IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 WP(C).No. 33282 of 2009(O) -------------------------- O.S.No.431 OF 2007 OF ADDL. SUB COURT, N PARAVUR PETITIONER: --------------- ABDUL SALIM, S/O.KOLLAMKUDY MUHAMMED, KIZHAKKEDATH PARAMBIL, ALUVA EAST VILLAGE, EDATHALA KAVU, ALUVA TALUK. BY ADV. SRI.T.A.UNNIKRISHNAN RESPONDENTS: --------------- 1. V.K.ABDUL KAREEM, S/O.KOCHUMUHAMMED, VALIYAVEETTIL HOUSE, ERATTUPETTA KARA, MEENACHIL TALUK. 2. MALATHY, W/O.KARUNAKARAN NAIR, THARAMEL VEETTIL, EDATHALA KARA, ALUVA EAST VILLAGE. 3. GOPALAN NAIR, S/O.KRISHNAN NAIR, ARIMBASSERY, EDATHALA KARA, ALUVA EAST VILLAGE. 4. ABDUL KALAM AZAD, S/O.MUHAMMED, KIZHAKKEDATHPARAMBIL, EDATHALA, ALUVA EAST VILLAGE, ALUVA TALUK. 5. NADEERA, D/O.MUHAMMED, KIZHAKKEDATHPARAMBIL, EDATHALA, ALUVA EAST VILLAGE, ALUVA TALUK. 6. SATHAR, S/O.MUHAMMED, KIZHAKKEDATHPARAMBIL, EDATHALA, ALUVA EAST VILLAGE, ALUVA TALUK. 7. AMINA BEEVI, D/O. MUHAMMED, KIZHAKKEDATHPARAMBIL, EDATHALA, ALUVA EAST VILLAGE, ALUVA TALUK. 8. FATHIMA BEEVI, D/O. MUHAMMED, KIZHAKKEDATHPARAMBIL, EDATHALA, ALUVA EAST VILLAGE, ALUVA TALUK. 9. RABIA, W/O. MUHAMMED, KIZHAKKEDATHPARAMBIL, EDATHALA, ALUVA EAST VILLAGE, ALUVA TALUK. ADV. SRI.G KRISHNAKUKMARFOR R1 SRI. MANOJ KUMAR MALLIYA FOR R1 SMT. RESHMITHA R CHANDRAN FOR R1 SRI. P N RAMAKRISHNAN NAIR FOR R2 AND 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33282 of 2009 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.No.431 OF 2007 ON THE FILE OF THE ADDITIONAL SUB COURT, NORTH PARAVUR EXHIBIT P2 : AGREEMENT EXECUTED BY THE FATHER OF the PETITIONER AND THE 1st RESPONDENT EXHIBIT P3 : WRITTEN STATEMENT BY THE 2nd AND 3rd RESPONDENTS FILED BEFORE THE COURT BELOW EXHIBIT P4 : ORDER DTD. 24.09.2009 OF THE ADDL. SUB COURT, NORTH PARAVUR RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 33282 of 2009 --------------------------------------- Dated this 23rd day of July, 2010 JUDGMENT Additional plaintiff No.1 in O.S.No.431 of 2007 of the court of learned Additional Sub Judge, North Paravur is aggrieved by Ext.P4, order dated 24-09-2009 directing plaintiffs to amend valuation of the plaint so as to value the relief sought for in the plaint at Rs.11,85,000/- with interest at the rate of 12% per annum from 13-09-2004 till date of suit and pay court fee accordingly. The suit is based on an agreement executed between deceased original plaintiff and respondent No.1/defendant No.1. Alleging that respondent No.1/defendant refused to execute sale deed in favour of original plaintiff receiving the amount actually due to him and that respondent No.1, to defeat the original plaintiff transferred property to respondent Nos.2 and 3, original plaintiff filed the suit for a decree for specific performance. Original plaintiff sought for a relief that respondent No.1 be directed to execute the sale deed in his favour on receiving Rs.3,05,600/- with interest and in case respondent No.1 failed to do so requesting the court to execute sale deed in his favour. In the course of suit original plaintiff died and his legal representatives were impleaded as additional W.P.C.No.33282 of 2009 : 2 : plaintiffs. Learned Sub Judge as per the impugned order held that consideration for the property stated in Ext.P2, agreement is Rs.11,85,000/- with interest at the rate of 12% per annum as aforesaid and hence plaintiffs have to amend valuation in the plaint and pay court fee accordingly. That order is under challenge in this writ petition. Learned counsel for petitioner contends that going by Ext.P2 and the plaint averments it can be seen that original plaintiff executed sale deed in favour of respondent No.1 as security for due performance of contract, respondent No.1 had not discharged his obligations and only Rs.3,05,600/- was due to respondent No.1 and hence on payment of that amount with interest respondent No.1 was bound to execute the sale deed in favour of original plaintiff. Hence consideration payable to respondent No.1 was only Rs.3,05,600/- with interest. Learned counsel for respondent Nos.2 and 3 supported the order under challenge. 2. What is averred in the plaint is that petitioner (son of original plaintiff) and one Jamal has married sisters respondent No.1 and were engaged in some joint business which went into financial trouble. A loan was availed in the name of petitioner from State Bank of Travancore on the security of property of Jamal. There were certain other liabilities also. Original plaintiff borrowed Rs.3,05,600/- from respondent No.1. The matter was W.P.C.No.33282 of 2009 : 3 : mediated by respondent No.1. It was agreed that respondent No.1 would clear the liability of the banks. The amount borrowed by original plaintiff and the amount required to discharge the liability of banks together came to Rs.11,85,000/-. A sale deed (nominally) was executed by the original plaintiff regarding suit property in the name of respondent No.1 on 13-09-2004. Possession