Karnataka High Court
Sri Venkatesh S vs The State Of Karnataka on 29 May, 2018
Equivalent citations: AIRONLINE 2018 KAR 2580
Author: S Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY 2018
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION No.10782 OF 2018 (GM-CPC)
Between:
Sri. Venkatesh.S.
S/o Late Siddaramaiah,
Aged about 50 years,
R/at No.142, 2nd Cross Road,
2nd Main Road, T. Dasarahalli,
Bengaluru - 560 057. ... Petitioner
(By: Sri. Saket Bisani Advocate
for Sri. H. Manjunath, Advocate)
And:
The State of Karnataka,
Principal Secretary,
Law Justice and Human Rights Department
Ground Floor, Vidhana Soudha,
Bangalore - 560 001. ...Respondent
(By: Sri. Neelakantappa. K. Pujar, HCGP)
This writ petition is filed under Articles 226 & 227 of
Constitution of India praying to quash the order dated
02.03.2018 on the file of Principal Senior Civil Judge
Bengaluru Rural District at Bengaluru in FR No. 330 of 2018
as per Annexure-A and etc.
This writ petition having been heard and reserved on
03.04.2018 and coming on for pronouncement of orders, this
day S. Sunil Dutt Yadav, J., made the following:
2
ORDER
This petition has been filed aggrieved by the order dated 2.3.2018 passed by the Principal Senior Civil Judge, Bengaluru Rural District, whereby, by virtue of the impugned order, the office objection raised by the Registry directing the plaintiff to value the suit appropriately not accepting the valuation made by the plaintiff under Section 24(d) of the Karnataka Court - Fees and Suits Valuation Act, 1958 ('Act' for brevity) was upheld.
2. The parties are referred to by their ranks before the trial Court for the purpose of convenience.
3. The brief facts of the controversy on hand are that the plaintiff has filed a suit seeking for the following declaratory reliefs :-
"Wherefore, the Plaintiff most respectfully prays that this Hon'ble Court may be pleased to pass the 3 judgment and decree against the defendant No 1 to 7 as follows (1) Declare that, the sale deed dated 15/04/2017 executed by the plaintiff infavour of defendant No 1 in respect of the Item No 1 of the suit schedule 'B' property is obtained by defendant No 1 by playing fraud and same is not binding upon the plaintiff.
(2) Declare that, the sale deed dated 27/05/2017 executed by the plaintiff infavour of defendant No 2 in respect of the Item No 2 of the suit schedule 'B' property is obtained by defendant No 2 by playing fraud and same is not binding upon the plaintiff.
(3) Declare that, the sale deed dated 15/04/2016 between defendant No 2 and defendant No 4 & 5 in respect of the item No 2 of the suit schedule 'B' property is not binding upon the plaintiff.
(4) Declare that, the sale deed dated 13/04/2016 executed by the plaintiff infavour of defendant No 1 in respect of the Item No 3 of the suit schedule 'B' property is obtained by defendant 4 No 1 by playing fraud and same is not binding upon the plaintiff.
(5) Declare that, the sale deed dated 05/10/2015 executed by the plaintiff infavour of defendant No 1 in respect of the Item No 4 of the suit schedule 'B' property is obtained by defendant No 1 by playing fraud and same is not binding upon the plaintiff.
(6) Declare that, the sale deed dated 15/04/2017 executed by the plaintiff infavour of defendant No 1 in respect of the Item No 5 of the suit schedule 'B' property is obtained by defendant No 1 by playing fraud and same is not binding upon the plaintiff.
(7) Declare that, the sale deed dated 15/04/2016 executed by the plaintiff infavour of defendant No 3 in respect of the Item No 6 of the suit schedule 'B' property is obtained by defendant No 3 by playing fraud and same is not binding upon the plaintiff.
(8) Declare that, the loan availed by the defendant No 1 from defendant No 6 & 7 bank dated 02/03/2017 and 25/11/2015 in respect of 5 the Item No 3 & 4 of the suit schedule 'B' property is not binding upon the plaintiff.
(9) Declare that, the loan availed by the defendant No 3 from defendant No 7 bank dated 31/05/2016 in respect of the Item No 6 of the suit schedule 'B' property is not binding upon the plaintiff."
4. The plaintiff asserts that he was the absolute owner in physical possession and enjoyment of property bearing Sy.No.47/1 to an extent of 0.30 guntas, Karivobanahalli Village, Yeshwanthpura Hobli, Bengaluru North Taluk duly converted to non-agricultural residential purpose, which he has obtained through a gift deed dated 11.4.2007 executed by his grandmother. The plaintiff had asserted that in the said extent of land gifted to him after conversion of the land to non-agricultural purpose, Site Nos.6, 8, 9, 10, 11 and 12 were sold to defendant Nos.1 to 3, which are referred to as item Nos.1 to 6 of suit schedule 'B' property in the plaint. The defendant Nos.4 and 5 were 6 the purchasers of item No.2 of suit schedule property from defendant No.2 on 26.5.2017 and that further, the defendant No.6 Bank had financed defendant No.1 in respect of item No.3 of suit schedule 'B' property and defendant No.7 Bank had financed defendant Nos.1 and 3 in respect of item Nos.4 and 6 of suit schedule 'B' property. The plaintiff had averred that for the purpose of legal necessity various items of property were sold to the defendants as referred to in para-6 of the plaint.
