ANTHONY SALVADOR DIAS Vs. A. SIVARAMA RAO

JUDGEMENT

(1.) THE question in this civil revision petition relates to the court -fee payable on O.S. No. 239 of 1944, brought by the petitioner in the Court of the District Munsiff of Mangalore. The petitioner on 1st September, 1932, executed a usufructuary mortgage in favour of the respondent, the sum secured by the mortgage being Rs. 2,575. The petitioner brought the suit now in question for redemption of the mortgage and paid court -fee oh the principal sum secured, namely, Rs. 2,575, under Section 7, Clause (ix) of the Court -Fees Act. Almost the whole of the mortgage money was retained with the respondent to pay debts due by the petitioner to respondent himself and other creditors. In the body of the plaint the petitioner alleges that owing to delay on the part of the respondent in paying the debts for which the consideration for the mortgage was retained by him, a suit had been filed against the petitioner; insolvency proceedings had been instituted against him and he had been arrested for debt; and in paragraph 7 of the plaint it is stated that for the worry, inconvenience and ignominy and mental distress, apart from pecuniary loss, which these proceedings had occasioned him, the petitioner was entitled to recover at least Rs. 2,000 from the defendant. In the concluding portion, however, of the plaint there is no specific reference to damages and it is stated that the plaintiff prayed for a decree against the defendant for the following reliefs:

(2.) IT is argued by Mr. Fernandez for the petitioner that the claim for damages should not be regarded as a separate relief. He says that the petitioner is entitled to have the damages set off against the amount due under the mortgage, and that this amounts to no more than the taking of an account in order to ascertain the amount due to the respondent as a condition of redemption. In support of his argument he has referred me to the following decisions of this Court ; Govindan Nayar v. : AIR1932Mad217 ., Grandhi Pothanna v.Satyananda Charyulu ( : AIR1931Mad479 , and Radhakrishna Cheiti v. : AIR1941Mad115 . In the first two cases it was held by Jackson, J., that where a suit was filed for redemption of a kanom with an added prayer for a certain sum by way of damages, the proper valuation for court -fee and jurisdiction is the principal amount secured and not that amount plus the damages claimed. The basis of these decisions, however, was the terms of Section 6(3) of the Malabar Compensation for Tenants Improvement Act. The ratio decidendi was that the claim for damages from the point of view of payment of court -fee was in pari materia with compensation for improvements also covered by Section 6(3). It had previously been held by this Court that in a suit for redemption of a kanom, court -fee had not necessarily to be paid on the amount of compensation for improvements. These cases, therefore, are clearly distinguishable from the present case. In the other two cases, Grandhi Pothanna v. : AIR1931Mad479 and Radhakrishna Chetti v. : AIR1941Mad115 , it was held that the valuation put by the plaintiff on the relief for redemption covered a relief in regard to surplus profits as well, since the ascertainment of the amount payable by one party to the other, and prayers for surplus profits or accounts are merely incidental to the main relief. These cases also, it, seems to me, are clearly distinguishable from the present case. Except to say that it was not known even on the date of the plaint whether one of the debts, a sum of Rs. 484 -0 -6 due to a certain Francis Pinto had been paid in full, the petitioner did not maintain that the debts for the payment of which the mortgage money or most of it had been retained had not been paid at all. He said that the delay in paying them had caused him "worry, inconvenience and ignominy and mental distress, apart from pecuniary loss" ; and he assesses the damages to which he was entitled at Rs. 2,000. It seems to me impossible to say that a claim to an. ascertained sum of damages to be set off against the amount otherwise due on the mortgage is a matter merely incidental to the ascertainment of the amount payable by one party to the other in a suit for redemption. A claim for surplus profits may well be regarded as merely incidental to the main relief ; but a claim for damages for " worry, inconvenience and ignominy and mental distress " due to such reasons as arrest for debt and the institution of insolvency proceedings in consequence of the conduct of the respondent are of a different character altogether. The relief claimed is clearly a separate relief and the decision of the District Munsiff was correct.