Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.2700 OF 2019
IN
S.C. SUIT NO.1368 OF 2019
CNR NO.MHCCO10074132019
M/s.Harilal Desar Rana Clothing Company LLP ..Plaintiff
V/s
1. Kalyani Satish Jaiswal
2. Sunil Bankeylal Jaiswal ..Defendants
Plaintiff in person
Ld. advocate Mr.Chirag M.Gandhi for the defendants
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 19/08/2019
ORAL ORDER
(1) This Notice of Motion is tendered by defendants, interalia
for rejection of the plaint on the count of undervaluing the suit
claim by the plaintiff.
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2) The learned counsel for the defendants submitted that the
plaintiffs have undervalued the suit claim. The defendants have
placed reliance upon the valuation of the premises adjacent to
the suit premises. He would submit that the valuation reports
submitted by the defendants are sufficient to establish that the
plaintiffs have undervalued the suit claim. He would submit that
suit is barred by law as this court has no pecuniary jurisdiction
and therefore plaint is required to be rejected.
3) It is further pointed out by the learned counsel for the
defendants that as per section 6 (v) of the Maharashtra Court
Fees Act, the suit for possession is required to be valued as per
the market value of the subject matter. The plaintiffs have
valued the suit claim as per the rack rent. He submitted that
there is no such mode for valuing the suit claim for the purpose
of the relief of possession. He would submit that the court is
empowered under section 8 of the Maharashtra Court Fees Act
to inquire as to valuation of the suit. Therefore, inquiry as
contemplated in section 8 of the Act is required to be carried
out.
4) Per contra, the plaintiff submitted that the suit claim has
been properly valued. He submitted that the rough and ready as
well as a handy measure to estimate the net income which the
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premises fetches or is capable of fetching of the loss which its
deprivation causes is the compensation that is charged for its
occupation and agreed to between the parties minus all the
outgoings which the licensor has to bear. He did not dispute that
for the purpose of relief of possession the suit claim has to be
valued as per section 6 (v) of the Maharashtra Court Fees Act.
He pointed out that the Hon’ble Bombay High Court in the case
of Badal M Mittal and another versus Omprakash M Mittal
and 2 others in a notice of motion No. 855 of 2017 in suit
No. 308 of 2017 decided on 7 July 2017, held that, “Whatever
be the right and however it is sourced, so long as the relief claimed
in the suit is “possession of land, houses or gardens”, it is a suit
falling within clause (v) of Section 6 of the Court Fees Act. The
subject matter of a suit filed under Section 6 of the Specific Relief
Act is not enforcement of statutory right under Section 6 but
recovery of possession of immovable property. The basis for
claiming such recovery may be Section 6 of the Specific Relief Act.”
5) Plaintiff further argued that the plaintiff has valued the
suit claim as per the market value of the suit premises. The
market value of the suit premises is correctly determined at 60	₹
lakhs. He has placed reliance upon the judgement of the Hon’ble
Bombay High Court in the case of Prem Ratan Vohra Vs.
Lalitkumar Dayalji Kakhani AIR 1988 Bombay 264, to
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support his contention for the purpose of determining the
market value of the suit premises.
6) The parties are not at dispute that the suit claim for the
purpose of seeking the relief of possession under section 6 of the
Specific Relief Act is required to be valued as per section 6 (v) of
the Maharashtra Court Fees Act. The valuation clause of the
plaint reflects that the annual rack rent is 480,000 and suit	₹
claim is valued for 60 lakhs. The only question at this stage	₹
needs consideration is that the market value of the suit premises
is 60 lakhs. The defendants have placed reliance upon the 2	₹
valuation reports of the adjacent premises to support their
contention that the market value of the suit premises is much
more than that of 60 lakhs as valued by the plaintiff. The	₹
valuation reports submitted by the defendants cannot be taken
as gospel truth and it requires scrutiny at the time of evidence.
Whether the plaintiff has properly valued the suit claim is
limited enquiry at this stage.
7) The Hon’ble Bombay High Court in the case of Prem
Ratan(supra) held that, “The basis for calculating the market
value of the property should be the compensation charged
and not the rent of the premises in question. It is the net
income which accrues to the licensor calculated in the
manner stated herein above which should be taken as its unit
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value and its market value should be arrived at by
multiplying it by 12 1/2 years purchase or by 150 months
value.”
8) Admittedly, the plaintiff was the licensee of the defendant
No. 1. There is no dispute that the rent was 40,000 per month.	₹
The annual rent comes to 480,000. The plaintiff has taken	₹ ₹
480,000 as unit value and multiplied it with 12 and half years
which comes to 60 lakhs. As per scale under Article 1 of the	₹
Maharashtra Court Fees Act the proper court fees on 60 lakhs	₹
comes to 85,230. Further as per Article 2 of the Schedule 1 to	₹
the Maharashtra Court Fees Act for plaint in a suit for possession
under section 6 of the Specific Act, a fee of one half the amount
prescribed in the scale under Article 1 is required to be paid. The
one half of the amount of Rs.85,230/ comes to 42,615. It	₹
appears that plaintiff has paid the court fees of 42,615.	₹
9) The computation of the market value of the suit premises
by the plaintiff is not foreign to the system of valuation. The
foundation of the computation of the market value on the basis
of the net income of the property which it earns is approved by
the Hon’ble Bombay High Court in the above cited judgement of
Prem Ratan. The plaintiff appears to have computed the market
value of the suit premises on the basis of the net income of the
premises. No doubt in so many words the plaintiff in the plaint
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has not elaborated the method in which he had computed the
market value of the suit premises. But at the time of hearing of
the present motion he has demonstrated as to how he has
computed the market value of the suit premises. The argument
of the plaintiff has force and foundation of it lies in the above
cited judgement of the Hon'ble Bombay High Court in the case
of Prem Ratan. Therefore, it can be safely said at this stage that
the plaintiff has valued suit claim for possession as per the
market value of the suit premises. Hence the notice of motion
needs no consideration and therefore it is expedient to pass
following order: –
Order
Notice of motion 2700 of 2019 stands rejected,
19/08/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 19/08/2019
Transcribed on : 19/08/2019
Signed on : 21/08/2019
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
22/08/19 at 11.10 am.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.16
Date of Pronouncement of
judgment/order
19/08/2019
Judgment and order signed by
P.O.
21/08/2019
Judgment/order uploaded on 21/08/2019
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