KARUNA KURIES AND FINANCE Vs. KUNJU VAREED

JUDGEMENT

(1.) This Revision Petition is filed by the petitioner who is the plaintiff in O.S. 637 on the file of the Additional Munsiff's Court. Irinjalakuda The revision is directed against the order dated 19.6.1998 in I.A. 4220/97. The respondents are the defendants in the suit. The first respondent is a debtor of the petitioner having borrowed several amounts. The petitioner then filed O.S. 229/87 for realisation money from the first respondent before the Sub Court, Irinjalakuda. The suit was decreed. Proceedings for execution were taken and it is pending as E.P 540/93. According to petitioner, the first respondent is a prosperous land owner. But he filed objection in the execution proceedings stating that he has no means to pay the amount. On enquiry, it was found that the first respondent had contracted debts with the petitioner firm and several others and in 1985 he had fraudulently and clandestinely transferred all the properties in the name of his wife and others by executing fraudulent and grossly undervalued documents. Two of such documents are document Nos. 1051/85 and 4143/ 85 of Chalakudy Sub-Registrar Office. The suit was filed seeking relief by declaring the documents as invalid and cancelling the two documents. The plaintiff had contended that the properties were valued for more than Rs. 50 lakhs. But they transferred it for a paltry amount of Rs. 50.000/-. The transfer is in fraud of creditors and it is not binding on the creditors. The suit was filed under Section 53 of the TRANSFER OF PROPERTY ACT, 1882. As already stated in the plaint, the prayer was for cancelling the two documents. Subsequently, it was realised that it was enough if the plaintiff obtains a declaration that documents are fraudulent and executed in fraud of creditors and therefore, not binding on the creditors under Section 53 of the TRANSFER OF PROPERTY ACT, 1882. Hence the petitioner filed LA. 4220/97 to amend the plaint to change the prayer from one to set aside the two fraudulent documents to one to declare that the documents are fraudulently created with intent to defeat and delay creditors. The petitioner also wanted amendment in the valuation portion for changing to computation of Court-fee for under Section 25(d)(ii) of the Kerala Courts Fees and Suits Valuation Act. This was objected to by the defendants. The Court below after considering the arguments of both sides, by the impugned order rejected the amendment application and hence this revision petition is filed.

(2.) The reason given by the Court below is that the proper remedy in a suit wherein it is contended that the document is vitiated by fraud is to get it set aside as contemplated by under Section 31 of the Specific Relief Act. According to Court below, the relief to be granted is to set aside a document and the Court-fee has to be paid under Section 40 of the Kerala Court Fees and Suits Valuation Act. Hence the Court below came to the conclusion that the attempt of the plaintiff was to protract the suit without paying the requisite Court-fee.

(3.) On a reading of the plaint the relief which was prayed for by the plaintiff is for a declaration that the two documents were executed to defraud the creditors and that the plaintiff is entitled to proceed against the first respondent ignoring the documents. This essentially is a suit coming under Section 53 of the TRANSFER OF PROPERTY ACT, 1882.