TMI Blog2005 (10) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... ning of a five-star hotel under the name and style of Hotel Imperial. plaintiffs and defendant No. 4 are the sisters of defendant No. 1, while defendants No. 2 and 3 are the sons of defendant No. 1 and defendant No. 5 is a partnership concern comprising of the plaintiffs and defendants No. 1 to 4. The defendant No. 1 is stated to be the owner of the leased premises being Hotel Imperial, situated at 124, Janpath, New Delhi. The property was owned by the predecessor of defendant No. 1 and the premises of Hotel Imperial were given on lease to defendant No. 5. According to the plaintiffs, plaintiffs and defendants No. 1 to 4 as partners of defendant No. 5 have been successfully running the said business for the last more than 31 years. Certain disputes arose in December 1998 with respect to continuance of the business and renewal of the lease, which had become due for renewal on 1st July, 1999 for a further period of five years and the option to renew the lease vests with the partnership firm or the partners in the similar fashion till 2014. It is also the case of the plaintiffs that in order to resolve the issues, they attempted to meet the managing partners, which attempts failed. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir application under Order 7 Rule 11 of the Code of Civil Procedure. They pray for rejection of the plaint and consequential dismissal of the suit of the plaintiffs on the following grounds:- (a) The suit has not been valued properly for the purposes of court fee and jurisdiction and the plaintiffs have failed to claim Ad Valorem court fee in terms of Section 7 of the Court Fee Act. (b) For the relief of mesne profits, the plaintiffs have valued the suit @ 50 lakhs per month but the court fee of only ₹ 20 has been paid, even for the specified period prior to institution of Suit. (c) For the relief of rendition of accounts, the suit has been valued at ₹ 54 crores and only a fixed fee of ₹ 20 has been paid. 5. These objections are based upon the reading of the averments made in paragraph 33, 37, 55 and 87 of the plaint read in conjunction with the prayer clause and reply given by the plaintiffs to the preliminary objections raised by the defendants in the written statement. The value of the suit for the purposes of jurisdiction, which has been assessed at ₹ 54 crores and ₹ 50 lakhs respectively, as afore-noticed, is based on definite data c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t upon the above amendment. 8. The plaintiffs then want to amend paragraph 87 referring to the jurisdiction for the purposes of court fee as under:- 9. It will be more appropriate to deal with the application for amendment first. The suit is at the initial stages. The plaintiffs are praying for amendment which would not alter the cause of action or the basic case of the plaintiffs. The plaintiffs want to add an averment with regard to readiness and willingness on their part to perform their obligations under the terms of the agreement. This averment in face of the plaint read together, would not tantamount to setting up a new or a contradictory case. In fact, it would be complimentary or incidental to the main averments already made by the plaintiffs. The plaintiffs claim to have exercised their right for renewal of the lease, which is a matter that has to be adjudicated upon only after the parties have led evidence. In regard to paragraph for specifying or clarifying the clause related to pecuniary jurisdiction, it again is a re-affirmation in a more arranged and specific manner, than the same averments being made in a vague and indefinite manner. In view of the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts claimed, and could not take the benefit of paying a fixed court fee. The other contention raised is that the plaint of the plaintiff is liable to be rejected in view of the provisions of Section 16(c) of the Specific Relief Act, 1963 and also on the ground that the plaintiff has not made any averment that he was always ready and willing to perform his part and incur the obligations for extension of lease. While relying upon the judgments of the Supreme Court and this Court reported in Automatic Electric Limited v. R.K. Dhawan 57 (1994) DLT 49, Sarjiwan Singh v. Delhi Vidyut Board 110(2004)DLT633 , Eastman Kodak Co. v. M.R. Electronics 1994 RLR 476, United India Insurance Co. Ltd. and Anr. v. Samir Chandra Chaudhary and Bombay Ammonia Pvt. Ltd. v. Raj Kumar and Ors. 115(2004)DLT609 in support of the above contention, the learned counsel appearing for the applicant has also made reference to the documents on record and averments made in the plaint, in support of this contention. While referring to paragraph 71 of the plaint, it is argued that the plaintiff has claimed mesne profits for illegal use of the property after 1st July, 1999, while the suit was filed on 16th August, 1999. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xed criteria and the mesne profits like a suit for unsettled accounts has been filed on a hope of the plaintiff that he would get the claimed amount, as such the plaintiff would not be liable to pay ad valorem court fee on this amount. Reliance in this regard was rightly placed upon the judgment of the Supreme Court in the case of Gopalakrishna Pillai and Ors. v. Meenakshi Aval and Ors. AIR1967SC155 to argue that the relief of past mesne profits on a stated amount by the claimant has to be valued and ad valorem court fee paid thereupon. 13. It has already been discussed above that the plaintiff in relation to the relief of mesne profits, prior to the institution of the suit, cannot take benefit of paying fixed court fee. Of course, the mesne profits pendente lite or future would have to be determined and then alone a fixed amount would be arrived at and the plaintiff would be called upon to pay an ad valorem court fee on the said amount, but for the amount which has already been claimed, would squarely fall outside the ambit of Rule 4 (1) of the Punjab High Court Rules as applicable to this Court read with Section 7(4) of the Court Fee Act and Section 9 of the Suit Valuation Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ramed did not substantially satisfy the requirement of section 16(c) of the Specific Relief Act, but in any event because of the application for amendment having been allowed by the Court, this objection is without any merit and is thus rejected. 16. Coming to the last contention raised on behalf of the defendants/applicants that the plaintiffs ought to have paid the ad valorem court fee in relation to the claim of rendition of accounts as well, it may be noticed that in the prayer clause, the plaintiffs have claimed a sum of ₹ 54 crores which according to them could be payable to them in accordance with true and correct rendition for settlement of accounts. According to the applicants this sum of ₹ 54 crores is based upon rational basis calculated by the plaintiffs and is not an imaginary figure. The plaintiffs, in fact, in their plaint have referred to the very basis of these ₹ 54 crores including the letters exchanged between the parties. In this regard, reference has been made to some of the paragraphs in the plaint as well as paragraphs 15 and 32 of the replication filed by the plaintiffs. 17. Specific emphasis has been placed on the averments made in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er hand, the learned counsel appearing for the plaintiffs while relying upon the cases of Commercial Aviation and Travel Company and Ors. v. Mrs. Vimla Pannalal, AIR1988SC1636 and Bombay Ammonia Pvt. Ltd. (supra) contended that it is only a fond hope of the plaintiffs that an amount of even more than ₹ 50 crores may be due to the plaintiffs upon correct rendition of accounts by the defendants. There is no arbitrariness and the plaintiff's claim would be covered under Rule 4, the provisions of Section 7(4) of the Court Fee Act and the exception to the Rule of the Suit being valued identically for the purposes of court fee and jurisdiction. The principle of law cited on either side can hardly be a matter of dispute. The plaintiffs cannot act arbitrarily in valuing the suit for the purposes of court fee and jurisdiction. Wherever the suit for rendition of accounts is filed and it is not practically probable for the plaintiff to exactly value the suit for the purposes of court fee and jurisdiction, he can avail of the benefit of payment of fixed court fee with an undertaking to make up the deficiency in payment of court fee, once the accounts are settled and a definite amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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