Full Judgment Text
dgm gm gm IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION
WRIT PETITION NO.7461 OF 2008 WRIT WRIT PETITION NO.7461 OF 2008 PETITION NO.7461 OF 2008
M/s.Gilda Finance & Investment Ltd. Petitioner
Vs.
M/s.Natenco Wind Power Pvt.Ltd & ors. Respondents.
Mr.A.A.Valsangkar i/by.Mr.P.J.Das for the Petitioner.
None for the Respondents.
CORAM : ANOOP V.MOHTA, J. CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J.
DATED : 14th November, 2008. DATED DATED : 14th November, 2008. : 14th November, 2008.
P.C. P.C. P.C.
The petitioner has challenged the order dated
5.9.2008 restricted to the directions to pay court fee
as per Article 7 Schedule I of the Bombay Court Fees
Act, 1959 on or before 25.09.2008 on the amount of
Rs.47,00,000/- (Rupees forty seven lacs). The
petitioner/plaintiff has instituted this court to
restraining defendant nos.1 and 2 from enforcing the
bank guarantee dated 15.1.2007 and 24.2.2007 till the
rights of the plaintiffs are settled in connection
with the Memorandum of Understanding (MOU) dated
26.6.2006 and 9.12.2006.
2. The relevant Article 7 of Schedule I is as under:
"Any other plaint application or petition
(including memorandum of appeal) to obtain
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substantive relief capable of being valued
in terms of monetary gain or prevention of
monetary loss, including cases wherein
application or petition is either treated as
a plaint or is described as the mode of
obtaining the relief as aforesaid.
A fee on the amount of the monetary gain or
loss to be prevented, according to the scale
prescribed under Article 1."
3. After considering the submission basically that
the main Suit is a sort of injunction against the
defendants that is subject to the settlement of his
rights or disputes pursuance to MOU and, therefore, it
is incapable of valuation as contemplated under
Article 7 of Schedule I as reproduced as above.
4. This submission is unacceptable. The learned
Judge has rightly considered this facet which is
reproduced as under:
"16. In the case before this Court the
plaintiff has executed two guarantees of
Rs.47 lakhs in favour of defendant nos. 1
and 2. Now by this suit the plaintiff wants
to restrain the defendants from encashing
two guarantees of Rs.47 lakhs. It means the
plaintiffs want to prevent loss of Rs.47
lakhs. Therefore, present suit is capable
of being valued in terms of money and fall
under Item 7 schedule 1 and not under
Section 6(iv) (j) of Bombay Court Fees Act.
Though the facts before the Hon’ble High
Court in the case referred supra is some
what different from this case, however,
ratio is totally applicable tot his case as
the plaintiff want to prevent the loss of
Rs.47 lakhs."
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5. The relief as claimed ultimately surrounding two
bank guarantees of Rs.47,00,000/-. The order of
injunction in the guise of order of injunction till
the settlement of their dispute through MOU,
ultimately preventing the loss of Rs.47,00,000/- and
in the result gaining the same. The law pertaining to
bank guarantee and any such injunction is settled.
Once the conditions are complied with and there are
breaches, the respective parties/basically bank is
entitled to encash such bank guarantees. The
prevention of such encashment till the decision of
disputes as alleged, it is clear prevention of
encashment of the amount involved. Therefore, on
facts of these undisputed position on record merely
because the suit is termed as simplicitor injunction
that itself cannot be the reason to allow the
parties/plaintiff to file the same by paying the court
fee of Rs.200/- as per the Bombay Court Fee Act. The
Court needs to see the sum & substance and the
substantial reliefs claimed in the Suit.
6. In my view also, the substantive reliefs in
present suit is capable of being valued in terms of
money and falls under the ambit of Schedule I of
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Article 7, though it is not a suit for declaration
which falls under Section 6(iv) (j of Bombay Court Fee
Act. The point is once the suit is capable of being
valued in terms of money and as Schedule I provides
the same, it falls within the ambit of the Act. I see
there is no reason to overlook the said provision and
allow such plaint to be entertained without proper
court fee. (Vide Mohan Meakin Breweries Ltd v. (Vide Mohan Meakin Breweries Ltd v. (Vide Mohan Meakin Breweries Ltd v.
Oceanic Impoprts and Exports Corporation, 1980 Oceanic Oceanic Impoprts and Exports Corporation, 1980 Impoprts and Exports Corporation, 1980
Mah.L.J. 803; Gajanan Anandrao Dake & anr. v. Mah.L.J. Mah.L.J. 803; Gajanan Anandrao Dake & anr. v. 803; Gajanan Anandrao Dake & anr. v.
Vishwanath Ahilaji Thembekar & anr., 1978 Mh.L.J. Vishwanath Vishwanath Ahilaji Thembekar & anr., 1978 Mh.L.J. Ahilaji Thembekar & anr., 1978 Mh.L.J.
30). 30). 30).
7. The Bombay Court Fee Act may not be interpreted
and/or extended to collect the court fee when the
provisions are vague. But in my view, the provision
as referred above are clear and there is no ambiguity.
I see no reason to interfere with the order passed by
the courts below.
8. The petition is therefore dismissed. At the
request of the learned counsel for the petitioner,
time to deposit the requisite court fee is extended by
two weeks from today.
