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GURBIR SINGH, J. –

1. Challenge in the present revision petition is to the order dated 18.10.2023 (Annexure P-10), passed by learned Additional District Judge-cum-Presiding Judge, Exclusive Commercial Court, Gurugram (hereinafter referred to as – the Trial Court), whereby the application filed by petitioner/defendant, under Order 7 Rule 11 read with Section 151 CPC, has been partly allowed and partly dismissed.

2. Brief facts, as culled out from the paper book, are that the respondent/plaintiff filed a suit for specific performance and permanent injunction, for directing the petitioner/defendant to perform all its obligations under the Collaboration Agreement dated 16.12.2016, including handing over the peaceful physical, vacant possession of the developed residential plots, as mentioned in the plaint and further restraining the petitioner/defendant from selling, alienating, parting with possession or creating any third party rights in the suit property. Along with the said suit, respondent/plaintiff also filed an application under Section 39 Rules 1 & 2 read with Section 151 CPC.

3. Soon after the filing of the suit, the application under Order 7 Rule 11 read with Section 151 CPC was filed by the petitioner/defendant for rejection of plaint, submitting therein that the suit filed by the respondent/plaintiff is liable to be rejected as the same was false, frivolous, malafide, bogus, without any cause of action and not maintainable as the respondent/ plaintiff had not come to the Court with clean hands. It was submitted that the respondent/plaintiff is neither allottee/owner nor in possession of any plot in the suit property and has never come forward for demarcation of the plots of its share, even after being aware that the development was completed. It was also contended that although the suit was filed for possession by way of specific performance but it was not properly valued for court fees and jurisdiction as proper ad valorem court fee has not been fixed. The objection of having the suit barred by limitation was also raised. Another ground taken for rejection of the plaint was not exhausting the remedy of pre-mediation under Section 12-A of the Commercial Courts Act, as a mandatory provision under the law.

4. The respondent/plaintiff contested the aforesaid application and denied the suit to be untenable in law. It was submitted in the reply that documents on record clearly demonstrate that the respondent/plaintiff repeatedly called upon the petitioner/defendant to comply with its obligations but it failed to do so. Even otherwise, provisions of Order 7 Rule 11 CPC have no application to the facts and circumstances of the present case. Affixation of undervalued ad valorem court fee was also denied. It was further argued that the self-serving documents, relied upon by the petitioner/defendant cannot be taken into account as the same had no basis. It was denied that the present suit was barred by limitation or more than three years have passed, as alleged. The completion certificate is dated 29.09.2020 and if the limitation is to be counted from the said date, the present suit is within limitation. Even otherwise, there has never been denial regarding rights of the respondent/plaintiff in the suit property, so, no question of limitation arises. As far as remedy of pre-litigation mediation was concerned, it was contended that there is no compulsion for the respondent/plaintiff to undertake a pre-litigation mediation, as alleged. Moreover, out of abundant precaution, an application seeking exemption from pre-litigation mediation was filed. It was also denied that a false application seeking interim injunction was filed. Rather, there was extreme urgency in the matter inasmuch as the petitioner/defendant was attempting to sell the land in question, creating third party interest.

5. Having considering the arguments advanced on behalf of both the parties, the learned Trial Court, vide impugned order dated 18.10.2023, partly allowed the application moved by petitioner/defendant and resultantly, the respondent/plaintiff was directed to deposit the balance court fee of Rs.27,72,250/-. The relevant concluding extract of the said order reads as under:-

“10. After going through the judgments relied upon by both the counsel, the court is of the considered view that the judgments relied upon by counsel for the applicant/defendant are applicable to the facts of the case in hand and the court is duty bound to ask the plaintiff to affix proper court fees on the basis of the value of the nearby land as per market value as per the provisions of the Court Fees Act. Further, Hon’ble Punjab and Haryana High Court has held that objection to the same can be raised by the defendant at initial stage by moving an application under Order VII Rule 11 CPC and the court is duty bound to assess the proper court fee to be payable by the plaintiff.

11. As stated above, the plaintiff has assessed the court fee as per the DC rates/circle rates @ Rs.17,600/- per square yards, whereas, the applicant/defendant has relied upon two documents, one agreement to sell dated 15.11.2022 of Sohna area in which the value of the residential plot has been assessed @ Rs.1,60,782.44/- per square yards and second, a conveyance deed dated 16.3.2023 of the Sohna area in which the value of the residential plot has been assessed @ Rs.1,26,029/- per square yards. As far as agreement to sell is concerned, this document cannot be relied upon at this stage since no sale deed has been executed based on this document and the agreement for sale is not a registered document. However, as far as sale deed relied upon by defendant is concerned, the same is a registered document on which stamp duty of Rs.2,20,6000/- has been paid and the sale deed is dated 16.3.2023. So the same can be relied upon at this stage.

