Bombay High Court
Parekh Market Permises Co-Op. Society ... vs Padmanabh Builders And Ors. on 3 November, 1997
Equivalent citations: (1998)100BOMLR1, 1998 A I H C 2537, (1998) 2 ALLMR 313 (BOM) 1998 BOM LR 1 1, 1998 BOM LR 1 1
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, J.
1. The plaintiff has filed the present suit with the following prayers:
(a) This Hon'ble Court may be pleased to declare that there is valid, subsisting and binding agreement inter alia to convey the said property described in Ex. "A" hereto and the building standing thereon in favour of the Plaintiff and the Defendants No. 1 to 4 are bound and liable to specifically perform their part of the said agreement and to comply with the statutory obligations under the provisions of the Maharashtra Ownership Flats Act, 1963.
(b) The Defendants No. 1 to 4 may be ordered and decreed to execute conveyance of the said plot more particularly described in Exhibit "A" hereto witl§ the building standing thereon in favour of the plaintiff and be directed to do all such requisite, acts, deeds, things and matters and execute and sign all necessary and requisite documents, papers, forms, applications, deeds, things etc. for effectually vesting the said property described in Ex. "A" hereto with the building thereon in favour of the plaintiff.
(c) For the purposes aforesaid all other directions and orders may be issued.
(d) The Defendants their servants and agents and all persons claiming through the Defendants may be restrained by a permanent order and injunction of this Hon'ble Court from in any way exploiting, consuming, utilising and /or taking advantage of Floor Space Index out of the said property described in Ex. "A" hereto or any part thereof and/or any Floor Space Index by way of Transferable Development Rights and/or carry on any construction activities of the said plot or any part thereof by putting additional floor or floors and/or any additional structures on the said building and /or on the said property described in Ex. "A" hereto or any part thereof.
2. This Notice of Motion has been taken out for an order of injunction restraining the defendants No. 1 to 4 from in any manner dealing with or disposing of the suit plot described in Ex. "A" to the plaint and/or the building or structure on the said plot. It is also prayed that the defendants be restrained by an order of injunction from in any way exploiting, consuming, utilising and/or taking advantage of Floor Space Index out of the said property described in Ex. "A" to the plaint. It is also prayed that the defendants be restrained by an order of injunction from in any manner interfering with the plaintiffs business management and affairs of and concerning the said property or any part thereof including interfering with the plaintiffs right to effect transfer of the shares of the plaintiff and/or the premises in the said building. An affidavit in support of the Notice of Motion has been filed. The defendants have filed their reply. Rejoinder and surrejoinder have also been filed.
3. At the outset, the counsel for the defendants has raised a preliminary objection to the effect that this Court has no jurisdiction to entertain the suit. Therefore, it is necessary to try this objection as a preliminary issue which is framed as under :
Whether this Court has jurisdiction to entertain and try the suit?
4. Briefly stated the facts as pleaded in the plaint are that the plaintiff is a co-operative society registered under the provisions of Maharashtra Co-operative Societies Act, 1960, consisting of 66 members, who are the purchasers, acquirers and owners of the premises in the building. The building known as Parekh Market has been constructed by the defendants. The defendant No. 1 is a partnership firm. The defendants No. 1 to 4 are the partners of the defendant No. 1. The defendants are carrying on business as Builders and Developers and are said to be "Promoters" within the meaning of Maharashtra Ownership of Flats Act, 1963. The defendant No. 5 is a private limited company, who carries on the business of jewellery and is in occupation of shop No. 8 and 9 on the ground floor of the Building. The defendant No. 6 is a firm which carries on business of jewellery. This defendant occupies shop No. 4 and 5 on the ground floor. The defendant No. 7 is the Bombay Municipal Corporation. Under the Deed of Conveyance dated 8th February, 1979 which is lodged for registration with the Su-Registrar of Assurance at Bombay, the original owner conveyed the suit plot in favour of the plaintiff. The particulars of the plot are described in Ex. "A". The defendants No. 1 to 4 intended to develop the said plot by constructing a building on the said plot. The defendants No. 1 to 4 entered into separate agreements for sale with the prospective purchaser/allottees of various flats, shops and office premises, in the said building to be constructed by them on the said plot. These agreements are in the usual format. Except the description of the premises agreed to be sold or allotted and the purchase price all the terms and condition of the various agreements are common.
