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Shri. Vijay Jagdish Chheda vs Ms. Dimple Vijay Chheda on 6 April, 2018

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Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 13973 of 2017

Shri Vijay Jagdish Chheda, ..Petitioner.

Vs

Ms. Dimple Vijay Chheda, ..Respondent.

Mr. A.V. Anturkar, Senior Advocate i/by Tanaji
Mhatugade for the petitioner.

Mr. Abhijeet D. Sarwate, Advocate for respondent.

CORAM : SMT. BHARATI H.DANGRE, J.
nd March, 2018.
RESERVED ON :- 22
th
PRONOUNCED ON :- 6 April, 2018.

JUDGMENT:

1 The present petition is filed by the petitioner, being

dissatisfied by the judgment and order passed by the learned Family

Court No.2, Pune on 21/9/2017 on an application at Exh.40 in P.A.

No. 931/2016. By the said impugned order, the application preferred

by the respondent on the ground of non-payment of court fees as

required under the provisions of the Maharashtra Court Fees Act was

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treated as inquiry under section 8 and direction was issued to the

present petitioner to pay full ad-valorem court fees on the said

amount.

2 In order to test the impugned order, it is necessary to cull

out certain facts leading to the passing of impugned order. The

petitioner before this Court is the husband and his marriage was

solemnized with the respondent on 15/10/1995. The respondent

wife filed a petition seeking dissolution of marriage, which came to

be numbered as PA 931/2016. According to the petitioner, during

subsistence of the marriage, a joint account came to be opened by the

petitioner and the respondent in HDFC Bank bearing Savings Bank

Account No. 0103000058319 along with the mother of the petitioner.

It is the case of the petitioner that various amounts were deposited

by him in the said joint account and the said amount was invested in

various mutual funds to the tune of Rs.3,22,30,000/- and on its

maturity the amount of Rs. 3,79,50,80,807/- was accumulated in the

mutual funds. It is the case of the petitioner that the respondent

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wife unilaterally redeemed certain mutual funds on or about

6/9/2017 and an accumulated amount of Rs.2,40,79,935.69 was

deposited in the joint account. According to the petitioner, further

funds were unilaterally redeemed and total amount of

Rs.3,97,51,807/- was deposited in the joint account because of

premature redemption of mutual funds. It is the specific case of the

petitioner that investment in the mutual fund was to be utilized for

the welfare of their three children being born out of the said wedlock.

The petitioner was aggrieved by the act of the respondent

on unilaterally redeeming the mutual fund and depositing the

amount in the joint account and further unilaterally transferring the

amount of Rs.3,79,50,80,807/- by RTGS to her personal savings

account in Axis Bank, Senapati Bapat Road, Pune on 6/9/2017 to the

tune of Rs.3,79,51,579/- from the joint account. Being aggrieved by

the said act of the respondent, the petitioner moved an application

for interim relief in the pending P.A. No. 931/2016 filed by the

respondent wife, requesting the court to issue necessary mandatory

interim directions for re-transfer of the amount of Rs.3,79,51,579/-

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from the personal savings account of the Axis Bank, Senapati Bapat

Road, Pune to the joint account of the petitioner and the respondent

along with their mother i.e. savings account No. 0103000058319 of

the HDFC Bank. The said application was opposed by the respondent-

wife by filing reply on merits. The respondent also moved another

application Exh.40 on 18/9/2017 under the provisions of Section 8 of

the Bombay Court Fees Act, 1959 read with Suit Valuation Act, 1887

and in the said application the respondent prayed that the requisite

court fees be paid on ad-valorem basis, since the relief sought in the

application was in the nature of a suit for the purpose of recovery of

amount of Rs.3,79,51,579/- and therefore looking to the real nature

of the application, it was prayed that the provisions of section 6 (i)

and 6 (iii) of the Maharashtra Court Fees Act, 1959 are attracted.

The said application was opposed by the present petitioner by stating

that the provisions sought to be invoked were not applicable in

respect of an interim application and was applicable only in respect of

plaint. It is in this background, the impugned order came to be

passed by the learned Judge of the Family Court on 21/9/2017

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which is assailed in the present petition.

