A.P. Srivastava J.
1. This is an objection against a report of the Chief Inspector of Stamps. The plaintiff sued for the specific performance of a contract of sale and also claimed damages. Some building materials at the Kasia aerodrome were purchased by defendant No. 1 at public auction for a sum of Rs. 41,000/-. In making the purchase defendant No. 1 is alleged to have acted for his master defendant No. 2. A sum of Rs. 1025/- had also been deposited by defendant No. 1 by way of security with the Government and was refunded to him.
The defendants Nos. 1 and 2 agreed to sell the building materials to the plaintiff for a consideration of Rs. 56,200/-. It was also agreed that the plaintiff would pay Rs. 10,200/- to the defendant and would become entitled to realise the amount deposited by way of security with the Government. In the plaint, however, the plaintiff, said that because of certain thing which the defendants had done they were not entitled to the full consideration; that the plaintiff was entitled to the specific performance of the contract of sale on payment of Rs. 36,229/-. He, therefore, claimed three reliefs which are as follows:
(1) A decree for the specific performance of the contract of sale against the defendants Nos. 1 and 2 be passed on payment of Rs. 36,229/- and after the payment the plaintiff be delivered possession over the property sold along with a right to get back the security money.
(2) In case of granting relief No. 1 damages for Rs. 10,200/- be decreed.
(3) In case reliefs Nos. 1 and 2 are not granted decree for Rs. 50,000/- as damages (including Rs. 10,000/-) be granted,
2. The plaintiff paid a court-fee of Rs. 2,190/10/- on the value of the alternative relief i. e., Rs. 50,000/- because the total value of the two other reliefs was less than Rs. 50,000/-.
3. The trial Court decreed the suit on payment of Rs. 50,250/- and against that decree the present appeal has been filed by the plaintiff. In his appeal the plaintiff questioned his liability to the extent of Rs. 20,000/- only and, therefore, valued his appeal at that figure.
4. The Chief Inspector of Stamps has reported that there was a deficiency in the court-fee paid in the trial Court because the court-fee in respect of the first relief should have been paid on the sum of Rs. 56,250/- which was the consideration of the contract of sale. In addition to that amount court-fee should have been paid on the sum of Rs. 10,200/- claimed as damages.
The total valuation for the purposes of court-fee should, therefore, have been fixed at Rs. 66,450/-. Deducting the amount paid from the amount that ought to have been paid, there was a deficiency of Rs. 187/8/-. The Chief Inspector of Stamps has also pointed out that in appeal, the proper valuation was Rs. 20,021/- and not Rs. 20,000/- only. There was, therefore, a deficiency of Rs. 37/8/- in connection with the memorandum of appeal also.
5. So far as the question of court-fee payable on the memorandum of appeal is concerned, the learned counsel for the appellant has now filed an application for amendment of the memorandum of appeal. That application has been allowed. Theoffice will now submit a report whether the court-fee already paid on the memorandum of appeal is now sufficient keeping the amendment in view.
6. About the deficiency of court-fee in the trial court the Chief Inspector of Stamps is of the view that as the consideration of the contract which was sought to be enforced was Rs. 56,250/-, the plaintiff was bound under Section 7, Clause (x) (a) of the Court-fees Act of 1870 as amended by the U. P. Court-fees (Amendment) Act No. XIV of 1948 to pay full court-fee on that amount and was not entitled to value the first relief of his plaint at a lower figure of Rs. 36,2297- on the ground that according to him only that amount was 'payable to the defendant on account of consideration on the date of the suit.
In support of his view, the Chief Inspector of Stamps has relied upon a decision of the Madras High Court reported in Dullabho Sahu v. Adinarayana : AIR1937Mad831 .
7. In his objection filed against the report of the Chief Inspector of Stamps the learned counsel for the applicant contends that under Clause (x) (a) of Section 7 of the Court-fees Act if correctly interpreted court-fee has to be paid by the plaintiff suing for specific performance of contract of sale only on the amount which the plaintiff avers is payable by him as consideration and not on the amount which was agreed to be the consideration in the original contract.
8. We have heard the learned counsel for the appellant and in our view the report of the Chief Inspector of Stamps about the deficiency of the court-fee in the trial Court is correct. According to Clause (x) of Section 7, the court-fee was payable 'on the consideration of the sale.' Those words prima facie mean the consideration agreed upon between the parties as payable in respect of the contract and not the portion of the consideration which according to the plaintiff was payable at the time of the suit.
If the contention of the learned counsel for the appellant is to be accepted no court-fee will be payable at all in respect of a suit for specific performance of a contract of sale if according to the plaintiff the entire consideration has been paid to the defendants prior to the filing of the suit. The only thing which the plaintiff has to do in order to avoid paying the court-fee is to allege that the whole or at least a substantive part of the consideration has already been paid.
Even if the allegation is incorrect the only consequence would be that he would be directed to pay the whole of the consideration. The court-fee would have been evaded in any case, This could never be the intention of the legislature. The Madras case already referred to clearly supports the view taken by the Chief Inspector of Stamps. We are, therefore, of the opinion that the plaintiff wrongly valued his suit in the trial court.
The proper valuation of the relief was Rs. 56,250/- and if that figure was added to the sum of Rs. 10,200/- which was the valuation of the second relief the total valuation of the two reliefs would become Rs. 66,450/-. This figure exceeded the valuation of the alternative relief No. 3, court-fee was, therefore, payable on the sum of Rs. 56,450/- and not as paid by the plaintiff. There was, therefore, a deficiency of Rs. 18778/- as pointed out by the Chief Inspector of Stamps.
9. The objection of the applicant to the report of the Chief Inspector of Stamps is, therefore, rejected and the appellant is given fifteen daystime to make up the deficiency of court-fee in thetrial Court.