S. R. Health Care Services Private Limited, Vs Dr. Sheetal Yadav

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2024:CGHC:48509-DB

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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FA No. 234 of 2024

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S. R. Health Care Services Private Limited, Through Its Authorized Director, Sanjay Tiwari S/o Late Sudhakar Tiwari, Aged About 45 Years, S.R. Health Care Services Pvt. Ltd., Dhamdha Road, Chikhli, Tahsil And District-Durg (C.G.)

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-- Appellant/Plaintiff

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versus

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Dr. Sheetal Yadav W/o Dr. Supratim Das Gupta, Aged About 45 Years, R/o Flat No. 43, Tower No. 2/B, Surya Apartment, Junwani, Bhilai, District-Durg (C.G.)

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Dr. Sheetal Yadav (M.B.B.S., D.A.) Anesthesiologist Worked At Office Of Chief Medical Officer, District-Durg (C.G.) And Posted At Community Health Center, Kumhari, Basti, Kumhari, District-Durg (C.G.) (Cause Title Not Made Properly Before The Trial Court)

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--- Respondent/Defendant

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For Appellant: Mr. Neeraj Choubey, Advocate.

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Hon'ble Smt. Justice Rajani Dubey, J.

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Hon’ble Shri Justice Bibhu Datta Guru, J.

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Judgment on Board

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Per, Rajani Dubey, J.

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10.12.2024

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Heard learned counsel for the appellant.

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This appeal is filed against the order dated 09.09.2024, whereby the suit preferred by the appellant has been dismissed on the ground that non-

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payment of proper Court fees.

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The facts of the case, as projected in the present appeal, in brief are that plaintiff had filed a suit against the respondent/defendant for declaration and permanent injunction, wherein the suit was valued Rs. 1,000/- (Rupees One Thousand Only) and paid Court fees Rs. 200/- (Rupees Two Hundred Only). The plaintiff has made averments that appellant/plaintiff is a Private Limited Company, which is duly registered under Sub-Section (2) of Section 7 of the Companies Act, 2013. Initially in the year of 2013, the partnership firm was constituted by Mr. Sanjay Tiwari and one Dr. Sheetal Yadav for controlling the S.R. Hospital and later on, they agreed to upgrade the partnership firm as company, but subsequently, due to personal reasons Dr. Sheetal Yadav decided to separate herself from the partnership firm. Therefore, on 09.08.2019 one agreement between Mr. Sanjay Tiwari and Dr. Sheetal Yadav was executed in their personal capacity for deciding their rights and liabilities. Subsequently, dispute arose between the parties as Dr. Sheetal Yadav violated the terms of agreement and illegally took the equipment of the plaintiff’s hospital in her possession and left the hospital along with many articles of the hospital including the cheque book, whereas the medical equipment was purchased by the plaintiff/appellant through loan taken from the concerned Bank and the same was not the personal property of any person. It is alleged that respondent/defendant had misused her position and refused the Bank loan and other liabilities of the S.R. Hospital. Subsequently, she misused the blank cheque of the plaintiff’s company, thus, the act and action of Dr. Sheetal Yadav was reported by Mr. Sanjay Tiwari to the concerned authority (such as the concerned Bank as well as the Police Station) and also placed the matter before the Board of Directors of the company. Since the question agreement dated 09.08.2019 has not been executed by Mr. Sanjay Tiwari on behalf of S. R. Health Care Services Private Limited as he has no power to do something on behalf of the company without obtaining the prior approval from the Board of Directors of the company and therefore, S.R. Health Care Services Private Limited is not bound with the agreement, which was executed by the person in his personal capacity. In the said background, the Board of Directors of the company vide its resolution had authorized Mr. Sanjay Tiwari, one of Directors of the appellant’s company to file the civil suit for declaration and injunction in

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respect of the question agreement dated 09.08.2019 which is not binding upon the plaintiff’s company, the Civil Suit was filed before the Civil Court on behalf of the company for declaration and injunction and the same was registered as A/150/2021 in the Court of XIV^th Civil Judge, Class-II, DistrictDurg (C.G.). The notices were issued by the learned Civil Judge Class-II, Durg to the respondent/defendant whereby she appeared and filed the written statement before the Trial Court and subsequently she had filed the application under Order 7 Rule 11 of the CPC and took her defence by raising the objection in the Civil Suit and the plaintiff gave the reply upon the said application wherein, the learned Civil Judge vide order dated 11.05.2023 decided the objection of the defendant and held that, the civil suit is maintainable in the light of the provision of Section 31 of the Specific Relief Act, 1963 as well as Section 9 of the Civil Procedure Code. However, the civil court reached in conclusion as looking into the value of the disputed agreement, the valuation of the Civil Suit is required to be valued as rs. 1,98,81,500/- in the result, the learned Civil Judge had returned the Civil Suit on the ground as being outside the pecuniary jurisdiction of the Civil Judge Class-II, by order dated 11.05.2023. The plaintiff’s company properly valued the civil suit as Rs. 1,98,81,500/- and presented the plaint before the District Judge, Durg on 06.07.2023 for declaration and injunction and affixed the prescribed Court fees for that purpose in accordance with law. The Civil Suit was registered as A/1095/2023.

