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2014 DIGILAW 290 (MAD)

D. Nagaraj v. A. Devaraj

2014-02-07

P.R.SHIVAKUMAR

body2014
Judgment 1. The revision petitioner herein was the defendant in O.S.No.124/2007 filed by the revision petitioner for the relief of specific performance, based on an agreement for sale dated 24.09.2005. The plaintiff, namely the respondent herein had valued the relief sought for in the plaint at Rs.4,08,500/- and a further relief of injunction at Rs.1,000/- and paid court fee on the basis of the said valuation. He emerged successful in the trial before the trial court, as the suit was decreed as prayed for by a judgment and decree dated 19.01.2010. 2. As against the said decree of the trial court, the revision petitioner preferred an appeal in A.S.No.28/2010 on the file of the Principal District Judge, Tiruvallur. In the appeal, he valued the relief at Rs.4,08,500/- and paid a court fee of Rs.30,780/-. The appellate court took the appeal on file and while the appeal was thus pending before the appellate court, Court Fee Examiner of the High Court of Madras, conducted an inspection and found that the appeal was not properly valued with the result that a lesser amount than the court fee payable on the appeal had been paid. 3. Based on the check slip issued by the Court Fee Examiner, notices were served on the parties to the appeal and an enquiry was conducted by the learned appellate judge. After enquiry, the learned appellate judge held that the appeal should have been valued on par with the sale consideration quoted in the agreement for sale irrespective of the fact whether the relief of specific performance was claimed in respect of the entire part of the obligation of the defendant under the agreement or only the unfulfilled part of the obligation. Accordingly, the learned appellate judge held that the suit ought to have been valued at Rs.17,38,500/- and that the appeal therefrom filed by the revision petitioner also should have been valued at the same rate. Resultantly, the learned appellate judge directed the revision petitioner to pay a sum of Rs.99,750/- as the balance amount of court fee payable on the appeal memorandum. As against the said order of the learned appellate judge, the present revision has been filed. 4. Notice before admission was given to the respondent and the respondent has also entered appearance through counsel. The arguments advanced by Mr. H. Adaikala Arockiaraj, learned counsel for the revision petitioner and by Mr. As against the said order of the learned appellate judge, the present revision has been filed. 4. Notice before admission was given to the respondent and the respondent has also entered appearance through counsel. The arguments advanced by Mr. H. Adaikala Arockiaraj, learned counsel for the revision petitioner and by Mr. R. Karunagaran, learned counsel for the respondent are heard. The materials produced in the form of typed set of papers are also perused. 5. It is the contention of the learned counsel for the revision petitioner that, as per Section 52 of the Tamil Nadu Court Fee and Suits Valuation Act, 1955, the court 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. In other words, the contention of the learned counsel for the revision petitioner is that the subject matter of the appeal alone shall be taken into account and the court fee should be computed on the basis of the value of the subject matter of the appeal. To the above said extent, the contention of the learned counsel for the petitioner cannot be stated to be unfounded and such a contention has got to be accepted, as it is nothing but the repetition of the principle embodied in Section 52 of the Tamil Nadu Court Fee and Suits Valuation Act, 1955. 6. However, it happens to be the further contention of the learned counsel for the petitioner that, when the subject matter of the suit was rightly or wrongly valued at a particular rate in the plaint, the appellate court cannot question the adoption of the very same value in the appeal, when the decree passed by the trial court in entirety is challenged. The said contention cannot be accepted. What section 52 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 contemplates is payment of court fee in an appeal on the subject matter of the appeal, if it is made a subject matter of the suit in the court of first instance and not what was the value furnished in the court of first instance. What section 52 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 contemplates is payment of court fee in an appeal on the subject matter of the appeal, if it is made a subject matter of the suit in the court of first instance and not what was the value furnished in the court of first instance. For example, if a suit has been filed for recovery of money with interest and the suit is decreed partly and part of the claim of the plaintiff is disallowed, the plaintiff who prefers an appeal on the disallowed portion of the claim, cannot be compelled to pay court fee once again for the portion allowed by the trial court, which is not in challenge in the appeal by the plaintiff. Similarly, when a claim of the plaintiff is allowed by the trial court with interest, the appeal shall not be valued on the claim made in the plaint, but the valuation of the subject matter of the appeal, shall be loaded with interest awarded by the trial court up to the date of the decree of the court against which the appeal is filed. 7. In a suit for specific performance of a contract, whether with or without possession, fee shall be payable computed on the amount of consideration regarding the subject matter of the suit. Suppose a contract for sale has been entered into for the sale of a number of items of properties and some of the items have been conveyed in part performance of the agreement for the sale, the purchaser under the agreement cannot be expected to file a suit for the performance of the contract in respect of the entire properties covered by the agreement. On the other hand, he can omit that part of the agreement, regarding which he has already obtained sale deed and possession and confine his claim to the rest of the properties covered by the agreement for sale. 8. This is quite clear from the terminology used in Section 42 of the Act. Such an interpretation has been accepted in a number of decisions, which this court is not going to mention here, as it is unnecessary, since this court accepts the proposition made by the learned counsel for the revision petitioner. 