, therefore, it is an ancestral property and all the plaintiffs have equal shares in it. The defendant has no right to sell the property or transfer the property for recovery of the said loan.

6. The Bank has filed the reply to the application under Order 39 rules 1 and 2 of CPC submitting that from the pleading in the plaint, it is established that the property is the Benami transaction purchased in the name of Harprasad Pandey, which is prohibited under the Benami Transaction (Prohibition) Act, 1988. The Bank has initiated the recovery proceedings under the provision of the SARFAESI Act for recovery of the loan, therefore, under section 34, the Civil Judge has no jurisdiction to entertain any suit or proceedings in respect of cases the property. Debt Recovery Tribunal is empowered under the Act in respect of the recovery of the loan. On merit also, it was submitted that Shri Harprasad Pandey, who was owner of the suit property by way of sale deed dated 6.4.1959 has himself sold the said house to defendants No.2 and 3 by registered sale deed dated 13.3.2009 and defendants No.2 and 3 become the owner. Defendants No.2 and 3 took the home loan of Rs.8 lacs and over-draft of Rs.4 lacs and surrendered the sale deed with the Bank by mortgaging the property. Initially, the loan was taken by Jammu and Kashmir Bank which was taken over by defendant No.1, therefore, the Bank has right to recover the loan by taking possession of the mortgaged property.

7. It is not disputed that the suit property was initially in the name of Harprasad Pandey, who