Calcutta High Court (Appellete Side)
Dayal Cotspin Limited vs Atlantic Projects Limited & Anr on 26 November, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
1 26.11.2019
srm/GB C.O. No. 3830 of 2019 Dayal Cotspin Limited Vs. Atlantic Projects Limited & Anr.
Mr. Pratuysh Pathoria ...for the Petitioner.
Mr. Aniruddha Chatterjee, Mr. S.N. Arefin ...for the Opposite Parties.
The defendant in a suit for declaration and permanent injunction has preferred this application being aggrieved by an order dated September 23, 2019 passed by the learned Civil Judge (Senior Division), 2nd Court at Sealdah in Title Suit No.129 of 2015. By the said order, the learned Trial Judge directed the seristadar to assess valuation of the instant suit and kept January 30, 2020 for report of the seristadar.
It is urged on behalf of the petitioner that such procedure could not be adopted by the leaned Court below as the same would be in complete violation of the order passed by the another co-ordinate Bench of this Court in C.O. No.2665 of 2018. He further submits that such procedure, which was adopted, was contrary to the provisions of Section 16 of the West Bengal Court Fees Act, 1970.
2By an order dated September 5, 2018, a learned co-ordinate of this Court was pleased to make the following observations:
"17. In effect, the scope of the suit was a negative money claim of sorts. What the plaintiff prayed for in the suit related entirely to a money claim of the defendant no.1, for a qualified amount. As such, an objective standard was available on the face of the plaint itself, which was a mirror image of a money claim, or a money claim in reverse. The plaintiff sought to negate and obviate the money claim of the defendant no.1 for a specified amount. Such money claim, if directly made, would be covered by Section 7(i) of the 1970 Act. As such, in the present case, although the suit is governed by Section 7(iv)(b) of the 1970 Act, by dint of the last portion of the said provision, the valuation of the same is subject to the provisions of Section 11 of the said Act. Since the claim in the suit is relatable, although in a negative way, to a money clam in so far as the suit tried to avoid such a claim, it would be justified if the valuation of the suit was enquired into an/or revised to bring it is consonance with the amount quantified in the plaint.
18. in view of such quantification being found from the plaint itself, being Rs.16,60,25,449/- (Rupees Sixteen Crore Sixty Lakh Twenty Five Thousand Four Hundred Forty Nine), it was obvious that the plaintiff had to value the suit on the same footing as a money suit. In fact, if a person claiming money due to him would have to pay court fees on the amount claimed, it would be all the more justifiable for a person seeking to avoid such a claim to pay equivalent court fees.
19. As far as the provision of Section 10 of the 1970 Act is concerned, the same provides that the Court is to record a finding whether sufficient court fees has been paid on the date fixed for the appearance of the opposite party, or as soon as may be thereafter, and on a outer limit of delivery of judgment is stipulated in the said provision for coming to such a finding. The outer limit cannot be a determinant of the time when such finding has to be arrived at. Since an application was made specifically by the defendant no.1/petitioner for assessment of proper valuation and court fees, it was incumbent upon the Court to hear out such an application and to arrive at a proper valuation of the suit. The argument of the opposite party no.1, that the application could be relegated to the hearing stage, is not acceptable since, when an application is already on record 3 at the behest of the defendant no.1/petitioner for the said purpose, the Court ought not to unnecessarily relegated it to the hearing of the suit instead of adjudicating the same immediately."
By the said order C.O. No.2665 of 2018 was disposed of by directing the learned Court below to re-hear the application of the petitioner under Section 11 of the West Bengal Court Fees Act, 1970 and to dispose of the same within one month from the date of communication of this order.
The learned Court below by the order impugned directing the seristadar to assess the valuation of the suit.
Mr. Chatterjee, learned Advocate appearing on behalf of the opposite parties, in support of the said order submits that there was no mandatory direction on the learned Court below by His Lordship to decide on the valuation. According to Mr. Chatterjee, whether the Court fees paid were correct or not would be decided at the time of passing the final decree. He further submits that the order has not prejudiced the petitioner in anyway, inasmuch as, the same was just an enquiry to be made as regard the valuation.
Having considered the rival contentions of the parties, admittedly, there was a direction upon the learned Court below to hear out the application under Section 11 of the West Bengal 4 Court Fees Act, 1970 filed by the petitioner/defendant within a month from the date of His Lordship's order.
Secondly the enquiry as envisaged under Section 11, 12 and 13 of the West Bengal Court Fees Act, 1970, as relied upon by Mr. Chatterjee, does not help this case, inasmuch as, an enquiry contemplated in those sections is not applicable to this case. The true spirit of the order of the High Court was that the learned Court below should decide the application under Section 11 afresh and consider whether the plaintiff had filed the suit in the nature of a negative declaration with regard to the quantum of money and whether the said suit under such circumstances was properly valued or not. It is not a case where the seristadar should report whether the court fees paid was correct or not.
Under such circumstances, order dated September 23, 2019 is set aside. The learned Court below is directed to dispose of the application in terms of the order dated September 5, 2018 passed in C.O.2665 of 2018 within a month from the date of communication of this order. The relevant portion of the order dated September 5, 2018 is quoted below:
"21. In the circumstances, C.O. No.2665 of 2018 is allowed on contest, thereby setting aside the impugned order and directing the Court below to re-hear the application of the defendant no.1/petitioner under Section 11 of the Court Fees Act, 1970 and to dispose of the same within one month from the date of communication of this order to the Court below, in the light of the observations made hereinabove."5
This Court has not decided the claim and counter-claim of the parties.
The revisional application is, thus, disposed of. There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for be given to the parties on priority basis.
(Shampa Sarkar, J.)