Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1698/2020 in Suit No. 7536/06. 1 Order.
MHCC010051332020
Presented on : 11-11-2020
Registered on : 11-11-2020
Decided on : 17-04-2023
Duration : 2 years, 5 months, 6 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1698 OF 2020
IN
SUIT NO. 7536 OF 2006
(Old High Court Suit No. 761 Of 2006)
Pushpa Navin Delwadia )...Plaintiff
Versus
Ranjana Dharmaraj Chinchavle
and others )...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 17th APRIL, 2023.
Shri Tejas Bhide, Advocate for the plaintiff.
Shri Shripad Murti alongwith Shri P.G.Sawant, Advocates for the
defendants.
ORDER
1. The plaintiff has taken out the notice of motion for
returning the counterclaim to the defendants for presentation to
Honourable High Court at Bombay under Order VII Rule 10 of the CPC.
Perused the notice of motion, affidavit in reply and the suit proceeding.
Heard learned counsel Shri Tejas Bhide for the plaintiff and learned
counsel Shri Shripad Murti for the defendants.
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N/m No. 1698/2020 in Suit No. 7536/06. 2 Order.
2. The plaintiff filed an affidavit in support with the
following contentions : –
The plaintiff filed the suit for specific performance of
Agreement for Sale dated 29/07/1993 pertaining to the suit flat. Other
reliefs supplementary to the main relief are also prayed in the plaint.
The defendants had filed Notice of Motion No. 2738/2018 for leave to
file a counterclaim. The plaintiff had filed reply dated 15/09/2018 and
additional affidavit in reply dated 15/10/2018 to oppose Notice of
Motion No. 2738/2018. The said Notice of Motion was allowed as per
order dated 14/12/2018. The plaintiff had raised the ground that the
counterclaim was not properly valued and it shall be beyond the
pecuniary jurisdiction of this Court. Being aggrieved by the said order
dated 14/12/2018, the plaintiff filed Writ Petition No. 4012/2018
before Honourable High Court at Mumbai. Honourable High Court had
stayed further proceeding in the suit by order dated 02/04/2018.
Honourable High Court had directed the defendants to file an affidavit
indicating valuation of the counterclaim within two weeks from the
date of the order.
3. Instead of complying the said order, the defendants filed an
affidavit in April 2019 in the Honourable High Court stating that they
shall value the counterclaim on the basis of the value of the suit
premises. The defendants filed an affidavit in reply in Writ Petition
No.4012/2018 on 07/02/2020. The defendants valued the
counterclaim at Rs.1,17,98,556/–. Accordingly, the defendants paid
Court fees over the same. Claim above Rs. One Crore would be beyond
pecuniary jurisdiction of this Court. Therefore, the counterclaim ceases
to be a counterclaim within pecuniary jurisdiction of this Court as per
Proviso to Order VIII Rule 6A(1) of the CPC. Honourable High Court
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N/m No. 1698/2020 in Suit No. 7536/06. 3 Order.
had permitted the plaintiff to file appropriate application for rejection of
the counterclaim. Accordingly, present notice of motion is filed.
4. The defendants filed affidavit in reply with following
contentions :
The defendants have admitted the developments in the
matter. It is their contention that the plaintiff is claiming possession
over the suit premises on the basis of transaction with the deceased
Dharmaraj. The plaintiff has come up with the case of payment of
consideration amount to the deceased. Subsequently, the developer and
the society entered into Development Agreement dated 31/12/2012.
The developer and the society also executed Tripartite Agreement with
the plaintiff 30/05/2017. The defendants have challenged this Tri
partite Agreement dated 30/05/2017 and sought declaration regarding
the same. The defendants have admitted valuation of the suit premises
as Rs.1,17,98,556/. It is contention of the defendants that the present
suit and counterclaim may be transferred to the Hon'ble High Court
and both can be heard and tried together as per Order VIII Rule 6A(1)
of the CPC. No case is made out for rejection of the counterclaim. The
defendants prayed for dismissal of the notice of motion.