5. It is the further case of the plaintiff that averments regarding consideration as mentioned in the sale deed bearing document Nos.356 and 357 dated 15.4.2017 with respect to item Nos.1 and 5 of suit schedule 'B' property are false averments that have been made and that the total consideration agreed with respect to conveyance of item Nos.1 to 6 of suit schedule 'B' property had not been conveyed to the plaintiff and similarly, there was a failure of 7 consideration in respect of item Nos.1 to 5 of suit schedule 'B' property and defendant Nos.1 to 3 had not made payments in consonance with the sale consideration as provided for in the sale deed. The details regarding the consideration that had not passed on to the plaintiff is specified in paras-7 and 8 of the plaint. In light of the aforesaid assertions made in the plaint, the plaintiff had sought for the prayers as reproduced supra.
6. The Registry, while carrying out scrutiny of the plaint to be placed before the Court did not accept the valuation of the plaintiff wherein relief sought for was valued in terms of Section 24(d) of the Act. The Registry had raised the objection as follows:-
"Suit filed for the relief of declaration to declare that sale deeds are not binding on the plaintiff. Prayer 1 to 8 sale deeds are executed by the plaintiff. Court fee paid on the Valuation Slip is not correct and not paid on 8 the consideration mentioned in the sale deeds."
7. After having heard submissions of learned counsel for plaintiff as regards the said office objection, the trial Court had passed the impugned order sustaining the objection and consequently granting time to the plaintiff to pay the court-fee on the market value of the property after calculating the same under Section 38 of the Act in respect of all prayers sought in the above suit. The said order has been impugned before this Court.
8. The plaintiff contends that the valuation under Section 24(d) of the Act is the correct provision of law under which the valuation has been rightly made before the trial Court and the correctness of valuation made as per the Valuation Slip filed before the trial Court needs to be upheld. He has also relied on the following judgments:-
9
1. Jaware Gowda & Ors. V. Basavaraju N.J.
- Manu/KA/2004/2015.
2. V.S.Balasubramanyam v. L.K.Trust -
Manu/KA/0254/2009.
3. Abbas Ahmad Choudary v. State of Assam - Manu/SC/1966/2009.
4. Sunil Suresh Bellad v. State of Karnataka - Manu/KA/0395/2013.
5. Suguna & Ors. v. Sunil Kumar Holla & Ors. - Manu/KA/1120/2013.
9. As regards judgment relied at Sl.No.1, it is an authority on the point that valuation can be resorted to under Section 24(d) where value is not mentioned in the instrument and hence, valuation under Section 38 was not required. This principle has nothing to do with the present controversy relating to the applicability of Section 24(d) vis-à-vis Section 38 of the Karnataka Court-Fees and Suits Valuation Act and hence, the same is inapplicable.
10
10. The judgment referred at Sl.No.2 deals with a case where challenge is made to the arrangement and documents entered into between the defendants interse and hence, it was held that valuation could be resorted to under Section 24 of the Act, which is not the case herein, as the plaintiff in the present case is a party to each of the instruments, where validity of which is sought to be challenged.
11. As regards the judgment at Sl.No.5, the principle reiterated is that valuation for the purpose of Section 38 refers to the valuation mentioned in the document and valuation need not be calculated on the basis of the market value of the property which is the subject-matter of the instrument and hence, the said judgment also has no applicability to the present controversy.
11
12. However, judgments at Sl.No.1 and 5 can be looked into for the purpose of holding that the trial Court has erred in directing valuation to be made under Section 38 of the Act on the market value of the property, as the abovementioned judgments clearly hold that for the purpose of valuation under Section 38 of the Act, the value of the property mentioned in the instrument is to be taken note of and court fee is not to be calculated on the market value of the property. 13. As regards the judgments at Sl.Nos.3 and 4 the same are not applicable, as they relate to criminal trials.
14. It is seen that on a bare perusal of the prayers made, the plaintiff is a party to the sale deeds with respect to which declaratory relief has been sought for. The only grievance of the plaintiff is that the whole consideration as promised has not been remitted and 12 there is failure of consideration prompting the plaintiff to file the present suit.
15. It is settled position of law that where a person who is not a party to the instrument seeks for a declaratory relief to the effect that the said instrument is not binding on the plaintiff, the valuation under Section 24(d) of the Act can be resorted to, whereas a party to a document, who seeks for relief regarding the said document would be required to value the plaint in terms of Section 38 of the Act, which provides for cancellation of instruments. It appears that where a person is a party to an instrument, any relief howsoever crafted would amount to a relief relating to cancellation of the said instrument and hence, appropriate valuation under Section 38 of the Act is required to be made. In the present case, there is no reason to exempt valuation under Section 38 of the Act. The mere allegations of fraud which, even if accepted, relates to partial failure of 13 consideration and does not permit the plaintiff to value the suit under Section 24(d) of the Act thereby getting over the valuation under Section 38 of the Karnataka Court Fees and Suits Valuation Act, which the plaintiff considers as onerous.
16. The position of law has been settled by the Hon'ble Supreme Court in the case of Suhrid Singh @ Sardool Singh v. Ranbir Singh & Ors., in Civil Appeal Nos.2811-2813/2010 dated 29.3.2010 at para 6 of its judgment, which is as follows:-
"6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non- est, or illegal or that it is not binding on him.
The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to 'A' and 'B'--two brothers. 'A' executes a sale 14 deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A' is invalid/void and non-est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If 'A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If 'B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if 'B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv) (c) provides that in suits 15 for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."
17. Accordingly, in view of the above, the order of the trial Court is interfered with only to the limited extent that it had directed valuation to be made under Section 38 on the market value of the property. It is clarified that valuation under Section 38 will have to be resorted to, but however, the value of the property as mentioned in the instrument and not the market value of the property needs to be taken note of for the purpose of valuation.
16
Subject to the above observations, order of the trial Court is not interfered herewith and the petition is disposed of accordingly.
Sd/-
JUDGE VGR ct:am