Supreme Court - Daily Orders
M/S Omax Construction Ltd. (Now Known As ... vs Dharam Singh . on 26 October, 2015
Bench: Fakkir Mohamed Ibrahim Kalifulla, Uday Umesh Lalit
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8880 OF 2015
(ARISING OUT OF SLP(C) NO.16313/2015)
M/S OMAX CONSTRUCTION LTD.
(NOW KNOWN AS M/S OMAXE LTD.) APPELLANT (S)
VERSUS
DHARAM SINGH & ORS. RESPONDENT (S)
O R D E R
Leave granted.
Heard counsel for the appellant as well as the respondents.
By the impugned judgment learned Single Judge of the Punjab and Haryana High Court while setting aside the order of the Trial Court directing the respondent No.1 to pay ad valorem court fee held that it was sufficient for the respondent No.1 to pay a fixed court fee of Rs.50/- on the valuation of the suit at Rs.400/-.
The respondent No.1 filed the suit Signature Not Verified challenging the power of attorney dated Digitally signed by Narendra Prasad Date: 2015.10.29 17:14:49 IST Reason: 7.7.2005 and the subsequent Sale Deed No.5891 1 dated 17.8.2005 as well as the mutation effected as wrong, illegal, null and void ab initio non est and inoperative etc. The respondent No.1 also prayed for a declaration as regards the dispossession of the suit schedule property.
It is not in dispute that there was an Agreement to Sell dated 3.12.2004 between respondent No.1 and the appellant for the sale of 3.09 Acres of agricultural land to the associate company of the appellant for a sum of Rs.63,42,188/-. The receipt of the said payment by way of advance money of Rs.6,10,000/- and subsequent payment of Rs.57,32,188/- in the form of cash and cheque respectively is not in dispute. The respondents would, however, contend that, that agreement as well as the payment related to only part of the land and not the entirety of 3.09 Acres.
We are not getting into the merits or demerits of the claims of the respective parties. Based on the said agreement and the 2 payment effected, according to the appellant a power of attorney came into existence on 7.7.2005 and registered sale deed was also executed on 17.8.2005, necessary mutation was stated to have been carried out in favour of the appellant on 3.5.2006.
The present suit came to be filed on 15.5.2012 i.e. nearly after eight years from the date of the power of attorney and the execution of the sale deed and the respondent No.1 valued the suit for the purpose of Court fee and jurisdiction at Rs.400/- and paid a fixed court fee of Rs.50/-. Application was filed at the instance of the appellant under Order VII, Rule 11 of the CPC questioning the maintainability of the suit on payment of a fixed court fee. While, according to the appellant, the suit was being under valued and appropriate ad valorem court fee of nearly Rs.2,00,000/- ought to have been paid.
The stand of the appellant, though weighed with the Trial Court and the respondent No.1 was directed to pay ad valorem court fee, by 3 the impugned judgment the High Court interfered with the said order of the Trial Court holding that having regard to the fact that the respondent No.1 seeks to challenge the power of attorney dated 7.7.2005 and the subsequent sale deed dated 17.8.2005, the payment of fixed court fee itself was sufficient.
Having heard learned counsel for the appellant we find that the question is squarely covered by the dictum of this Court which has also been noted by the learned Judge, namely, Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., (2010) 12 SCC 112, the Division Bench of the Punjab and Haryana High Court in Civil Revision No.4753/2005, decided on 15.7.2011 (Tarsem Singh and others v. Vinod Kumar and others) has also relied upon the judgment of this Court.
Having regard to the well settled principles and going by the prayer of Respondent No.1 in the suit, wherein a substantial prayer is sought for as against the appellant apart from questioning the 4 genuineness of the power of attorney dated 7.7.2005 and the sale deed dated 17.8.2005 wherein Respondent No.1 to protect its possession with reference to the suit schedule property and applying the principles laid down by this Court as rightly held by the Trial court, the Respondent No.1 ought to have paid ad valorem court fee while seeking for such a relief. In fact we find that in no part of the plaint, respondent No.1 has chosen to even refer to the Agreement to Sale dated 3.12.2004 and the payment of substantial amount of Rs.63,42,188/- received from the appellant which payment is not in dispute. Therefore, even if the Respondent No.1 wants to contend that the said payment was only a part of the suit schedule property, it is a matter for consideration by the Trial Court, but having regard to the larger prayer made by Respondent No.1 in the suit it is appropriate that in accordance with Section 7(iv)(c) of the Court Fees Act, the liability to payment of ad valorem court fee is inevitable. 5 The impugned order is set aside and the order of the Trial Court dated 23.05.2012 is restored. The appeal, therefore, stands allowed. The respondent No.1 is granted two months' time to pay required court fee.
................................J. [FAKKIR MOHAMED IBRAHIM KALIFULLA] ................................J. [UDAY UMESH LALIT] NEW DELHI;
OCTOBER 26, 2015.
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ITEM NO.70 COURT NO.7 SECTION IVB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).16313/2015
(Arising out of impugned final judgment and order dated 12/03/2015 in CR No. 4067/2012 passed by the High Court of Punjab & Haryana at Chandigarh) M/S OMAX CONSTRUCTION LTD.
(NOW KNOWN AS M/S OMAXE LTD.) Petitioner(s) VERSUS DHARAM SINGH & ORS. Respondent(s) (with appln. (s) for exemption from filing c/c of the impugned order and interim relief and office report) Date : 26/10/2015 This petition was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA HON'BLE MR. JUSTICE UDAY UMESH LALIT For Petitioner(s) Mr. Vijay Hansaria,Sr.Adv.
Mr. Aman Nandrajog,Adv.
Mr. Arjun Nanda,Adv.
Mr. T. Mahipal,Adv.
For Respondent(s) Mr. Rakesh Dahiya,Adv.
Mr. Satyavan Kudalwal,Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is allowed in terms of the signed order. Pending application(s), if any, shall stand disposed of.
(NARENDRA PRASAD) (SUMAN JAIN)
COURT MASTER COURT MASTER
(Signed order is placed on the file) 7