5. Learned counsel Shri Tejas Bhide for the plaintiff and
learned counsel Shri Shripad Murty for the defendants argued the case
as per contents in the affidavit in support and affidavit in reply
respectively. Learned counsel Shri Tejas Bhide has relied upon
observations in case of Anna Parisa Chougule Vs. Sulochana Nabhiraj
Chougule 2017(6) Mh.L.J. 693 in which applicability of Law of
Limitation to the counterclaim was considered and counterclaim was
rejected being barred by Law of Limitation. Similarly, in the case of
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N/m No. 1698/2020 in Suit No. 7536/06. 4 Order.
Rajinder Singh Bhatia Vs. Manju Bhatia 2022 SCC OnLine Del 2497
Hon'ble High Court has dealt with objections of valuation of
counterclaim and directed the defendant to pay advolerum court fees
on the amount of valuation as per Section 8 of the Suit Valuation Act.
6. Considering rival submissions and material on record, it
appears that the society developed the building in which the suit flat
was situated. While doing so, Tripartite Agreement was executed with
the plaintiff and he was put in possession of the newly constructed
premises. The defendants are challenging legality of the Tripartite
Agreement in prayer clause (c) of the counterclaim. They have sought
declaration that Registered Tripartite Agreement dated 28/08/2016
executed between plaintiff, developer and society is illegal, badinlaw
and null and void. Similarly, declaration of ownership of the flat in the
newly constructed building and relief of permanent injunction are also
sought in the counterclaim.
7. Admittedly, the plaintiff is trying to protect possession over
the new premises on the strength of his agreement with the deceased in
respect of the suit flat. Title of the suit flat or the new flat is not
transferred from original owner or legal representatives of original
owner to the plaintiff. In such circumstances, the society and the
developer proceeded ahead and entered into Tripartite Agreement with
the plaintiff. In short, the defendants are not party to the Tripartite
Agreement. In such circumstances, observations of Hon'ble Bombay
High Court in the case of Dilip Khushalchand (Srisrimal) Jain and
others V/s. Hardik Deepakbhai Ramani (Writ Petition No.
8968/2018 decided on 05/05/2022) are relevant. Hon'ble High Court
has clearly observed in paras 23 and 24 in the case of Dilip Jain (cited
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N/m No. 1698/2020 in Suit No. 7536/06. 5 Order.
supra) as under :
“23. Thus, these two categories of the
Plaintiffs need to be treated differently. No doubt,
there would be some unscrupulous Plaintiffs falsely
claiming that the instrument does not bear their
signatures. In such cases such Plaintiffs would be
governed by Section 6(iv)(ha) as they would be
required to seek cancellation of the instrument.
24. From the above discussion in our judgment,
Section 6(iv)(ha) would be applicable only to the
Plaintiff who is a party to the sale deed seeking
declaration of avoidance of sale deed. It would not
be applicable to the Plaintiffs who are not party to
the instrument seeking declaration of avoidance of
sale deed. Such Plaintiff would be governed by
Section 6(iv)(j) as it is not susceptible to monetary
evaluation.”
8. If a person seeking relief of declaration regarding registered
instrument is not party to the instrument, he is not required to value the
suit as per Section 6(iv)(ha) of Maharashtra Court Fees Act and his case
is covered by Section 6(iv)(j) of the said Act. Therefore, payment of
court fees as per Section 6(iv)(ha) of the said Act by the defendants
would not decide the jurisdiction of this Court. Counterclaim of the
defendants is liable to be valued as per Section 6(iv)(j) of the Court
Fees Act.
9. If observations in the case of Dilip Jain (cited supra) are
applied for valuation of the counterclaim in the context of Section 8 of
the Suits Valuation Act, 1887, the counterclaim is very well within
pecuniary jurisdiction of this Court. Applicable law has to be considered
for determining the aspect of pecuniary jurisdiction. For all these
reasons, counterclaim is not valued beyond pecuniary jurisdiction of
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N/m No. 1698/2020 in Suit No. 7536/06. 6 Order.
this Court. In the result, notice of motion deserves to be rejected.
Hence, I pass the following order :
ORDER
1. Notice of Motion No. 1698/2020 is dismissed.
2. Proceeding of N/m No. 1698/2020 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 17/04/2023. Mumbai.
1. Dictated on : 17/04/2023.
2. Transcribed on : 21/04/2023.
3. Checked and Signed on : 21/04/2023.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21/04/2023. 4.25 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 17/04/2023.
Judgment/Order signed by P.O. on 21/04/2023.
Judgment/Order uploaded on 21/04/2023.
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