of the property remained with original plaintiff. The same day Ext.P2, agreement was executed between original plaintiff and respondent No.1 as per which the latter agreed to execute sale deed in the name of former on payment of Rs.11,85,000/- with interest at bank rage from 13-09-2004 and expenses for execution of the document. Actually liability of the banks were discharged by petitioner and the original plaintiff. The amount actually due to respondent No.1 is only Rs.3,05,600/- which original plaintiff had borrowed from respondent No.1. Hence, original plaintiff prayed that respondent No.1 may be directed to execute sale deed in his favour on receiving said sum of Rs.3,05,600/- with interest at the rate of 12% p.a from 13-09- 2004 till date of suit. Respondents contended that plaint has to be valued for the sum of Rs.11,85,000/- with interest from 13-09- 2004 till date of suit. That contention was upheld by the court below. It is contended by learned counsel for petitioner that amount actually due to respondent No.1 is only Rs.3,05,600/- and W.P.C.No.33282 of 2009 : 4 : interest. 3. I have gone through Ext.P2, copy of agreement and the plaint. That agreement having been produced along with the plaint must be taken as part of pleadings. In Ext.P2 it is stated that certain amount has been entrusted (by respondent No.1 ) with the original plaintiff to discharge liability of the banks and Rs.3,05,600/- was borrowed by the original plaintiff from respondent No.1. Ext.P2 states that thus original plaintiff received Rs.11,85,000/- from respondent No.1 and on the former paying the said amount with interest at bank rate and expenses for execution of document within there months from the date of Ext.P2, agreement respondent No.1 shall execute sale deed in the name of original plaintiff. Relief prayed for is a decree directing respondent No.1 to execute sale deed in favour of original plaintiff receiving Rs.3,05,600/- with interest and in case respondent No.1 failed to do so, requesting the court to execute the sale deed. That relief is valued at Rs.3,05,600/- with 12% interest from 13-09-2004 till date of suit and court fee is paid under Section 42 of the Court Fees Act (for short, “the Act”). Learned Sub Judge took the view that whatever be the amount due to respondent No.1 (as the plaint say), as per Ext.P2 value of property is fixed at Rs.11,85,000/- with interest at bank rate from 13-09-2004 and hence relief has to be valued for the said amount W.P.C.No.33282 of 2009 : 5 : under Section 42 of the Act. 4. Under Section 42 of the Act in a suit for specific performance whether with or without possession fee shall be payable, in the case of a contract of sale, computed on the amount of the consideration. There can be no doubt that the suit as framed is one for specific performance of Ext.P2, agreement looking at the averments in the plaint as a whole, the relief prayed and payment of court fee under Section 42 of the Act. Ext.P2, agreement is specific that respondent No.1 is to execute sale deed on original plaintiff paying him Rs.11,85,000/- with interest at bank rate and expenses for execution of the sale deed. In other words, the said amount is stipulated as the consideration payable for execution of the sale deed. In Ajaya Kumar Vs. Deepthi Krishnan (2006 (4) KLT 768) the amount payable by way of liquid cash and liability over the property to be discharged were taken into account for deciding court fee payable under Section 42 of the Act. The court is not for the time being concerned with the question what is the amount actually due to respondent No.1. Question is, what is the court fee payable for the relief claimed? This is not a case where original plaintiff wanted a declaration that Ext.P2, agreement and the sale deed he executed in favour of respondent No.1 are only security for loan transaction and notwithstanding the sale deed he executed W.P.C.No.33282 of 2009 : 6 : in favour of respondent No.1 he continued to be the owner of property. Original plaintiff wants a sale deed to be executed in terms of Ext.P2, agreement and paid court fee under Section 42 of the Act. In the light of specific provision in Ext.P2, agreement value of the property can only be taken as Rs.11,85,000/- with interest (at the rate of 12%) from 13-09-2004 till date of suit which is the amount original plaintiff was bound to pay to respondent No.1 in terms of Ext.P2 to get the sale deed executed. Valuation and payment of court fee must therefore be as per Section 42 of the Act. Learned Sub Judge is correct in holding that relief has to be valued as stated in the order under challenge. In that view of the matter, I do not find anything illegal in learned Sub Judge directing petitioner to amend the plaint as regards valuation of the relief sought and pay court fee in the manner stated in the impugned order. Writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-