3 The petitioner is represented by the learned Senior

Counsel Shri Anturkar and the respondent is represented by Shri

Abhijeet Sarwate. The learned Senior Counsel for the petitioner

would invite the attention of this Court to the application preferred

by the petitioner and to the prayers made in the application seeking

re-transfer of the amount of Rs.3,79,50,807/- from the account of the

Axis Bank to the joint account of the petitioner/respondent, namely,

the HDFC Bank, Ferguson College Road, Branch Pune. The learned

counsel would submit that the said application did not seek any

“substantive relief” and in fact the said application has been preferred

as an application for interim relief in a petition filed under the Hindu

Marriage Act and what has been sought by the said application is

restoration of the status-quo ante, which is a prayer and relief only in

an aid and assistance of the Family Court to pass a substantive relief

under the Hindu Marriage Act at the time of final hearing. He would

submit that if an application seeking monetary relief at an interim

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stage are treated as applications within meaning of Article 7 of

Schedule 1 of the Maharashtra Court Fees Act, it would result into

disastrous consequences. The learned counsel Mr. Anturkar would

submit that the words used in Statute are to be construed with

reference to the context in which they have been put to use and it

should not be permitted to be read in the manner which would defeat

the purpose of the Statute and the intention of the legislature. The

learned counsel would submit that by the application presented

before the Family Court, what he sought was restoration of money

into the joint account which was already in existence and intended to

be maintained for the welfare of the children and it was the

respondent-wife who had transferred the amount from the said

account to her individual account and, therefore, he has only sought

directions to revert the money to the original account in which it was

deposited. The learned counsel would submit that, he in any case is

not claiming any money and therefore he is not seeking any

substantive relief but the relief was sought only by way of interim

measure and he had thought it fit to file the proceedings in the

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Family Court, since the wife had already instituted proceedings for

divorce in the same court. Ultimately, according to him, at the most if

the application would have been allowed, he would have been

entitled only for re-transfer of the amount, which is quite distinct

from he claiming the money by filing a suit.

The learned counsel would place reliance on the

judgment of the Apex Court in the case of Bangalore Water Supply

Board versus A. Rajappa and Ors reported in 1978 (2) SCC 213 and

specifically he would place reliance on the specific observation made

by Justice V.R.Krishna Iye. He would also rely on the judgment in the

case of Balkrishna Ramchandra Kadam versus Geeta Balkrishna

Kadam reported in 1997 (7)SCC 500 and judgment of the Gujarat

High Court in the case of Inderlal Panwarmal versus Khialdas

Shewaram and others reported in AIR 1971 Guj 86, wherein the

Court has taken view that the Court fee provision applicable to a case

must be fixed having regard to the substance and not the form of a

plaint and a relief which is not sought cannot be imported so as to

charge court fee thereon. According to the learned counsel, what is

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important is to take into consideration the relief sought in a case,

before levying court fee on the said document.

4 Per contra, the learned Counsel Mr Sarwate would

support the impugned order, which has been passed by the Family

Court. According to the learned counsel the Court has to see as to

what is the relief that is claimed and he would submit that the

application preferred by the petitioner sought a relief which was in

the nature of money suit and the learned counsel would submit that

in any case the said application preferred by the petitioner would fall

within Article 7 of Schedule I, which covers all such applications

seeking substantive relief capable of being valued in terms of

monetary gain or prevention of monetary loss and according to him,

since the petitioner has sought re-transfer of the amount from the

saving account of Axis Bank to the joint account of the petitioner and

the respondent in HDFC Bank and he also sought a restraint order

from utilizing the transferring or exhausting the amount, it is nothing

short of a money suit. According to the learned counsel, if at all the

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claim was to be made in absence of any pending proceeding before

the Family Court, the petitioner would have been required to institute

a suit in the nature of money claim for the reliefs, which he has

claimed in the application and for which he would have been

required to pay amount of court fee in terms of Section 6 (i) of the

Maharashtra Court-fees Act, 1959. According to the learned counsel,

Shri Sarwate, an application has been intentionally preferred by

captioning it as application in the nature of interim relief in order to

avoid payment of court fee and according to the learned counsel the

Judge, Family Court, has clearly unearthed this mischief and directed

the petitioner to pay appropriate court fees stamp by applying

Schedule I of the Maharashtra Court-fees Act. The learned counsel

thus would support the impugned order and would pray that the writ

petition deserves to be dismissed.

