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2009 DIGILAW 750 (CAL)

Goutam Ghosh v. Magma Fincorp Ltd

2009-09-17

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
Judgment :- (1.) Instead of admitting the appeal and keeping the same pending, we propose to hear out the appeal itself by treating it as on days list, as this appeal raises a pure question of law as to the jurisdiction of the learned trial Court and at the same time, the defendant/respondent has also entered appearance in the appeal through Mr. Bose, the learned Advocate. (2.) This appeal is at the instance of a plaintiff in a suit for declaration and permanent injunction and is directed against Order No. 11 dated 7th September, 2009 passed by the learned Judge, City Civil Court at Calcutta, by which the said Court has dismissed the application on merit by holding that the plaintiff had failed to prove a prima facie case to have an order of temporary injunction. (3.) Being dissatisfied, the plaintiff has come up with the present first miscellaneous appeal. (4.) In the plaint of the suit, out of the present appeal arises, the plaintiff prayed for declaration that an agreement entered into between the parties, by which the plaintiff took loan of Rs. 17 lakh and odd was vitiated by fraud and therefore, the same should be declared as null and void and for permanent injunction restraining the defendant from disturbing the possession of the vehicle purchased by the plaintiff with the money taken from the defendant. (5.) The main grievance of the plaintiff was that although the plaintiff has taken loan of more than Rs. 17 lakh and with the aid of that money, he has purchased the vehicle, the defendant did not disclose the terms of repayment of such loan and while handing over the vehicle to the defendant purchased with the aid of the money taken by way of loan, the signatures of the plaintiff were taken on blank papers and blank cheques. (6.) The plaintiff, therefore, alleged that such agreement was vitiated by fraud and as such, for the alleged violation of the terms of agreement, the vehicle purchased by the plaintiff from the money advanced by the defendant cannot be seized. (7.) Such a suit was valued at Rs. 50/- for declaration and further sum of Rs. 50/-for permanent injunction and the suit was filed in the City Civil Court at Calcutta, whose pecuniary limit of jurisdiction is restricted to Rs. 10 lakh only. (7.) Such a suit was valued at Rs. 50/- for declaration and further sum of Rs. 50/-for permanent injunction and the suit was filed in the City Civil Court at Calcutta, whose pecuniary limit of jurisdiction is restricted to Rs. 10 lakh only. (8.) While opposing the application for temporary injunction, the defendant took specific point that the City Civil Court at Calcutta had no pecuniary jurisdiction to entertain the suit in view of the admitted fact that the plaintiff took loan of more than Rs. 17 lakh by virtue of the agreement between the parties, which the plaintiff wants to avoid on the allegation of fraud. (9.) The learned Trial Judge, however, while disposing of the application for injunction on merit took note of such objection, but overruled the same on the ground that in a suit for declaration and injunction, the plaintiff can value his relief according to his own choice. (10.) In this appeal, Mr. Bose, the learned Advocate appearing on behalf of the respondent, has at the very outset taken the plea of want of pecuniary jurisdiction of the trial Court and we propose to deal with such question before entering into the merit. (11.) There is no dispute that in a suit for declaration and permanent injunction, the suit is valued according to the valuation of the relief and where the nature of the declaration is such that it has no objective standard of assessing the valuation, the plaintiff can value the relief according to his own choice ; but in a case where from the case made out by the plaintiff, it is apparent that the relief is capable of appropriate valuation according to the case made out by the plaintiff, in such a case, the plaintiff cannot arbitrarily value the relief according to his whim. (12.) As pointed out earlier, it has appeared at the time of hearing of the application for temporary injunction that the plaintiff has admittedly taken the money worth more than Rs. 17 lakh and has purchased the vehicle in question by the said money after investing some more amount from his own pocket. (13.) We have already pointed out that the plaintiff has prayed for declaration that the said agreement by which he got the money was vitiated by fraud. 