Karnataka High Court
Nagarathna S. Murthy vs Padma Prakash Shetty on 23 January, 1996
Equivalent citations: ILR1996KAR841, 1996(2)KARLJ153
ORDER Krishna Moorthy, J.
1. This is a Revision by the plaintiff against an order of the Court below directing him to pay Court fee on an amount of Rs. 14 lakhs which is the sale consideration amount fixed in the Agreement of Sale.
2. The suit is for specific performance of an Agreement of Sale dated 14.05.1990 which included certain immovable property and various other related assets. According to the plaintiff, defendants 1 and 2 entered into an Agreement for a total consideration of Rs.14 lakhs and that he was also put in possession of the property on the date of the Agreement. According to the allegations in the plaint, the Agreement has been complied with in respect of two properties in Sy.No. 100/2 and in Sy.No. 116/1 by respective defendants executing Sale Deeds in favour of the plaintiff. Present suit is for specific performance of the Agreement of Sale dated 14.05.1990 in respect of the schedule property in respect of which the Sale Deed has not been executed and also to direct the first defendant to execute the Sale Deed in respect of the related assets as stated in the Agreement dated 14.05.1990. In other words, the suit is for specific performance of the agreement dated 14.05.1990 to the extent to which it has not been complied with so far.
3. Plaintiff valued the suit at Rs. 55,320/- being the market value of the land measuring 2 acres 3 guntas of land which is the schedule property at the rate of Rs. 666/- per gunta and paid the Court fee accordingly.
4. On an objection raised by the defendant, the Court considered the question as to whether the Court fee paid is proper or not. Court came to the conclusion that the plaintiff has not paid proper court fee and taking the view that under Section 40(a) of the Court Fees Act the plaintiff is liable to pay entire Court fee on the entire, sale consideration of Rs. 14 lakhs, notwithstanding the fact that a portion of the Agreement of Sale has already been complied with by executing two Sale Deeds. It is this order that is challenged in this C.R.P.
5. As stated earlier, suit is for specific performance of an Agreement of Sale dated 14.05.1990 in respect of the immovable property which is the plaint schedule properly and also in regard to other related assets as stated in the Agreement dated 14.05.1990. In regard to two other properties which were included in the agreement namely Sy.No. 100/2 and Sy.No. 116/1 a Sale Deed is already executed by the respective defendants in favour of the plaintiff as recited in paragraph 10 of the plaint. Accordingly plaintiff is claiming specific performance of Agreement of Sale only in regard to the rest of the immovable properties and assets mentioned in the Agreement. Lower Court has held that notwithstanding the fact that part of the Agreement has already been performed and the plaintiff is bound to pay entire Court fee.
6. Section 40(a) of the Karnataka Court Fees and Suits Valuation Act provides for Court fee in a suit for specific performance of Agreement of Sale. Sub-clause (a) of Section 40 of the Court Fees Act which is relevant provides that in a suit for specific performance with or without relief of possession, Fee shall be payable ad-valorem computed on the amount of consideration. The question to be decided is as to whether when the plaintiff seeks only enforcement of part of Agreement of Sale is liable to pay Court Fee on the entire consideration amount mentioned in the Agreement. I do not think that the plaintiff is liable to pay Court fee on the entire sale consideration, if a part of the agreement has already been complied with as in this case. As stated in paragraph (10) of the plaint, two Sale Deeds are already executed in respect of the property Sy.No. 100/2 and 116/1 and the plaintiff wants only specific performance in respect of the remaining properties and assets mentioned in the Agreement of Sale. On reading Section 40, I am clearly of the view that the plaintiff need pay Court fee only on the amount of consideration in accordance with the Agreement of sale in respect of the property to which he claims specific performance of the Agreement of Sale. It is not necessary that he should pay Court fee on the entire amount of consideration mentioned in the Agreement. Accordingly, I am of the view that though the total consideration mentioned in the agreement is Rs. 14 lakhs, plaintiff need not pay the Court fee on the consideration which is chargeable on Sy.No. 100/2 and Sy.No. 116/1 which have been already sold to him as stated in paragraph 10 of the plaint.
7. Now the question is as to how to apportion the sale consideration amount in respect of the properties for which specific performance is sought. Two properties are already sold for a consideration of Rs. 45,000/- each, in other words, the total consideration mentioned in the two Sale Deeds is Rs. 90,000/- as could be seen from the documents. Deducting that amount from the total consideration, for the balance amount plaintiff is liable to pay Court fee as provided under Section 40(a) of the Specific Relief Act.
Accordingly, plaintiff is liable to pay Court fee on an amount of Rs. 13,10,000/- which represents the consideration for the unperformed part of Agreement of Sale.
8. 1 am not impressed by the argument of the learned Counsel for the plaintiff/Revision petitioner that unless the valuation of the properties included in the Agreement is determined, Court fee cannot be determined. From Section 40(a) of the Court Fees Act, it is clear that the Court fee has to be computed on the amount of consideration. The amount of consideration is clearly mentioned in the Agreement of Sale. The consideration for the performed part is also known. Accordingly the consideration mentioned in the Agreement less the amount of consideration as mentioned in the 2 Sale Deeds already executed has to be taken as the amount on which the plaintiff is liable to pay Court fee. No question of separately valuing the assets arises.
In the result, I allow this Revision in part and modify the order of the Trial Court and direct the plaintiff to pay Court fee on an amount of Rs. 13,10,000/- for relief of specific performance. Plaintiff is granted two months time to pay the Court fee.