S.N. Deedwania, J.
1. The revision petition is preferred against the order, dated November 26, 1979 of learned Additional District Judge, Udaipur, whereby, Issue No. 7 with regard to the sufficiency of the court-fee was decided against the petitioner-plaintiff.
2. Briefly stated the facts are these. The petitioner filed a suit against the non-petitioner and it was averred in the plaint that the petitioner submitted atender for supply of 5,88,000 metres Galvanised Iron (Mild Steel) pipes light class 20 mm. diameter. The petitioner received a letter, dated May 5, 1973 by the non-petitioner for confirmation of various conditions with regard to the said offer. The petitioner, by its letter, dated May 9, 1973 made certain counter offer regarding the supply of the said G. J. Pipes and accepted the non-petitioner standard penalty clause subject to force majure. By its letter, dated July 9, 1973 the tender was accepted but all the terms and conditions of the petitioner's counter offer, dated May 9, 1973 were not accepted. It is further averred that by the letter, dated July 9, 1973 the non-petitioner did not agree to all the terms of the petitioner and therefore, no concluded contract came into existence between the parties. On 16-7-1973, the petitioner specifically repudiated the contract. Thus, no concluded contract came into existence between the parties and in the alternative, the same was revoked on July 16, 1973. The petitioner received letter, dated September 23, 1973 asking him to supply G. I. Pipes as per contract, dated July 9, 1973. The petitioner replied that the contract already stood cancelled. Thereafter, the non-petitioner demanded a sum of Rupees 1,39,660/- being the amount of extra expenditure involved in the purchase of G.I. Pipes under clause 18 of the Contract, dated July 9, 1973. According to the plaintiff, the delivery period was 3-4 months and the non-petitioner was not entitled to make any risk purchase on or about 8th of August, 1973. The following reliefs were claimed by the petitioner :--
(a) A declaration that the contract and/or order, dated 9th July, 1973 between the plaintiff and the defendant, as pleaded in paragraph 5 hereof stands cancelled and/or revoked on and from 16th July, 1973.
(b) A declaration that the plaintiff is not liable to pay to the defendant any amount as damages or as alleged in the said letter, dated 23rd September, 1975 as pleaded in paragraph 11 thereof. The suit was valued for the purposes of court-fees and jurisdiction at Rs. 10,099/-The non-petitioner took an objection that the suit should be valued at Rupees 1,39,660/- and court-fees ought to nave been paid accordingly. Learned Additional District Judge held that the suitwas governed by Section 38 of the Rajasthan Court-fees and Suits Valuation Act, 1961 and, therefore, the petitioner should have valued the suit at Rupees 1,39,660/- and paid the court-fees accordingly.
3. I have heard the learned counsel for the parties, and perused the record of the case carefully.
4. It is argued by the learned counsel for the petitioner that the suit has been rightly valued under Section 24(e) of the Rajasthan Court-fees and Suits Valuation Act (hereinafter referred to as 'the Act'), while the learned counsel for the non-petitioner supported the order of the trial court and vehemently contended that the suit is governed by Section 38 of the Act and mainly relied upon the case Ratlam Straw Board Mills Private Limited v. Union of India (AIR 1975 Delhi 270). I have considered the rival contentions and my decision is to the following effect. Sections 38 and 24(e) of the Act are as under:--
'Section 38. Suits for cancellations of decrees, etc. -
(1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, moveable or immoveable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be-
(a) if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or ether document was executed, and
(b) if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property;
(2) If the decree or other document is such that the liability under it cannot be split op and the relief claimed relates only to particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less.
Explanation-- A suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this section.'
Section 24(e). Suits for declaration -- In a suit for a declaratory decree or order, whether with or without consequential relief, not fulling under Section 25-
(a) to (d) ... ... ... ... ... ... ...
(e) in other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint, subject to a minimum fee of twenty-five rupees.'
It is also well settled that the allegations in the plaint have to be considered as a whole to find out the substance of the relief asked for. It was thus observed in Shamsher Singh v. Rajinder Prashad (AIR 1973 SC 2384 at p. 2386) :
'As regards the main question that arises for decision it appears to us that while the court-fee payable on a plaint is certainly to be decided on the basis of the allegations and the prayer in the plaint and the question whether the plaintiff's suit will have to fail for failure to ask for consequential relief is of no concern to the Court at that stage, the Court in deciding the question of court-fee should look into the allegations in the plaint to see what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for.'
