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B.P. SURESH KUMAR V/S ARYA SRINIVAS & OTHERS, decided on Wednesday, April 5, 2017.
[ In the High Court of Karnataka, Writ Petition No. 12998 of 2017 (GM-CPC). ] 05/04/2017
Judge(s) : ARAVIND KUMAR
Advocate(s) : Prakash, Manivannan G..
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  "2017 (5) KantLJ 65"  ==   ""  







    Aravind Kumar J.1. Heard Sri Prakash learned Counsel appearing for the petitioner. Perused the case papers.2. Petitioner herein has filed a suit seeking specific performance of the contract namely the agreement of sale dated 20-12-2007 contending inter alia that defendant has failed to execute the sale deed as agreed to under the said agreement of sale.3. Registry of the Trial Court raised an objection with regard to payment of Court fee on the ground that though consideration indicated in the agreement of sale is Two Crore Court fee valuation has been indicated in the valuation slip is Rs. 2 57 125/- for purposes of Court fee and jurisdiction. The matter came to be posted before Court and after considering the contention raised by the learned Counsel appearing for the plaintiff Trial Court upheld the office objection by rejecting the contention of the learned Counsel for the plaintiff by opining that agreement of sale in question does not indicate that plaintiff had agreed to pay one crore or second respondent herein had agreed to pay balance one crore in favour of first defendant. It was also noticed by the Trial Court that there is no reference in the agreement of sale that advance amount having been paid equally by plaintiff and 2nd defendant. Hence it came to be held by the Trial Court by order dated 5-12-2016 vide Annexure-F that plaintiff is required to pay Court fee on the sale consideration amount specified in the agreement of sale. Same is under challenge in this writ petition.4. It is the contention of Mr. Prakash learned Counsel appearing for petitioner/plaintiff that agreement of sale dated 12-12-2007 would clearly indicate that it has been entered into by the petitioner along with 2nd respondent namely 2nd defendant and 1st defendant agreeing thereunder to purchase suit schedule property for a total consideration of Rs. 2 crores. It is contended that plaintiff's claim in the suit for specific performance had been restricted to half share or for a decree being passed against the defendant to execute registered sale deed to the extent of half share in the suit schedule property (which measures 18 guntas) and as such by contending and drawing the attention of the Court to the plaint averments whereunder it is pleaded that an understanding was entered into between the plaintiff and defendants 1 and 2 that each of the purchaser would pay half of the total consideration and get executed a registered sale deed for half share of the schedule property from 1st defendant and a such plaintiff in the instant case was required to pay Court fee only on Rupees one crore only i.e. 50% of the total consideration agreed to be paid by purchaser under the agreement of sale. He would also submit that the expression total consideration is not to be found in Section 40(a) of Karnataka Court Fees and Suits Valuation Act 1958 (KCF and SV for short) and as such Court fee paid by the plaintiff is just and proper. He would also submit that under Section 11 of the KCF and SV Act Court is empowered to recover the Court fee at any stage and in the event of defendants on service of suit summons disputing the fact pleaded in the plaint Trial Court would definitely have the power to recover or order for payment of deficit Court fee and at the stage of registering the suit Trial Court could not have called upon the plaintiff to pay the Court fee on the total consideration reflected in the agreement of sale. Fie would also draw the attention of the Court to Section 13 of the KCF and SV Act to contend that even where plaintiff is called upon to pay deficit Court fee he has right to relinquish part of the claim so as to bring plaintiff's claim within the Court fee already paid and as such he has prayed for order of Trial Court being set aside. In support of his submissions he has relied upon the judgment of this Court in the case of Nagarathna S. Murthy v. Smt. Padma Prakash Shetty ILR 1996 Kar. 841.5. Having heard the learned Counsel appearing for the petitioner and on perusal of records it would disclose that undisputedly plaintiff and 2nd defendant viz. 2nd respondent herein have entered into an agreement of sale dated 20-12-2007 with defendant 1 i.e. first respondent herein as per Annexure-A. Under the said agreement property which has been agreed to be sold or purchased measures 18 guntas. Said agreement does not disclose or indicate that advance amount of Rs. 75 00 000/- is equally paid by the purchasers to the vendor. The total consideration agreed to be paid by purchaser to the vendor under the said agreement of sale is Rs. 2 crore.6. The grievance of the plaintiff is despite plaintiff having got issued a legal notice to the 1st defendant-vendor to furnish documents records and information and to execute registered sale deed as per notice dated 1-10-2016 said demand was not complied and as such suit for; specific performance came to be filed. Wherein it is specifically pleaded by plaintiff at paragraphs that there was mutual understanding between plaintiff and defendants 1 and 2 that plaintiff would pay half of the.total consideration and get executed a registered sale deed to the extent of half share in the suit schedule property and notionally plaintiff is entitled for getting executed a registered sale deed in respect of half share and plaintiff had already paid his share of Rs. 1 crore consideration out of the total consideration of Rs. 2 crore.7. A bare reading of agreement of sale and the recitals of the sale agreement does not reflect or indicate about any such understanding having been entered into between the defendant and parties.8. Section 40(a) of the KCF and SV Act would indicate that where a suit for specific performance is filed with or without possession fee is to be computed on the amount of consideration reflected in the Agreement of Sale. It is no doubt true that expression consideration is not prefixed with either total or entire consideration. As such the amount of consideration as found in clause (a) of Section 40 of KCF and SV Act would mean amount of consideration in respect of item for which specific