Heard Sri V. K. Singh, learned counsel for the revisionist and Sri Vipin Sinha, learned counsel for the respondent.
This is plaintiff revision against the order of the Additional District Judge, Court No. 10, Varanasi dated 29th February, 2008 passed in Original Suit No. 21 of 2002 (Prashant Glass Works vs. Bank of Baroda).
The facts in short giving rise to the present revision are as follows:
Plaintiff-revisionist is a Company duly incorporated under the Companies Act. It filed an application under Sections 433 and 434 of the Companies Act, 1956 before the Company Court, High Court at Allahabad being Company Petition No. 37 of 1999. In the aforesaid company proceedings, one of the issue, which came up for consideration was as to whether the applicants namely, the plaintiff could claim interest at the rate of 24% per annum on the amount said to have not been paid by the respondent-company. Learned counsel for the plaintiff-revisionist company before the Company Court elected to pursue his claim of interest at the rate claimed by him by way of normal suit. Accordingly, the company petition was disposed vide order dated 5th January, 2000 by recording that since admittedly the liability has been discharged, the company petition has to be dismissed leaving it open to the plaintiff-company to claim interest by way of suit, if he so desired.
The plaintiff-company instituted original suit no. 21 of 2002 and it was claimed that for the delayed payment of the amount, on institution of the company petition, as noticed herein above, the respondent company i.e. defendant was liable to pay interest at the rate of 24%. Similarly, further interest at the rate of 24% as damages for the period 27th January, 1999 to 6th January, 2002 as also claimed. However, it was stated in the plaint that the plaintiff prefers to forgo the amount of interest for further period till the date of institution of suit as per his convenience. With the aforesaid allegation, the relief prayed for in the suit was as follows:
"(A) That by Decree of Declaration, it may be declared that the plaintiff is entitled to receive from the defendant, Interest at the rate of 24% per annum from 31.03.1997 till 01.11.1999; and pendentilite Interest/Damages at the rate of 24% per annum.
(B) That the Plaitniff is vide ready to pay Court fees at the rate of Interest, adjudicated by the Court while making the decree.
(C) To Grant any other and further relief as the Hon'ble Court may deem fit as to the circumstances of the case.
(D) To Award Costs in favour of the plaintiff."
One of the issue framed by the trial court being issue no. 9 (b) was as to whether the Court fees paid on the suit was sufficient or not. According to the plaintiff since only declaration was prayed for, he was liable to pay Court fees in terms of Section 7 (iv) (a) of Court Fees Act. The trial court rejected the contention so raised and has held that the suit was for declaration with consequential relief and therefore, would be covered by Section 7 (iv) (c) of Court fees Act. Accordingly, it has been held that the plaintiff must make good the short fall in Court fee for which time was granted.
Challenging the order so passed by the Additional District Judge, learned counsel for the revisionist-plaintiff contends that the trial court has wrongly recorded that in view of Section 34 of the Specific Relief Act, the consequential relief of payment was included in the declaration prayed for, inasmuch as even in absence of consequential relief, declaration could have been granted. He submits that after the decree of declaration is passed, it will be open to the plaintiff to get such part of the decree executed, as he likes and then he shall pay the required court fees at the time of execution. The trial court is not justified in recording a finding that the suit was for declaration with consequential relief. For the proposition, he has placed reliance upon the judgment of this Court in the case of Amin Sons Ltd. vs. Shyam Transport & Forwarding Agency reported in 2002 (1) AWC 299 (LB) and National Insurance Company Ltd. vs. Ashok Kumar Srivastva & Others, reported in 1993 AWC 353. He submits that the facts of the judgment of the Hon'ble Supreme Court of India in the case of Shamsher Singh vs. Rajinder Prashad & others reported in AIR 1973 SC 2384 were clearly distinguishable.
Learned counsel for the respondent-Bank in reply submits that the trial court has rightly applied law as declared by the Hon'ble Supreme Court of India in the case of Shamsher Singh (Supra) and that in the facts of the case the consequential relief of payment is included in the relief prayed for by the plaintiff. The trial court has rightly insisted upon the payment of court fees treating the suit to be one of declaration with consequential relief.
I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present revision.
The legal position with regard to the issue of payment of court fees on a plaint has been examined by the Hon'ble Supreme Court of India in the case of Shamsher Singh (Supra) and in paragraph-4 it has been laid down as follows:
"4.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. In this case the relief asked for is on the basis that the property in dispute is a joint Hindu family property and there was no legal necessity to execute the mortgage. It is now well settled that under Hindu Law if the manager of a joint family is the father and the other members are the sons the father may by incurring a debt so long as it is not for an immoral purpose, lay the joint family estate open to be taken in execution proceedings upon a decree for the payment of the debt not only where it is an unsecured debt and a simple money decree for the debt but also to a mortgage debt which the father is personally liable to pay and to a decree for the recovery of the mortgage debt by the sale of the property even where the mortgage is not for legal necessity or for payment of antecedent debt( Faqir Chand v. Harnam Kaur, (1967) 1 SCR 68= (AIR 1966 SC 727). Consequently when the plaintiffs sued for a declaration that the decree obtained by the appellant against their father was not binding on them they were really asking either for setting aside the decree or for the consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property as he was entitled to do. This aspect is brought out in a decision of the Full Bench of the Lahore High Court in Zeb-ul-Nisa v. Din Mohammad(2)where it was held that :
"The mere fact that the relief as stated in the prayer clause is expressed in a declaratory form does not necessarily show that the suit is for a mere declaration and no more. If the relief so disclosed is a declaration pure and simple and involves no other relief, the suit would fall under Art. 17(iii)."