5. It is pleaded in the plaint that the defendants No. 1 to 4 have constructed a building on the said plot now known as Parekh Market and have obtained occupation certificate in respect thereof. The possession of the respective premises have been handed over to the purchasers/allottees thereof in or about 1987. The purchasers/allottees have formed a society which has been registered under the Maharashtra Co-operative Housing Societies Act, 1960. It is pleaded that as per the said agreement and as per the provisions of the Maharashtra Ownership of Flats Act, 1963 (hereinafter referred to as "the M.O.F.A.") the defendants No. 1 to 4 are bound to execute conveyance of the said plot of land together with the building known as Parekh Market in favour of the plaintiff. They have failed and neglected to execute the Deed of Conveyance. Thus, the defendants are in breach of the said agreement. The plaintiff through its members have performed their part of the obligation under the said agreement. The defendants have, however, failed to perform their obligations. All the formalities have been completed. The defendants have only to execute the conveyance deed in favour of the plaintiffs. It is, therefore, stated that it is just, and proper that a declaration be Issued to the effect that the agreements between the parties are subsisting and binding. It is pleaded that the defendants be directed to execute the Deed of Conveyance of the plot described in Ex. "A". By amendment paras 7A, 7B, 7C (a to g), 7D have been incorporated in the plaint. In these paras, it is stated that the defendants have constructed 7 garages on the suit property, which garages are not shown on the approved plans. Four out of the seven garages have been permitted by the defendants to be used and are being used for the purposes of an office. The other three garages are permitted by the defendants to be used and are being used for the purpose of storage. None of these garages is used for parking car. Therefore, the defendants have used valuable F.S.I. available in respect of the suit property for the purposes of constructing garages. The defendants have sold the said garages and thereby made profits out of the said construction. Since the garages are not shown on the approved plans, the F.S.I. consumed by the said garages has not been taken into account while calculating the F.S.I, available for the purpose of the additional structure. If the F.S.I. consumed for the purpose of constructing the garages is deducted from the balance F.S.I. available in respect of the suit property, then the construction that is proposed to be put up on the suit property will be illegal in as much as the F.S.I. intended to be used for the said construction is in excess of the F.S.I. available in respect of the suit property. The proposed construction is, therefore, said to be illegal and cannot be permitted to be put up on the suit property. The defendants -have already constructed a part of the structure that is proposed to be put up on the suit property, wherein the slab of the first floor has already been constructed. The height of the ground floor and the rooms on the grounds floor is more than 4.2 mtrs., which is the maximum height permitted under the Development Control Regulations for Greater Bombay, 1991. This construction has, therefore, violated Regulation No. 38 of the Development Control Regulations. It is stated by the plaintiffs that the defendants have illegally provided a greater height with a view to construct lofts or mezzanine floors in the structure later on. This would also be contrary to the Development Control Regulations. The plaintiff also states that putting up of an additional structure will considerably endanger the stability of the existing structures belonging to the plaintiff and weaken its support. Further more the structure shown by blue colour shed on the plan annexed to the plaint is an old structure which is about 50 to 60 years. This structure has load bearing wall and pillars. The defendants No. 5 and 6 occupy shop Nos. 8, 9, 4 and 5 on the ground floor of the Structure. The defendants have wrongfully permitted the said defendants to remove certain load bearing walls and pillars in their shops thereby removing the essential support for the first floor of the structures. This has resulted in weakening of the structure. The defendants have also dug up earth right next to the old structure up to the depth of 10ft. This has exposed the foundation of the existing structure and has exposed the same to the danger of collapse and/or cracks because of the lack of support. The defendants also propose to put up an additional floor on the existing old structure. The old structure is in no position to bear any additional burden especially when certain load bearing walls and pillars have already been removed from its ground floor. The defendants have submitted fresh plans in respect of the proposed structure to be put up on the suit property. Thus, the proposed construction is not in accordance with the plans which were approved in 1980 or 1982. The defendants, it is stated, have no right to alter or amend any plans in respect of the suit property without the prior consent of the plaintiff and it members. According to the M.O.F.A., the balance F.S.I. available in respect of the suit property automatically belongs to the plaintiffs. The defendants have no right in such a property. Even if there is an agreement to the contrary, the same would be void as it is contrary to the provisions of the M.O.F.A. At the time of the hearing of the ad interim application, the defendants have produced and relied upon the alleged letter dated 30th June, 1992 written by the Ex-Chairman of the plaintiffs to one Mr. Kanaiyalal Thakkar, wherein it was stated that the plaintiff had no objection if the defendants develop the Parekh Market property and utilise the balance F.S.I, and open space as per the B.M.C. Rules and Regulations. This decision was stated to have been taken in the First Annual General Meeting of the society held on 27th June, 1992. This letter is allegedly signed by one Mr. Vitthal S. Surani, the Ex-Chairman of the plaintiffs. On inspection of the Minute Books, it has been found that there is no such resolution dated 27th June, 1992. The letter written by Mr. Surani is, therefore, stated to be completely unauthorised. Even Mr. Surani in the meeting of the society held on 24th December, 1994 confessed before the members of the plaintiffs that he had signed several papers at the request of the said Kanaiyalal Thakkar without understanding the meaning therein. He further states that one such letter was misused by the defendants for the purpose of drafting the aforesaid letter. Thus, it is stated that the letter has been obtained fraudulently from Mr. Surani.