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The learned District Judge, vide order dated 24.07.2023 transferred the above suit for proper hearing and adjudication before the Fourth Additional District Judge, Durg and vide order dated 26.09.2023, the learned Trial Court has observed that Court fees which is fixed as Rs. 1,000/- for declaration and Rs. 1,000/- for permanent injunction have been paid by the plaintiff, whereas the suit is filed declaring the agreement of Rs. 1,71,61,500/- is void, hence it is expected with the counsel of the plaintiff to clarify the position regarding the Court fees and after hearing argument of plaintiff, learned Trial Court vide order dated 09.09.2024 passed the impugned order and dismissed the Civil Suit on two grounds, firstly the non-payment of proper court fees by the plaintiff and secondly, it does not fall under the jurisdiction of the Civil Court to decide the commercial dispute. Hence, the present appeal is filed by the appellant/plaintiff.

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Learned counsel for the appellant/plaintiff submits that no opportunity of hearing was afforded to him by learned Trial Court so that he could make submissions on jurisdiction point. From perusal of order-sheets, it appears that learned Trial Court instructed to make the submission upon the point of Court fees and no issue regarding jurisdiction of Civil Court was involved in the matter, therefore, the second ground taken by learned Trial Court without affording the proper opportunity of hearing to the plaintiff and the same is bad-in-law. Learned Trial Court has failed to appreciate the provisions of law under Section 7 of Court Fees Act, 1870 and dismissed the suit without following the procedure of Code of Civil Procedure, 1908. So, the impugned order passed by learned Trial Court is illegal, contrary to the law and also against the facts of the case, learned Trial Court has committed grave error by ignoring the pleadings and relief claimed by the plaintiff/appellant.

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It is well settled law, as the plaintiff/appellant is free to evaluate his suit for the purpose of pecuniary jurisdiction and claim for declaration when fixed Court fees was paid according to the Schedule of the Court Fees Act, 1870 as applicable at Chhattisgarh State. Learned Trial Court had failed to appreciate that the suit for declaration under the facts of the instant case, allows Courts to clear up plaintiff’s status in the light of Section 31 of Specific Relief Act, 1963 and this can help prevent future litigation between the parties. Thus, the impugned order is not sustainable under the eyes of law. Learned Trial Court failed to afford due opportunity of hearing to the appellant to establish the facts, as such, there was no commercial transaction between the parties, so impugned order is liable to be dismissed. In support of his contention, he refers to the decision of this Court in the matter of Smt. Neelam Dagla vs. Sarwan Gond & Another , order dated 20.06.2019 passed i n FA No. 557 of 2018.

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We have heard learned counsel for the appellant/plaintiff and perused the material available on record including the impugned order.

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It is clear from impugned order dated 09.09.2024 that learned Trial Court found that plaintiff/appellant has not paid proper Court fees and agreement falls under the commercial transaction, so this suit is triable by Commercial Court, as such learned Trial Court dismissed the suit. Operative para of

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impugned order is as under:-

