RAGHUVEER CHAND KHANNA Vs. SUDARSHAN KUMAR KHANNA

JUDGEMENT

(1.) This petition is directed against the order dt. 29.06.2009 passed by the learned Additional Dist. Judge No. 1, Sri Ganganagar in Civil Original Suit No. 125/2007 - Sudarshan Kumar Khanna Vs. Raghuveer Chand Khanna whereby the learned trial Court rejected the defendant's application under Order 7 Rule 11 Code of Civil Procedure which was filed by the defendant Raghuveer Chand Khanna, brother of the plaintiff Sudarshan Kumar Khanna, who filed the suit for specific performance in respect of Vz portion of Plot No. 1-B situated at Sukhadia Nagar, Sri Ganganagar, which defendant agreed to sell to the plaintiff under the agreement dt. 16.10.2002 and for the said agreement for sale of Vz portion of land bearing plot no. l-B-16 admeasuring 39x 69 ft., the,plaintiff agreed to pay Rs. 62, 700.00in case. It was also stipulated in the said agreement that there was a bank loan with respect to said Vz portion, which was agreed to be sold by Raghuveer Chand Khanna to his younger brother - plaintiff Sudarshan Kumar Khanna and the purchaser Sudarshan Kumar Khanna agreed to repay the bank loan also. The defendant filed the said application under Order 7 Rule 11 Code of Civil Procedure stating there in that the bank loan with respect to said Vi portion was outstanding at Rs. 4,45,335.00 including interest for which the Bank had filed a suit against the present defendant for recovery and thus cash consideration Rs. 62, 700/ - with that of the Bank of Rs. 4,45,335.00 total consideration for agreement in question dt. 16.10.2002 was Rs. 5,08,055.00, on which the plaintiff was required to pay Court fee for maintaining the suit for specific performance, whereas the plaintiff had paid the Court fee only to the extent of Rs. 3280.00. The learned trial Court rejected the said application by the impugned order dt. 29.06.2009

(2.) The learned counsel for the petitioner - defendant Mr. Rajesh Parihar relying upon the decision of this Court in the case of Kishan Lal and Ors. Vs. Ratanlal and Ors. reported in 1963 Indian Law Reports 1183 (head note B), in which it was held that where the plaintiff entered into an agreement to sell certain property to the defendant and total sale consideration was Rs. 29, 860.00 and of this (out of this) Rs. 6900.00 was to be paid by the defendant and remaining amount was to be adjusted against the previous debt. On receipt of Rs. 6900.00 the plaintiff was to execute sale-deed in favour of the defendant, but as the defendant did not pay Rs. 6900.00 within the stipulated time, the plaintiff brought a suit for this amount together with damages and interest and the learned Single Judge of this Court held that as. the suit was substantially one for specific performance of the agreement for sale and ad valorem Court fee was payable on total consideration of Rs. 29862/- which was the sale consideration under the agreement.

(3.) On the other hand Mr. C.S. Kotwani, learned counsel for the respondent-plaintiff relied upon the decision of Honourable Supreme Court in the case of Satheedevi Vs. Prasanna and Anr., reported in 2010 AIR SCW 3754 (head note C) in which the Apex Court held that if the legislation intended that Court fee should be payable on the market value of the subject matter of the suit filed for cancellation of the document which purports or operate to create declare, assign, limit or extinguish any present or future right, title and interest, then it would have instead of incorporating the requirement of payment of fees on value of subject matter could have specifically provided for payment of Court fee on the market value of the subject matter of the suit. The Court held that the Court fee was required to be paid on the value shown in the document, which was sought to be cancelled and not on the market value of the property in question. Before this Court, the controversy in hand is as to what is the consideration of the agreement in question dt. 16.10.2002 which is the foundation of the suit for specific performance filed by the plaintiff -respondent. A bare perusal of the said agreement clearly shows that besides cash consideration of Rs. 62,700.00 and repayment of the bank loan with respect to said Vz share of the plot in question, which was agreed to be sold by the defendant to the plaintiff, the consideration is broken into two parts; cash consideration of Rs. 62,700.00 and bank liability as per the bank record. In the application filed under Order 7 Rule 11 CPC, the defendant has clearly stipulated that the said bank liability is to the extent of 4,45,355.00 for which the Bank has already field a suit for recovery against the defendant. Thus, obviously, total consideration for said agreement would come to tota of two Rs. 4,45,355.00 + Rs. 62,700.00 i.e. Rs. 5,08,055.00. The learned trial Court has erred in determining the consideration only at Rs. 62,700.00 and allowed the Court fee to be paid at Rs. 3280.00 only. Though the issue in this regard ought to have beer framed by the learned trial Court, which could have been decided after taking evidence of the parties, the learned trial Court has failed to consider the same.