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Motilal Shamaldas Makwana and ors. Vs. the Recovery Mamlatdar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1985)1GLR459
AppellantMotilal Shamaldas Makwana and ors.
RespondentThe Recovery Mamlatdar and ors.
Cases ReferredImpa Weaving Factory v. P.F. Commissioner Ahmedabad
Excerpt:
- - a few facts be stated in order to appreciate whether the grievance of the original plaintiffs applicants before me is well founded. the plaintiffs claim that they have carried out and fulfilled all their obligations in the matter of payment for the land as well as for the structures to the society. 1 thereafter issued proclamation for holding public auction on october 20, 1979. the plaintiffs claim that they had made oral as well as written representations to the collector, respondent no. since they have paid all the dues payable on account of the price of the land, as well as the cost of the structures to the society......raising attachment. the distinction has to be borne in mind in deciding as to what amount of court-fees the plaintiffs must pay in a suit of this nature. section 6(iv)(a) related to suits where the binding nature of particular liability is being challenged. no doubt the plaintiffs are praying for an injunction restraining the respondents from continuing attachment and sale of the property but in the ultimate analysis they are seeking injunction against recovery of the amount since their grievance is that they have fulfilled all their obligations to the society in the matter of payment of price of the land, and therefore, they are not liable for the amount sought to be recovered. the relief of injunction which they are seeking is consequential in its nature though the plaintiffs have.....
Judgment:

B.K. Mehta, J.

1. The original plaintiffs of Civil Suit No. 1997 of 1979 on the file of the City Civil Court, Ahmedabad being aggrieved by the order of the learned City Civil Judge holding that the plaintiffs are liable to pay ad valorem amount of court-fees under Section 6(ix) of the Bombay Court-fees Act, 1959 have approached this Court by way of revision application. A few facts be stated in order to appreciate whether the grievance of the original plaintiffs applicants before me is well founded.

2. The plaintiffs are the members of one co-operative housing society known as Alap Co-operative Housing Society Ltd. situated at Usmanpura, Ahmedabad. There are about twenty four members in the society for whom twenty four houses have been built. The plaintiffs have been allotted houses bearing Nos. 17, 6, 8, 10, 13, 14, 11 and 18 respectively. The land on which these houses have been built was acquired by the Government and allotted to the Society and the Society was legally bound to pay the price of the land according to the extent rules and regulations framed by the Government in that behalf. The houses have been occupied by the plaintiffs and other members. It is the case of the plaintiffs that the entire execution of the housing project of the society was in the hands of the Chairman and the Secretary of the Society Sarvashri Khushaldas Jesingbhai Makwana and Dahyabhai Nathubhai Solanki. The plaintiffs claim that they have carried out and fulfilled all their obligations in the matter of payment for the land as well as for the structures to the Society. The first defendant, by his letter of June 6, 1978, called upon the plaintiffs to pay a sum of Rs. 81,277.15 which was due and payable to the Government and it was not paid within the time stipulated in the said letter, sixteen houses out of the twenty-four will be attached and sold by public auction and the sale proceeds so realised will be appropriated towards the arrears of the Government. The plaintiffs, by their letter of June 16, 1978 submitted the detailed explanation to the first defendant in light of which the first defendant postponed the public auction. Respondent No. 1 thereafter attached other four houses bearing Nos. 1, 4, 2 and 3 allotted to the Chairman, the Secretary and other two members of the Committee. Respondent No. 1 thereafter issued proclamation for holding public auction on October 20, 1979. The plaintiffs claim that they had made oral as well as written representations to the Collector, respondent No. 2 herein, by their memorandum of October 16, 1978. Inspite of the detailed explanation submitted by the memorandum, the first respondent directed that sixteen houses out of twenty-four houses of the Society he attached and sold by public auction which order is challenged in the present suit.

3. The plaintiffs have pointed out in their plaint that on coming to know that the Chairman and the Secretary have not paid the price of the land to the Government, they had filed Criminal Complaints against them in the Court of Metropolitan Magistrate, Ahmedabad for misappropriation of the Society's funds. The police, after investigation have filed charge-sheet against the said Chairman and the Secretary who were arrested and produced before the Court of Metropolitan Magistrate, Ahmedabad and were released on bail. The Society's account books and other records are claimed to be in the custody of the Chairman and the Secretary while some relevant records are lying in the Court of The Metropolitan Magistrate, Ahmedabad. The Plaintiffs also made grievance that the Chairman and the Secretary of the Society have not rendered true and correct accounts of the Society. They have also made a grievance that if the Society is in default of payment, the Recovery Officer should not have proceeded against only 16 houses and put them to sale. They have claimed that they are not liable to pay any amount to the Government. Since they have paid all the dues payable on account of the price of the land, as well as the cost of the structures to the Society. It is in this set of circumstances that the plaintiffs feel aggrieved by the order of attachment and sale and, therefore, by the present suit they have prayed for permanent injunction restraining the respondents from attaching or causing attachment being levied on bungalows Nos. 17, 6, 8,10, 13, 14, 11 and 18 belonging to the plaintiffs and situated at Alap Co-operative Housing Society Ltd. And from selling the said bungalows by public auction on June 22,1979 and also restraining them from interfering with or obstructing in any manner the plaintiffs' residence, possession and enjoyment of the houses. The plaintiffs have valued the suit at Rs. 5/- for the purpose of court-fees and affixed court-fees stamp of Rs. 30/-. An objection being raised by the Court-fees Inspector, the matter was referred to the learned City Civil Court Judge who, by his impugned order, held that the plaintiffs are liable to pay ad valorem court-fees under Section 6(ix) of the Bombay Court Fees Act. It is this order which is under challenge before me.

