IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 WP(C).No.319 of 2009 (K) ------------------------------- OS.379/2005 of II ADDL.SUB COURT,KOZHIKODE .................... PETITIONERS: ----------------- 1. KUDUKAPARAMBATH RASHEED, AGED 27 YEARS, S/O.IBRAHIM, P.O.VATAYAM, VATAYAM AMSOM AND DESOM, VATAKARA TALUK. 2. NATTAN MUNEER, AGED 24 YEARS, S/O.SOOPI, KUNJOM AMSOM AND DESOM, MANANTHAVADY TALUK, WAYANAD. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS: ----------------- 1. NELLIKAVU MALLIYAKKAL USMAN, AGED 77 YEARS, S/O.KUNHAMMU, P.O.ERANHIPALAM, RESIDING AT KACHERY AMSOM AND DESOM, KOZHIKODE. 2. MRS.SAREENA HAMEED, W/O.P.ABDUL HAMEED, RESIDING AT 'HOME', KACHERY AMSOM AND DESOM, P.O.WEST NADAKKAVU, KOZHIKODE. 3. RAYAROTH BABURAJ, S/O.NARAYANAN NAIR, RESIDING AT 'DECAN', KODIYERI VILLAGE, KODIYERY AMSOM, TELLICHERY TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C No.319 of 2009 ------------------------------------------------ Dated this the 5th day of January, 2009 JUDGMENT The plaintiff in a suit for specific performance is the petitioner. The agreement entered into between the plaintiffs and the defendants was for purchase by the plaintiff from the defendants 11 cents of property with a building therein for a consideration of Rs.27 lakhs. It is contended by the counsel for the petitioner that out of the 11 cents, 4 cents was acquired by the Government for road widening and therefore, the court fee that is to be paid by the plaintiffs will only be proportionate costs for the extent of property available for sale under the suit agreement. The court below after considering the contentions advanced held vide Ext.P4 order impugned in this Writ Petition, that valuation made by the plaintiff is not proper and that W. P. C No.319 of 2009 -2- the suit has to be valued and court fee has to be paid under Section 42(a) of the Court Fees and Suit Valuation Act computed on the amount of the consideration mentioned in the agreement. 2. Assailing Ext.P4 order, it is vehemently contended by the counsel for the petitioner/plaintiff that this Court in Ajayakumar v. Deepthi Krishnan (2006(4) KLT 768) has held as to what would be the amount of the consideration on which court fee is payable and that therefore, the consideration that would be payable under the suit agreement in the instant case will be only proportionate cost for 7 cents of property and the building therein and not the value stated in the agreement. The facts in Ajayakumar's case aforementioned shows that the consideration under the agreement therein payable by the W. P. C No.319 of 2009 -3- plaintiff was only Rs.21.5 lakhs, but all the same, liability was fastened on the plaintiff to discharge debt due to Kerala Financial Corporation which was a charge on the property and that was to the tune of Rs.80 lakhs and interest accrued thereon which was to the tune of Rs.7 lakhs. The property agreed to be sold was only half of the property on which the said liability existed. The trial court found that on the wording of the suit agreement therein the total value of the property was Rs.1 crore 30 lakhs inclusive of Rs.87 lakhs which was liability to the K.F.C and it is half of that property that was agreed to be sold as per the suit agreement and therefore, Rs.67.5 lakhs is the amount of the consideration and not Rs.21.5 lakhs and therefore, court fee has to be paid on Rs.67.5 lakhs and that was upheld in that case in 2006 W. P. C No.319 of 2009 -4- (4) KLT 768. 3. It is the argument of the counsel for the petitioner that in the instant case the extent of property having diminished, only the balance property is to be transferred in performance of the suit agreement and therefore, the court fee payable is only for 7.42 cents that alone being the land available for transfer excluding the 4 cents acquired for widening the road. 4. It is worthy to note in this context that there is no fresh agreement entered into between the parties as regards the value payable for the balance extent of land available for transfer. It could very well be that the value of the land would have increased by widening of the road. In fact, it is the case of the defendants that court fee is payable on the entire sale consideration W. P. C No.319 of 2009 -5- made mention of and not that court fee need be made payable only for the balance. 5. Court cannot apportion the amount and direct that the defendant shall perform the contract by executing sale of the balance extent receiving only the proportionate value for 7.42 cents. The petitioner/plaintiff shall be at liberty if he so choses to rescind the contract if he does not want the property the extent of which has been diminished by the acquisition. If he is insisting for performance of the contract he has to pay court fee under Section 42(a) of the Court Fee and Suits Valuation Act computed on the amount of consideration. There is no merit in this Writ Petition assailing Ext.P4. 6. In the result, I dismiss this Writ Petition, but grant time of 15 days to the petitioner to value the suit properly and to W. P. C No.319 of 2009 -6- pay court fee accordingly. K.P.BALACHANDRAN, JUDGE kns/-