17 lakh and has purchased the vehicle in question by the said money after investing some more amount from his own pocket. (13.) We have already pointed out that the plaintiff has prayed for declaration that the said agreement by which he got the money was vitiated by fraud. (14.) In such circumstances, in our opinion, the relief of declaration that the agreement of advancement of more than Rs. 17 lakh was vitiated by fraud cannot be valued at Rs. 50/-. Similarly, the prayers for declaration and permanent injunction that the plaintiff is the owner of the vehicle, which is on its own showing valued more than Rs.10 lakh and for permanent injunction cannot also be valued at Rs. 50/-. (15.) We, thus, find that the relief of declaration that the agreement was vitiated by fraud ought to have been valued at the amount, which was admittedly received by the plaintiff from the defendant and thus, if appropriate valuation is given, the learned Judge, City Civil Court at Calcutta will have no jurisdiction to entertain the suit. (16.) As provided under Order VII Rule 10 of the Code, when at any stage of the suit, it appears to the Court that it has no pecuniary jurisdiction to entertain the suit, it is left with no other alternative but to return the plaint for presentation before the appropriate forum. At this stage, we may refer to the following observations of the Apex Court in the case of M/s. Commercial Aviation and Travel Company and Ors. v. Mrs. Vimla Pannalal reported in AIR 1988 SC 1636 : "In this connection, we may refer to the provision of Order VII, Rule 11 (b) of the Civil P. C. which provides, inter alia, that the plaint shall be rejected where the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so. It is manifestly clear from the provision of Order VII, R. 11 (b) that a Court has to come to a finding that the relief claimed has been undervalued, which necessarily means that the Court is able to decide and specify proper and correct valuation of the relief and, after determination of the correct value of the relief, requires the plaintiff to correct his valuation within a time to be fixed by the Court. If the plaintiff does not correct the valuation within the time allowed, the plaint is liable to be rejected." (17.) In the above mentioned case, the Supreme Court further observed as follows : "If there be materials or objective standards for the valuation of the relief, and yet the plaintiff ignores the same and puts an arbitrary valuation, the Court, in our opinion, is entitled to interfere under Order VII, Rule 11(b) of the Code of Civil Procedure, for the Court will be in a position to determine the correct valuation with reference to the objective standards or materials available to it. In Urmilabala Biswas v. Binapani Biswas, AIR 1938 Cal 161 a suit was instituted for declaration of title to Provident Fund money amounting to a definite sum with a prayer for injunction restraining the defendant from withdrawing the said money. It was held that there was no real distinction between the right to recover money and the right to that money itself, and that the relief should have been valued at the Provident Fund amount to which title was claimed by the plaintiff. Thus, it appears that although in that case the suit was one under Section 7(iv) (c) of the Court-fees Act, there was an objective standard which would enable the plaintiff and the Court too to value the relief correctly and, in such a case, the Court would be competent to direct the plaintiff to value the relief accordingly." (18.) In this case, in course of hearing of the application for injunction, the moment the Trial Judge found that the plaintiff had taken more than Rs. 17 lakh by virtue of the agreement, it ought to have asked the plaintiff to value the" relief properly i.e. the amount received by him and for payment of adequate Court fees on that amount. 17 lakh by virtue of the agreement, it ought to have asked the plaintiff to value the" relief properly i.e. the amount received by him and for payment of adequate Court fees on that amount. If in spite of such direction, the valuation was not corrected, it was the duty of the Trial Judge to reject the plaint. If the valuation was made and Court fees were paid thereon, the Trial Judge should thereafter return the plaint for presentation before the appropriate forum. The finding recorded by the Trial Judge, therefore, has become the finding of a Court having no pecuniary jurisdiction. (19.) On that ground alone, we set aside the order impugned without entering into the merit. We give leave to the plaintiff to correct the valuation and pay the adequate Court fees and if the valuation is corrected and the adequate Court fees are paid, the Trial Judge will return the plaint to the learned Advocate for the plaintiff for presentation before the appropriate forum ; if in spite of such direction, the plaintiff does not amend the valuation or pays the adequate Court fees, the Court will reject the plaint in terms of Order VII Rule 11 of the Code. (20.) The order impugned is, thus, set aside with the aforesaid observation and direction upon the Trial Judge. (21.) The appeal is, thus, disposed of. The application for injunction is also consequently dismissed only ground of want of pecuniary jurisdiction. (22.) In view of disposal of the application, the connected application has become infructuous and the same is, thus, disposed of.