I fail to understand how the trial court came to the conclusion that the suit was for cancellation of any document, which purports or operates to create, declare, assign, limit or extinguish whether in present or in future, any right, title in money, moveable or immoveable property. The relief -- (a) claimed by the petitioner is that the contract, dated July 9, 1973 stood cancelled or revoked. This relief by any stretch of imagination cannot be said to be one for cancellation of a document. Relief (b) claim in the plaint is for a declaration that the plaintiff is not liable to pay any damages for the reasons pleaded in para 11 of the plaint. This relief is again for declaration, pure and simple. It was sought to be argued by the learned counsel for the non-petitioner that in substance, the reliefs claimed were for cancellation of the contract and the letter of demand, dated Sept. 23, 1975 issued by the non-petitioner. I am not impressed by this argument. Thisletter of demand by itself does not purport or operate to create any right or; interest in the property in favour of the non-petitioner. It is nothing but a claim for damages and unilateral in character. There is also no prayer for the cancellation of any document relating to the contract. The relief claimed is for declaration that no concluded contract came into existence or in the alternative, it stood revoked. The principle is that when a plaintiff seeks to establish a claim in himself and cannot get that claim without removing a hurdle such as a decree or a deed to which, he is a party or by which he is bound, then his suit in substance is for cancellation, though it may have been framed as a suit for declaration. The law has been thus enunciated in the following authorities :--
(1) Lal Singh v. Tejsingh (AIR 1972 Raj 137) (at p. 137) -
'In a suit by sons to get a declaration of their title to the property and avoid its sale by their father during their minority in contravention of Sub-section (2) of the Hindu Minority and Guardianship Act (1956) and voidable under Sub-section (3) at their instance, they must get the sale deed cancelled. Such a suit though for declaration is in substance a suit for cancellation of sale deed and falls under this section and not under Section 7(2)(a) of the Act and where the value of the property sold is Rs. 24,000/- it falls beyond the pecuniary jurisdiction of Civil Judge and has to be filed in the court of the District Judge ' (2) Shantilal Agarwal v. Rama Bai (1973 Raj LW 595) : (AIR 1974 Raj 59 at p. 71) - 'Two cases of this Court, Lal Singh v. Tejsingh (AIR 1972 Raj 137) and Sukh Lal v. Devi Lal (AIR 1954 Raj 170), have also been brought to my notice by the learned counsel for the non-petitioners. They deal generally with the principles to be kept in view for deciding the question whether the prayer is only declaratory or in fact consequential. In Sukh Lal v. Devi Lal it was observed that, there is difference between a suit for cancellation of an instrument and one for declaration that the instrument is not binding on the plaintiff. When the plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstacle such as a decree or a deed to which he hasbeen a party or by which he is otherwise bound, then quite clearly he must get that decree or deed cancelled and his suit is in substance a suit for cancellation of the decree or deed notwithstanding the fact that the suit may have been framed as a suit for a declaration. On the other hand, when the plaintiff is seeking to establish a title and finds himself threatened by a decree or transaction between third parties, he is not in a position to get that decree or deed cancelled in toto and the proper remedy for him in such a case is to get a declaration that the decree or deed is invalid so far as he himself is concerned. He may sue for a mere declaration to that effect and need not sue for cancellation of the decree or deed.'
The following authorities relied upon by the learned counsel for the non-petitioner are clearly distinguishable. In Ratlam Straw Board Mills Private Limited v. Union of India (AIR 1975 Delhi 270), it was held that the court-fee payable is ad valorem on the value of the substantive relief of injunction. This case does not help the case of the non-petitioner because court-fee in a suit for injunction under Section 26 of the Act is to be paid on the amount at which, relief is valued.
5. In Padarath Tewari v. Dulhin Tapesha Kueri (AIR 1932 All 524), the suit was to avoid a mortgage deed and subsequent final decree passed on the basis of the deed and it was held that the suit was for cancellation of a decree.
6. In Badrilal Bholaram v. State of M. P. (AIR 1964 Madh Pra 9) the suit was for declaration and consequential relief of injunction to avoid a liability of specified amount sought to be imposed by a deed or decree and, therefore, it was held that the plaintiff could not be allowed to put arbitrary value on the relief of injunction claimed by him.