5 Learned Counsel Shri Sarwate relies on the judgment of

Apex Court in case of Samsher Singh vs. Rajinder Prashad AIR 1973

SC 2384. He also relied on judgment of this Court in case of Gilda

Finance Investments Ltd. vs. Natenco Wind Power Pvt. Ltd. and in

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case of M.W. Breweries Ltd. Vs. Oceanic I. E. Corporation, 1980

Mh.L.J. 804.

It is admitted fact that the wife had filed proceedings

before the Family Court, Pune seeking dissolution of marriage. In the

said proceedings the petitioner has filed an application praying for

the following reliefs;

(a) that the petitioner may kindly be directed to
retransfer forthwith the said amount of
Rs.3,79,51,579/- from her said savings account
at Axis Bank, Senapati Bapat Road, Pune, to the
Joint Account of the petitioner, the Respondent
and his mother namely Savings Account No.
01031000058319, HDFC Bank, Fergusson
College Road Branch Pune;

(b) that the Petitioner may kindly be restrained
from transferring, using, utilizing or exhausting
the said amount of Rs.3,79,51,579/- or part
thereof, in any manner of whatsoever nature,
from her savings bank account at Axis Bank,
Senapati Bapat Road Branch, Pune, till the said
amount is re-transferred to the Joint Account of
the Petitioner, the Respondent and his mother
namely Savings Account No. 01031000058319,
HDFC Bank, Fergusson College Road Branch,
Pune;

(c) that the Petitioner may kindly be restrained

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from transferring any amount lying in joint
account of the Petitioner and the Respondent
namely Savings Account No. 01031000058319,
HDFC Bank, Fergusson College Road Branch,
Pune, during the pendency of the present
petition;

On perusal of the application, it is seen that there was a

joint account in the name of the petitioner, respondent and the

mother of the petitioner in HDFC Bank, which is an operational

account. Certain monies accumulated in the joint account came to be

invested into HDFC Corporate Debt opportunities fund, ICICI P 121

Multicap Fund Growth and Multicap Fund Growth, which are mutual

funds and the investment was to the tune of Rs.3,22,30,000/-. The

said principal amount, however, had matured to the tune of

Rs.3,79,50,807.17. It is the case of the petitioner that the said

amount came to be unilaterally transferred by the respondent wife

redeeming the mutual funds into her own individual account with the

Axis Bank. The petitioner preferred the application titled as

application for interim relief seeking re-transfer of the said amount to

the joint account since the said amount was invested so as to secure

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the future of the three children born out of the wedlock and

according to the petitioner, the wife had no exclusive right over the

said money, specifically considering the fact that the same was

deposited in the mutual funds. The petitioner in the application has

categorically stated that the petitioner and the respondent was

staying in the same house and the respondent was taking care of the

household expenses as well as the expenditure of the school and

studies of three children. According to the petitioner, the wife had

clandestinely transferred the said amount to her own account and

therefore a direction was sought to re-transfer the amount to the joint

account and a prayer was also made to the effect restraining the wife

from expending the amount.

On the interim application filed by the petitioner, the Family

Court was pleased to pass an order of status-quo on 14/9/2017.

The respondent-wife preferred an application and stated that

the petitioner-husband cannot claim the entire amount of money and

he can only pray for his 1/3rd share. In any case, it was stated that

when he claims the entire money to the tune of Rs.3,79,51,579/- by

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way of re-transfer, the Court fee is payable thereupon as per the

amount claimed and the application therefore ought to have been

accompanied with court fee of Rs.3 lakhs. The respondent wife

alleged that the Court has committed illegality by entertaining the

application and granting relief in favour of the petitioner in gross

violation of Section 5 of the Maharashtra Court Fees Act. She prayed

that any such order is void ab-initio and she also prayed that the

application at Exh.36 be struck off the record.

