Case Note & Summary
The appeal arose from an order of the learned Single Judge dated 1 April 2013 on a Chamber Summons taken out by the appellants to set aside an order of the Taxing Master regarding payment of court fees on a counter claim. The first respondent had filed a suit based on an agreement to assign dated 30 December 2010, seeking a decree against the appellants to admit execution. The appellants filed a counter claim seeking: (a) a declaration that the agreement to assign dated 31 December 2010 is void and unenforceable; (b) a decree directing the second, third, and fourth defendants to provide a residential flat of 850 sq.ft. carpet area to the first and second appellants; and (c) a decree for share in rent. The Taxing Master passed an order determining court fees. The learned Single Judge held that for prayer (a), court fees were payable under Section 6(ha) of the Bombay Court Fees Act, 1959; for prayer (b), under Section 6(v)(b); and for prayer (c), an undertaking to pay court fees was required. The appellants appealed only regarding prayers (a) and (b). The appellants submitted that the relief in prayer (a) was not for the entire agreement but only regarding their share, and they undertook to pay court fees accordingly. The court considered Section 6(iv)(ha) which refers to suits for declaration that any sale or contract for sale is void, with court fee at one half of ad-valorem on the value of the property. The court held that subject to the appellants amending prayer (a) to confine the challenge to their share, computation of court fees under Section 6(iv)(ha) shall be on the value of the property only insofar as the share of the appellants is concerned. Regarding prayer (b), the court found merit in the contention but did not elaborate further, effectively upholding the Single Judge's order. The appeal was disposed of with these directions.
Headnote
A) Court Fees - Counter Claim - Declaration that Agreement Void - Section 6(iv)(ha) Bombay Court Fees Act, 1959 - The appellants sought a declaration that an agreement to assign was void and unenforceable. The court held that the court fees under Section 6(iv)(ha) should be computed on the value of the property only insofar as the share of the appellants is concerned, subject to amendment of the prayer to confine the challenge to their share. (Paras 4-6) B) Court Fees - Counter Claim - Provision of Flat - Section 6(v)(b) Bombay Court Fees Act, 1959 - The appellants sought a decree for provision of a residential flat. The court did not interfere with the learned Single Judge's order that court fees would be payable under Section 6(v)(b). (Para 2)
Issue of Consideration
Whether court fees on a counter claim seeking declaration that an agreement to assign is void and unenforceable should be computed on the value of the entire property or only on the share of the appellants.
Final Decision
Appeal disposed of. Subject to appellants amending prayer clause (a) to confine challenge to their share, computation of court fees under Section 6(iv)(ha) shall be on value of property only insofar as share of appellants is concerned.
Law Points
- Court fees on counter claim for declaration that agreement is void computed on value of property insofar as appellant's share is concerned
- Section 6(iv)(ha) Bombay Court Fees Act
- 1959
