Vijender Jain, J. (Oral)— This is a suit filed by the plaintiff, ‘Eastman Kodak Company’, against the defendants for permanent injunction and for rendition of account. The plaintiff has prayed for obtaining a decree for permanent injunction against the defendants from using the trade mark ‘KODAK’ or any other trade mark deceptively similar thereto. The plaintiff has also prayed for a decree against the defendants to render the account of profits earned from the use of the trade mark KODAK upon or in relation to its goods and business. The plaintiff has valued the suit for the purposes of court fee and jurisdiction for a decree of permanent injunction at Rs. 200/- each and on which the court fee of Rs. 20/- each has been paid. For prayers (iii) and (v) for rendition of accounts and payment to the plaintiff for the purposes of jurisdiction are together valued at Rs. 5,05,000/- and it is stated that the plaintiff estimates that a sum in excess of that amount will be found due from the defendants. However, for the purposes of the court fee prayer (iii) and (v) are valued at Rs. 5,000/- each whereon the court fee of Rs. 638/- each has been paid. The Court at the outset feels that the plaintiff has hopelessly and arbitrarily undervalued the court fee in view of the averments made by the plaintiff in the plaint.
2. Mr. D.D Singh, learned counsel for the plaintiff, has argued that for the purposes of fixing the court fee on the relief of rendition of account, it is the valuation given by the plaintiff which has to be taken by the Court as correct and Court cannot impose its own valuation to that of plaintiff. Mr. Singh has also cited before me ILR Del (2) 1974 491 a Full Bench decision of this Court in support of his contentions.
3. There cannot be any doubt with regard to the proposition of law as Lald down in Smt. Sheila Devi & ors v. Shri Kishan Lal Kalra & ors. ILR delhi (2) 1974 491 that para-4 of section 7 of the court fees act gives a right to the plaintiff in any of the suits mentioned in the clauses of that paragraph to place any valuation that he likes on the relief he seeks, subject, however, to any rules made under Section 9 of the Suits Valuation Act, and the Court has no power to interfere with the plaintiff's valuation.
4. But the case; before me is of a different nature. Before me there is a plaint which has been filed by the plaintiff which is a Company existing under the law of State of New Jersey, United State of America. It has also been averred that plaintiff is a manufacturer and seller of wide range of goods including photographic material, chemicals, cameras, video tapes etc. The plaintiff is the proprietor of the trade mark KODAK registered in its name in several classes. In para-3, the plaintiff has given description of the goods in relation to its trade mark KODAK, registered in its name. In para-4 it has been mentioned as to how many additional trade marks registration plaintiff has got in India. In para-8 the plaintiff has given the sales figure of the goods sold under the trade mark KODAK with K Device in India in the last 10 years. Mr. Singh says that sale in 1985 in India may be approximately 13 crores and in 1993 it may be approximately 108 crores. To my mind the figure of sales as described in para-8 for the year 1993 is 10876,07,000 and on the top of it plaintiff has given “Value in thousands” would come to approximately 1000 crores of rupees. With that kind of high volume of sales, the plaintiff has filed its suit against the defendants for various reliefs for injunction and rendition of account. For the purposes of understanding the true scope of the prayer, it is relevant to reproduce Clauses (iii) and (iv) of the plaint, which are as follows ¦-
“Clause (iii) A preliminary decree be passed in favour of the plaintiffs, directing the Defendants to render an account of profits earned from the use of the trade mark KODAK, upon or in relation to its goods and business.
Clause (iv) A final decree be passed in favour of the plaintiff against the Defendant for the amount found due and payable to the plaintiffs after the Defendants have rendered accounts.”
In para-23 the plaintiff has explained as to how he has fixed the court fee, sub-para (b) is as follows:—
“Prayers (iii) and (iv) for rendition of account and payment to the plaintiff for purposes of jurisdiction are together valued at Rs. 5,05,000/- (Rupees Five Lakh and Five Thousand only) as the plaintiff estimates that a sum in excess of that amount will be found due from the Defendant. However for purposes of court fee prayers (iii) and (iv) are valued at Rs. 5000/- each (Rupees Five Thousand only) whereon the court fee of Rs. 638/- each has been paid. The plaintiff undertakes to pay the balance court fee before the final decree for payment is drawn up.”
