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1981 DIGILAW 338 (KAR)

NARAYANA NAGESH GUNAJI v. MUNICIPAL CORPORATION OF GREATER BOMBAY

1981-11-03

K.A.SWAMI

body1981
K. A. SWAMI, J. ( 1 ) AT the stage of admission, the respondents are notified. Accordingly they have put in appearance through a counsel. Hence the matter is taken up for final hearing itself. ( 2 ) THIS Civil Revision Petition is preferred against the finding recorded on issue No. V by the learned principal Mutisiff, Bel gaum, in O. S. No. 441/78. Two issues were taken up for preliminary hearing being Issues 4 and 5. The learned Munsiff has answered only Issue No. V and has directed the plaintiff to value. the suit in the light of the notice issued by him to the defendant. The consideration of issue No. IV has been postponed until the fresh valuation is filed by the plaintiff. THE petitioner has filed the aforesaid suit for " (a) A full and true account of the transactions carried by the plaintiff may be taken from the defen-, dants; and (b) decree for the sum of Rs. 100 or such sum as may be found due from the defendants on taking the accounts be awarded; (c) costs of the suit be awarded". The suit has been valued at Rs. 100 on the ground that the plaintiff is not in a position to estimate the suit. On the contrary, it is contended on behalf of the defendants that the plaintiff has made a definite claim even before filing the suit and this is clear from the notice and the bills whith he has served on the defendants before filing the suit ia question; therefore he is at least required to value the plaint on the basis of the claim made by him in the notice issued by him to the defendants before filing the suit. Para-3 of the plaint reads thus : "that after completion of the supply of cement to defendant No. 1, the plaintiff had submitted the bills as per accepted rates in respect of first two factories referred to above. But, in spite of repeated requests and demand made by the plaintiff, the same has not been paid to the plaintiff and defendant No. 2 under his letter No. CS. 2576/po. 4 dated 6-11-1975 informed the plaintiff that his claim cannot be entertained. But, in spite of repeated requests and demand made by the plaintiff, the same has not been paid to the plaintiff and defendant No. 2 under his letter No. CS. 2576/po. 4 dated 6-11-1975 informed the plaintiff that his claim cannot be entertained. Thereafter, the plaintiff was constrained to serve upon the defendants a notice calling upo'n them to make payment of the amount due to him, but the defendants have failed to comply with the demand made by the plaintiff. "thus, notice is served upon the defendants before filing the suit. It is this notice that has been referred to in the aforesaid para-3 of the plaint. The relevant portion of the said notice is as follows : The facts constituting the cause of action and the reliefs claimed are as follows : (I) That my client is running a proprietary concern in the name and style M/s Happy Transport at High street Camp, Belgaum. During the last quarter of the year 1974, the defendant No. 1 (Municipal Corporation of greater Bombay) was allotted by R. C. O. Bombay, maximum quota of cement from the factories situate in South India for the project works of the Corporation. As there was shortage of Railway Wagons, the Corporation, defendant No. 1, had invited tenders for transporting cement from the factories. As the corporation was to save about Rs. 13,99,400-00, my client's offer was accepted by the Standing Committee of the Corporation by its resolution no. 2659 dt. 6-12-1974 and was communicated to my client by defendant no. 2 by his letter No. CS/31/tdr/ po 4 dated 10-12-1974. Accordingly my client was required to do the work of organisation, to secure the materials at the appropriate time and to procure wagons either from starting point or from some other intermediate point convenient to the railways to spare timely despatch of wagons, transport of cement by Road so as to reach the place wherefrom wagon will be available. etc. from the places stated in the said Resolution and the letter of defendant No. 2, at the rate of Rs. 100 per metric tonne. Further the defendant No. 2 in the said letter had informed my client that the said letter be treated as an official order and he should arrange to carry out the work and complete It before the exiry of 1-1-1975 in respect of item Nos. 100 per metric tonne. Further the defendant No. 2 in the said letter had informed my client that the said letter be treated as an official order and he should arrange to carry out the work and complete It before the exiry of 1-1-1975 in respect of item Nos. 1 to 3 of the statement sent, and that the necessary documents of contract were being sent to him in due course of time. (II) That my client started the work right earnestly