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M/S. Dhiraj Developers v. Yamuna Dattu Naik (Decd.)by Lrs.- Janabai Dilip Naik and Ors.

Bombay HC7 Dec 2007WP/1735/2007

Case brief

AI extract

What is this about?

The High Court quashed a Trial Court order directing payment of court fees. It ordered the plaint to be registered while keeping valuation objections open. Respondents undertook not to create third-party rights during a 10-day period. Petition disposed.

What did the court decide?

Order directing payment of court fees quashed; plaint to be registered and numbered; valuation objections kept open; ad-interim order continued subject to respondent's undertaking.

M/S. Dhiraj Developers Vs Yamuna Dattu Naik… — Contract and Commercial Disputes | Bombay HC (2007)

¶1

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION

¶2

 Writ Petition No.1735 of 2007
 with
 Civil Application No.3054 of 2007

¶3

 1. M/s Dhanraj Developers ..Petitioners

¶4

vs.

¶5

 1. Yamuna Dattu Naik
 deceased through legal
 heirs and others ..Respondents

¶6

 Shri A.A.Joshi i/b Shri U.P.Warunjikar for
 petitioners.

¶7

 Shri Shri G.S.Godbole i/b Shri Vijay Gharat for
 respondent nos.1a and 1b.
 Shri V.Z. Kankaria i/b Shri S.A.Joshi for
 respondent no.2.

¶8

CORAM: S.C.DHARMADHIARI J.
7th December, 2007
P.C.

¶9

 1. The present petitioners had filed a civil

¶10

 suit in the Trial Court being Reg. Civil Suit

¶11

 claiming a relief that the agreement dated 2nd
 March, 2005 between the petitioners/plaintiffs

¶12

 and respondent nos.1a,1b and 2 is valid,
 subsisting and binding. The said agreement is
 in respect of immovable property and the City
 Industrial Development Corporation Ltd. was
 also impleaded as a party. CIDCO was impleaded
 as a party because the CIDCO had agreed to allot

¶13

 a piece and parcel of land, more particularly,
 described in para 3 of the plaint by its order
 dated 8th February, 2005. The
 petitioners/plaintiffs state that other

¶14

 defendants were to take over this plot from
 CIDCO and thereafter transfer it to the
 petitioners/plaintiffs and that is how the
 agreement was executed on 2nd March, 2005.
 Consideration was also agreed. A sum of
 Rs.2,50,000/- has been paid and thereafter the
 petitioners had set out as to how steps were
 taken to have the property/land allotted. The
 consideration which was agreed upon has been
 referred to and plaint proceeds to state that a
 sum of Rs.8,56,000/- has been paid.

¶15

 2. When this plaint was presented in the civil
 Court, it appears that an objection was raised
 with regard to valuation of the suit claim for
 the purpose of court fees and jurisdiction. The
 Registry was of the opinion that the property
 has been valued at Rs.16,00,000/- and if the
 declaration with regard to the same has been
 claimed, then, the court fee is required to be
 paid on Rs.16,00,000/- and if such court fee is
 paid, then, further steps would be taken.

¶16

 3. The petitioners pointed out to the Court
 below that the claim is traceable to section
 6(i)(j) of the Bombay Court Fees Act, 1959 and
 that is how the Court fees have been paid. The
 argument was that appropriate court fee has been

¶17

 paid. The grievance of the present petitioner
 is that the order has been passed by the Trial
 Court and result of the said order is that
 neither the plaint is taken on file nor such
 enquiry as is necessary in law with regard to
 undervaluation allegedly made has been
 commenced. The net result of all this is that
 if the petitioners do not comply with the order
 of the Trial Court, they will not be able to
 proceed with the suit and file any application
 including for interim injunction. In such
 circumstances, the order of the learned Judge
 directing payment of the Court fee has been
 assailed before me.

¶18

 4. This petition was placed before this Court
 earlier and while issuing notice this Court
 granted ad-interim relief.

¶19

 5. After this matter was heard for some time
 and my attention was invited to the provisions
 of the Bombay Court Fees Act, 1959, I expressed
 a view that the issue of valuation of the suit
 claim for the purpose of court fees and
 jurisdiction can be kept open and subject to
 such an issue being kept open, for being raised
 at the appropriate stage, the Trial Court should
 proceed to take the plaint on file and number

¶20

 it. The parties agreed before me to such a
 course of action. In sofar as ad-interim order
 is concerned, the prayer of the
 petitioners/plaintiffs is that such an order be
 continued for reasonable period so as to enable
 the petitioners/plaintiffs to apply for
 appropriate relief in terms of the plaint
 averments.

¶21

 6. The respondents’ Counsel Shri Godbole and

¶22

 Shri Kankaria raised an issue with regard to
 this Court granting such a relief as an
 ad-interim measure straightway. They pointed
 out that this Court cannot take over the power
 of the Trial Court during the course of hearing

¶23

 the petition under Article 227 of the
 Constitution of India challenging the order of
 the present nature, no question of granting any
 interim order on merits arises. Prima facie,
 there is substance in the contention of Shri
 Godbole and Shri Kankaria, however, without
 entering into any larger controversy and since
 all the issues have been kept open, in my view,
 following order would meet the ends of justice.

¶24

 7. The order dated 9th March, 2007 passed by
 the learned Civil Judge, Sr.Dn.,Panvel is
 quashed and set aside. The plaint is directed

¶25

 to be registered and numbered subject to the
 objection with regard to the valuation of the
 suit claim for the purpose of court fee and
 jurisdiction be kept open. The order being
 quashed and set aside does not prevent the Trial
 Court from taking cognisance of the objections
 in that behalf and passing appropriate orders in
 that behalf after giving an opportunity to the
 petitioners/plaintiffs.

¶26

 8. Instead of the ad-interim order passed by
 this Court being continued, I record the
 statement of Shri Godbole and Shri Kankaria to
 the effect that defendant no.1a and 1b and 2
 shall not create any third party rights in
 respect of the suit property for a period of 10
 days from today. The Trial Court should decide
 the proceedings including the interim
 application uninfluenced by the fact that
 ad-interim order was passed by this Court and
 the statement as above made by the respondents.
 All this shall not influence the Court below in
 any manner. Petition is disposed of. This
 order is passed in presence of respondent no.2.
 All contentions on merits are kept open.

¶27

 9. In view of disposal of the petition civil
 application does not survive and stands disposed

¶28

 off. No costs.

¶29

(S.C.DHARMADHIKARI J.)

M/S. Dhiraj Developers v. Yamuna Dattu Naik (Decd.)by Lrs.- Janabai Dilip Naik and Ors.

Case brief

What is this about?

What did the court decide?

M/S. Dhiraj Developers v. Yamuna Dattu Naik (Decd.)by Lrs.- Janabai Dilip Naik and Ors.

Case brief

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What did the court decide?

What the court decided

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