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( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)
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CIVIL APPELLATE JURISDICTION CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION
WRIT PETITION NO.7461 OF 2008 WRIT WRIT PETITION NO.7461 OF 2008 PETITION NO.7461 OF 2008
M/s.Gilda Finance & Investment Ltd. Petitioner
Vs.
M/s.Natenco Wind Power Pvt.Ltd & ors. Respondents.
Mr.A.A.Valsangkar i/by.Mr.P.J.Das for the Petitioner.
None for the Respondents.
CORAM : ANOOP V.MOHTA, J. CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J.
DATED : 14th November, 2008. DATED DATED : 14th November, 2008. : 14th November, 2008.
P.C. P.C. P.C.
The petitioner has challenged the order dated
5.9.2008 restricted to the directions to pay court fee
as per Article 7 Schedule I of the Bombay Court Fees
Act, 1959 on or before 25.09.2008 on the amount of
Rs.47,00,000/- (Rupees forty seven lacs). The
petitioner/plaintiff has instituted this court to
restraining defendant nos.1 and 2 from enforcing the
bank guarantee dated 15.1.2007 and 24.2.2007 till the
rights of the plaintiffs are settled in connection
with the Memorandum of Understanding (MOU) dated
26.6.2006 and 9.12.2006.
2. The relevant Article 7 of Schedule I is as under:
"Any other plaint application or petition
(including memorandum of appeal) to obtain
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( 2 )
substantive relief capable of being valued
in terms of monetary gain or prevention of
monetary loss, including cases wherein
application or petition is either treated as
a plaint or is described as the mode of
obtaining the relief as aforesaid.
A fee on the amount of the monetary gain or
loss to be prevented, according to the scale
prescribed under Article 1."
3. After considering the submission basically that
the main Suit is a sort of injunction against the
defendants that is subject to the settlement of his
rights or disputes pursuance to MOU and, therefore, it
is incapable of valuation as contemplated under
Article 7 of Schedule I as reproduced as above.
4. This submission is unacceptable. The learned
Judge has rightly considered this facet which is
reproduced as under:
"16. In the case before this Court the
plaintiff has executed two guarantees of
Rs.47 lakhs in favour of defendant nos. 1
and 2. Now by this suit the plaintiff wants
to restrain the defendants from encashing
two guarantees of Rs.47 lakhs. It means the
plaintiffs want to prevent loss of Rs.47
lakhs. Therefore, present suit is capable
of being valued in terms of money and fall
under Item 7 schedule 1 and not under
Section 6(iv) (j) of Bombay Court Fees Act.
Though the facts before the Hon’ble High
Court in the case referred supra is some
what different from this case, however,
ratio is totally applicable tot his case as
the plaintiff want to prevent the loss of
Rs.47 lakhs."
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( 3 )
5. The relief as claimed ultimately surrounding two
bank guarantees of Rs.47,00,000/-. The order of
injunction in the guise of order of injunction till
the settlement of their dispute through MOU,
ultimately preventing the loss of Rs.47,00,000/- and
in the result gaining the same. The law pertaining to
bank guarantee and any such injunction is settled.
Once the conditions are complied with and there are
breaches, the respective parties/basically bank is
entitled to encash such bank guarantees. The
prevention of such encashment till the decision of
disputes as alleged, it is clear prevention of
encashment of the amount involved. Therefore, on
facts of these undisputed position on record merely
because the suit is termed as simplicitor injunction
that itself cannot be the reason to allow the
parties/plaintiff to file the same by paying the court
fee of Rs.200/- as per the Bombay Court Fee Act. The
Court needs to see the sum & substance and the
substantial reliefs claimed in the Suit.
6. In my view also, the substantive reliefs in
present suit is capable of being valued in terms of
money and falls under the ambit of Schedule I of
::: Downloaded on - 01/04/2024 15:42:32 :::
( 4 )
Article 7, though it is not a suit for declaration
which falls under Section 6(iv) (j of Bombay Court Fee
Act. The point is once the suit is capable of being
valued in terms of money and as Schedule I provides
the same, it falls within the ambit of the Act. I see
there is no reason to overlook the said provision and
allow such plaint to be entertained without proper
court fee. (Vide Mohan Meakin Breweries Ltd v. (Vide Mohan Meakin Breweries Ltd v. (Vide Mohan Meakin Breweries Ltd v.
Oceanic Impoprts and Exports Corporation, 1980 Oceanic Oceanic Impoprts and Exports Corporation, 1980 Impoprts and Exports Corporation, 1980
Mah.L.J. 803; Gajanan Anandrao Dake & anr. v. Mah.L.J. Mah.L.J. 803; Gajanan Anandrao Dake & anr. v. 803; Gajanan Anandrao Dake & anr. v.
Vishwanath Ahilaji Thembekar & anr., 1978 Mh.L.J. Vishwanath Vishwanath Ahilaji Thembekar & anr., 1978 Mh.L.J. Ahilaji Thembekar & anr., 1978 Mh.L.J.
30). 30). 30).
7. The Bombay Court Fee Act may not be interpreted
and/or extended to collect the court fee when the
provisions are vague. But in my view, the provision
as referred above are clear and there is no ambiguity.
I see no reason to interfere with the order passed by
the courts below.
8. The petition is therefore dismissed. At the
request of the learned counsel for the petitioner,
time to deposit the requisite court fee is extended by
two weeks from today.
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( 5 )
( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)
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