6 The Maharashtra Court-fees Act, 1959 which deals with

the payment of court fees taken into courts and public offices

mandates payment of fee on the documents and as per Section 5 of

the said Act, no document of any of the kinds specified as chargeable

in the first or second Schedule of this Act, annexed shall be filed,

exhibited or recorded, in any Court of Justice, or shall be received or

furnished by any public officer, unless in respect of such document

there has been paid a fee of an amount not less than that indicated by

either of the said Schedules as the proper fee for such document.

Section 6 of the Maharashtra Court-fees Act provides for computation

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of the fees payable under the Act in the suits mentioned in the said

Section and to be paid in the manner prescribed. Section 6 reads

thus :

The amount of fee payable under this Act in the suits

hereinafter mentioned shall be calculated as follows :

(i) In suits for money (including suits for damages or

compensation, or arrears of maintenance, of annuities, or of other

sums payable periodically ) according to the amount claimed;

Two Schedules appended to the Act are distinguishable as

Schedule I provides for ad-valorem fee, whereas Schedule II provides

for fixed fees. Perusal of Schedule I would reveal that it provides for

the fees to be levied on plaint, application or petition of various

nature filed seeking reliefs of varied nature. Item 7 of Schedule I

needs reproduction as under :-

Item No. 7:- Proper fee:-

Any other plaint, A fee on the amount of the
application or petition monetary gain, or loss to be
(including memorandum of prevented, according to the scale
appeal), to obtain prescribed under Article 1.
substantive relief capable
of being valued in terms of
monetary gain or

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prevention of monetary
loss, including cases
wherein application or
petition is either treated as
a plant or is described as
the mode of obtaining the
relief as aforesaid.

According to Item 1, Schedule I, in any plaint or

memorandum of appeal or, of cross objection presented to any Civil

or Revenue Court, the ad-valorem fees shall be dependent on the

actual amount or value of the subject matter in dispute and different

stakes are indicated in item I – the provision the Item I, however,

fixes a cap on the maximum fee leviable on the plaint or

memorandum of appeal or cross objection to be 3 lakhs.

7 Perusal of the reliefs sought in the application by the

petitioner, no doubt, reveal that he claims re-transfer of the amount

and it is in the nature of a money claim. The Court has to see, what

is nature of the suit and the reliefs claimed while applying the

provisions under the Court-fees Act. If a substantive relief is claimed,

though clothed in the garb of a declaratory decree with the

consequential relief, the Court would be entitled to see the real

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nature of the relief claimed and if it is satisfied that it is not a mere

consequential relief but a substantive relief, then, it is duty bound to

direct proper valuation of the document, whatsoever may be its

caption/title.

The petitioner has moved the application in the proceeding

presented by the wife seeking decree for dissolution of marriage.

Under the Hindu Marriage Act, several reliefs of substantive nature

can be claimed which includes the relief to be granted under Section

9, i.e. for restitution of conjugal rights, Section 10 prayer of judicial

separation, Section 11 declaring a marriage as void, Section 12

voidable marriages and Section 13 decree of divorce.

The Hindu Marriage Act also contains a provision which would

permit a party to claim ancillary reliefs like the one provided under

Section 24 of the Act – “maintenance pendente lite” and expenses of

the proceedings. Section 25 – Permanent alimony and maintenance,

Section 26 custody of children and section 27 disposal of property.

These reliefs can be claimed in any proceeding instituted under the

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Hindu Marriage Act and are in the nature of interim reliefs. Though

an attempt has been made by learned Senior Counsel Mr Anturkar to

canvass that the application preferred by him is the one akin to

Section 27, which deals with disposal of property and he would

ultimately submit that the application preferred by him is only in aid

and assistance of the Court to pass final and substantive relief

claimed by the wife in her petition, at the time of final hearing, the

aforesaid submission seems to be misconceived. It is not the case of

the petitioner that the investment made in the bank account of HDFC

Bank including any amount presented at or about time of marriage

belonging jointly to both husband and the wife.