as the time was very short and did the work of arranging the speedy supply of cement to the Corporation from : (a) The cement Corporation of India, Kurkuntal; (b) Panyam Cement and mineral Industries, Andhra Pradesh; (c) Dalmia Cement Ltd. , Dalmiapuram, Tamilnadu. The first two factories had despatched the cement, but as regards the third, even though all arrangements for supply were made by my client, the same could not be materialised as the Corporation (Defendant No. 1) did not make payment of sale price of cement to dalmia Cements Ltd , inspite of urgent trunk calls and telegrams sent by my client. (III) That after completion of the supply of cement,. my client had submitted the bills as per the accepted rate in respect of the first two factories referred to above. But inspite of repeated requests and demand made by my client the same has not been paid to my client, and the defendant No. 2, Controller of Stores, under his letter No. CS/2576/po 4 dated 6-11-1975 informed my client that his claim cannot be entertained. Therefore, my client is constrained to serve upon you this notice in respect of the suit intended to be instituted against you both for the recovery of the sum due from you to my client. (IV) The particulars of the amount due from you are as under : rs. 1,78,000-00 towards transport charges of 1980 M. T. cement at the rate of Rs. 100 per M. T. as per the contract for procurement of wagons. (V) The cause of action for the institution of the suit has arisen on receipt of the letter No. CS/2576/ po 4 dated 6-11-1975 from the defendant No. 2 Controller of stores, Municipal Corporation of greater Bombay. 100 per M. T. as per the contract for procurement of wagons. (V) The cause of action for the institution of the suit has arisen on receipt of the letter No. CS/2576/ po 4 dated 6-11-1975 from the defendant No. 2 Controller of stores, Municipal Corporation of greater Bombay. That the suit would be instituted at Belgaum, in the court of competent jurisdiction and the relief that would be claimed by myclient would be the recovery of the sum of rs. 1,78,000 with interest at 6 per cent per annum and the costs of the suit till realisation of the entire amount. Therefore, please take notice that on your failure to make payment of the. entire amount' within two months from the date of receipt of this notice, the suit would be instituted without any further reference to you which please note". Thus from the aforesaid notice given by the plaintiff a few days prior to the filing of the suit, it is clear that there was no doubt whatsoever in the mind of the plaintiff that he was entitled to recover a sum of Rs. 1,78,000 from the defendants. In spite of this, the plaintiff has valued the suit only for Rs. 100 on the ground that the defendants have not. furnished the accounts, therefore, he is not in a position to make an approximate estimate of the value of the suit claim. The learned Munsiff has not accepted this plea and has held that the plaintiff is at least required to value the suit as per the claim made in the suit notice referred to above. No doubt, in a suit for accounts, the plaintiff is at liberty to make his own valuation and pay the Court fee on that; but what is required of the plaintiff is to make genuine efforts to value the suit and the valuation of the suit must be a real one. It is also open for the Court to find out on the material available on record as to whether the plaintiff has made genuine efforts to value the suit for accounts and the valuation made by the plaintiff is true and proper. The Supreme Court had occasion to Consider this question in the case of A. K. A. C. T. V. Meenakshi- sumlaram Chettiar v. A. K. A. C. T. V. C. T. Venkatuchalam Chettiar (1 ). The Supreme Court had occasion to Consider this question in the case of A. K. A. C. T. V. Meenakshi- sumlaram Chettiar v. A. K. A. C. T. V. C. T. Venkatuchalam Chettiar (1 ). While considering certain provisions contained in the Madras Court Fees Act similar to S. 33 of the Karnataka Court Fees and suits Valuation Act, 1958, and also the provisions contained in Order 7, Rule 11, cpc. , the Supreme Court has held as follows :"reading this provision by itself the amount of Court fee payable in suits for accounts is according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. The plaintiff is required to state the amount at which he values the relief sought. In suits for accounts it is not possible for the plaintiff to estimate correctly the amount which he may be entitled to for, as in the present case, when the plaintiff asks for accounting regarding the management by a power of attorney agent, he might not know the state of affairs of the defendant's management and the amount to which he would entitled to on accounting. But, it is necessary that the amount at which he values the relief