5. Prayers (iii) and (iv) for rendition of account and for purposes of jurisdiction are together valued at Rs. 5,05,000/- (Rs. Five Lakh and Five Thousand only) as the plaintiff estimates that a sum in excess of that amount will be found due from the defendant. However, for purposes of court fee prayers (iii) and (iv) are valued at Rs. 5,000/- (Rupees Five Thousand only) whereon court fee of Rs. 638/- each has been paid. The plaintiff undertakes to pay the balance court fee before the final decree for payment is drawn up.
6. No doubt, it is true that the valuation fixed by the plaintiff for relief of rendition of account would be valuation for the purposes of the suit and court fee has to be paid on that valuation. But in a case before me where the sales of the plaintiff is in several hundred crores of rupees and in sub-para (b) of Para-23 it has also been categorically stated by the plaintiff that a sum in excess of Rs. 5,05,000/- may be found due from the detendant whether the valuation fixed by the plaintiff is not arbitrary, unjust and whether the plaint has not undervalued the relief. Section 7(iv)(f) of the Court Fees Act is as follows ¦-
“For accounts:—According to the amount at which the relief sought is valued in the plaint or memorandum of appeal.
In all such suits the plaintiff shall state the amount at which he values the relief sought.”
7. The intention of the legislature in enacting this provision was not to burden the plaintiff with court fee to be paid on an amount which is unspecified and unascertained. As it would be only fair to have court fee paid by the plaintiff on amount which the plaintiff feels in his bona fide and reasonable belief to be the amount at which he assesses the value of the relief so that he can ultimately pay the amount of actual court fee after rendition of account when a decree in terms thereof is passed. But it does not give the plaintiff a right to undervalue the relief, put up an arbitrary or ridiculously low amount in order to escape the payment of court fee at the time of institution of the suit.
From the averments made in the plaint, it cannot be said that fixing the court fee for the relief of rendition of account at Rs. 638/- on an amount of Rs. 5,000/- is bona fide or fair.
Therefore, there is no force in the arguments of learned counsel for the plaintiff that it is the plaintiff who has got the ultimate right to fix the valuation according to his own whims and fancies. There is another aspect of the matter and that is contained in provisions of Order 7 Rule 11 of CPC. Sub-Rule (b) of Rule 11 of Order 7 provides ¦-
“Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so.”
The provisions of sub-rule (b) of Rule 11 of Order 7 of CPC also deals with cases where the plaintiff undervalues the relief. I am of the opinion that it is a case where the plaintiff has undervalued the relief. I am also supported in my view by the law lald down by the Supreme Court in the case of Abdul Hamid Shamsi v. Abdul Majid and ors. [1988] 3 S.C.R 507 the Supreme Court held:—
“It is true that in a suit for accounts the correct amount payable by one party to the other can be ascertained only when the accounts are examined and it is not possible to give an accurate valuation of the claim at the inception of the suit. The plaintiff is, therefore, allowed to give his own tentative valuation. Ordinarily the Court shall not examine the correctness of the valuation chosen, but the plaintiff cannot act arbitrarily in this matter. If a plaintiff chooses whimsically a ridiculous figure it is tantamount to not exercising his right in this regard. In such a case it is not only open to the Court but its duty to reject such a valuation.”
As stated earlier, I am of the considered opinion that in this case the valuation given by the plaintiff is arbitrary and undervalued. There are two course open for me at this stage either to reject valuation fixed by the plaintiff in terms of the observations made by the Supreme Curt or to invoke the provisions of Order 7 Rule 11 to give time to the plaintiff to make good the deficiency in payment of the court fee. I opt for the latter. I grant one week's time to the plaintiff to make the deficiency good in the court fee, keeping in view the tenor and magnitude of the trade and relief sought on account of rendition of account so as to come to a fair and reasonable figure, failing which the plaint shall be rejected.