The reliance placed by the learned Senior Counsel in case

of Balkrashna Ramchandra Kadam vs. Sangeeta Balkrishna Kadam,

1997 (7) SCC 500 is also misplaced. The Hon’ble Apex Court

construed the term “at or about time of marriage” in Section 27 of

the Hindu Marriage Act and has held that it would only cover the

property presented at or about the time of marriage provided it is

relatable to the marriage. However, the claim regarding presentation

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of such property has to be established on the basis of evidence.

The purport of Section 27 is to empower the Court to make

such provision in the decree with respect to any property presented at

or about the time of marriage, which may be jointly belonging to

both husband and wife. In the present case, the petitioner husband

and wife have invested certain amount in a joint account held by

them along with his mother. In fact, perusal of the statement of

account No 01031000058319, HDFC Bank , Fergusson College Road,

Pune, reveals that the primary account holder of the said account is

respondent Ms Dimple Vijay Chheda whereas the name of the

husband Vijay Jagdish Chheda is reflected as a second holder and

name of Ms Rashmi Chheda is reflected as a third holder. Thus, the

contention of the petitioner that it was an account in which he and

his mother were only depositing the amount from time to time do not

appear to be correct. The account holder is the respondent and the

petitioner is the second joint holder. However, since the account is

jointly held by the parties, the amount could be deposited by either

parties and can be withdrawn by either of the account holder. It is

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also seen that the mutual fund was linked to the bank account and

whenever the redemption amount accrued on account of maturity

funds were credited to the respective individual accounts, which

includes the account of the respondent-wife. There were four mutual

funds in which the amount was invested in and it was in usual course

that the amount got deposited into the accounts to which they were

linked. In any case, the petitioner is seeking the re-transfer of the

amount which is nothing but relief in the nature of money claim and

would clearly attract the provisions of Section 6 (i) where the court

fees is to be paid according to the amount claimed and the maximum

fee to be levied in such type of suits is the amount of Rs.3 lakhs.

8 Perusal of provisions of Section 7 of the Family Courts Act

1984, which provides for jurisdiction to be exercised by the Family

Court, would reveal that the Family Court shall have jurisdiction to

deal with suits or proceedings of various nature and it includes suit or

proceeding between the parties to a marriage with respect of the

property of the parties or either of them by virtue of Section 7 (1)

(c).Thus, the Family Court has the jurisdiction to entertain a suit or

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proceedings with respect to the property belonging to the parties or

belonging to either of them. The Family Court therefore possess the

jurisdiction to deal with any such application and since the Court is

exercising its jurisdiction, which it is empowered to do, any such

application is not liable to be entertained unless and until there has

been paid a fee of an amount as indicated in the Maharashtra Court

Fees Act, 1959.

Section 5 of the Maharashtra Court Fees Act has applied the

word “Documents” and it mandates that no document of any kind as

specified as chargeable either in the I or II Schedule of the Act shall

either be filed, exhibited or recorded, or shall be received unless

there has been paid a fee in terms of the provisions of Maharashtra

Court Fees Act. Section 5 applies the term “document” in a wide

sense covering documents of varied description, categorized in the

Article 1 of Schedule I and therefore mere nomenclature of

document would not be decisive factor to find out as to what court

fee is to be paid but it will have to be ascertained from the nature of

relief claimed in the application. If an application seeks a relief of

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substantive nature capable of valued in terms of monetary gain or

where it prevents monetary loss, then item 7 of Article 1 is attracted.

The claim made by the petitioner in the application is in the nature of

money claim capable of being valued in terms of monetary gain or

prevent monetary loss to him and he has sought a restraint order to

prevent him from suffering any monetary loss and therefore such

application must be accompanied with proper court fee so that the

Family Court exercises its jurisdiction and entertain such an

application to grant or refuse a relief, as has been claimed.

9 Arguments advanced by the learned Senior Counsel that

the relief sought is not “substantive relief” is also not sustainable as

even if it a substantive relief is camouflaged as a consequential relief,

it is to be seen as to what is the nature of relief and in my considered

opinion the relief which is sought by the petitioner is the one covered

under section 6 (i) and if the petitioner intends to call upon the

Family Court to exercise its jurisdiction under Section 7 (i) (c) then

the said application, in terms of section 5 of Maharashtra Court-fees

Act cannot be entertained unless and until the party invoking the

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jurisdiction of the court has paid the fee of an amount indicated in

the Schedule I of the Maharashtra Court-fees Act.

