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Judgment
Sandeep K. Shinde, J
Rule. Rule made returnable forthwith. With consent of the parties, the matter is taken up for final hearing forthwith.
Petitioners hereinafter called plaintiffs instituted suit in the Court of Civil Judge, Junior Division, Pune under Section 77 of the Registration Act, 1908
and sought following reliefs:
(1) Defendant Nos.1 to 5 be directed to register the sale deed dated 1st February, 2011;
(2) A fit and competent person be appointed as Court Commissioner to admit execution on behalf of defendant nos.2 to 5 and the document, i.e., sale
deed dated 1st February, 2011 be registered.
. Thus, suit was for seeking direction to the respondent nos.1 to 5 to register the sale deed dated 1st February, 2011.
Petitioners valued suit in terms of Section 6(iv)(j) of the Bombay CourtÂfees Act, 1958; it reads as under:
“6(iv)(j) for other declarations In suits where declaration is sought, with or without injunction or other consequential relief and the subjectÂmatter in
dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act [ad valorem fee payable, as if the amount or
value of the subject matter was [one thousand rupees;]â€
The learned Judge, however, held that suit is subject to valuation, in terms of Section 6(xi) of the Bombay CourtÂfees Act, 1958 vide order dated
27th March, 2012. This order is challenged in this Petition filed under Article 227 of the Constitution of India.
Mr. Patwardhan, the learned counsel for the Petitioners, submits that the subject suit is to enforce compliance with the statute and subject matter of
the suit, being right to compel statutory obligation and the plaintiffs are asking assistance of the Court to compel the respondents to perform their
statutory obligation. He submits, such right to compel to perform the obligations provided by the statute being, incapable of monetary valuation, and
there being no provision under the CourtÂfees Act for such a suit, provisions of Section 6(iv)(j) of the CourtÂfees Act are attracted and they are
applicable to the suit.
Mr. Patwardhan has taken me through the plaint, which discloses that the sale deed dated 1st February, 2011 was presented for registration on 1st
February, 2011 before the SubÂRegistrar, Haveli No.2, Pune. It was duly executed by twenty parties in all, out of which plaintiffs (3 parties) were the
purchasers, nine parties were vendors and eight parties were the consenting parties. Out of aforesaid twenty parties, 16 parties appeared before the
Sub Registrar, Haveli No.2 and admitted execution of the sale deed. However, four parties, i.e., defendant nos.2 to 5 did not personally appear
before the concerned SubÂRegistrar despite letter dated 16th May, 2011 addressed to them by the SubÂRegistrar. Plaintiffs, in these circumstances,
issued a notice dated 22nd July, 2011 to the SubÂRegistrar requesting him to pass reasoned order for refusing registration under Section 71 of the
Registration Act, 1908 or order registration of the said document after conducting an enquiry contemplated under Section 74 of the Registration Act.
Registrar vide order dated 3rd October, 2011 refused registration in respect of said four executants, who are defendant nos.2 to 5 and registered the
document at Sr.No.1082 on 3rd October, 2011 in respect of remaining executants. Thus, SubÂRegistrar has refused registration on the ground of
denial of execution.
Aggrieved by the order, plaintiffs filed an application under Section 73 of the Registration Act before the Registrar to conduct an enquiry as
provided under Section 74 of the Registration Act, 1908 and order to register the document i.e. the sale deed dated 1st February, 2011. Registrar by
his order dated 20th January, 2012 refused to order the registration and, therefore, plaintiffs instituted suit within thirty days from the date of refusal of
registration under Section 77 of the Registration Act, 1908.
