Uttarakhand High Court
Hanu Motel Pvt. Ltd. And Another vs Uttar Pradesh Financial Corporation ... on 18 September, 2015
Author: U. C. Dhyani
Bench: U. C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
First Appeal No. 78 of 2011
Hanu Motel Pvt. Ltd. Another ... Appellants
vs.
Uttar Pradesh Financial Corporation & Others ...Respondents
Mr. M.C. Bansal, Senior Advocate assisted by Mr. A.K. Bansal and Mr. Rajendra Tamta,
Advocates present for the appellant.
Mr. Naresh Pant, Advocate present for the respondents.
U. C. Dhyani, J. (Oral)
1. Present First Appeal has been filed by the plaintiffs-appellants being aggrieved against the order dated 29.07.2011 passed by the Civil Judge (SD), Haridwar in Original Suit No. 111/2001, whereby the plaint of the plaintiffs under Order 7 Rule 11(c) CPC was rejected on the ground that the plaintiffs did not pay the ad valorem court fees.
2. Heard learned counsel for the parties and perused the impugned order.
3. In Special Leave to Appeal (Civil) Nos. 10554-10555 of 2003 titled as M/s Hanu Motel Pvt. Ltd. & Anr vs. U.P. Financial Corpn. Ltd. & Anr , the Hon'ble Apex Court passed an order on 16.06.2003 as follows:
"Issue notice to the respondents returnable in four weeks. Dasti service, in addition, is permitted.
Perused the copy of the plaint made available by the learned counsel for the petitioners and registered as Civil Suit No. 111/2001. The petitioners filed a bare declaratory suit disputing recovery of Rs. 185.20 lakhs and valued the suit at Rs. 200/- for the purposes of court fee and paid the court fee accordingly. Subsequently, they moved an application for temporary injunction and the Trial Court vide order dated 20.01.2001 granted the temporary injunction restraining the recovery. Prima -2- facie we feel that the plaint is not properly stamped. The petitioners are put on notice to show cause as to why the petitioners be not called upon to pay court fee ad- valorem on the amount of Rs. 185.20 lakhs. The reply be filed in three weeks."
4. The plaintiffs (appellant herein) replied such show cause notice, vide affidavit dated 07.07.2003. The relevant paragraphs of the affidavit-in-reply are being reproduced hereinbelow for facility:
(i) In these circumstances, it is, therefore, submitted with respect that the present suit filed before the Court of learned Civil Judge (SD), Haridwar was a suit for declaration under Section 9 of the CPC. The prayer in the suit was for a declaration to the following effect:
"a. declare the recovery of Rs. 185. 20 lacs as time barred."
(ii) It is further submitted that on the date of the filing of the suit, no recovery proceedings of any nature, were pending and, as such, on the date of the filing of the suit, the petitioners did not feel any necessity of seeking any prohibitory or permanent injunction or any other consequential relief in the said suit and even the Court Fee affixed on the suit was as per the rules and the provisions of the Court Fee Act as applicable in the State of U.P.
(iii) Thus, it is respectfully submitted that even the relief sought under Order 39, rules 1 and 2 read with Section 151 CPC filed by the petitioner, an interim relief was sought during the pendency of the trial of the suit, which was necessitated due to the subsequent development, namely issuance of the news advertisement seeking sale of the property of the plaintiffs-petitioners and it could not be termed as a consequential relief in the suit and the provisions of payment of ad-valorem court fee are not attracted. The Court Fees Act provides for the quantum of the court fees applicable on the suits or plaints or appeals.
(iv) That Section 7(4) (c) provides for the suit for declaratory decrees and consequential relief. Section 7(4), as made applicable to U.P., reads as under:
"(iv) In suits (a) to obtain a declaratory decree or order where consequential -3- relief other than relief specified in sub-
clause 4(a) is prayed."
This section clearly provides that the Court Fee on such suits would be according to the amount at which the relief sought is valued in the plaint or memo of appeal. However, Article 17 of Schedule II providing for the fixed court fees also deals with plaints or memo of appeal in each of the following cases--
"17 (3)- to obtain a declaratory decree where no consequential relief is prayed."
The said provision of Article 17, as made applicable in U.P. reads as under:-"
"17 (3)- to obtain a declaratory decree where no consequential relief is prayed in any suit, not otherwise provided for by this Act.."
(v) In these circumstances, it is, therefore, respectfully submitted that in the facts of the present case, the suit filed by the plaintiffs on 28th April, 2001 was a pure and simple suit for declaration without seeking any consequential relief therein and, as such, provisions of Article 17 of Schedule II of the Court Fees Act as applicable to U.P. are attracted and the court fees has been paid in accordance with the said Act. The subsequent developments during the pendency of the said suit, namely, issuance of the advertisement seeking offers for the sale of property of the petitioner company compelled the petitioners herein to move an application before the trial court seeking an interim relief with an object to restrain the defendants from making the suit of the plaintiffs becoming infructuous. The said prayer could not be made at the time of filling of the suit as no such steps had been taken by defendants on the said date. Thus, even the prayer made and relief sought in the application filed by the plaintiffs under Order 39 Rules 1 and 2, could not be termed as a consequential relief with the main prayer of the suit for declaration as this application and prayer made therein filed under Article 39 Rule 1 and 2 read with 151 CPC was purely an independent of the main suit which arose during the pendency thereof due to the motivated and intentional act on -4- the party of the defendants to deny the plaintiffs of their rightful relief sought from the court.
(vi) It is further submitted that the plaintiffs/petitioners in the present case have paid the court fees on the plaint filed by them on the basis of the plaint as framed, namely, a simple declaratory suit and there was no attempt for evading the payment of the court fees.
5. The Hon'ble Apex Court, thereafter, decided Civil Appeal Nos. 6280-6281 of 2008 arising out of Special Leave Petition (Civil) No. 10554-55 of 2003 titled as M/S Hanu Motel Pvt. Ltd & Anr vs. Uttar Pradesh Financial Corporation Ltd. & Anr on 24.10.2008. It is admitted to learned counsel for the parties that nothing has been said by Hon'ble Apex Court in its judgment dated 24.10.2008 regarding payment of court fees.
6. Had there been any deficiency in the court fees, Hon'ble Apex Court must have commented adversely on the affidavit-in-reply filed on behalf of the petitioners (appellants herein). The controversy, therefore, has attained finality.
7. This Court is, accordingly, of the opinion that since the matter has been concluded at the level of the Highest Court of the land, therefore, the same cannot be agitated as now and the same can only be agitated, if there is change in the facts and circumstances of the suit.
8. In view of above discussion, order impugned dated 29.07.2011 passed by learned Civil Judge (SD), Haridwar is liable to be set aside. The same is accordingly set aside holding that the plaintiffs (appellants herein) need not pay ad valorem court fees.
9. Rejection of plaint under Order 7 Rule 11 is hereby set aside.
10. First Appeal thus stands disposed of with the aforesaid direction. [Stay application also stands disposed of].
(U. C. Dhyani, J.) Dated 18th September, 2015 SH