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Judgment
S.K. Gangele, J.—Plaintiffs/appellants have filed this appeal against the judgment and decree dt. 23.9.2011 passed by the trial Court in Civil Suit No. 2A/2010. The plaintiffs filed a suit for declaration and permanent injunction. They pleaded that there was joint Hindu Family property of Nathulal, Pyarelal and Kashiram. There was a firm in the name of "Lalaram Nathuram" and the aforesaid Firm purchased a land by a registered sale deed dt. 23.8.1940 area 134 ft. x 200 ft. situate at Mouja Dabra, Pargana Pichhor, District Gwalior. Another land was also purchased on 14.12.1948 area 15 yard and 25 yard. After the death of Pyarelal and Kashiram their legal heirs became owners of half of the property. Plaintiffs are the owners of the half of the property and defendants No. 10 to 15 are owners of the half of the property. Padamchand Jain, defendant No. 15 had taken a cash credit limit of Rs. 7 lac from defendant No. 1, a nationalized Bank and for the purpose of security of the loan Subhashchand Jain stood as surety and created equitable mortgage of the property. However, the defendants No. 13 to 15 had no power and authority to create equitable mortgage of the property with the defendant No. 1 because it was a Joint Hindu Family Property.
Defendant No. 1 initiated proceedings for recovery of loan under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter shall be referred to as SARFAESI Act) and published a notice in the news paper on 23.8.2009 for auction of the property. Then the plaintiffs filed a petition before the High Court, which was registered as W.P. No. 4466/2009. The aforesaid Writ Petition was disposed of as infructuous in view of the earlier order passed in W.P. No. 3282/2009, which was filed by defendant No. 13 - Vijay Kumar Jain and the said petition was disposed of with the observation that Defendant No. 13 can submit a dispute before the Debt Recovery Tribunal and consequently, the defendants No. 12 and 13 filed a dispute before the Debt Recovery Tribunal Jabalpur, which was pending as Second Appeal No. 4/2010. It is further pleaded that in accordance with the auction notice, auction proceedings were held and bank had sold the property a land area 18000 sq. ft. in favour of defendant No. 2. A sale certificate was also issued in favour of defendant No. 2. The plaintiffs sought a declaration that the aforesaid sale certificate be also declared null and void.
The defendant No. 1 in its written statement pleaded that Padamchand Jain, owner of firm "Anil Kumar Padamchand Jain" received a cash credit limit of Rs. 7 lac from the Bank and consequently an equitable mortgage deed was executed by defendants No. 12 - Prakashchand Jain and No. 13 Vijay Kumar Jain and surety was tendered. When the amount was not paid, the Bank declared the account as non performing account and initiated proceedings against the defendant Firm under the provisions of SARFAESI Act and bank had also taken possession of the property. Thereafter, the sell proclamation was issued in the news paper and auction of the property was conducted. Defendant No. 2 tendered his highest bid. Consequently, a sale certificate of the land area 18000 sq. ft. was issued in favour of defendant No. 2 and registered sale deed was also executed on 11.1.2010. Defendants No. 1 had also taken an objection that the civil court had no jurisdiction to entertain the suit. It was also pleaded that the writ petition was also filed before the High Court which was registered as W.P. No. 3282/2009 and High Court vide order dt. 8.12.2009 passed in writ petition directed the petitioner Vijay Kumar Jain to approach Debt Recovery Tribunal. Against the aforesaid order, a Writ Appeal was filed and the Division Bench affirmed the order passed by the writ court.
Trial Court framed 16 issues and held that the court has no jurisdiction to entertain the suit in accordance with Section 34 of the Act of 2002. The trial Court further held that the plaintiffs did not pay the requisite court fee and directed the plaintiffs to pay the court fees on the basis of valuation of the suit.
In the meanwhile, the plaintiffs approached the Debt Recovery Tribunal. The Debt Recovery Tribunal vide judgment dt. 8.12.2012 passed in Second appeal No. 4/2012 filed by Vinod Kumar Jain and Prakash Jain issued the following directions:-
(1) Sale as per IA 4 sale certificate in favour of respondent No. 3 is set aside directing the respondent No. 3 to redeliver possession to the respondent No. 1 & 2 within 15 days from the date of this order.
