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2013 DIGILAW 44 (CAL)

Amal Banerjee v. Sanjib Kumar Dey

2013-01-29

ASIM KUMAR MONDAL

body2013
JUDGMENT Asim Kumar Mondal, J. 1. The instant revisional application under Article 227 of the Constitution of India is directed against the order dated 7.7.2011 passed by learned Civil Judge (Junior Division), 2nd Court at Howrah in Title Suit No. 42/2009 whereby the learned Trial Judge directed the plaintiff/petitioner to pay the necessary Court fees on the value of the deed impugned being No. 5719/2008 dated 26.3.2008 at A.D.S.R., Ramnagar, Purba Medinipur fixing a date for payment of ad valorem Court fees by the plaintiff. The execution of the deed in question as mentioned above is under challenge in the said suit and as such the petitioner/plaintiff prayed for a decree for declaration that the deed in question is ineffective, invalid, in-operative, void ab initio and not binding upon the plaintiff. In the said suit, the plaintiff/petitioner has also prayed for a permanent injunction restraining the defendant No. 1/opposite party from exercising any sort of ownership and possession in respect of 'A' schedule suit property. 2. The case of the plaintiff/petitioner before the learned Lower Court in short is that all the part and parcel of the bastu land measuring about 4 cottah 8 chitaks 15 sq.ft. together with pucca building being known as "Subhashree Lodge" standing thereon comprised within Dag No. 2034/2170, 2034/2172, 2034/2228 under Khatian Nos. 545, 546/1, 557/1 within Mouza Khadelgobra, P.S. Digha belonged to the present plaintiff/petitioner. 3. The defendant No. 2 is carrying a hotel business by the side of the suit property and in course of time friendship grew in between the plaintiff and the said defendant No. 2. 4. The defendant No. 1 approached the plaintiff to purchase the suit property being aware of the desire of plaintiff to dispossess of the suit property through defendant No. 2. The defendant No. 2 acted as a negotiator in between the plaintiff and the defendant No. 1 in the matter of transfer of the suit property in favour of defendant No. 1 subject to payment of full consideration amount. 5. The plaintiff executed a deed of conveyance on 26.9.2008 on such assurance and promise made by the defendants. After expiry of 7 days as the plaintiff did not get any amount from defendants the petitioner/plaintiff through his learned lawyer, Sri Sanjoy Mukherjee sent a letter dated 4.2.2009 to the defendant No. 2. 6. 5. The plaintiff executed a deed of conveyance on 26.9.2008 on such assurance and promise made by the defendants. After expiry of 7 days as the plaintiff did not get any amount from defendants the petitioner/plaintiff through his learned lawyer, Sri Sanjoy Mukherjee sent a letter dated 4.2.2009 to the defendant No. 2. 6. In reply, the defendant No. 2 through his lawyer Sri Samir Basu Roy Chowdhury sent a letter dated 13.2.2009 denying the claim made by the plaintiff/petitioner and defendant No. 1 did not send any reply till date. 7. After being deceived by defendants, the plaintiff/petitioner sent a demand notice through his lawyer Sri Sanjoy Mukherjee on 4.2.2009 by registered post with A/D. In the meantime, the defendant No. 1 sent a letter with false and concocted averments for which the plaintiff had to file complaint case being No. 196/09 before the learned Chief Judicial Magistrate, Howrah on 26.2.2009. 8. It is the further case of the plaintiff that plaintiff had delivered possession to the defendant No. 1 on good faith and bona fide belief that the full consideration money would be realised after executing the deed of conveyance of the suit property. The defendant No. 1 issued five account payee cheques in favour of the plaintiff/petitioner which described in Schedule 'C' out of which five cheques could not be encashed being dishonoured. 9. Under the facts and circumstances as stated above the plaintiff/petitioner instituted the suit before learned Court below for the reliefs: (a) Declaration to the effect that the sale deed executed by the plaintiff/petitioner in favour of defendant No. 1 being conveyance No. 5719/2008 is ineffective, invalid, inoperative, void ab initio and not binding upon the plaintiff/petitioner, (b) Permanent injunction restraining the defendant No. 1 from exercising any sort of ownership and possession in respect of the suit property; (c) Temporary injunction; (d) Mandatory injunction directing the defendant No. 1 to vacate and deliver the peaceful possession of the suit property to the plaintiff/petitioner. 10. The defendants entered appearance in a suit. At the stage of hearing a point was raised before learned Court below as to whether Court fees paid are sufficient or not. 11. Learned Trial Court vide order No. 42 dated 7.7.2011 directed the plaintiff/petitioner to pay ad valorem Court fees on the consideration amount as stated in the deed of conveyance. 12. At the stage of hearing a point was raised before learned Court below as to whether Court fees paid are sufficient or not. 11. Learned Trial Court vide order No. 42 dated 7.7.2011 directed the plaintiff/petitioner to pay ad valorem Court fees on the consideration amount as stated in the deed of conveyance. 12. Being aggrieved by and dissatisfied with the said order the plaintiff/petitioner has preferred the present revisional application under Article 227 of the Constitution of India on the ground that learned Judge acted illegally while exercising jurisdiction by not considering the suit is for declaration coupled with prayer for injunction and consequential relief. So the authority relied upon is not applicable in this case. Further that the learned Judge has failed in exercising jurisdiction by not considering that the disputed documents is declared invalid and not operative and there is no question of setting it aside as such the principle of law applied by the learned judge is not correct and finally that the suit being declaratory suit simpliciter is not required to be valued undervaluation of the property and as such the plaintiff/petitioner is not required to pay the Court fees on the value of the impugned deed of conveyance. 