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2011 DIGILAW 357 (KER)

Sreekumara Samajam v. Thilakan

2011-03-28

S.S.SATHEESACHANDRAN, THOTTATHIL B.RADHAKRISHNAN

body2011
ORDER : Thottathil B. Radhakrishnan, J. No Court Fee is paid on this appeal by the plaintiff. We, therefore, heard his learned counsel on the question of court fee. 2. Defendant subscribed a chit. He bid that. On the allegation that he defaulted the subsequent instalments, the plaintiff, who is the chitty foreman, sued fora personal decree against the defendant and also sought a decree charged on the suit property on the plea that the defendant had provided that property as security by depositing its title deed with him, in a mortgage. The Trial Court granted the personal decree but refused the claim for decree charged on the property. Hence the plaintiff's appeal. 3. The question is whether the plaintiff has to pay court fee, advalorem, on the amount for which charge is claimed over the suit property. 4. Section 52 of the Kerala Court Fees and Suits Valuation Act, 1959, governs appeals. It says that the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal. The subject-matter of the appeal in hand is the plea of the appellant/plaintiff that he is entitled to a decree to the extent of the plaint claim, charged on the plaint schedule property. It has, therefore, to be valued ad valorem and court fee has to be paid thereon. 5. In terms of Section 6 of the C.F. & S.V. Act, when there are multiple reliefs in a suit, that is to say, when separate and distinct reliefs are sought based on the same cause of action, the plaint shall be chargeable with a fee on the aggregate value of the reliefs. If a relief is sought only as ancillary to the main relief, the plaint shall be chargeable only on the value of the main relief. When more reliefs than one, based on the same cause of action, are sought in the alternative in any suit, the plaint shall be chargeable with the highest of the fees leviable in respect of any one of the reliefs. When more reliefs than one, based on the same cause of action, are sought in the alternative in any suit, the plaint shall be chargeable with the highest of the fees leviable in respect of any one of the reliefs. Where a suit embraces two or more distinct and different causes of action and separate reliefs are sought based on them, either alternatively or cumulatively, Section 6(3) of the C.F. & S.V. Act prescribes that, the plaint shall be chargeable with the aggregate amount of fees which would be chargeable under the Act if separate suits were instituted in respect of the several causes of action. However, where the cause of action in respect of reliefs claimed alternatively against the same person arise out of the same transaction, the plaint shall be chargeable only with highest of the fees chargeable on them. 6. The relief of personal decree and the relief of a decree charged on immovable property are separate reliefs based on distinct and different causes of action. When such reliefs are sought either alternatively or cumulatively, the plaint shall be chargeable with the aggregate amount of fees payable if separate suits were instituted in respect of those causes of action. This is the prescription in Section 6(3) of the C.F. & S.V. Act. That provision is attracted to appeals by virtue of Section 52. Thus, in an appeal from suit laid claiming reliefs on different causes of action, the reliefs stand with such identity, no matter whether, those reliefs are claimed either alternatively or cumulatively. Hence, in the case of multifarious suits, that is, in suits filed embracing two or more distinct and different causes of action and separate reliefs are sought based on them, the relief or reliefs refused by the Trial Court stand distinct for the purpose of the appeal. In the appeal in hand, the relief for grant of a decree charged on the plaint schedule property for the amount for which the charge is claimed, is a relief, distinct and different from the personal decree based on the chitty transaction. Therefore, separate valuation of the relief claimed on the mortgage, for the purpose of this appeal and payment of court fee on that basis cannot be avoided. 7. With this, we look at the submission on behalf of the appellant, on the basis of the provisions which apply to suits relating to mortgages. Therefore, separate valuation of the relief claimed on the mortgage, for the purpose of this appeal and payment of court fee on that basis cannot be avoided. 7. With this, we look at the submission on behalf of the appellant, on the basis of the provisions which apply to suits relating to mortgages. Reference is made to Section 33 of the C.F. & S.V. Act and Rr. 3, 10 and 11 in O. 34 of the Code of Civil Procedure. It is pointed out that in a suit for recovery of money due on a mortgage, fee shall be payable on the amount claimed and it is immaterial whether the sale of the mortgage property is, or not sought for. 8. The argument on behalf of the appellant is not acceptable because the statutory provisions relied on in support have no bearing on the question since they apply only to the relief based on the mortgage and not the relief of personal decree that was claimed and granted by the court below. The reliefs sought for by the appellant in the suit are, essentially, distinct. The cause of action on a chitty transaction and the right to sue thereon are not the same as the cause of action and the right to sue for amount due on a mortgage. When one of the multifarious reliefs sought for was granted and plaintiff appeals against the refusal to grant the other; here, the claim for a decree charged on the immovable property over which a mortgage is, allegedly, created; the appealing plaintiff has to pay court fee on the memorandum of appeal determined ad valorem, computed on the amount claimed. This is the effect of Section 33 read with Section 52 of the C.F. & S.V. Act. 9. Hence, the appellant has to pay court fee, ad valorem, on the amount in dispute in this appeal. We grant the appellant three weeks from the date of receipt of a copy of this order to pay one third of the court fee payable on this appeal and produce valuation statement. Order accordingly.