7. It is next argued by learned counsel for the non-petitioner that the petitioner could not value his reliefs arbitrarily and courts can interfere in cases of such arbitrary valuation. Various authorities were brought to my notice. However, as far as this Court is concerned, the controversy stands concluded by the observations made in Daulatram v. State of Rajasthan (1967 Raj L.W 401), wherein, it was thus held and the plaintiff has the unfettered discretion to value the relief:--
'In view of the aforesaid reasons, we are on the whole definitely inclined tothe view that the plaintiff has an unfettered option to value his suit under Section 7(iv)(c) of the Court-fees Act for the purposes of court-fees, and that it is not open to the courts to disturb such valuation, except in cases where the same may be found to be contrary to the rules made by the High Court, if any, under Section 9 of the Suits Valuation Act. It is nobody's case before us that any such rule exists so far as our Court is concerned. We may also mention incidentally at this place that though the present controversy was not directly raised nor discussed there, this was the view expressed in the Bench decision of this Court in Sukhlal v. Devilal (AIR 1954 Raj 170) (supra) to which we have referred above and in which while pointing out the distinction between the ad valorem court-fee payable under Article 1, Schedule 1 and that under Section 7(iv)(c) the view was expressed that according to Section 7(iv)(c), ad valorem court-fee has to be paid on the amount on which the relief sought is valued in the plaint or memorandum of appeal; whereas Article 1, Schedule 1 requires the court-fee to be paid on the amount or value of the subject-matter in dispute and that the difference between the effect of the two provisions is this that while under the first provision it would be open to the plaintiff to put any arbitrary value upon the relief claimed by him, in the latter case, the value could not be arbitrary and must be put according to the value of the subject-matter in dispute.'
It is argued by the learned counsel for the non-petitioner that the claim for damages made by the non-petitioner is property and the observations made in Madanlal 'Dhartipakar' v. Neelam Sanjeeva Reddy (AIR 1978 SC 802) were brought to my notice. It was further submitted by learned counsel for the non-petitioner that right to claim damages is a right choses in action. I am extremely doubtful whether right to claim damages for breach of contract is a property or a choses in action. It was thus observed in Madhav Rao Jivaji Rao v. Union of India (AIR 1971 SC 530) (at p. 557):
'This old concept of property is no longer held to be true. Markby (Elements of Law 1871 6th Edn. p. 320) regards the liability of the promisor as itself a thing which is capable of being bought and sold, assigned and transferred and if of money value may itself beregarded as an object of ownership. Allobligation according to him is as much a res as any other property and the only difference is in the mode of enjoyment. The creditor realizes this ownership by compelling the debtor to perform his obligation. As illustration he gives a catalogue of passive rights of ownership. Anson (Principles of Law of Contract) supports him by pointing out that an obligation is a right of control exercisable by one person over others for acts which have a money value.
The dynamic theory of obligations regards a debt as a claim to an equivalent in value to a floating charge against the generality of things which are the properties of the debtor. From this is developed the notion of a credit-debt where property rights arise from a promise, express or implied in respect of ascertained or readily ascertainable sums of money. Thus a debt or a liability to pay money passes through four stages. First there is a debt not yet due. The debt has not yet become a part of the obligor's 'things' because no net liability has yet arisen. The second stage is when the liability may have arisen but is not either ascertained or admitted. Here again the amount due has not become a part of the obligor's things. The third stage is reached when the liability is both ascertained and admitted. Then it is property proper of the debtor in the creditor's hands. The law begins to recognise such property in insolvency, in dealing with it in fraud of creditor, fraudulent preference of one creditor against another, subrogation, equitable estoppel, stoppage in transit etc. A credit-debt is then a debt fully provable and which is fixed and absolutely owing. The last stage is when the debt becomes a judgment-debt by reason of a decree of a Court, Thus an American Judge held 'outstanding uncollected accounts' as property; Standard Marine Insurance Co. v. Board of Assessors, 123 La 717 at p. 720. It is because of this that the French Law includes such obligations in mobiles.'
8. Therefore, the argument of learned counsel for the non-petitioner that the suit is for a moveable property and is covered by Section 23(1) of the Act, is devoid of any force, because the claim for damages is not moveable property and is only for a declaration that the contract stood cancelled or revokedand the plaintiff, is not liable to pay any damages for the reasons mentioned in para 11 of the plaint. Section 34(e) of the Act is, therefore, applicable.
9. Learned counsel also contended that the suit is governed by Section 24(d) of the Act because of prayer was for a declaration with reference to the property. I am again not inclined to agree with this contention because the claim for damages for breach of contract cannot be said to be a property. Moreover, it is extremely doubtful whether such a claim has a market value.
10. For the foregoing reasons, the view taken by the trial court cannot be sustained and it committed material irregularity in the exercise of its jurisdiction to decide issue No. 7 against the petitioner.
11. I, therefore, accept the revision petition and set aside the order of the trial court and decide issue No. 7 in favour of the plaintiff.