8. This is quite clear from the terminology used in Section 42 of the Act. Such an interpretation has been accepted in a number of decisions, which this court is not going to mention here, as it is unnecessary, since this court accepts the proposition made by the learned counsel for the revision petitioner. However, a difficulty has arisen in this case in valuing the unperformed portion of the contract under the suit agreement for sale. 9. The respondent herein, who figured as the plaintiff, chose to value the unperformed part of the contract at Rs.4,08,500/- on the assumption that the balance amount of consideration would be referable to the property, which was already conveyed to the plaintiff in terms of the agreement. In this case, the suit sale agreement was entered into for the sale of items 1 and 2 in the plaint schedule. So far as item No.1 of the plaint schedule is concerned, admittedly, conveyance had been completed and there was no need for the plaintiff to include a prayer regarding item No.1. The same was the reason why the respondent herein/plaintiff chose to value item No.2 alone for the purpose of payment of court fee and jurisdiction. Whether such a valuation made is proper or not? - is the further question that arises for consideration. 10. It is not the case of either of the parties that out of the total sale consideration, a sum of Rs.13,30,000/- was paid as sale consideration of item No.1. Neither the plaintiff nor the defendant chose to furnish the split up particulars of the value of item Nos. 1 and 2 separately to enable the court to decide at what amount the second item is to be valued for the purpose of payment of court fee. It transpires a sale deed came to be executed in favour of the respondent herein/plaintiff on 24.10.2005 under Document No.3199/2005 in respect of item No.1 alone. The sale consideration recited therein is Rs.1,00,800/-. In the absence of any other document showing that the value of the first item was more than the said amount, we have to take the said amount only as the value of item No.1 of the plaint schedule, regarding which no relief was claimed. The sale consideration recited therein is Rs.1,00,800/-. In the absence of any other document showing that the value of the first item was more than the said amount, we have to take the said amount only as the value of item No.1 of the plaint schedule, regarding which no relief was claimed. If that amount is deducted from the total sale consideration agreed to between the parties as evidenced by the suit sale agreement, the balance sale consideration, namely Rs.16,37,700/-, shall be referable to the second item of the suit properties. Hence, it shall be proper to hold that the value of the unperformed part of the obligation under the agreement should be valued at Rs.16,37,700/- as the balance sale consideration after deducting the sale consideration for the first item of the suit property. If such a calculation is made, the suit should have been valued at Rs.16,37,700/- and court fee should have been paid by the plaintiff on the basis of such value. Similarly, the appeal should have been valued at Rs.16,37,700/- and court fee should have been paid thereon on the above said amount. 11. In this regard, the learned counsel for the revision petitioner made an attempt to show that proportionate value depending on the extent of items 1 and 2 should be taken into account for deciding the value of the subject matter. In support of his contention, the learned counsel for the revision petitioner relied on a judgment of this court in R.S. Jhavar v. P. Thanikachala Gramani and others reported in 1966 MLJ Page 38. The said judgment and other judgments relied on by the learned counsel for the revision petitioner, dealt with suits based on agreements for sale of properties at a particular rate per cent or per acre. In such cases, the sale consideration can be distributed in accordance with the extent. When there is no such clause in the agreement for fixing the sale consideration at a particular rate per square feet or cent or acre or hectare, if the property forms part of the one and the same field, there may be a chance for contending that the intention of the parties was to apply the rate uniformly throughout the entire extent. If there are disjunct and different properties that are agreed to be sold under the agreement, then we have to ascertain the value of the property from the sale deeds executed in respect of those properties conveyed in performance of the obligation of the vendor under the agreement for sale and deduct the same from the total sale consideration to find out the value of the unperformed portion of the obligation. 12. In this case, since the first and second items of the suit properties are disjunct and different properties, we have to take the value of first item as Rs.1,00,800/-, deduct the same from the sale deed bearing Document No.3199/2005 and take the balance as the value of the second item, regarding which specific performance was prayed for by the plaintiff. The appellate court, while holding that the valuation of the subject matter of the appeal was not correctly made, committed a mistake in taking the total sale consideration for items 1 and 2 as found in the agreement for sale to be the value of the subject matter of appeal. To that extent, the order of the learned appellate judge, is defective and erroneous, which requires correction by this court. However, the contention of the learned counsel for the revision petitioner that the value adopted by the plaintiff in the plaint alone shall be taken as the value of the second item of the suit properties and court fee should be collected in the appeal based on such value has to be rejected as untenable for the reasons stated supra. 13. The correct approach shall be to deduct the value found in the sale deed executed in respect of item 1 from the total consideration and take the balance amount of sale consideration as representing the value of the second item for the purpose of valuation of the relief sought for in the suit as well as the relief sought for in the appeal. Accordingly, this court is of the considered view that the order of the learned appellate judge requires modification by directing payment of court fee on Rs.16,37,700/- instead of court fee on Rs.17,38,500/-. The other directions by the appellate judge requiring payment of court fee by the appellant and also by the respondent/plaintiff shall stand confirmed, subject to the above said modification. The appellant shall pay the balance court fee on or before 07.03.2014. The other directions by the appellate judge requiring payment of court fee by the appellant and also by the respondent/plaintiff shall stand confirmed, subject to the above said modification. The appellant shall pay the balance court fee on or before 07.03.2014. The excess amount towards court fee, if any, collected from the respondent/plaintiff shall be refunded to the respondent/plaintiff. In the result, the civil revision petition is allowed in part. The order of the appellate judge dated 24.01.2011 made in A.S.No.28 of 2010 is modified by directing payment of court fee on Rs.16,37,700/- instead of court fee on Rs.17,38,500/-. The other directions of the learned appellate judge requiring payment of court fee by the revision petitioner/appellant and the respondent/plaintiff shall stand confirmed. The revision petitioner/appellant shall pay court fee on Rs.16,37,700/- on or before 07.03.2014. The excess amount towards court fee, if any, collected from the respondent/plaintiff shall be refunded to the respondent/plaintiff. However, there shall be no order as to costs in this civil revision petition. Consequently, the connected miscellaneous petition is closed.