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Ambrish Kumar Sahu Vs. U.P. Financial Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 45 of 1977
Judge
Reported inAIR1984All113
ActsCourt-fees Act, 1870 - Sections 7 and 7A
AppellantAmbrish Kumar Sahu
RespondentU.P. Financial Corporation and ors.
Appellant AdvocateV.K. Gupta, Adv.
Respondent AdvocateS.N. Upadhyaya, Adv.
DispositionAppeal dismissed
Excerpt:
.....is granted two months' time from today's date to make good the deficiency in the court-fees determined by the trial..........properties as security for the loan. the amount of loan does not appear to have been paid by sahu bishwanath singh. the u. p. financial corporation took steps for the sale of the mortgaged property in order to realise the amount of loan aforesaid. the appellant thereupon instituted a suit for injunction restraining the u. p. financial corporation, the auctioner of the state financial corporation deputed to auction the property in suit and the branch manager of the u. p. financial corporation from realising rs. 51,269-66 by selling the property which was mortgaged by sahu bishwanath singh as aforesaid.court-fees on the plaint was paid in accordance with section 7(iv-b)(b) of the court-fees act treating it to be a simple suit to obtain an injunction. the inspector of stamps.....
Judgment:

N.D. Ojha, J.

1. One Sahu Bishwanath Singh, who was the father of the plaintiff-appellant, took a loan of Rs. 50,000/- from the U. P. Financial Corporation on 14th April, 1966, and executed a mortgage deed of certain properties as security for the loan. The amount of loan does not appear to have been paid by Sahu Bishwanath Singh. The U. P. Financial Corporation took steps for the sale of the mortgaged property in order to realise the amount of loan aforesaid. The appellant thereupon instituted a suit for injunction restraining the U. P. Financial Corporation, the Auctioner of the State Financial Corporation deputed to auction the property in suit and the Branch Manager of the U. P. Financial Corporation from realising Rs. 51,269-66 by selling the property which was mortgaged by Sahu Bishwanath Singh as aforesaid.Court-fees on the plaint was paid in accordance with Section 7(iv-B)(b) of the Court-fees Act treating it to be a simple suit to obtain an injunction. The Inspector of Stamps subsequently filed an objection that the court-fees paid was insufficient inasmuch as the suit involved cancellation or adjudging void or voidable the mortgage deed executed by Sahu Bishwanath Singh on 14th April, 1966. According to the Inspector of Stamps the court-fees had to be paid in accordance with Section 7(iv-A) of the Court-fees Act. The plaintiff-appellant contested the object ion taken by the Inspector of Stamps but the trial Court by its order dated 17th August, 1976, upheld the objection of the Inspector of Stamps and held that the court-fees payable on the plaint was as contemplated by Section 7(iv-A) of the Court-fees Act. A deficiency of Rs. 4,157-50 was determined and the plaintiff-appellant was required to make good that deficiency. The present appeal has been filed against the aforesaid order under Section 6-A of the Court-fees Act.

2. It has been urged by counsel for the appellant that keeping in view the nature of the relief claimed in the plaint, a certified copy whereof has been tiled along with the memorandum of appeal, it was apparent that it was a simple suit for injunction in the terms already pointed out above and consequently court-fees had rightly been paid under Section 7(iv-B)(b) of the Court-fees Act.

3. Having heard counsel for the parties we find it difficult to agree with the submission made by counsel for the appellant. A perusal of the certified copy of the plaint indicates that the suit has been instituted by the appellant on the ground that the property which was mortgaged by Sahu Bishwanath Singh on 14th April, 1966, was not his personal property but belonged to the joint Hindu family constituted by Sahu Bishwanath Singh and his sons including the plaintiff-appellant and that the mortgage deed was not binding On the plaintiff-appellant inasmuch as it had been executed neither for any legal necessity not for any benefit of the estate. Since the proceedings for recovery of the amount of loan have been initiated by sale of the property mortgaged by Sahu Bishwanath Singh the relief for injunction prayed for by the appellant obviously cannot be granted unless an adjudication is made that the property mortgaged did not belong to Sahu Bishwanath Singh exclusively but was a joint Hindu family property and that the mortgage deed had been executed neither for any legal necessity nor for the benefit, of the estate and consequently it was voidable at the instance of the appellant and not binding on him. In this view of the matter Section 7(iv-A) of the Court-fees Act was clearly attracted and the court-fees on the plaint was payable in accordance with the said section. This is the view which has been taken by the trial Court also. We accordingly find no merit in this appeal.

4. In the result this appeal fails and is dismissed. The appellant is granted two months' time from today's date to make good the deficiency in the court-fees determined by the trial Court. In the circumstances of the case, however, the parties shall bear their own costs.


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