(2) The respondent Nos. 1 & 2 shall redeliver the possession of the property to the 1st applicant within 15 days.
(3) The auction sale proceeds shall be returned to the 3rd respondent with interest at FDR rate from the date of deposit till the payment is made.
(4) The respondent Bank shall not include the expenses incurred for the proceedings u/s 13(4) which are quashed in the account of the borrower.
(5) The applicant No. 1 shall liquidate the entire dues as on date within 45 days from the date of this order, failing which Bank is at liberty to proceed to recover its dues by taking measures u/s. 13(4) by an Authorised Officer who is well versed in effecting the recovery proceedings strictly in compliance of the Act & Rules, 2002.
Learned counsel for the appellants/plaintiffs has contended that because the trial Court has dismissed the suit for want of jurisdiction, hence, it was obligatory on the part of the trial Court not to record its finding on other issues. Learned counsel for the defendants did not object about the aforesaid proposition.
Learned counsel for the appellants/plaintiffs further contended that the direction of the trial Court to pay the court fees on the basis of valuation of the suit is contrary to law and the appellants are liable to pay fixed court fee. Contrary to this, learned counsel for the respondents submitted that the trial Court has rightly directed the appellants to pay the court fees on the basis of valuation of the suit and the appellants are also liable to pay the fees on the valuation of the appeal in this court also.
It is well settled principle of law that if the court has held that it has no jurisdiction to entertain the suit, then it is obligatory on the part of the court not to pronounce the judgment on other issues because the court lacks the jurisdiction. In the present case, the trial Court has held that it has no jurisdiction to entertain the suit in view of Section 34 of SARFAESI Act. In such circumstances in our opinion, it was obligatory on the part of the court not to pronounce the judgment on other issues about the merits of the case.
In regard to payment of court fees, the court has framed the issue No. 9 in this regard and ordered the plaintiffs to pay the court fees on the basis of valuation of the suit in accordance with Section 7(4)(c) of the Court Fees Act, 1870.
The plaintiffs sought declaration that the suit land is of Joint Hindu Family property and the sell of the land is illegal. Plaintiffs also sought a declaration that the sell certificate is null and void and the possession, which was handed over was illegal. As per the facts of the case, Firm "Anil Kumar Padamchand Jain" received a cash credit limit of Rs. 7 lac from the Bank and consequently an equitable mortgage deed was executed by defendants No. 12 -Prakashchand Jain and No. 13 Vijay Kumar Jain. The loan was not repaid. Consequently the defendant No. 1 Bank initiated proceedings under SARFAESI Act and possession of the land was taken. Thereafter, auction proceedings were initiated and the land was auctioned in public auction in favour of defendant No. 2. A sale certificate was also issued in favour of defendant No. 2. Thereafter, a sell deed was executed in favour of defendant No. 2 and the possession of the land was also handed over in favour of defendant No. 2. Earlier Bank had taken possession of the land. It is also clear from the judgment passed by the Debt Recovery Tribunal that the Tribunal issued directions against defendant no. 2 to re-deliver the possession to the respondent Bank. It means that the possession of the land was not with the plaintiffs. The plaintiffs sought the declaration that the sale deed executed by the bank in favour of defendant No. 2 be declared null and void and they also sought the declaration that the possession was delivered illegally. It means that the relief claimed by the plaintiff includes the delivery of possession also. They also challenged the equitable mortgage and the sale deed executed by the Bank.