6. In para 17 of the plaint, it is stated that for the purpose of Court fees and jurisdiction the plaintiff values the suit claim at Rs. 59,66,750/ - being the aggregate value of the flat, shops, office premises etc. in the said building including the cost of the suit land. Thus, Court fees in the amount of Rs. 15,000/- have been fixed.
7. Relying on these averments, Mr. Sakhardande, the learned Counsel for the defendants No. 1 to 4 has submitted that the averments made in the plaint show that the plaintiff had sued the defendants as promoters within the meaning of the M.O.F.A. The suit is not simplicitor for an enforcement of an ordinary contract, but it is for enforcement of a statutory obligation under Section 11 of the Act. Clause 34 of the agreement states that the said agreement is subject to the provisions of the M.O.F.A. A perusal of para 7C sub-para (b)(f) and (g) reveals that the plaintiff seeks to challenge the amendment to the 1980 plan on the ground that the consent of the plaintiff and its member was not obtained as required under Section 7 of the Act. Thereafter the case of the plaintiffs is that the defendants are not entitled to consume any F.S.I, in respect of the plot because upon formation of the plaintiffs society, the balance F.S.I, available in respect of the suit property automatically belongs to the society. The defendants are bound to convey the suit property in favour of the plaintiff within 4 months after formation of the plaintiff society under Section 11 of the Act. The reliefs claimed are under the M.O.F.A. Thus, it is submitted by Mr. Sakhardande that the plain reading of the plaint shows that it is not covered by Section 6(xi) of the Bombay Court Fees Act, but it is for specific performance of the contract and the right specified in the act. The present suit has to be covered by Section 6(iv)(j) of the Bombay Court Fees Act. If the aforesaid section applies, the valuation shall be deemed to be Rs. 600/-, In view of the above, this Court will have no jurisdiction. For this proposition, Mr. Sakhardande, the learned Counsel has relied upon a judgment of this Court reported in Vrindavan (Borivali) Co-operative Housing Society Limited v. Karmarkar Brothers and Ors. . The counsel has also relied upon a Judgment reported in Maria Phuomina Pereira v. Rodrigues Construction . Nagin Mansukhlal Dagli v. Haribhai Manibhai Patel . The Mohatta Nagar Co-operative Hsg. Soc. Ltd. v. Vishram Khimji & Sons and Ors. .
8. Mr. Thakkar, the learned Counsel for the plaintiffs, on the other hand, has submitted that so far as the question of jurisdiction is concerned, this Court has merely to examine the averments made in the plaint. In para 17 of the plaint, it is categorically stated that the value of the suit for the purpose of jurisdiction is over Rs. 59 lakhs. It is submitted that this valuation is neither arbitrary nor unreasonable. It has also not been made purely to oust the jurisdiction of the Bombay City Civil Court. The reliefs claimed in the suit are capable of money valuation. That being so, the Court fees have to be fixed in accordance with the monetary value of the suit land. It is further submitted that apart from raising a mere plea of jurisdiction no particulars have been given whatsoever by the defendants. In support of these submissions, the counsel has relied upon Tejoomal Lakhmichand v. M.J. Talegaonkar and Ors. AIR 1980 Bombay 369 Mohan Meakin Breweries Ltd. v. Oceanic Imports and Exports Corporation and Anr. 1980 Mh. L.J. 803 Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd. and Ors. .
