Remanded

State of Kerala and Another v. K.T.Muhammadunni and Another

Kerala HC4 Dec 2008CRP/669/2008

Case brief

AI extract

What is this about?

The Kerala High Court allowed a civil revision petition challenging the estimation of the decree debt by the court below. The High Court found calculation errors regarding interest on solatium and additional compensation, directing the execution court to re-calculate the amount due with correct statements from relevant parties. The revision was allowed with a remand.

What did the court decide?

The order dated 12.8.2008 and proceedings dated 19.8.2008 in EP.No.391/03 were set aside and the case remanded to the execution court for correct calculation of the amount due.

State of Kerala and Another Vs K.T.Muhammadunni and… — Execution and Attachment | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN

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THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930

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CRP.No. 669 of 2008

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--------------------------------EP.391/2003 IN LAR.113/1991 of II ADDL.SUB COURT, THRISSUR ....................

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REVN. PETITIONERS/DEFENDANTS:

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STATE OF KERALA, REP.BY THE DISTRICT COLLECTOR, THRISSUR.

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THE SPECIAL TAHSILDAR (LA) GENERAL, THRISSUR, CHEMBUKAVU.

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BY GOVERNMENT PLEADER

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RESPONDENTS/DECREE HOLDERS:

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K.T.MUHAMMADUNNI, KARUPPAMVEETTIL THEKKETHIL HOUSE, ORUMANAYUR AMSOM & DESOM, P.O.ORUMANAYUR.

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RASIYA, W/O.K.T.MUHAMMADUNNI, DO. DO.

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ADV. SRI.K.SURENDRA MOHAN

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.P. Balachandran, J.

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C.R.P.No.669 of 2008

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ORDER

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Heard the learned Government Pleader and the

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counsel for the respondents. Learned Government Pleader submits that the court below has accepted the statement filed by the respondents/decree holders while fixing the total balance amount due under the decree at Rs.7,65,102/- as on 12.8.2008 vide order dated 12.8.2008; that the said amount takes in interest also on solatium from the date of notification under Section 4(1) of the Land Acquisition Act, whereas, in view of the decisions

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of the Apex Court in Sunder v. Union of India (2001 (3) KLT 489), as modified by the decision of the Apex Court in Gurpreet Singh v. Union of India ((2006) 8 SCC 457) interest on solatium can be granted only from the date of decision in Sunder's case (cited supra) viz., w.e.f. 9.9.2001; that when

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so calculated, the statement filed by the

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respondents/decree holders is incorrect and no further amount will be due; that the deposits towards the decree debt made by the petitioner/ State were all specifying and earmarking as to how the said deposits have to be given credit to exercising the option under Order XXI Rule 1 CPC and therefore, further interest could not accrue on the debt so discharged and when so calculated, there is excess deposit of Rs.2,02,157/- as shown in Annexure-A3 statement filed by the State before the Sub Court on 3.9.2008, whereas, the court below has gone by the statement of the respondents/decree holders on the lines of Annexure-R1(c) statement filed before this Court, which shows that interest is calculated for the amount including solatium from 28.2.1991 onwards; that amounts deposited by the State, as shown in Annexure-A3 statement filed in the court below on 3.9.2008, will show that amounts were being deposited towards the principal, whereas, the respondents/decree holders have

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adjusted the amounts firstly towards interest and it is consequently that huge difference has come in the statement filed by the respondents/decree holders and that the court below has, without properly appreciating the decision of the Apex Court in Sunder's case (cited supra) and the subsequent decision of the Apex Court in Gurpreet Singh's case (cited supra), fixed the amount accepting the statement filed by the respondents/ decree holders. It is further submitted that the calculations in Annexure-R1(c) are also incorrect and faulty inasmuch as 12% additional compensation on the enhanced value of Rs.3,10,544/- is shown as Rs.1,07,241.19, whereas, it will be only Rs.37,265.28, so that the actual enhanced compensation will be only Rs.4,40,972.48 and thus, the statement of the respondents/decree holders

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involves an excess claim of Rs.69,975.91, even before any interest is added thereto and that renders the entire calculation of interest in any

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event faulty and that no attachment should have

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been ordered when actually no amount will be due on a proper calculation.

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On a perusal of Annexure-R1(c) statement filed by the respondents/decree holders before this Court, it is seen that interest is calculated on the entire amount of enhanced value, solatium and additional compensation from 28.2.1991 at 9% per annum for a period of one year and thereafter at the rate of 15% per annum on the entire amount and it is, thus, that the total amount is worked out at Rupees Nine lakhs and odd. It is submitted that the decree does not provide for interest on solatium. Therefore, interest on solatium could be claimed only from 9.9.2001, the date of judgment in

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Sunder's case (cited supra), as held in Gurpreet Singh's case (cited supra). Further, 12% additional compensation calculated on the enhanced land value of Rs.3,10,544/- in Annexure-R1(c) statement is also incorrect as pointed out by the learned

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Government Pleader. These mistakes render the entire statement and calculation of interest faulty and render the claim excessive. The balance shown as Rs.7,61,637.25 as on 25.7.2008 will be actually only Rs.3,88,897/-, even going by the mode of calculation adopted by the respondents/decree holders, if the mistake in calculation of interest alone is rectified.

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According to the petitioner/judgment debtor,

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the deposits were being made right from the very beginning specifying that the deposits are towards principal amount and that therefore, without adjusting those amounts towards the principal, the respondents/decree holders cannot claim interest. It is, therefore, according to the learned Government Pleader, that the amounts deposited are much in excess of what is actually due, when the mistakes in calculation are also rectified.

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However, counsel for the respondents/decree holders is unable to furnish the requisite details

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to support the order passed by the court below. The learned Government Pleader, who appears for the petitioner, is unable to produce any evidence before this Court to show that the deposits were being made specifying that those are towards the principal amount. Similarly, the interest on solatium is calculated not from the date of judgment in Sunder's case (cited supra) as

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clarified and held in Gurpreet Singh's case (cited supra). I have worked out the calculations made in Annexure-R1(c) statement and am satisfied that the statement is incorrect and is advancing claim for highly excessive amounts and that on a proper calculation, amounts due will be much less and that too by a few lakhs, even if the mode of calculation adopted by the respondents/decree holders is accepted.

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In the circumstances, I set aside the order of the court below dated 12.8.2008 on E.P.No.391/03 in L.A.R.No.113/91 as also the proceedings dated

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19.8.2008 and remit the case back to the execution court to fix the exact amount if any due or otherwise to fix the amount that is liable to be refunded to the State on a proper calculation, after insisting both the judgment debtor and the decree holders to file correct statements strictly in accordance with the decree and the decisions aforementioned. If at all the court finds that the statement filed by any of the party is not correct, it is not the duty of the court to correct the statement, but shall insist the party, who has filed the wrong statement, to file a proper statement complying with the decisions aforementioned and clarifying as to how the statement filed by the opposite party is incorrect and on what all aspects.

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This Civil Revision Petition is, thus, allowed by way of remand with the above directions.

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4^th December, 2008 (K.P.Balachandran, Judge) tkv

State of Kerala and Another v. K.T.Muhammadunni and Another

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State of Kerala and Another v. K.T.Muhammadunni and Another

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