STATE OF GUJARAT v. SATTARBHAI MUSABHAI MEMOAN — 1994 DIGILAW 121 (GUJ)

A. P. RAVANI, J. ( 1 ) THE State of Gujarat has felt aggrieved by the order dated 31/08/1988 passed by the learned Civil Judge (J. D.) Rajpipla in Regular Civil Suit No. 110/86 rejecting the report of the Court Fees Inspector. The Court Fees Inspector as per his report dated November 2 1987 prayed that in the suit the amount of court fees was required to be paid on ad valorem basis inasmuch as the suit in essence was for specific performance of contract. On this basis it was requested that the plaintiff be directed to pay court fees on the basis of the value of the subject-matter of the suit. ( 2 ) RESPONDENT No. 1 i. e. Sattarbhai Musabhai Memon filed suit against respondent No. 2 i. e. Umiya Timber and Furniture Mart on 13/09/1988 In the suit the plaintiff prayed that the defendant be restrained from moving sized timber wood and be restrained from obtaining permission from Range Forest Officer and be also restrained from obstructing the plaintiff from moving the timber wood in question. It was the case of respondent No. 1-original plaintiff that respondent No. 2-defendant had entered into contract with him for sale of timber wood at the rate of Rs. 140. 00 per cubic foot for 600 cubic feet timber wood. The timber wood was agreed to be supplied by defendant after sizing the same. As per the contract the defendant was required to give delivery of the said goods to one M. K. and Company of Rajpipla. An amount of Rs. 23 0 (Rupees twenty-three thousand) was paid towards consideration of the goods to be supplied by the defendant. After receiving the aforesaid amount the defendant entered into contract of sale with some other person and attempted to deliver goods to other persons in breach of the contract entered into with the plaintiff. On these allegations the plaintiff filed the suit and prayed for the relief as stated above. ( 3 ) THE Inspector of Court Fees attached to the Court inspected the plaint as provided under Section 12 of the Bombay Court Fees Act 1959 He made report to the Court to the effect that the court fees of Rs. 30. 00 paid on the basis that the suit was for injunction was not proper. ( 3 ) THE Inspector of Court Fees attached to the Court inspected the plaint as provided under Section 12 of the Bombay Court Fees Act 1959 He made report to the Court to the effect that the court fees of Rs. 30. 00 paid on the basis that the suit was for injunction was not proper. In a detailed report submitted by him it was pointed out that the subject-matter of the suit was capable of monetary evaluation; that the subject-matter of the suit was 600 cubic feet of timber wood; its price was Rs. 140. 00 per cubic foot; that on this basis as disclosed in the plaint 65 cubic feet timber wood was already supplied; the price of balance 535 cubic feet timber wood would come to Rs. 74 900 (Rupees seventy-four thousand nine hundred ). On this basis it was submitted by him that an amount of Rs. 2870 (Rupees two thousand eight hundred and seventy) was required to be recovered as and by way of court fees. The Trial Court rejected the reference on the ground that the relief prayed for in the suit was for injunction and that it was falling within the provisions of Section 6 (iv) (j) of the Court Fees Act and therefore the Court fees paid was proper. The State Government of Gujarat has filed this Revision Application challenging the legality and validity of the aforesaid order. Relevant part of the provision of Section 6 of the Bombay Court Fees Act 1957 reads as follows:"6. The amount of fees payable under this Act in the suits next hereinafter mentioned shall be computed as follows: (i ). . . . (ii ). . . . (iii ). . . . (iv) (a) to (i ). . . . . . (j) In suits where declaration is sought with or without injunction or other consequential relief and the subject-matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act-thirty rupees. ( 4 ) THE Trial Court has fallen in error in holding that the suit is covered by the aforesaid provision of the Court Fees Act. ( 4 ) THE Trial Court has fallen in error in holding that the suit is covered by the aforesaid provision of the Court Fees Act. In the instant case the subject-matter of the suit is specific performance of contract entered into between respondent No. 1-plaintiff and respondent No. 2 Even if it is not considered to be a suit for specific performance of the contract in relation to movable property it is evident that the subject-matter of the suit is susceptible to monetary evaluation. Either way the provisions of Section 6 (i) (j) would not be attracted. ( 5 ) IN this connection reference may be made to a decision of this Court in the case of Cotseeds Corporation Rajkot v. Cotton Corporation of India Bombay reported in 1988 (2) GLR 1021 . In para 5 of the reported decision it is inter alia observed that in each case what in substance the plaintiff demands should be understood. In context of the facts of that case it has been observed that it was not mere declaration of a particular right or it was not mere restriction to be placed on the defendant-Corporation from doing certain thing that the plaintiff prayed for. In substance what the plaintiff prayed for was that the defendant-Corporation should be prevented from supplying goods to others before it supplied the goods contracted to be delivered to the petitioner-plaintiff. In this background it was observed that such prayer was nothing but prayer for specific performance of contract couched in different phraseology so as to appear that it was a suit for declaration and injunction and not for specific performance of the contract. The court further observed that verbal gloss of the veil with which the planitiff has covered the actual relief prayed for cannot change the nature and substance of the relief. ( 6 ) IN the instant case the plaintiff prays for supply of balance 535 cubic feet timber wood. In the plaint it is disclosed that the price of 535 cubic foot timber- wood is Rs. 74 900 (Rupees - seventy-four thousand nine hundred) inasmuch as the price per cubic foot is Rs. 140. 00. In view of this position it is evident that the relief claimed for is susceptible to monetary evaluation and the relief in substance is in relation to movable property other than money and it has a market value. 74 900 (Rupees - seventy-four thousand nine hundred) inasmuch as the price per cubic foot is Rs. 140. 00. In view of this position it is evident that the relief claimed for is susceptible to monetary evaluation and the relief in substance is in relation to movable property other than money and it has a market value. Therefore the Court fees payable on the plaint would be as provided under Section 6 of the Bombay Court Fees Act 1959. ( 7 ) IN view of the aforesaid petition the order passed by the Trial Court below Exh. 1 is required to be quashed and set aside and the same is hereby quashed and set aside. The report of the Court Fees Inspector vide Court Fees Reference No. 7/87 is required to be accepted and the same is hereby accepted. The Trial Court is directed to recover the balance of the Court fees from the plaintiff on the basis that proper Court fees required to be paid by the plaintiff was on Rs. 74 900 and that the proper court fees would be Rs. 2780. 00. Rule made absolute accordingly. .