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“……….वादी्ቛ ारायहबादइकरारनामादिदनांक 09-08- 2019 केअनुसारकुलरकम 1,98,81,500/- (अ्ቌरीएककरोडअनठ्धानवेलाखइक्यासीहजारपाँचसौरूपये) के संबंधमेंअनुतोषचाहागयाहै।वादी्ቛ ारावादकाउचिचतमूल्यांकनकरन्यायशुल्कचस्पा नहींदिकयागयाहै।जिजसकेसंबंधमेवादी्ቛ ारातक2 दिकयागयाहैदिकवादजिस्ቛ2 घोषणाहेतु पेशदिकयागयाहै, कोईपरिरणादिमकअनुतोषनहींचाहागयाहैइसलिलएउसके्ቛ ारावादका मूल्यांकनउचिचतरूपसेदिकयागयाहै।तत्संबंधमेंन्यायशुल्कअचिधदिनयम, 1870 कीधारा 7 उपदिनयम (च) काअवलोकनदिकयागया, जिजससेयहदቦኌशतहैदिकलेखाओंकेवादोंमें वादप्ቔ याअपीलके्ሺ ापनकेलिलएईቢኌAसतअनुतोषकेमूल्यांकनकीरकमकेअनुसार 40/- रूपयेकीन्यूनतम्ቛ ीससदिहतन्यायशुल्कचस्पादिकयाजानाचादिहएतथावाद मूल्यांकनअचिधदिनयम 1887 कीधारा 8 केअनुसारऐसेलिलखतोंकामूल्यांकनउसकेचाहे गएअनुतोषकेरकमयाबाजारमूल्यकेअनुसारदिकयाजानाचादिहएतथा्ቚ ाቦኌथतरकमही न्यायालयका्ቌे्ቔ ाचिधकारहोताहै।वादमूल्यांकनअचिधदिनयमकीधारा 08 केअनुसारवादी केवादकामूल्यांकनराशिश 1,98,81,500/- (अ्ቌरीएककरोड़अनक्यानवेलाखइक्यासी हजारपाँचसौरूपये) मेंदिकयाजानाचादिहए।इसकेअचितरिर्ሹ वादीकंपनीएकव्यवसाचियक म2 हैतथावादीकंपनीकेडायरेक्टरसंजयचितवारीएवं्ቚ चितवादी्ቛ ाराएकपाट2नरशीप म2 कादिनमा2णदिकयागयाथाएवंउ्ሹ्ቛ म2 मेंडॉयरेक्टरकेपदपरपदस्थहोकरकाय2रत थेतथाउ्ሹ इकाररनामाभी्ቛ म2 सेसंबंचिधतलेनदेनकेसंबंधमेंदिनष्पादिदतदिकयागयाहै जिजससे्ቚ थमदृ्ቖयाप्ቌकारोंकेमध्यउ्ሹ् दिववादव्यवसाचियकदिववादहोनादቦኌशतहै, जिजससे उ्ሹ मामला्ቚ थमदृ्ቖयाइसन्यायालयके्ቌे्ቔ ाचिधकारमेंनहींआताहै।अतःउ्ሹ तथ्योंको दृदि्ቖगतरखतेहुएवादी्ቛ ारा्ቚ स्तुतवादइसन्यायालयमेंसुनवाईयोग्यनहींहोनेसेवापस दिकयाजानाउचिचतहोगा।

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करणकेअवलोकनसेयहभीदቦኌशतहैदिकवादीकंपनीकेडायरेक्टरसंजय चितवारीएवं्ቚ चितवादिदनीडॉ. शीतलयादवकेमध्यदिदनांक 09.08.2019 कोइकरारनामा दिनष्पादिदतदिकयागयाहै, जिजसेशुन्यकरानेकीघोषणाबाबतयहवादवादीसंस्थानके्ቛ ारा स्तुतदिकयागयाहै।उ्ሹ इकरारनामादिनष्पादिदतदिकयेजातेसमयसंजयचितवारीएवंडॉ. शीतलयादवदोनोंडायरेक्टरकेपदपरउ्ሹ वादीसंस्थानमेंकाय2रतथे, जोदिकवादी संस्थानकेसभीकायU केलिलएअचिधकृतरहेहैं।इसलिलएदिदनांक 09.08.2019 को इकरारनामादिनष्पादिदतदिकयेजातेसमययहमानाजायेगादिकवादीसंस्थानकीओरसेही डायरेक्टरसंजयचितवारीके्ቛ ाराउ्ሹ इकरारनामादिनष्पादिदतदिकयागयाथा।्ቚ थमदृ्ቖयायह दቦኌशतहोताहैदिकयादीसंस्थानकीवांछाएवंदिहतब्ቍताकेवलमा्ቔ न्यायशुल्कअदाकरने सेबचनेकेलिलएसहीजानकारीनादेकरबाद्ቚ स्तुतदिकयागयाहै।जबदिकवत2मानमेंभी संजयचितवारीवादीसंस्थानकाडायरेक्टरहैजिजसकीओरसेयहवाद्ቚ स्तुतदिकयागयाहै, इसलिलएवादीसंस्थानकीओरसे्ቚ स्तुतवादमेंवादकामूल्यांकन 1,98,81,500/- रूपये करतेहुएउचिचतन्यायशुल्कअदादिकयाजानाआवश्यकहै, दिकन्तुवादीसंस्थानकीओरसे उचिचतन्यायशुल्कअदानहींदिकयागयाहैतथावादीकायहमामलाव्यावसाचियकदिववादका है, जिजसकीसुनवाईका्ቌे्ቔ ाचिधकारइसन्यायालयकोनहींहै।इसलिलएवादीसंस्थानकी ओरसे्ቚ स्तुतवादउचिचतन्यायशुल्कएवं्ቌे्ቔ ाचिधकारकेअभावमेंचलनेयोग्यनहींहोनेसे वादीकावाददिनरस्तदिकयाजाताहै।