I have perused the plaint and in particular paragraph 8, which reads as under:
“8. The Plaintiffs further say that in the present suit the Plaintiffs are not seeking any relief other than registration of the impugned sale deed dated
01/02/2011. However, in case the Defendant nos.2 to 5 at any stage appear and deny the execution of the document or plead any other defence, the
Plaintiffs crave leave of this Hon'ble Court to amend the suit seeking additional relief and convert the suit into a suit for specific performance. Leave
of this Hon'ble Court is thus sought at this stage itself to convert the present suit into a suit for specific performance. Leave of this Hon'ble Court is
sought at this stage itself as provided under Order 2 Rule of CPC to avoid any prejudice to the Plaintiffs at a later stage.â€
Thus, after going through the provisions of Part XII of the Registration Act and upon perusal of the pleadings in the plaint since the defendant nos.2
to 5 did not remain present for admitting execution of the documents and since the Registrar declined to direct registration of document, the suit is one
under Section 77 of the Registration Act, 1908 and not for enforcement of contract, as held.
The question that arises for consideration is that once the suit is for enforcement of statutory obligation, would it be subject to the provisions under
Section 6(j) of the CourtÂfees Act. Mr. Patwardhan, the learned counsel for the petitioner, has relied upon the judgment of this Court in the case of
Vrindawan (Borivali) Co operative Housing Society Limited v. Karmarkar Bros. and Ors. 1982 Maharashtra Law Journal 607. In this case, the
order returning plaint to the plaintiff for presentation to the proper Court on the ground that the suit was valued beyond the jurisdiction of the Court
was under challenge. The appellant/plaintiff (Society) had filed suit for mandatory injunction and sought declaration that they are entitled to deed of
conveyance having paid entire consideration under the agreement to sale. This Court upon taking survey of the provisions of the Maharashtra
Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 and the provisions of the Bombay CourtÂ‐
fees Act has held that the plaintiffs were seeking a relief in regard to enforcement of statutory obligations and, therefore, not susceptible of monetary
valuation and thus, held that it was correctly valued under Section 6 (j) of the Bombay CourtÂfees Act. In paragraphs 17 and 18, the learned Judge of
this Court held as under:
“17. The arguments of the counsel for the respondent and the learned Government Pleader who adopted the same arguments that under section
6(xi) of the Bombay Court Fees Act the suit should be valued according to amount of consideration for conveyance, does not seem to be justified.
Because, under section 6 (xi) of the Bombay Court Fees Act the contract of sale ordinarily would mean a contract entered into by parties voluntarily
and according to their will and pleasure without any reference to any statute. It is a contract settled by the parties inasmuch as such a contract is fully
dependent on the volition of the parties. The words used in the provisions of section 6 providing the contract of sale will apply only to such a contract
and the present suit is also not a suit in the sense that specific performance of only a contract is sought. The provisions of section 6(xi) of the Bombay
Courts fees Act clearly show that the contract of sale as known to it, has nothing to do with statutory obligations. Therefore, the suit governed by
Section 6 (xi) of the Bombay Court Fees Act is a different suit than the present one which is filed by the plaintiff. The obligations flowing from the
contract of sale mentioned in section 6(xi) of the Bombay Court Fees Act are the obligations, in my opinion, restricted to a contract wherein there is
no question of any compliance with any statute. Mere statutory right is not a subjectÂmatter of such contract. Therefore the provisions of section 6
(xi) are not attracted for the payment of Court fees in the present suit.
The present suit filed by the plaintiff is not a suit simplicitor for specific performance. It is a suit to enforce the compliance with a statute. The
provisions of section 12 providing a penalty for nonÂcompliance with the statute also are relevant. Section 12 of the said Act provides that the flat
owners who contravene subÂsection (1) of section 12 are liable to criminal actions. Section 13 also provides that a promoter who fails to comply with
the provisions of this Act is liable to criminal actions. The reason for referring this penal provision is that the intention of the Legislature seems to be
that the parties governed by this Act must comply with the provisions and nonÂcompliance with the provisions has been made an offence. From this it
can be reasonably inferred that the agreement which is the basis as provided by section 4 for conveyance to be executed cannot be said to be similar
to one which can be the subjectÂmatter of an ordinary contract of sale. Because, if an ordinary contract of sale is violated there will be only a remedy
of damages or for specific performance and no such penal consequence could follow.â€
In the case in hand, the learned Trial Judge has held that the suit is subject to CourtÂfees payable under Section 6(xi) of the Maharashtra CourtÂ‐
fees Act; which reads as under:
“6 (xi) for specific performance.