In that case the plaintiff had sued for a twofold declaration : (i) that the property described in the plaint was a waqf, and (ii) that certain alienations thereof by the mutwalli and his brother were null and void and were ineffectual against the waqf property. It was held that the second part of the declaration was tantamount to the setting aside or cancellation of the alienations and therefore the relief claimed could not be treated as a purely declaratory one and inasmuch as it could not be said to follow directly from the declaration sought for in the first part of the relief, the relief claimed in the case could be treated as a declaration with a "consequential relief." It was substantive one in the shape of setting aside of alienations requiring ad valorem court-fee on the value of the subject matter of the sale, and even if the relief sought for fell within the purview of s. 7 (iv) (c) of the plaintiffs in view of ss. 8 and 9, Suits Valuation Act, having already fixed the value of the relief in the plaint for purposes of jurisdiction were bound to fix the same value for purposes of court-fee. It was also pointed out that in deciding whether a suit is a purely declaratory, the substance and not merely the language or the form of the relief claimed should be considered. The court also observed :
"It seems to me that neither the answer to the question whether the plaintiff is or is not a party to the decree "or the deed sought to be declared as null and void, nor to--the ques- tion whether the declaration sought does or does not fall within the purview of s. 42, Specific Relief Act, furnishes a satisfactory or conclusive test for determining the court fee payable in the suit of this description. When the plaintiff is a party to the decree or deed, the declaratory relief, if granted, necessarily relieves the plaintiff of his obligations under the decree or the deed and, hence it seems to have been held in such cases, that the declaration involves a consequential relief. In cases where the plaintiff is not a party to the decree or the deed. tile declaratory relief does not ordinarily include any such consequential relief. But there are exceptional cases in which the plaintiff though not a party to the deed or the decree is nevertheless bound thereby. For instance, when a sale or mortgage of joint family property is effected by a manager of a joint Hindu family, the alienation is binding on the other members of the family (even if they are not parties to it) until and unless it is set aside. Similarly, a decree passed against the manager will be binding on the other members of the If therefore a coparcener sues for a declaration that such an alienation or decree is null and void, the declaration must I think be held to include consequential relief in the same may as in those cases in which the plaintiff is himself a party to the alienator, or the decree, which is sought to be, declared null and void. The case dealt with in AIR 1936 Lah 166 seems to have been of this description. The case of an alienation by a mutwalli of waif property would also appear to stand on a similar footing. In the case of waif property, it is only the trustee or the mutwalli who can alienate the property. If he makes an alienation it is binding on all concerned, until and unless it is set aside. If therefore a person sues to get such an alienation declared null and void, he can only do so by getting the deed invalidated. The relief claimed in such cases also may therefore be found to include a consequential relief."
The Hon'ble Supreme Court of India has, thus, explained that the issue of court fees payable on a plaint is to be decided on the basis of allegations and the prayer in the plaint. The question as to whether the plaintiff' 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. What follows from the judgement of the Hon'ble Supreme Court is that only prayer clause is to be examined by the trial court, the entire plaint allegations are to be read as a whole for arriving at a conclusion as to what is the substantive relief, which has been prayed for.
From reading of the plaint, a copy whereof has been enclosed as Annexure-1 to the writ petition, this Court has no hesitation to record that the real intent of the plaint was to claim interest on the delayed payment of the money by the respondent-company. Thus, it is apparently clear that suit was for declaration as well as for consequential receipt of the interest. Plaintiff has only couched the relief in a manner to suggest that declaration alone was prayed for.
The trial court is justified in recording that the suit was for declaration with consequential relief and therefore, court fees in terms of Section 7 (iv) (b) had to be paid. So far as the judgements relied upon by the learned counsel for the plaintiff-revisionist in the case of Amin Sons Ltd. (Supra) and National Insurance Company Ltd. (Supra) are concerned, the said judgements do not lay down anything contrary to what has been laid down by the Hon'ble Supreme Court of India in the case of Shamsher Singh (Supra). In the facts of the present case, the trial court has come to a right conclusion that the suit was for declaration coupled the consequential relief of receipt of the interest and therefore, it has asked the plaintiff to pay court fees in terms of Section 7 (iv) (b).
There is no illegality or infirmity in the order passed by the trail court so as to warrant any interference.
The present revision is accordingly dismissed.
(Arun Tandon, J.) Order Date :- 11.3.2011 Sushil/-