12. Since the difference between the two values i.e. the circle rate and the market value of the land in the sale deed relied upon by the defendant is huge, in considered view of the court the average price of the two rates shall be the appropriate value for valuation of the suit property at this stage. Taking average of Rs.17,600/- per square yards and Rs.1,26,029/- per square yards, the same comes out to Rs.71,814.50 So for the purpose of valuation of the suit property, at this stage, the market rate of the suit property is taken as Rs.70,000/- per square yards. At this rate the value of the suit property comes out to Rs. 74,44,50,000/-. The value of the court fee to be paid on this amount comes out to Rs.38,91,050/-. Since the plaintiff has already paid court fees of Rs.11,18,800/-, the plaintiff has to deposit the balance court fee of Rs. 27,72,250/-.

13. In the light of discussion made above, the application moved by the applicant/defendant is partly allowed. The plaintiff is directed to deposit the balance court fee of Rs.27,72,250/- on or before the next date. The application stands partly allowed in aforesaid terms.”

6. I have heard the submissions of learned counsel for the parties and perused the case file.

7. It is admitted by the parties that Collaboration Agreement dated 16.12.2016 was executed between the parties, respondent/plaintiff being the first party and the petitioner/defendant being the second party, for the development of the suit property. Some of the clauses of the said Agreement, which are necessary for just decision of the present petition, are as under :-

"Important Clauses of Collaboration Agreement dated 16.12.2016

Parties : 1st part : St. Patricks Realty Private Limited through Mr. Kapil Bhardwaj

2nd Part : Wharton Engineers and Developers Pvt. Ltd. Through Mr. Resham Singh

Agreement signed on the basis of the representations/inducement of the Party to the First Part - recitals 1& 2 at Pg-65

* 1st party represented that it is a reputed real estate developer having expertise, resources and skills to undertake development of the land

* First party represented that it can develop as a part of its township project in sectors 29 & 30, 32 & 33 of Sohna Master plan, the land of Second Party

Clause 1: Development - Second party entrusts to the First Party, scheduled property and grants absolute right of development for constructing and development as a part of its residential colony/township over the scheduled property.

Clause 2: Deposit - First Party as a part consideration paid to Second party a sum of Rs. 60,00,000 per acre aggregating to the total of Rs. 5,31,75,000/- as an interest free non refundable security deposit.

Clause 3: Consideration : Allotment of 10635 sq. yards for 8.8625 acres in township project along with the right to sell in open market (3.1 and 3.2)

Clause 4: Obligations of the First Party (time period of competition contained in Clauses 4,4 and 4.5 whereby first part to obtain the license within 12 months from agreement, complete the entire plotted development work within 3.5 years with a grace period of 6 months)

Clause 4.6 - Second party has handed over absolute and without any restrictions the actual, physical, vacant and peaceful possession of entire scheduled property."

8. The suit has been filed for specific performance of the Collaboration Agreement and for permanent injunction. The suit for relief of specific performance of an Agreement for the purpose of court fee as per Section 7(x)(a) of the Court Fee Act, 1870 is to be valued equal to the amount of consideration as per contract. The valuation of the suit for the purpose of jurisdiction, as per Section 8 of the Suits Valuation Act, 1887, is to be the same as the value for the purpose of court fee. In para no.35 of the plaint, the suit is valued for the purpose of court fee and jurisdiction which reads as under :-

9. The learned Trial Court considered the Collector rate and prices mentioned in one sale deed, took the average of the same and determined the current market value of the suit property. The learned Trial Court even failed to take into consideration latest document i.e. Builder Buyer agreement dated 15.11.2022 that it was not registered whereas this agreement is registered document. The learned Trial Court has determined the value on the basis of guess work. The method adopted by the learned Trial Court to determine the market rate, on the basis of average of one sale deed and Collector rate, is not sustainable in the eyes of law. So, the impugned order deserves to be set aside on this ground and is accordingly set aside.

10. Under similar circumstances, the Co-ordinate Bench of this Court in case Parjeet Singh vs. Rajinder Pal Singh and others – 2024(1) RCR (Civil) 14, issued direction to the Trial Court to determine the market value of the suit property.

11. The learned Trial Court is directed to determine the market value of the suit property, as on the date of filing of the suit, by allowing the parties to place on record the documentary evidence in that respect and also by seeking information from the office of Collector/Revenue Authorities and thereafter direct the plaintiff to pay the ad-valorem court fee on the market price of the suit property. On payment of said court fee, the Trial Court may proceed further with the suit. In case of default, the Trial Court may pass appropriate orders, in accordance with law. Since the suit has been filed before the Commercial Court, it is expected that the market value of the suit would be determined without any delay, preferably within a period of two months.

12. The question regarding pre-institution mediation has been dealt in the connected revision petition bearing CR No.6650 of 2023 pending between the parties and is being disposed of by the judgment of even date.

13. The Trial Court has rightly held that the limitation in this case is a mixed question of law and facts. The suit cannot be dismissed on the ground of limitation.

14. The revision petition stands disposed of in the above terms.

15. Pending applications, if any, shall stand disposed of along with this judgment.

Order accordingly.

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