Bombay High Court
Maria Philomina Pereira vs M/S. Rodrigues Construction A ... on 19 February, 1990
Equivalent citations: AIR1991BOM27, 1990(2)BOMCR77, (1990)92BOMLR164, AIR 1991 BOMBAY 27, (1990) MAH LJ 445, (1990) 2 BOM CR 77, 1990BOM LR164
JUDGMENT
1. This is an appeal by the original plaintiff. She filed a suit, being Short. Cause Suit No. 3230 of 1989, in the Bombay City Civil Court at Bombay, apparently, for specific performance of an agreement dated 21-2-1983 together with the agreement dated 4-8-1980 and sought a decree for possession of a flat bearing No. 11, on the first floor of the building known as Mary Apartments, situated at Borivali, Bombay.
2, The consideration mentioned in the agreement is about Rs. 87,000/-. When the plaintiff took out a notice of motion for interim reliefs the defendants contended that that Court had no pecuniary jurisdiction to entertain and try the suit. Naturally, the learned Judge had to decide that question under S. 9-A of the Code of Civil Procedure. The learned Judge, by his judgment and order dated 17-7-1989 held that that Court has no jurisdiction and the plaint was ordered to be returned to the plaintiff for being presented before the proper Court. This appeal is against this judgment and order.
3. 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 (hereinafter referred to as "the Ownership Flats Act"). 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 S.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.
3A, As against this, the learned Judge has come to the conclusion that the suit is essentially a suit for specific performance of a contract and that, therefore, the same has to be valued as provided under S.6(xi) of the Bombay Court-fees Act, 1959, and in that event, the subject-matter of the suit will have to be valued according to the amount of the consideration of the agreement.
4. In support of the plaintiff's case, the plaintiff has mainly relied on a solitary judgment the case of Vrindavan (Borivali) Co-operative Housing Society Ltd. v.
Karmarkar Bros, reported in 1982 Mah LJ 607, that was a case where a certain co-
operative housing society filed a suit in the Bombay City Civil Court at Bombay against a builder, who was also the owner of the plot and also against certain other defendants, who were flat owners, who had taken flats under agreements from the buildings, praying for a decree that the defendants, by an order and man'adatory injunction of the Court, be directed, in substance, to comply with the requirements of the said Ownership Flats Act, and also for a further declaration that defendant No. 1, the builder, was liable to execute the deed of conveyance in favour of the plaintiffs in accordance with S. 11 of the said Ownership Flats Act and also for certain other consequential reliefs. The suit was valued at Rs. 300/- on the basis that the subject-matter was not capable of monetary valuation and Court-fees was paid accordingly. The learned Judge, Bombay City Civil Court, held that that Court had no pecuniary jurisdiction to entertain and try the suit, inasmuch as, the consideration amount of the conveyance would work out to more than Rs. 2 lakhs, parhaps being the total purchase price of all the flats paid by the purchasers of the flats, and accordingly had passed an order returning the plaint for presentation to the proper Court. However, this High Court held that, in substance, as the plaintiff was seeking enforcement of the obligations of the defendants under S. 4, 10, 11 and 12 of the Ownership Flats Act, the suit could not be said to be suit for specific performance of an ordinary contract of sale and that the relief which the plaintiff was claiming was enforcement of those obligations under the Act and they were not susceptible of monetary valuation and that it was not otherwise provided for in the Bombay Court-fees Act, 1959.
5. Mr. Malik submits that the present suit, in substance, is to enforce the obligations of the defendants under the Ownership Flats Act and in that context he drew my attention to the following facts: Firstly, he submitted that the defendants represented that they were the builders on a certain plot of land and the building was to be constructed and the flats were to be sold in accordance with the terms and conditions of the said Act. Accordingly, the agreement was entered into. The agreement in terms mentions in Clause 38 that the agreement shall always be subject to the provisions contained in the Maharashtra Ownership Flats Act and the Rules made thereunder. As required under the Act, the agreement also bears the certificate of title. The agreement also contains the usual clauses that are generally provided in such agreements, namely, clauses such as handing over of possession to the purchaser by a certain dale and the formation of a co-operative housing society in the manner prescribed under the said Act. Mr. Malik also pointed out that this agreement has, in fact, been registered as provided under the said Act. He, therefore, submitted that, as far as the plaintiff is concerned, she wants the defendants to comply with requirements under the Act, namely, that the defendants have to hand over possession of the flat in respect of which the plaintiff has entered into an agreement with the defendants. He submitted that there is no question of any conveyance in her favour. As far as this flat is concerned, there is no question of the parties requiring to comply with any other Acts as is generally done in respect of any conveyance between two parties in the case of an agreement to sell. All that is required, as far as this agreement is concerned and as far as the plaintiff is concerned, is to hand over possession of the flat to the plaintiff after it is constructed and that would be in accordance with the Act.
6. In that connection, Mr. Malik drew my attention to clause (f) of sub-section (2) of Section 3 of the Ownership Fiats 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 Aci. The defendants are constructing the building ami have offered to sell the flats to different persons, and the flats and tenements 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. In fact, in all such agreements, even if they are enforced in favour of the flat purchasers individually, there can be no conveyance in their favour, as ultimately conveyance has to be in favour of the Society of all flat purchasers. I may further mention that under the Ownership Flats Act, if the promoter does not comply with these obligations, there are other serious concequences to follow, including a prosecution. Ordinarily such considerations would not arise when a simple contract entered into between two individuals is broken. Therefore, it must necessarily be held that whenever a builder enters into an agreement with any flat purchaser, containing provisions which are to be incorporated as provided under the said Act, all such agreements must necessarily be held to be special agreements which can be enforced by filing suits where the valuation would be a notional valuation under Section 6(iv)(j) of the Bombay Court-fees Act, 1959.
7. In the result, I pass the following order :
The impugned order is set aside. I hold that the Bombay City Civil Court has jurisdiction to entertain and try the suit. Appeal is accordingly allowed. There will be no order as to costs. The interim injunction, which has been granted by this Court, will, however, continue till the disposal of the suit.
At the request of Mr. Malik, I direct that the suit be expedited. I direct the defendants to file written-statement within eight weeks from today. Parties to complete discovery and inspection within two weeks thereafter. Suit to appear on board peremptorily during the week commencing from 9-7-1990 and the suit be disposed of as expedhiously as possible, but in anv event not later then 31-12-1991.
Order accordingly.