Manoj Khandelwal v. Delight Ventures and Realtors Pvt. Ltd.
2020-09-22
A.RAJASEKHAR REDDY
body2020
DigiLaw.ai
ORDER : A. Rajasekhar Reddy, J. 1. This civil revision petition is filed against the order dated 24.7.2020 passed in OS (SR) No. 1626 of 2020 by the Court below upholding the office objection and requiring the plaintiffs to pay Court fee on the value of the document for cancellation of Agreement of Sale-cum-General Power of Attorney under Section 37(1)(a) of the Telangana Court Fee and Suits Valuation Act, 1956 (Adopted), (for short, "the Act"). Plaintiffs are petitioners herein. 2. The above suit (SR) was sought to be filed for the reliefs viz., damages of Rs. 1,46,63,000/-, cancellation of Development Agreement-cum-General Power of Attorney, cancellation of Sale Deeds and for grant of consequential injunction. 3. In Para 11 of the plaint, the petitioners valued the suit reliefs as follows: "11. Court Fee :-The plaintiffs value the suit for the purpose of the Court fee and jurisdiction at Rs. 1,46,63,000/- being the value of damages (@ Rs. 3,41,000/- per month for 43 months) as per the Development Agreement-cum-General Power of Attorney, which is sought to be cancelled and pays an ad-valorem Court fee of Rs. 1,49,126/- under Section 39 of A.P.C.F. & S.V. Act and also values for cancellation of 5 (five) documents at Rs. 10,000/- each amounting to Rs. 3,930/- under Section 24(d) of the Act and further values suit for consequential injunction at Rs. 20,000/- and pays an ad-valorem Court fee of Rs. 1,386/- under Section 26 of the Act which is sufficient and collectively pays a sum of Rs. 1,57,286/- through challan in State Bank of India, Hyderabad, which is sufficient." 4. It is seen that petitioners have not paid any Court fee for the relief of cancellation of Development Agreement-cum-General Power of Attorney. Section 37(1)(a) of the Act which reads as under : (1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be: (a) if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed......" 5.
Learned Counsel for the petitioners submit that though the petitioners are liable to pay Court fee under Section 39 of the Act, the Court below erroneously directed them to pay Court fee under Section 37(1)(a) of the Act, without following the ratio laid down by this Court in a decision reported in 2005 (4) ALD 800 . This contention of the learned Counsel cannot be countenanced for more than one reason; firstly, the decision relied on, no relief for cancellation of document was sought so as to attract Section 37(1)(a) of the Act. In that case the suit was filed for specific performance of the Development Agreement under the provisions of Specific Relief Act and though a relief was sought for recovery of possession of the land, and the suit filed for specific performance filed by the Developer therein being allowed, the possession will be handed over to the owner after construction of the building as per terms therein, therefore, the facts therein are totally different and distinct and not applicable to the facts of this case. Secondly, no Court fee is paid for cancellation of the Development Agreement-cum-General Power of Attorney, which is otherwise payable under Section 37(1)(a) in respect of suit of cancellation of other document which purports or operates to create any right in the party seeking cancellation. Whether the plaintiffs are seeking damages from the other party or not is immaterial, once a document creating a right in them having money value is sought to be cancelled, Court-fee is liable to be paid under Section 37(1)(a) of the Act, which is the relevant provision. 6. The other contention of the learned Counsel for petitioners that damages are claimed in suit basing on Development Agreement-cum-General Power of Attorney is nothing but seeking specific performance thereof and as Court fee is already paid on damages, the petitioners are required to pay Court fee only under Section 39 of the Act cannot be accepted as cancellation is sought and even it is taken that specific performance is sought, Court fee needs to be paid under Section 37(1)(a) of the Act for cancellation of the document. Section 39 of the Act which provides for Court fees payable in respect of suits for specific performance, reads as under: "39.
Section 39 of the Act which provides for Court fees payable in respect of suits for specific performance, reads as under: "39. Suits for specific performance:--In a suit for specific performance, with or without possession, fee shall be payable:-- (a) in the case of a contract of a sale, computed on the amount of the consideration; (b) in the case of a contract of a mortgage, computed on the amount agreed to be secured by the mortgage; (c) in the case of a contract of lease, computed on the aggregate amount of the penalty or premium, if any, and of the average of the annual rent agreed to be paid; (d) in the case of a contract of exchange, computed on the amount of the consideration, or as the case may be, on the market value of the movable property or three fourths of the market value of the immovable property sought to be taken exchange; (e) in other cases, where the consideration for the promise sought to be enforced has a market value, computed on the market value of the movable property or three-fourth of the market value of the immovable property or where such consideration has no market value, at the rates specified in Section 47." In the present case, the petitioners are not seeking for specific performance of any document, but cancellation of the Development Agreement-cum-General Power of Attorney and for damages. The petitioners initially sought to pay Court fee for under Sections 19 and 20 of the Act, which is evident from the plaint copy filed alongwith the material papers in this case, but altered the same in the fair copy of the plaint filed thereafter to that of Section 39 of the Act. Though Section 39 contemplates Court fees payable in respect of suits for specific performance, the reliefs sought for by the petitioners does not come within the scope of Section 39 of the Act and therefore Section 39 is wholly inapplicable for the purpose of valuation of the Court fee for the relief sought in the suit. If Court fees is paid under Section 39 of the Act, under sub-clause (e), three-fourth on the market value of the immovable property is to be paid.
If Court fees is paid under Section 39 of the Act, under sub-clause (e), three-fourth on the market value of the immovable property is to be paid. Even otherwise, under Section 11(1)(b) of the Act, the decision of the Court under clause (a) regarding payment of proper fee payable shall be subject to review from time to time as occasion requires and perhaps after other side Counsel enter appearance and raises an objection as to the Court fee paid, which could be decided, if necessary by framing a issue in that behalf. 7. In the circumstances, I do not see any error of jurisdiction committed by the Court below in passing the impugned order warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. The civil revision petition fails and it is accordingly dismissed. Miscellaneous applications, if any pending in this case shall stand closed. No order as to costs.