MOTILAL SHAMALDAS MAKWANA Vs. RECOVERY MAMLATDAR AHMEDABAD

JUDGEMENT

(1.) The original plaintiffs of Civil Suit No. 1997 of 1979 on the file of the City Civil Court Ahmedabad being aggrieved by the order of the learned City Civil Judge holding that the plaintiffs are liable to pay ad valorem amount of court-fees under sec. 6(ix) of the Bombay Court-fees Act 1959 have approached this Court by way of revision application. A few facts be stated in order to appreciate whether the grievance of the original plaintiffs applicants before me is well founded.

(2.) The plaintiffs are the members of one co-operative housing society known as Alap Co-operative Housing Society Ltd. situated at Usmanpura Ahmedabad. There are about twentyfour members in the society for whom twentyfour houses have been built. The plaintiffs have been allotted houses bearing Nos. 17 6 8 10 13 14 11 and 18 respectively. The land on which these houses have been built was acquired by the Government and allotted to the Society and the Society was legally bound to pay the price of the land according to the extent rules and regulations framed by the Government in that behalf. The houses have been occupied by the plaintiffs and other members. It is the case of the plaintiffs that the entire execution of the housing project of the society was in the hands of the Chairman and the Secretary of the Society Sarvashri Khushaldas Jesingbhai Makwana and Dahyabhai Nathubhai Solanki. The plaintiffs claim that they have carried out and fulfilled all their obligations in the matter of payment for the land as well as for the structures to the Society. The first defendant by his letter of 6/06/1978 called upon the plaintiffs to pay a sum of Rs. 81 277.15 which was due and payable to the Government and it was not paid within the time stipulated in the said letter sixteen houses out of the twentyfour will be attached and sold by public auction and the sale proceeds so realised will be appropriated towards the arrears of the Government. The plaintiffs by their letter of 16/06/1978 submitted the detailed explanation to the first defendant in light of which the first defendant postponed the public auction. Respondent No. 1 thereafter attached other foul houses bearing Nos. 1 4 9 and 3 allotted to the Chairman the Secretary and other two members of the Committee. Respondent No. 1 thereafter issued proclamation for holding public auction on 20/10/1979 The plaintiffs claim that they had made oral as well as written representations to the collector respondent No. 1 herein by their memorandum of 16/10/1978 Inspite of the detailed explanation submitted by the memorandum the first respondent directed that sixteen houses out of twentyfour houses of the Society he attached and sold by public auction which order is challenged in he present suit.

(3.) The plaintiffs have pointed out in their plaint that on coming to know that the Chairman and the Secretary have not paid the price of the land to the Government they had filed Criminal Complaints against them in the Court of Metropolitan Magistrate Ahmedabad for misappropriation of the Societys funds. The police after investigation have filed charge-sheet against the said Chairman and the Secretary who were arrested and produced before the Court of Metropolitan Magistrate Ahmedabad and were released on bail. The Societys account books and other records are claimed to be in the custody of the Chairman and the Secretary while some relevant records are lying in the Court of The Metropol tan Magistrate Ahmedabad. The Plaintiffs also made grievance that the Chairman and the Secretary of the Society have not rendered true and correct accounts of the Society. They have also made a grievance that if the Society is in default of payment the Recovery Officer should not have proceeded against only 16 houses and put them to sale. They have claimed that they are not liable to pay any amount to the Government. Since they have paid all the dues payable on account of the price of the land as well as the cost of the structures to the Society. It is in this set of circumstances that the plaintiffs feel aggrieved by the order of attachment and sale and therefore by the present suit they have prayed for permanent injunction restraining the respondents from attaching or causing attachment being levied on bungalows Nos. 17 6 8 10 13 14 17 and 18 belonging to the plaintiffs and situated at Alap Co-operative Housing Society Lt. and from selling the said bungalows by public auction on 22/06/1979 and also restraining them from interfering with or obstructing in any manner the plaintiffs residence possession and enjoyment of the houses. The plaintiffs have valued the suit at Rs. 5l for the purpose of court-fees and affixed court-fees stamp of Rs. 30.00. An objection being raised by the Court-fees Inspector the matter was referred to the learned City Civil Court Judge who by his impugned order held that the plaintiffs are liable to pay ad va court-fees under section 6(ix) of the Bombay Court fees Act. It is this order which is under. challenge before me.