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करणसमा्቎ ।

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करणव्यवቢኌस्थतकरअशिभलेखागारजमादिकयाजावे।"

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As per the provision of Order 7, Rule 11 (b) of Code of Civil Procedure, 1908, it is produced herein for ready reference as under:-

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11. Rejection of plaint.

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The plaint shall be rejected in the following cases-

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(a)xxxxxx

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(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

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The plaintiff/appellant has filed certified copy of all order-sheets of Trial Court and learned Trial Court observed in the order dated 26.09.2023 as under:-

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“ 26.09.2023 वादीकीओरसे्ቦ ीएन. रदिवकुमारअचिधव्ሹा।

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्ቚकरण, जांच्ቚ चितवेदन/तक2 हेतुदिनयतहै।

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अशिभलेखसेदቦኌशतहैदिकवादीके्ቛ ारा्ቚ स्तुतघोषणाकेबादमेंघोषणाहेतु 1000 रू. एवं स्थायीदिनषेधा्ሺाहेतु 1000 रु. कान्यायशुल्कअदादिकयागयाहै।जबदिकयहवादइकरारनामामेंउ्ቤेलिखत 1,71,61,500 रुपयेकेइकरारनामाकोशून्यघोदिषतदिकयेजानेबाबत््ቚ स्तुतहै।अतःवादीअचिधव्ሹासे अपे्ቌाकीजातीहैदिकन्यायशुल्ककेसंबंधमेंቢኌस्थचितस्प्ቖ करें

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करणजांच ् चितवेदन/ तक2 हेतु 27.10.2023 ’’

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After that case was fixed for argument on registration it came for hearing on 02.09.2024, argument was heard by learned Trial Court and case was fixed for order on 04.09.2024. On 04.09.2024 case was adjourned for 09.09.2024 and on the said date learned Trial Court passed the impugned order and dismissed the suit on this ground that the dispute is triable by Commercial Court and non-payment of proper Court fees by the appellant/plaintiff

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It is quite evident from all order-sheets that on previous dates of hearing, learned Trial Court had never directed to the appellant/plaintiff to pay the Court fees and it is not clear from the said order-sheets that proper opportunity was afforded to the appellant/plaintiff for depositing the proper Court fees and appellant/plaintiff has failed to deposit the same despite opportunity being provided to him. It is also clear that learned Trial Court never heard argument of appellant/plaintiff on the point of territorial jurisdiction. Therefore, this order is not according to provision of Order 7, Rule 11 (b) of Code of Civil Procedure, 1908, so findings recorded by learned Trial Court are not sustainable.

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Looking to the provision of Order 7, Rule 11 (b) of Code of Civil Procedure, 1908, without issuing notice to the respondent, this appeal is allowed and impugned order dated 09.09.2024 is hereby set aside and the matter is remitted back to learned Trial Court with a direction to afford proper

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opportunity to the appellant/plaintiff on both points, firstly on Court fees and secondly on territorial jurisdiction and after hearing the appellant/plaintiff on the said points, pass a fresh order and if Court finds that prescribed Court fees is less, opportunity be given to the appellant/plaintiff to deposit the same properly, if the appellant/plaintiff does not comply with the order of learned Trial Court, then the learned Trial Court shall pass the order according to the provision of Order 7, Rule 11 of Code of Civil Procedure, 1908.

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The appellant/plaintiff shall appear before the learned Trial Court on 20.01.2025.

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Registry is directed to forward a copy of this judgment with the leave of the Hon’ble Chief Justice to all the District Judges with a direction to circulate it among all the Judicial Officers to avoid recurrence of such lapse in future.

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Digitally signed Sd/- by AMIT PATEL Date:

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2024.12.1122:23:36 +0530 (Rajani Dubey)

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Sd/Sd/-

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(Bibhu Datta Guru)

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JUDGE JUDGE

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AMIT PATEL

S. R. Health Care Services Private Limited, v. Dr. Sheetal Yadav

Case brief

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S. R. Health Care Services Private Limited, v. Dr. Sheetal Yadav

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