STATE OF GUJARAT Vs. KANTILAL PRATAPJI

JUDGEMENT

(1.) When the plaintiff claims a declaration that the promis sory notes executed by him in favour of the defendant are void the same having been obtained by fraud or coercion without consideration is he liable to pay court-fees calculated on the amount expressed on the face of the promissory notes under Article 7 of Schedule I of the Bombay Court-fees Act 1959 thereinafter referred to as the Act) or whether he is liable to pay fixed court-fees at Rs. 30.00 under sec. 6(iv)(j) of the Act? That is the pivotal question in this revisional application preferred by the State of Gujarat calling into question an order passed by the learned Judge presiding over 8th Court of City Civil Court holding that fixed court-fees at Rs. 30.00 are payable and not ad valorem court-fees on the basis of the amount expressed on the face of the promissory notes. Reliance has been placed by the learned trial Judge and by the learned counsel for the opponent plaintiff on Inderlal Panwarmal v. Khialdas Shewaram & Others 11 G.L.R 948 in order to buttress the view which has been taken viz. that court-fees payable are fixed court-fees on the basis of sec. 6(iv)(j) and not ad valorem as per Article 7 of the First Schedule of the Act. Now the ratio of Inderlals case has to be culled out by taking into account the facts of that particular case. In that case the plaintiff claimed a declaration to the effect that the agreement to sell immovable property at some future date executed by him in favour of one of the defendants was void and inoperative for certain reasons. The question before the Court was whether a declaration sought in respect of such an agreement which did not create any right in favour of the party in whose favour it was executed except and save the right to seek specific performance of the agreement could be treated as a claim for substantive relief which could be valued in terms of money. Divan J. as he then was emphasized this aspect as is evident from the opening portion of paragraph 15 of the report which may be quoted :

(2.) Counsel for the opponent-plaintiff placed reliance on Sanatkumar Bhikabhai Patel & Others v. The State of Gujarat Another 8 G. L. R. 946 and on a decision rendered by Miabhoy C. J. in Civil Revision Application No. 700 of 1962 (Prabhudas Bokorlal v. Bhailalbhai & Ors ) to which a reference has been made in the said judgment. The point of distinction in regard to Sanatkumar Bhikhabhais case and Civil Revision Application No. 700 of 1962 is that in those cases the plaintiff was not challenging any conveyance executed by himself. He was challenging a conveyance executed by one of the defendants in favour of some other defendant by challenging a transaction between two of the defendants. From the point of view of the plaintiff therefore there was no question of monetary gain or monetary loss to himself. Those decisions therefore cannot come to the rescue of the plaintiff.

(3.) Under the circumstances the revisional application must succeed. The order passed by the learned Judge 8 Court City Civil Court Ahmedabad on January 21 1976 is set aside It is held that the opponent plaintiff is liable to pay ad valorem court-fees on the basis of the amount expressed on the face of the promissory notes under Art. 7 of Schedule I. Learned counsel for the plaintiff states that the suit has already been withdrawn before the framing of the issues and that the plaintiff is enti- tled to claim a 2/3rd refund as also to claim that the said amount be adjusted against the liability if any determined by the Court. The matter will therefore now go back to the trial Court. The learned trial Judge will make the computation of the amount payable on the aforesaid basis and give credit for 2/3rd of the refund after verifying that the suit has been withdrawn before the framing of the issues. The learned trial Judge will thereafter call upon the opponent-plaintiff to make payment of the deficit after giving adjustment of the court-fees already paid and the 2/3rd amount of the refund to which the plaintiff is entitled.