sought for should be a reasonable estimate. S. 35 (1) of the Tamil Nadu Court Fees and suits Valuation Act, 14 of 1955, is as fellows : In a suit for accounts, fee shall be computed on the amount sued for as estimated in the plaint. Sub-section (2) of S. 35 provides : "where the amount payable to the plaintiff ascertained in the suit is in excess of the amount as estimated in the plaint, no decree directing payment of the amount as so ascertained shall be passed until the difference between the fee actually paid and the fee that would have been payable had the suit comprised the whole of the amount as ascertained, is paid. If the additional fee is not paid within such time as the court may fix, the decree shall ba limited to the amount to which the fee paid extends". If the additional fee is not paid within such time as the court may fix, the decree shall ba limited to the amount to which the fee paid extends". While S. 35 (1) permits the plaintiff to pay the court-fee on the amount estimated by him, sub-see- tion (2) safeguards against the loss of revenue as it requires that no decree for any amount in excess of the amount as estimated in the plaint shall be passed unless the difference between the fee actually paid and the fee that would have been payable had the suit comprised the whole of the amount as ascertained is paid. But here again it is necessary that the plaintiff should give a fair estimate of the amount for which he sues. Order 7 Rule 11 of the Civil Procedure Code, requires the Court to return the plaint if the relief claimed is undervalued". * * * this section casts a duty on the court to reject the plaint when the " relief claimed is undervalued. If on the materials available before it, the Court is satisfied that the value of relief as estimated by the plaintiff in a suit for accounts is undervalued, the plaint is liable to be rejected. It is therefore necessary that the plaintiff should take care that the valuation is adequate and reasonable taking into account the circumstances of the case. In coming to the conclusion that the suit is undervalued, the court will have to take into account that in a suit for accounts the plaintiff is not obliged to state the exact amount which would result after the taking of the accounts. If he cannot estimate the exact amount, he can put a tentative valuation upon the suit for accounts which is adequate and reasonable. The plaintiff cannot arbitrarily and deliberately undervalue the relief. A full Bench of the Andhra Pradesh high Court in a decision in Chillakuru chenchuram Reddy v. Kanupuru Chenchurami reddy ILR. 1969 A. P. 1042), after elaborate consideration of the case law on the subject has rightly observed that there must be a genuine effort on the part of the plaintiff to estimate his relief and that the estimate should not be a deliberate under estimation. 1969 A. P. 1042), after elaborate consideration of the case law on the subject has rightly observed that there must be a genuine effort on the part of the plaintiff to estimate his relief and that the estimate should not be a deliberate under estimation. (Emphasis is supplied) thus, from the aforesaid enunciation, it is clear that even in a suit for accounts the plaintiff is required to make genuine efforts to estimate his claim and that estimate should not be a deliberate underestimation. It should be a fait estimate of the amount to which the plaintiff is likely to be entitled to. In other words the estimate of the claim must be a real one. In this case, the plaintiff had no doubt whatsoever when he gave the suit notice to the defendants in the month of April 1978 regarding the amount payable by the defendants to the plaintiff. Not only that, he has also submitted that bills claiming that amount. The notice also refers to the particulars of the amount due from the defendants and it is stated in the notice that the amount due is Rs 1,78,000. That being so, valuation at Rs. 100 made by the plaintiff of the suit claim on the ground that he is not in a position to make any estimate of the suit claim cannot at all be held to be either genuine or a correct estimation It is nothing but a deliberate under estimation. Therefore, the trial court is right in directing the plaintiff to file a fresh valuation of the suit claim. Under these circumstances, it cannot be said that the trial Court has committed an error in directing the plaintiff to file a fresh valuation. On the contrary, it was open for the court to straightaway proceed under Order 7 Rule 11 of CPC. but it has given an opportunity to the plaintiff to furnish a true and proper valuation of the suit claim. ( 3 ) FOR the reasons stated above, i do not see any ground to interfere with the finding recorded by the trial Court. Accordingly, this civil revision petition fails and the same is dismissed. --- *** --- .