9. I have given anxious consideration to the submission made by the Counsel for the parties. This Court in the case of Vrindavan (Borivali) Co-operative Housing Society Ltd., (supra) has held that the ordinary contract of sale cannot be equated with an agreement which falls under Section 11 of the M.O.F.A. On the basis of the pleadings in that suit, it has been held that the suit governed by Section 6(xi) of the Bombay Court Fees Act is different from the suit filed by the plaintiff therein. The obligations flowing from the contract of sale mentioned in Section 6(xi) of the Bombay Court Fees Act are the obligations restricted to a contract wherein there is-no question of any compliance with any statute. The performance of statutory obligations is not a subject-matter of such suit. Thus the provisions of Section 6(xi) are not attracted for the payment of Court fees in such a suit. In para 18 of the judgment it is observed that the suit filed by the plaintiff therein is not a suit simplicitor for specific performance. It is a suit to enforce the compliance of a statute. Thus, it has been held that the Court fee has to be paid as provided under Section 6(iv)(j) of the Bombay Court Fees Act. The counsel for the plaintiff submits that the said Judgment is distinguishable and is not applicable in the facts and circumstances of the present case. Refering to the observations made in para 10 of the judgment, it is submitted that therein the suit had been filed only for performance of the obligations as contained in the M.O.F.A., I am inclined to agree with the submissions made by the counsel for the plaintiff. A perusal of para 4 of the judgment would show that therein the appellant/plaintiff had filed a suit in the City Civil Court for a declaration that the plaintiff society is a co-operative society and for mandatory injunction against the defendants No. 2 to 10 to become members of the plaintiff society and for further declaration that the members of the plaintiff society have paid the entire amount of their purchase price to the defendant No. 1 pursuant to the agreement of sale and defendant No. 1 are liable to execute the deed of conveyance in favour of the plaintiff. This plainf was filed on 30th March, 1976. The trial Court framed an issue as to whether the Court has jurisdiction to entertain and try the suit as a preliminary issue. By its order dated 16th March, 1978 construing the original plaint, the City Civil Court held that the suit is beyond the pecuniary valuation of the Court for the purposes of the Court fees as the consideration amount of the conveyance is more than two lacs and, therefore, returned the plaint for presentation to the proper Court. In appeal, however, the plaint was sought to be amended and the judgment has been given on the basis of the draft amended plaint. This Court observed that "If the matter would have rested on the original plaint the order of learned Judge would have been justified and it appears that the advocate for the plaintiff also consented to the order proposed to be passed by the Judge". The other observations have been made by this Court on the basis of the relief claimed in the amended plaint. This is apparent from para 10 of the Judgment, which is reproduced hereunder.
Then plaintiffs valued their claim in suit as being not capable of monetory valuation and they valued their claim at Rs. 300/- and paid the Court fees accordingly claiming the following reliefs :
(a) That this Hon'ble Court be pleased to declare that the Vrindavan (Borivali) Co-operative Housing Society Ltd. is a Co-operative Housing Society of the acquirers of flats in the building known as Umanagar situate at 1st Kasturba Cross Road, Borivali (East), Bombay ;
(b) In the event this Hon'ble Court granting prayer (a) above as and by way of consequential relief the defendants by an order and mandatory injunction of this Hon'ble Court be directed to become members of the plaintiffs society in compliance with the bye-laws of the plaintiff society ;
(c) In the event of granting prayer (a) above as and by way of consequential relief, it may be declared that the defendant No. 1 is entitled to payment in accordance with the agreement of sale and defendant No. 1 are liable to execute the deed of conveyance in favour of the plaintiff in accordance with Section 11 of the Maharashtra Ownership Flats Act of 1963;
(d) It may be declared that the plaintiffs through its members are in possession of the said building known as Umanagar situate at 1st Kasturba Cross Road, Borivali (East), Bombay.
