PRANATI MANDAL Vs. UNIQUE CREATION

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the impugned Order dated March 13, 2019 passed by the Learned Civil Judge (Junior Division), 7th Court at Alipore, south 24 parganas in Title Suit No. 24 of 2017, present revisionsl application has been preferred. Petitioner contended that petitioner filed Title Suit No. 24 of 2017 against defendant/opposite party praying for decree of cancellation of reregistered agreement dtd. 17/12/2012 entered between the parties and also for a decree of cancellation of registered general power of attorney executed by plaintiff in favour of partners of the defendant and also for injunction. Learned trial court passed an order of ex-parte ad interim injunction restraining opposite parties from creating any third party interest over the said property.

(2.) Upon receipt of summon the opposite party on 3/3/2017 entered appearance and prayed time to file written statement. On 28/4/2017 opposite party filed an application under order VII Rule 11 of the code of civil procedure praying for rejection of the plaint on the ground that the suit has not been properly valued. The petitioner filed written objection denying material allegations. Said application filed by the opposite party for rejection of the plaint was kept pending for long time and for which petitioner preferred one revisional application before this court being C.O. No. 635 of 2019, praying inter alia for expeditious disposal of the said application and by an order dated February 22 2019, a co-ordinate Bench of this court was pleased to dispose of the said application with direction to dispose of said application under order VII, rule-11 within a period of one month. Learned Trial court by its order dtd. 13/3/2019, was pleased to dispose of the said application on contest in terms of the observation made in the body of the said order and directed the petitioner to correct the valuation of the suit by the next date, in default the plaint shall be rejected.

(3.) Petitioner alleged that Learned Trial Court passed the aforesaid order considering the allegations of the opposite party as gospel truth without adjudicating as to whether the petitioner's suit is merely a suit for declaration within the ambit of sec. 34 of Specific Relief Act or it is a suit coming within the purview of sec. 31 of the said Act. Mr. Bhattacharya learned counsel appearing on behalf of the petitioner submits that trial judge erred in fact as also in law and failed to appreciate that there shall be no question raised in the plaint as regards recovery of possession of any immovable property and/or transfer of interest thereto and the suit for cancellation of registered development agreement as well as the power of attorney would come inter alia within the purview of sec. 7 (iv) (b) of the West Bengal Court fees Act 1970. He further submits that learned trial Judge in passing the order impugned stressed much on the purported nomenclature of the instruments executed by the petitioner in favour of the opposite party and failed to appreciate that even by execution of those instruments no interest had been transferred until and unless the opposite party complies the terms and conditions levied upon them and from the plaint case it would appear that the opposite party did not discharge a single obligation on their part. Mr. Bhattacharya further contended that learned trial court in passing the order impugned unnecessarily got swayed away without looking into the consideration part entered in the said development agreement which restricted to apportionment of shares of the suit property without any monetary consideration and that too after the opposite party fulfils all the terms and conditions levied upon them. In fact learned trial court erroneously arrived at a conclusion that the instant suit filed by the petitioner being a suit within the purview of sec. 31 of the Specific Relief Act and as such petitioner has to value her suit according to consequential of the instrument and thereby failed to appreciate that by such instrument the petitioner did not in any way transfer her interest over the suit property to the opposite party and which shall be retained by her subject to fulfillment of terms and conditions by the opposite party, which according to the petitioner, opposite party had failed to do so in the instant case. The Trial Court applied erroneous tests of law and even after taking judicial note to the fact that there is no consideration of valuing the suit property in the development agreement and/or payment of consideration thereto to the petitioner by the opposite party, erred in appreciating the valuation of the suit from the said agreement being the value mentioned thereby by the registering authority and erred in holding that the valuation being visible for the said development agreement itself, the instant suit appeared to have been grossly undervalued in as much as value of the said agreement in relation to the suit property was ascertained by the registering authority as Rs.11,40,000.00.