13. Heard learned counsel appearing on behalf of the plaintiff/petitioner at length. Learned counsel relied upon a judgment of coordinate bench of this Court reported in 2011 (2) CLJ (Cal) 89 wherein His Lordship relied upon the cases reported in AIR 1983 (Cal) 166 , 1992 (2) CHN 482 , 2006 (1) CHN 526 and 2008 (3) WBLR (Cal) 238. His Lordship held that a plaint is to be read as a whole including the reliefs as prayed for in order to ascertain the correct nature of the suit. Reading" the plaint as a whole together with the reliefs prayed for makes it abundantly clear that the suit filed by the plaintiff is a declaratory suit simpliciter and the reliefs sought for in the form of a declaration that the deed of sale in question is ineffective and in-operative is consequential relief to the principle relief sought for by the plaintiff/petitioner. 14. Whether the deed in question is legal or valid, effective or ineffective, operative or in-operative is a question of fact which is to be decided by the Trial Court. 14. Whether the deed in question is legal or valid, effective or ineffective, operative or in-operative is a question of fact which is to be decided by the Trial Court. Whatever the opinion of the Court would be on that issue, the jointness of the property in question is to be probed into by the Trial Court. Sitting in a revision probing into the factual aspect is unwarranted. 15. The decision as referred above in the coordinate bench of this Court also referred before the Trial Judge and relied upon by the plaintiff/petitioner. 16. On the contrary, learned advocate on behalf of the defendants referred one decision of Hon'ble Apex Court reported in 2010 (2) CHN (SO 156. 17. Learned Trial Judge relying upon the said decision of the Hon'ble Apex Court has referred and relying upon by the learned advocate for the defendants has come to the conclusion that the principal relief sought for by the plaintiff/petitioner is a declaration to the effect that the deed in question is ineffective, in-operative, void ab initio and not binding upon. It is clear that the deed in question was executed in between the plaintiff/petitioner and defendant No. 1 as such learned Trial Court opined that the suit is not merely a suit for declaration of title and, therefore, should not be governed under section 7(iv)(b) of West Bengal Court Fees Act, 1970. It is a specific declaratory suit where declaration of deed of conveyance sought for as ineffective, inoperative and void ab initio. The executants i.e. plaintiff/petitioner seeks annulment of the deed in the form of declaration that the deed is invalid or non est or illegal and as such not binding upon. It is nothing but a prayer for cancellation of deed. So, plaintiff/petitioner has to pay ad valorem Court fees on the consideration stated in the sale deed. 18. I have gone through the judgment and decision of Hon'ble Apex Court as referred and relied upon by the learned Trial Judge. In my considered view the learned Trial Judge perhaps has misinterpreted the provision of section 7(iv)(b) of the West Bengal Court Fees Act, 1970. The decision of the Hon'ble Apex Court is relying upon the Court Fees Act, 1870 (as amended in Punjab) under sections 6, 7(iv)(b) and 7(v). The said provision relates to Court Fees Act, 1970 of Punjab. In my considered view the learned Trial Judge perhaps has misinterpreted the provision of section 7(iv)(b) of the West Bengal Court Fees Act, 1970. The decision of the Hon'ble Apex Court is relying upon the Court Fees Act, 1870 (as amended in Punjab) under sections 6, 7(iv)(b) and 7(v). The said provision relates to Court Fees Act, 1970 of Punjab. The provisions as discussed in the decision of Hon'ble Apex Court is applicable for a declaration that the sale deed executed by and between the coparcenary. The parties were in joint possession. Hon'ble Apex Court opined that where the executant of a deed wants it to be annulled he has to seek cancellation of the deed. In the present case, the plaintiff/petitioner has prayed for cancellation of the deed in question. The proviso of section 7 (iv)(c) of the Act as referred in the judgment of Hon'ble Apex Court provides that suits for a declaratory decree with consequential relief, Court fees shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by Clause (v) of section 7 of the said Act. 19. Whereas the valuation of the present suit should be guided by the provision of 7(iv)(b) of West Bengal Court Fees Act, 1970 which runs as follows: 7(iv) in suits- (b) for declaratory decree and consequential relief:--to obtain a declaratory decree or order, where consequential relief is prayed, according to the amount at which the relief sought is valued in the plaint or memorandum of appeal subject to the provision of section 11 of the Act. 20. It should be borne in mind that the provision of Court Fees Act of Punjab is not applicable in West Bengal. The ratio of the decision of Hon'ble Apex Court as referred in the impugned judgment by learned Trial Judge may be applicable in a case governed under the provision of Court Fees Act, 1870 of Punjab in the identical circumstanced case. 21. The ratio of the decision of Hon'ble Apex Court as referred in the impugned judgment by learned Trial Judge may be applicable in a case governed under the provision of Court Fees Act, 1870 of Punjab in the identical circumstanced case. 21. In the present case, it is clear that plaintiff/petitioner has simply prayed for declaration to the effect that the impugned deed is a nullity, ineffective and not binding upon on the ground that the consideration money allegedly paid by the defendant No. 1 through cheques has been dishonoured. So, there is no consideration money against the said deed of sale. 22. In view of the facts and circumstances of the present case as well as discussion as above I am of the opinion that learned Trial Judge has erred both in fact and law and as such the impugned order is liable to be set aside. 23. Thus revisional application succeeds and disposed of accordingly. There shall be no order as to costs.