Section 7(4) of the Court Fees Act, 1870 is as under:-
(iv) In suits -
for movable property of no market-value -(a) for moveable property where the subject-matter has no market-value, as, for instance, in the case of documents relating to title,
to enforce a right to share in joint family property.-(b) to enforce the right to share in any property on the ground that it is joint family property,
for a declaratory decree and consequential relief. - (c) to obtain a declaratory decree or order, where consequential relief is prayer,
for an injunction. - (d) to obtain in injunction,
for easements. - (e) for a right to some benefit (not herein otherwise provided for) to arise out of land, and for accounts.-(f) for accounts-
according to the amount at which the relief sought is valued in the plaint or memorandum of appeal;
In the present case the appellants/plaintiffs sought the declaration of their share in Joint Hindu Family property and further declaration and other consequential relies. The appellants have made the persons as defendants who had taken the loan on behalf of the Firm. The aforesaid defendants accepted the pleadings. It means that the suit is collusive one. It is also a fact that a Writ Petition was filed, thereafter a Writ Appeal was filed that was also dismissed. In spite of that, plaintiffs persuaded their remedy before the civil court. It means that the plaintiffs instituted collusive proceedings with the collusion of defendants No. 13,14 & 15 to obtain a favourable decree and object was to declare the equitable mortgage as illegal and also declare the sale deed executed by the bank in favour of auction purchaser as void and also recover the possession of the suit property. In such circumstances, in our opinion, the judgments cited by the learned counsel for the appellants in the case of Sunil Radhelia and Others Vs. Awadh Narayan and Others, and Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others, do not support the appellants.
In the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others, , the Hon''ble Supreme Court has specifically held as under;-
Section 7(iv)(c) provides that the suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.
In this case, there is no prayer for Cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "coparcenary" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable u/s 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.
The facts of the present case are quite different.
Full Bench of this court in the case of Santoshchandra and Others Vs. Smt. Gyansundarbai and Others, has held as under in regard to payment of court fee in accordance with Section 7(4)(c):-
Where it is necessary for a plaintiff to avoid an agreement or a decree or a liability imposed, it is necessary for him to avoid that and unless he seeks the relief of having that decree, agreement, document or liability set aside, he is not entitled to a declaration simpliciter. In such cases the question of court-fees has to be determined u/s 7(iv)(c) of the act. However, where a plaintiff is not a party to such decree, agreement, instrument or liability, and he cannot be deemed to be a representative in interest of the person who is bound by that decree, agreement, instrument or liability, he can sue for a declaration of the property, the provided he is also in possession of the property. If he is not in possession of the property, the proviso to section 42 of the Specific Relief Act might be a bar to the tenability of the suit framed for the relief of declaration simpliciter. If the plaintiff is not bound by that decree or agreement or liability and if he is not required to have it set aside, he will have to pay court-fees under any of the clauses of Article 17, Schedule II of the Court-fees Act.
Hon''ble Supreme Court in the case of Shamsher Singh Vs. Rajinder Prashad and Others, has held as under in regard to payment of court fee u/s 7(4)(c) on the fact that a declaratory decree sought by a son for setting aside decree of the property mortgaged by his father and also consequential relief of injunction was sought:-
A suit by a Hindu son against his father and the mortgagee decree-holder for a declaration that the mortgage executed by the father in respect of the joint family property was null and void for want of legal necessity and consideration, though couched in a declaratory form, is in substance a suit either for setting aside the decree or for a declaration with a consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property and the plaintiff is liable to pay ad valorem court-fee under S. 7(iv)(c). A mortgage decree against the father is a good decree is set aside it would remain executable against the son, and it was essential for the son to ask for setting aside the decree.
In the present case as held earlier, it was a collusive proceeding initiated by the plaintiffs. In such circumstances, in our opinion, the trial Court has rightly held that the plaintiffs have to pay the court fees in accordance with valuation of the suit and the plaintiffs have also to pay the court fees accordingly in appeal also. Consequently, the appeal is disposed of with the following directions:-
(i) The finding of the trial court that it has no jurisdiction to entertain the suit is hereby affirmed. The other findings of the trial court, except the finding against issue No. 9 that the plaintiffs/appellants have to pay court fees on the valuation of the suit, are hereby set aside. The findings of trial court against issue No. 9 in regard to payment of court fees are affirmed.
(ii) The plaintiffs shall pay the deficit court fees in accordance with judgment of the trial court. They shall also pay the court fee on appeal accordingly. If the amount is not paid, then the Collector shall be entitled to recover the amount as land revenue.
(iii) Copy of this judgment be also sent to the Collector.
(iv) Looking to the facts of the case, appellants shall pay the costs throughout this court and trial court. Costs shall be paid to the defendant No. 1 Bank.