In suits for specific performance Â
(a) of a contract of sale  according to the amount of the consideration,
(b) of a contract of mortgage  according to the amount agreed to be secured,
(c) of a contract of lease  according to the aggregate amount of the fine or premium (if any) and of the rent agreed to be paid during the first year of
the term,
(d) of an award  according to the amount or value of the property in dispute;â€
In the suit, plaintiffs sought following reliefs
“a) Defendant Nos.1 to 5 is directed to register the sale deed dated 01/02/2011;
b) A fit and competent person be appointed as Court Commissioner to admit execution on behalf of Defendant No.2 to 5 and the document i.e. sale
deed dated 01/02/2011 be registered in respect of Defendant Nos.2 to 5 as well;
c) Any other just and equitable order may kindly be passed in the interest of the justice.â€
Thus, upon reading of the plaint, it was not a suit for specific performance of, the contract of sale or contract of mortgage or contract of lease or
of an award, but for enforcement of statutory obligation. In fact provisions of Section 6(xi) of the Maharashtra CourtÂfees Act, clearly show that the
'contract of sale' has nothing to do with the statutory obligations. Under Clause (xi), categories of the suits of which performance is contemplated, has
no reference to any statute; Whereas in the case on hand, plaintiff is seeking performance of statutory obligations of the defendants under the
Registration Act, which is quite different from the suits contemplated under Clause (xi) of Section 6 of the Maharashtra CourtÂfees Act.
In this case, plaintiff is seeking appropriate directions to the authorities to register the sale deed dated 1st February, 2011 and thus, it was not a
comprehensive suit, being not coupled with any other reliefs. In the given set of facts, the subject matter of the dispute being not susceptible of
monetary valuation, it is subject to valuation under clause (j) of Section 6 of the Maharashtra CourtÂfees Act.
The learned Trial Court held that suit seeking registration under Section 77 of the Registration Act is required to be filed under Section 10 of the
Specific Relief Act, 1963 and relied upon the judgment of the Supreme Court in the case of S. Rajendra v. Prakash AIR 1999 S.C.2958. In fact, this
judgment has been delivered in the case of Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy AIR 1999 Supreme Court 2958.
. Be that as it may in Kalavakruti (Supra), it is held that provisions of Section 77 of the Registration Act would apply only if a matter is pertaining to
registration of a document and not for a comprehensive suit as in the present case where the relief prayed for is directing the defendant to register the
sale deed in favour of the plaintiff in respect of the plaint schedule property and if he so fails to get a registration in favour of the plaintiff for
permanent injunction or in the alternative for delivery of possession of the plaint schedule mentioned property.
. Therefore, in the cited case, it was a comprehensive suit wherein not only direction to the defendant to register document was sought but such other
reliefs including delivery of possession of the suit property. It is under these circumstances, the Hon'ble Supreme Court has held that it would be suit
under Section 10 of the Specific Relief Act, 1963. However, in the case at hand, relief sought by the plaintiffs are in nature of directions to the
authorities to register the saleÂdeed which they had refused when the document was presented for registration. Obviously, it was not a suit under
Section 10 of the Specific Relief Act, 1963 and, therefore, not subject to valuation, under Clause (xi) of Section 6 of the Maharashtra CourtÂfees Act.
In this suit plaintiff is only seeking performance of the statutory obligations and, therefore, it is not susceptible of monetary valuation. The ratio laid
down in the Vrindawan (Borivali) CoÂoperative Housing Society Limited (Supra) is squarely applicable to the facts of the case. Thus, for the reasons
stated, the order impugned is quashed and set aside. Petition is allowed in terms of prayer clauses (a), (b) and ( c ).
Rule is made absolute in aforesaid terms.
Petition is disposed of.