This plaint was filed on 30-3-1976. I have recited the contents of the amended draft plaint which is on record. The learned trial Judge framed an issue as to whether the Court has jurisdiction to entertain and try this suit as a preliminary issue and by this order dated March 16, 1978 construing the plaint which was before him and relying on statement of the advocate for the plaintiff recorded in Roznama dated March 15, 1978. He held that the suit is beyond pecuniary valuation of the Court for the purposes of Court fees as the consideration amount of the conveyance is more than two lacs, and therefore, he returned the plaint for presentation to the proper Court. It is this order which is challenged before me. If the matter would have rested on the original plaint the order of the learned Judge would have been justified and it appears that the advocate for the plaintiff also consented to the order proposed to be passed by the Judge. The question involved in this appeal relates to the jurisdiction of the Court and the jurisdiction will have to be ascertained from the averments in the plaint. Having regard to the relief claimed in the plaint, as I have stated earlier the draft plaint was amended and it is signed by the advocate and I am told that it will be sworn in the lower Court. A copy of this draft is given to the other side also. At the time of the hearing of the appeal both the advocates urged their case on the basis of the amended plaint which is now a part of record. As that draft is now taken into account for consideration, I need not go into the merits of the order passed by the lower Court.
(Emphasis Supplied) In view of the nature of the relief claimed in the suit on the basis of the draft amended plaint, it was held that the relief is incapable of monetory valuation. Thus, it was held that the suit property was valued under Section 6(iv)(j) of the Bombay Court Fees Act. The aforesaid judgment would, however, not be applicable in the facts and circumstances of the present case, as the reliefs claimed are clearly computable in money terms. In these circumstances, the provisions of Section 6(iv)(j) would not be applicable. Section 6(iv)(j) will apply only in the case where the subject-matter in dispute is not susceptible of monetary evaluation and where the suit is not otherwise provided for by the Act. The plaintiffs in this case are claiming huge amount of damages on account of the illegalities committed by the defendants. The counsel thereafter referred to a Judgment of this Court in Maria Philomina Pereira v. Rodrigues Construction . Therein the aforesaid Judgment given in Vrindavan (Borivali) Cooperative Housing Society Ltd. has been followed. In this case, it is also held that the contracts which are governed by Section 11 of the Act are special contracts. It is, however, significant to note that in para 6 of the said judgment, this Court has also held as follows :
In that connection, Mr. Malik drew my attention to Clause (f) of Sub-section (2) of Section 3 of the Ownership Flats Act, which imposes, amongst other liabilities, the liability to "specify in writing the date by which possession of the flat is to be handed over and he shall hand over such possession accordingly. "This agreement is required to be registered under Section 4 of the Maharashtra Flats Act, which has been done. The defendant is a "promoter" within the meaning of Clause (c) of Section 2 of the Ownership Flats Act. The defendants are constructing the building and have offered to sell the flats to different persons, and the flats and tenaments are to be given in accordance with the provisions of the Act. If that is so, I am inclined to agree with Mr. Malik that in a situation of this type where the flat purchaser wants the promoter to comply with the requirements of the law and a suit is filed to enforce such obligations, may be arising out of an agreement as such, in my view such a suit would not fall within the scope of Section 6(xi) of the Bombay Court Fees Act, 1959. It is a statutory obligation which is being enforced and a notional valuation under Section 6(iv)(j) of the Court Fees Act would be proper.
10. In this case also the plaintiff was seeking the enforcement of the provisions of the M.O.F.A. only. In para 3 of the Judgment, it is clearly noticed that "The plaintiff has contended in the plaint that the present suit has been filed by the plaintiff to enforce the obligations on the part of the defendants under the provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963." In the said para it is further observed that "She has further stated that there is no provision under the Bombay Court Fees Act providing for fees payable in such a suit and that therefore, she has valued the suit under the provisions of Section 6(iv)(j) of the Bombay Court Fees Act, and has, therefore, valued the subject-matter of the suit at Rs. 300/- and has paid the Court fees thereon." As noticed earlier, the claim put forward by the plaintiff in the present case is multifarious. It is not only that the conveyance has not been executed in view of the M.O.F.A. Number of other reliefs are claimed on which money value can be placed. If the plaintiffs are to claim compensation for the extra F.S.I, which may be consumed by the defendants, the same would come into lacs of the rupees. This would clearly be beyond the pecuniary jurisdiction of the City Civil Court. So far as the Judgment is concerned, the counsel has referred to para 16. Therein the builder had hied a suit claiming that the co-operative society be restrained from interfering with the possession of the builder. An injunction was also prayed for directing the co-operative society not to obstruct the construction work. This was held to be within the perview of the provisions of Section 6(iv)(j) of the Act. It was held that the relief claimed cannot fall in any other provisions of the Bombay Court Fees Act. The counsel thereafter relied upon a Division Bench judgment of this Court in Nagin Mansukhlal Dagli v. Haribhai Majibhai Patel . In this case, it is held that there is no concurrent jurisdiction between the High Court and the City Civil Court. In view of the observations made in that judgment, no doubt this Court will have no jurisdiction where the City Civil Court has jurisdiction.
