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Kanti Mohan Mondal Vs. Naba Kumar Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 604 of 1974
Judge
Reported inAIR1975Cal347
ActsCourt-fees Act, 1870 - Section 7; ;Bengal Money Lenders Act, 1940 - Sections 36, 37 and 38
AppellantKanti Mohan Mondal
RespondentNaba Kumar Pal and ors.
Appellant AdvocateR.K. Banerjee and ;Abhijit Banerjee, Advs.
Respondent AdvocateTarun Chatterjee, Adv.
DispositionApplication allowed
Cases Referred(supra) Hasan Mirza v. Syed Bakar Hassan
Excerpt:
- .....out of which the present r'ule arises for a declaration that the transactions are in substance loan transactions, for reopening the transactions for relief under sections 36, 37 and 38 of the bengal money lenders act on accounts being taken and for permanent injunction restraining the defendants from interfering with plaintiff's possession of the suit properly.3. in the plaint, the plaintiff valued the relief for declaration at rs. 19,000/- and paid the court-fee of rs. 20/-. he separately valued the consequential relief of permanent injunction at rs. 5/- and paid a court-fee therefor of 0.75 paise. that apart, the plain-tiff also paid the fixed court-fee of rs. 1/- under the provisions of the bengal money lenders act for the reliefs claimed thereunder.4. defendants raised an.....
Judgment:
ORDER

1. On January 25, 1965 the plaintiff executed a deed of sale in respect of his residential hou.se at Gondalpara, Chander-nagore in favour of defendant No. 1, son of the other two defendants and simultaneously two other deeds were executed by defendant No. 1 in favour of the plaintiff namely (1) an agreement to reconvey the property to the plaintiff on his paying a sum of Rupees 8,500/- within two and half years and (2) a deed of lease in favour of the plaintiff in respect of the house on a monthly rent of Rs. 25/-. A few months thereafter, the plaintiff executed another deed of sale on June 25, 1965 in favour of defendant No. 2, wife of defendant No. 3 and the said defendant on her part executed a deed of lease in respect of the house in favour of the plaintiff.

2. In the plaint, the plaintiff claims that all these transactions really represent loans obtained on mortgage by the plaintiff from defendant No. 3 and to avoid the provisions of the Bengal Money Lenders Act, all those subterfuge steps of going through such transactions were taken recourse to instead of executing mortgage deeds for securing the loans taken. Hence, the plaintiff instituted the suit out of which the present R'ule arises for a declaration that the transactions are in substance loan transactions, for reopening the transactions for relief under Sections 36, 37 and 38 of the Bengal Money Lenders Act on accounts being taken and for permanent injunction restraining the defendants from interfering with plaintiff's possession of the suit properly.

3. In the plaint, the plaintiff valued the relief for declaration at Rs. 19,000/- and paid the court-fee of Rs. 20/-. He separately valued the consequential relief of permanent injunction at Rs. 5/- and paid a court-fee therefor of 0.75 paise. That apart, the plain-tiff also paid the fixed court-fee of RS. 1/- under the provisions of the Bengal Money Lenders Act for the reliefs claimed thereunder.

4. Defendants raised an objection that the relief for declaration and the consequential relief cannot be valued separately and the plaintiff must put in one single valuation for the declaration and injunction and pay court-fees accordingly. Such an objection prevailed with the learned Judge in the court below who on the authority of the decision of this Court in the case of Balaram Mondal v. Sahebjan Gazi. : AIR1950Cal85 held that as the case comes within Section 7(iv)(c) of the Court-fees Act, the plaintiff must put in a single valuation and must also pay ad valorem court-fees on such valuation. Being aggrieved by the aforesaid order, the plaintiff has now moved this Court and obtained the above Rule.

5. Mr. Banerjee, appearing in support of this Rule has contended that the learned Judge in the court below has entirely misread the true nature of the suit in thinking that it comes within Section 7(iv)(c) and as such ad valorem court-fees are payable on a single valuation. According to Mr. Banerjee it is not at all a suit for declaration with consequential relief; it is a simple suit for relief under Sections 36, 37 and 38 of the Bengal Money Lenders Act for which the court-fee payable is a fixed one namely Re. 1/- as prescribed by that Act itself. To support this contention of his, Mr. Banerjee relies on a decision of this Court in the case of Sudhir Kumar v. Mahadev, (1948) 52 Cal WN 685. Mr. Chatterjee appearing on behalf of the opposite parties has failed to contest the legal position contended for by Mr. Banerjee.

6. In our opinion, there is great substance in the contention of Mr. Banerjee. It is a settled principle that in order to decide the amount of court-fees payable, the court must look to the substance of the claim and not merely the form in which the relief has been prayed for. Reference may be made to the decisions in the cases of Kattyia Pillai v. Ramaswami Pillai, AIR 1929 Mad 396 and Kamala Devi v. S. C. Board of Wakfs, U. P., AIR 1949 All 63. In the case of Gajendra Nath Saha Chowdhury v. Sulochana Chow-dhurani, 39 Cal WN 131 = (AIR 1935 Cal 338) this Court observed as follows:

'Mere form and language of a plaint is not final test and to arrive at a sound conclusion the court has to look beyond the mere form and verbiage of the plaint and arrive at what is the real substance.'

7. That again is based on high authority of the decision of the Privy Council in the case of Fulkumari v. Ghanashyam Misra, (1907) 35 Ind App 22 (PC) wherein it was laid down that 'for the right determination of the question at issue it is necessary to ascertain what are the objects and the nature of the suit.'

8. Judging on the aforesaid test, it cannot but be held that in the present suit the real relief claimed by the plaintiff is one of having the transaction between the parties reopened and getting relief under Sections 36, 37 and 38 of the Bengal Money Lenders Act. In order to reopen the transaction the court has to go into and decide the basic question whether the transaction is a loan and whether such a loan transaction comes within the scope of the statute. Though prayed for, no specific declaration that it was a loan is really necessary for getting the substantial relief under the Bengal Money Leaders Act, an adjudication and decision that it is a loan is mere incidental. Similarly, a relief by way of an injunction is wholly unnecessary because if the transaction is a loan and the plaintiff gets the relief under the Bengal Money Lenders Act, then there is no question of the plaintiff's possession being interfered with by the defendants on the basis of the documents representing the transaction. On the other hand, if the plaintiff fails to get his relief under the Bengal Money Lenders Act, then also there would be no question of getting any relief by way of injunction. Reading the plaint as a whole, it is quite explicit that the plaintiff has not sought for any declaration that the transaction is a loan independently of and separately from his claimed relief under the Bengal Money Lenders Act. Such being the position, mere addition of certain unnecessary and redundant prayers would not change the true nature of the suit which is really one for obtaining relief under the Bengal Money Lenders Act and make it a suit for declaration with consequential relief within the meaning of Section 7(iv)(c). See Kattiya Pillai v. Rama-swamia Pillai, AIR 1929 Mad 396 (supra) Hasan Mirza v. Syed Bakar Hassan, AIR 1943 Pat 102. This being the position, the decision of this Court in the case of (1948) 52 Cal WN 685 relied on by Mr. Banerjee is good authority for the proposition that the court-fees payable in a suit of the present nature is the fixed court-fee of Re. 1/- pre-scribed by the Bengal Money Lenders Act itself. The decision and the order under challenge are, therefore, clearly erroneous.

9. In the result, this application succeeds and the Rule is made absolute. The impugned order is set aside.

10. There will be no order as to costs. Application allowed.


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