10 The learned Single Judge of this Court in the case of

Bhagwan Gundu Mohite vs. Janabai Bhagwan Mohite in Writ Petition

(Civil) No. 6705 of 2013 had an opportunity to construe Article 7 of

Schedule I and the Court after referring to the judgment of the

Bombay High Court in case of M.M. Breweries Limited vs. Oceanic I.

E. Corporation, 1980 Mh.L.J. 804 arrived at a conclusion that the

suit claimed substantive relief of declaration and also sought an

injunction restraining defendant from making any payment and from

enforcing the bank guarantee, thereby preventing a loss to the

plaintiff of the amount guaranteed under the two bank guarantees.

The Hon’ble Court therefore held that the suit clearly fall within the

purview of Article 7 of the Schedule I of the Act. The judgment of the

Bombay High Court in case of M.M.Breweries (supra) had clearly laid

down the position of law that the plaintiff who wanted to prevent

loss of an amount filed a suit and claimed the relief, capable of being

valued in terms of money and thus it would fail within the purview of

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Section 6 of the Bombay Court-fees Act and the Division Bench held

that the provision of Item 7 Schedule I is attracted. It was noticed by

the Court that Article 7 of Schedule I covered either plaint,

application or objection seeking the substantive relief capable of

being valued in terms of monetary gain or prevention of monetary

loss.

The application preferred by the petitioner clearly falls within

the purview of Article 7 of Schedule I. The reliance placed by

Advocate Sarvate on the judgment of the Bombay High Court in case

of Gilda Finance Investment vs. Natenco Wind Power Pvt. Ltd.

decided in W.P. No. 7461/2008 is completely justified. In the said

judgment, the plaintiff had instituted proceeding restraining the

defendant from enforcing bank guarantee till the rights of the

plaintiff were settled in connection with the MoU. The learned Single

Judge of this Court arrived at a conclusion that the substantive relief

in the suit, being capable of value in terms of money would fall

within the ambit of Article 7 of Schedule I, though it is not a suit for

declaration which would fall under section 6 (iv)(j) of the Bombay

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Court Fee Act. The Court had observed that once the suit is capable of

being valued in terms of money and as Schedule I provides, it would

fall within the ambit of Act. Another judgment on which the learned

counsel Mr. Sarvate has placed heavy reliance. Judgment of the

Hon’ble Apex Court in the case of Shamsher Singh Vs. Rajinder

Prashad Ors, AIR 1973 (SC) 2384 where the Hon’ble Apex Court

has observed thus :-

“As regards the main question that arises for
decision it appears to us that while the court fee
payable on a plaint is certainly to be decided on
the basis of the allegations and the prayer in the
plaint and the question whether the plaintiff’s
suit will have to fall for failure to ask for
consequential relief is of no concern to the Court
at that stage the Court in deciding the question
of court fee should look into the allegations in
the plaint to see what is the substantive relief
that is asked for. Mere astuteness in drafting the
plaint will not be allowed to stand in the way of
the Court looking at the substance of the relief
asked for.”

11 The impugned order passed by the Judge Family Court

has treated the application filed by the respondent as the one

instituted an inquiry under section 8 of the Maharashtra Court-fees

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Act and on examination, the Family Court has come to the conclusion

that the prayer made in the application seeks to recover an amount of

Rs.3,79,51,579/- which is susceptible to monetary evaluation and

hence governed by Section 6 (i) of Bombay Court Fees Act and has

directed the petitioner to pay full ad-valorem court fees on the said

amount. An application was also preferred by the respondent praying

for invocation of Order VII Rule 11 Code of Civil Procedure, which

the Family Court has declined to entertain, such being at premature

stage. It cannot be said that the impugned order suffers from any

illegality or perversity. The impugned order passed by the Family

Court on 21/9/2017 is upheld and the present writ petition being

without merits and substance deserves dismissal and is dismissed

accordingly.

[SMT.BHARATI H.DANGRE, J.]

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