performance is sought for. There may be a situation where more than one item of the property is agreed to be sold or purchased and in a given circumstance of a case sale deeds or few items of the property if having been already executed and few other items which had been agreed to be sold under the agreement is not sold or sale deed is not executed then in such circumstances plaintiff is required to pay the Court fee on the items of the property which he seeks to enforce for getting registered sale deed through decree of the Court. In such circumstances it cannot be gainsaid by the revenue that Court fee is to be paid on the entire consideration for which no relief is sought for. It is in this background Co-ordinate Bench of this Court in the case of Nagarathna S. Murthy v. Smt. Padma Prakash Shetty ILR 1996 Kar. 841 has held that plaintiff need to pay Court fee only on the amount of consideration in accordance with the agreement of sale in respect of the property which he claims specific performance of the Agreement of Sale and plaintiff need not pay Court fee on the entire amount of consideration mentioned in the agreement. It has been held :6. Section 40(a) of the Karnataka Court Fees and Suits Valuation Act provides for Court fee in a suit for specific performance of agreement of sale. Clause (a) of Section 40 of the Court Fees Act which is relevant provides that in a suit for specific performance with or without relief of possession fee shall be payable ad valorem computed on the amount of consideration. The question to be decided is as to whether when the plaintiff seeks only enforcement of part of Agreement of Sale is liable to pay Court fee on the entire consideration amount mentioned in the agreement. I do not think that the plaintiff is liable to pay Court fee on the entire sale consideration if the plaintiff is liable to pay Court fee on the entire sale consideration if a part of the agreement has already been complied with as in this case. As stated in paragraph (10) of the plaint two sale deeds are already executed in respect of the property Sy. Nos. 100/2 and 116/1 and the plaintiff wants only specific performance in respect of the remaining properties and assets mentioned in the agreement of sale. On reading Section 40 I am clearly of the view that the plaintiff need pay Court fee only on the amount of consideration in accordance with the agreement of sale in respect of the property to which he claims specific performance of the agreement of sale. It is not necessary that he should pay Court fee on the entire amount of consideration mentioned in the agreement. Accordingly I am of the view that though the total consideration mentioned in the agreement is Rs. 14 lakhs plaintiff need not pay the Court fee on the consideration which is chargeable on Sy. No. 100/2 and Sy. No. 116/1 which have been already sold to him as stated in paragraph 10 of the plaint.9. The incidental question which arose for consideration in the said judgment was as to how apportionment of the sale consideration amount in respect of properties for which specific performance is sought is to be made. In that background it came to be held that two properties had already been sold for a consideration of Rs. 45 000/- each and total consideration mentioned in the sale deed being Rs. 14 00 000/- the amount of Rs. 90 000/- was to be deducted from out of the total consideration indicated in the agreement of sale and on the balance consideration amount it was held that plaintiff would be liable to pay Court fee as provided under Section 40(a) of the KCF and SV Act. Said judgment would not come to the rescue of the plaintiff in the instant case for reasons for more than one :Firstly the agreement of sale in question which was dated 20-12-2007 does not apportion either the extent of property to be purchased by the purchasers or the consideration to be paid by each of the purchasers to the vendor; and secondly there is no mention or recital found in the said agreement as to how advance amount is being paid by purchasers namely whether it is in equal proportion or in different ratio by the purchasers to the vendor. It is in this background Trial Court has rightly observed that plaintiff would be required to pay Court fee on the total consideration amount reflected in the agreement of sale.10. The Legislature has consciously used the word consideration in clause (a) of Section 40 of KCF and SV Act so as to avoid any umbrage being taken by a litigant to avoid payment of Court fee and this fact can be explained by following illustration :Illustration :9. In a given case if five persons were to enter into an agreement of sale with a vendor to purchase a land or a plot for a total consideration of Rs. 5 crore and only one of the purchaser files a suit for specific performance contending that his claim under the agreement would only be to the extent of his ⅕th share in the property and pays Court fee to the extent of his ⅕th share of consideration amount i.e. on rupees one crore only and later on after lapse of some period other purchasers who would have been arrayed as defendants would give up their respective right of ⅕th share in favour of plaintiff it cannot be held that there can be postponement of payment of Court fee till the appearance of four sharers and filing of their statement or till 4 other purchasers give up of their rights under the said agreement. If other sharers give up their right in favour of plaintiff who has already filed the suit for specific performance then also plaintiff has to necessarily pay Court fee on the entire sale consideration as reflected in the agreement of sale. Otherwise a plaintiff can conveniently by adopting such method avoid payment of Court fee at the time of filing the suit or postpone the payment of Court fee to a later date.11. As such the Legislature has consciously used the expression Consideration in Section 40(a) of KCF and SV Act specifying thereunder that in the case of suit for specific performance with or without relief of possession fee shall be payable ad valorem computed on the amount of consideration. Thus emphasis is on the word 'Consideration' and not 'part' or 'full' consideration. In that view of the matter order passed by the Trial Court directing plaintiff to pay Court fee on the consideration amount as reflected in the agreement of sale dated 20-12-2007 cannot be found fault with.No other ground is urged. Hence writ petition being devoid of merit is hereby rejected.