4. At the time of hearing of this revision application Mr. P.V. Nanavati for the applicants-plaintiffs urged that the plaintiffs were not seeking any relief of setting aside attaching of the land or of any interest in the land but what they were in effect and substance praying before the Court was a declaration to obtain adjudication against recovery of money from the plaintiffs by the Government towards the price of the land allotted to the society and, therefore, the case falls within Section 6(iv)(a) of the Bombay Court Fees Act. On behalf of the respondents the learned Assistant Government Pleader Mr. B.D. Desai urged that unless the attachment is removed, the plaintiffs cannot succeed and, therefore, the learned City Civil Court Judge was right in holding that the case falls within Section 6(ix) of the Bombay Court-fees Act. I am of the opinion that the contention urged on behalf of the plaintiffs should prevail for the reasons which are as under.

5. Before the Bombay Court-fees Act, 1959 was placed on the statute book, the relevant clause under Section 7 of the Indian Court-fees Act, 1870 which applied to suits for declaration and injuction was Section 7(iv)(c). This Section 7 (iv)(c) applied to all suits where declarations were sought irrespective of the nature of declaration. The entire scheme contained in Section 6(iv)(a) to Section 6(iv)(j) of the Bombay Court Fees Act, 1959 is different from what was there in the Act of 1870 for the suits where declarations were prayed. What the Bombay Court-fees Act, 1959 has sought to do is that different types of declarations are classified and different court-fees have been prescribed under Section 6(iv)(a) to Section 6 (iv)(j) having regard to the nature of the declaration and the consequential reliefs claimed. See: Impa Weaving Factory v. P.F. Commissioner Ahmedabad (1978) 19 G.L.R. 572. It is no doubt true that in the present case the property has been put under attachment and is to be put to public auction for recovery of the Government dues from the society. Section 6(iv)(a) provides for declaration to obtain adjudication against recovery of money from the plaintiffs whether the recovery is of land revenue or arrears of land revenue or tax, duty or cess or fee or fine or penalty or under any decree or order of a Court or any certificate or award other than under the Arbitration Act, 1940, or in any other manner. Section 6 (ix) related to suits to set aside attachment on land or an interest in the land or revenue. It is exiomatic to say that in order to determine what should be the appropriate amount of court-tees, the Courts have to look to the substance of the matter rather than the form of pleadings.

6. The plaintiffs in effect and substance were claiming that they are not liable to pay the amount claimed by the Government as the price of the land allotted to the Society since they have fulfilled all their obligations in the matter of payment whether it is the price of the land or cost of the structures thereon to the Society and that it is on account of the fraud committed by the Chairman and the Secretary of the Society that there might be some default on the Government and in no case they are liable to pay this amount. In effect and substance they are seeking recovery of the amount and when the recovery officer who is respondent No. 1 herein sought to enforce that recovery by attachment and sale of the properties that the plaintiffs moved the City Civil Court for permanent injunction restraining the recovery officer from continuing with the attachment and sale of the properties. By no stretch of imagination it can be said that this is a suit merely for raising attachment. The distinction has to be borne in mind in deciding as to what amount of court-fees the plaintiffs must pay in a suit of this nature. Section 6(iv)(a) related to suits where the binding nature of particular liability is being challenged. No doubt the plaintiffs are praying for an injunction restraining the respondents from continuing attachment and sale of the property but in the ultimate analysis they are seeking injunction against recovery of the amount since their grievance is that they have fulfilled all their obligations to the society in the matter of payment of price of the land, and therefore, they are not liable for the amount sought to be recovered. The relief of injunction which they are seeking is consequential in its nature though the plaintiffs have prayed for permanent injunction as main relief. I am therefore, of the opinion that the case of the plaintiffs would fall squarely within Section 6(iv)(a) read with the first proviso and, therefore, the plaintiffs would be liable to pay one-half of the ad valorem court-fees on the amount sought to be recovered.

7. In the result, the revision application is allowed. The order of the learned City civil court Judge is set aside and the plaintiffs are directed to pay court-fees as indicated above within eight weeks from today. Rule is made absolute accordingly with no order as to costs.


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