11. Mr. Thakkar, the learned Counsel for the plaintiffs has relied upon Tejoomal Lakhmichand v. M.J. Talegaonkar and Ors. AIR 1980 Bom. 369 to contend that the jurisdiction of the Court has to be decided upon the averments in the plaint. The aforesaid proposition of law is well settled. This is also reiterated by the Supreme Court in S. Ram Ar. S. Sp. Sathappa Chettiar v. S. Ram Ar. Rm. Ramanathan Chettiar wherein it is stated that "It is conceded that the question of court fees must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on the merits". Further in Smt Tara Devi v. Sri Thakur Radha Krishna Maharaj through Sebaits Chandeshwar Prasad and Meshwar Prasad and Anr. it is held as under :
It is now well-settled by the decisions of this Court in Sathappa Chettiar v. Ramanathan Chettiar (supra) and Meena kshi sundaram Chettiar v. Venkatchalam Chettiar (supra) that in a suit for declaration with consequential relief falling under Section 7(iv)(c) of the Court fees Act, 1870, the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of Court fee and jurisdiction has to be ordinarily accepted. It is only in cases where it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the Court can examine the valuation and can revise the same. The plaintiff has valued the lease hold interest on the basis of the rent. Such a valuation, as has been rightly held by the Courts below, is reasonable and the same is not demonstratively arbitrary nor there has been any deliberate underestimation of the reliefs.
Mr. Thakkar, the learned Counsel for the plaintiffs has then relied upon a judgment of this Court in Mohan Meakin Breweries Ltd. v. Oceanic Imports and Exports Corporation and Anr. 1980 Mh. L.J. 803 wherein it is held that "As regards the point of jurisdiction, it is necessary first to look at the frame of the suit itself." Therein the suit has been filed for a declaration that the defendants are not entitled to demand, recover or receive any payment under the bank guarantee from the first defendants. An order of permanent injunction was also prayed for restraining the second defendants from demanding or recovering or receiving any payment from the first defendants under the two bank guarantees. The suit had been filed on the basis that the two bank guarantees have been issued by the defendant No. 1 bank in favour of the defendant No. 2 at the instance of the plaintiffs. Disputes having arisen, the defendant No. 2 sought to invoke the bank guarantee. The question was whether or not the relief claimed was capable of being valued in terms of money. It was held that the plaintiffs in turn want to prevent the loss of the said amount of over Rs. 2 lakhs to themselves. Thus, on the face of it, it was held that the relief claimed in the suit was capable of being valued in terms of money. The suit was, however, filed in the City Civil Courts, where the pecuniary jurisdiction is only upto Rs. 50,000/-. Refering to Section 6(iv)(j) it has been held that the aforesaid provision is attracted only when three conditions are satisfied viz. (1) the suit is for declaration, (2) the subject/matter in dispute is not susceptible of monetary evaluation and (3) the suit is not otherwise provided for by the Act. The first prayer in that suit was for a declaration that the second defendants are not entitled to demand any payment under the two bank guarantees or the enforce either of the said guarantees and that the first defendants have no right to make any such payment to the second defendants under either of the two bank guarantees. It was, however, held that the subject-matter in dispute further is the amount due under the said two bank guarantees and the same is clearly susceptible of monetary evaluation. Thereafter this Court held as follows :
Further Item 7 of Schedule I of the said Act covers a suit as the present one, and therefore, the third condition mentioned in the Section 6(iv)(j) is also not satisfied in the present case. The said Items 7 of Schedule 1 is as follows:
Any other plaint, application or petition (including memorandum of appeal), to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss, including cases wherein application or petition is either treated as a plaint or is described as the mode of obtaining the relief as aforesaid.
