B S OBEROI Vs. P S OBEROI

JUDGEMENT

(1.) WITH consent of both parties, I have heard arguments on the question of maintainability of the suit.

(2.) IN view of the decision of Supreme Court in Kanwarjit Singh Dhiilon v hardyal Singh Dhillon, (2007) 11 SCC 357 and in view of the decision in Krishna kumar Birla v. Rajendra Singh Lodha and Ors. , (2008) SCC 300, I consider that this suit is very much maintainable as far as subject matter is concerned. However, I find that the instant suit has not been properly valued. The plaintiff has claimed that he was in symbolic possessions of the property. Since the plaintiff is not in actual possession of the property, for the relief of partition, he has to pay the Court fees on the basis of market value of his share in the property. The share of plaintiff in the entire suit property is 1/12th, so he will have to pay the Court fees on his 1/12th share of the value of the property given in the agreement to sell entered into between the defendants and the proposed seller, i. e. Rs. 10, 92,00,000/ -. The plaintiff will have to pay the Court fees on his 1/12th share which comes to Rs. 91 lac The second relief sought by the plaintiff is cancellation of the agreement to sell dated 2nd June 2006. This agreement to sell gives consideration of the property as Rs. 10,92,00,000/-, an advance amount of Rs. 1,32,00,000/- had already been paid under the agreement as earnest money and the remaining consideration was to be paid at the time of execution of the sale deed on or before 15th November 2006. As per the defendant"s version, this sale deed has already been executed. Thus, this relief has become infructuous and in case plaintiff intends to proceed with the cancellation of the sale deed, he will have to amend the suit and pay the Court fees at the entire value of the property involved in the sale deed. Plaintiff accordingly is given liberty to amend the suit and properly value the suit and pay the court fees within four weeks from today.

(3.) LIST on 30th March 2009.