As is clear from what has been stated earlier, the present suit is for a substantive relief of a declaration that under the two bank guarantees, the second defendants are not entitled to demand, recover or receive any amount and the first defendants have no right to make much payment to the second defendants have no right to make such payment to the second defendants. The suit is also for an injunction restraining the first defendants from making the said payment and the second defendants from enforcing the same thereby, preventing a loss to the plaintiffs of the amount guaranteed under the said two guarantees. The suit therefore clearly finds under the said Item 7 of Schedule I of the said Act.
5. Therefore, it is clear that the provisions of Section 6(iv)(j) of the said Act will not be attracted to the present suit since the suit is clearly filed for preventing a loss of the said amount of Rs. 2,48,535/- being the amount assured under the said two bank guarantees. Hence the City Civil Court, Bombay will have no jurisdiction to entertain the suit.
12. In my view, the aforesaid observations clearly support the submissions made by Mr. Thakkar to the effect that when the plaintiffs are seeking to avoid damages to be caused by the illegal consumption of F.S.I. by the defendants, the suit is clearly capable of monetary valuation. A bare perusal of the plaint shows that the valuation for the purpose of the Court fees has not been arrived at arbitrarily or with a view to oust the jurisdiction of the City Civil Court.
13. The Supreme Court in the case of Sujir Keshav Nayak v. Sujir Ganesh Nayak reported in held as follows:
The question however is if the disclosure of valuation is in absolute discretion or option of the plaintiff or it can be objected to by the defendants and adjudicated upon by the Court, and if so in what cases. It was left open in Chettiar's case (supra). Provisions of Central and State Act have already been extracted earlier. Sub-section (2) of Section 36 of Kerala Act amply safeguards the interest of revenue. Similar provisions exist in Central Act. But under Civil Procedure Code plaint is liable to be rejected under Order 7, Rule 11 if it is undervalued. How to reconcile the two provisions the one leaving it to absolute discretion of plaintiff to value the suit as he considers proper and the other to reject a plaint if it is undervalued. For this it is necessary to examine the scheme disclosed in the Civil Procedure Code relating to filing of suit. Section 15 of the Civil Procedure Code provided that any suit shall be instituted in the Court of the lowest grade competent to try it. What is a court of lowest grade and for what nature of suit has been determined and regulated by State enactments. Competency refers to jurisdiction territorial or pecuniary, of limited or unlimited limits.
14. The valuation of the suit for the purposes of Court fees has to be left to the discretion of the plaintiff. It is only in cases where the suit has been grossly undervalued that the Court can examine the valuation and revise the same. In my view, the position of law as it emerges from the above cases is as follows:
Generally, the question of jurisdiction has to be decided on the basis of the averments in the plaint. The provisions of Section 6(iv)(j) will apply only when three conditions are satisfied viz. (1) the suit is for declaration, (2) the subject-matter in dispute is not susceptible of monetary evaluation, (3) the suit is not otherwise provided for by the Act. In other words, Section 6(iv)(j) is a residuary provision to provide a notional valuation for the purposes of the Act, when the case of the plaintiff is not covered by any other provision of the Act. Examined in the light of the above, it becomes apparent that the case of the plaintiff would be squarely covered by Item 7 of Schedule I of the Act, if not covered by Section 6(xi) of the Act. The plaintiffs have claimed that the defendants be restrained from causing damage to the existing structure. They claim to be entitled to any further F.S.I. that becomes available. They claim that the defendants have illegally used the F.S.I. available to the plaintiff for constructing seven garages. These are alleged to have been sold, without any compensation being paid to the plaintiff. Thus, the value of the suit for purposes of Court fees has been put at over Rs. 59 lacs.
15. The averments made in the plaint clearly go to show that the value placed on the suit is capable of money value. I am supported in this view of mine by the Judgment of this Court in Tejoomal Lakhmichand's case (supra), wherein it is clearly held that the jurisdiction of the Court has to be decided on the averments made in the plaint. The Court has not, at this stage, to examine as to the truth or falsity of the plaint. Thereafter this Court again in the judgment of Mohan Meakin Breweries Ltd. (supra) held that the suit is capable of being valued in the terms of money. Thus, provisions of Section 6(iv)(j) would not be applicable.
16. In view of the above, I find that this Court has jurisdiction to entertain the suit. The issue is decided accordingly.
The matter to come up for hearing on merits tomorrow i.e. 18th November, 1997.