Dismissed

Jasobanti Patel v. Nirmala Sa

Orissa HC15 Mar 2016CMP/274/2016

Case brief

AI extract

What is this about?

This order dismisses a compliance petition regarding bank guarantees. The Court upheld the District Judge's direction requiring the petitioners to provide security for 50% of compensation they had withdrawn pending a civil suit, rejecting the argument that the Supreme Court restricted security to the fixed deposit portion only.

What did the court decide?

The compliance petition was dismissed, upholding the order directing the petitioner to provide two separate bank guarantees for the withdrawn 50% compensation.

3. 15.03.2016 Orders dated 13.10.2015 and 11.02.2016 passed by the learned C ivil Judge (Senior Division), Sundargarh in C.S. No.248 of 2012 directing the petitioners to f urnish two bank guarantees in pursuance of the order dated 08.05.2015 passed by the learned Di strict Judge, Sundargarh in FAO No.1 of 2015 is under challenge in this CMP.

2. Civil Suit No.248 of 2012 has been filed by the opposite parties claiming therein that one Nabakishore Sa, the husband of opposite party No.1 and father of opposite parties 2 to 4 is the adopted son of late Dambarudhar Sa and Bimala Sa. The opposite parties being the legal heirs, succeeded to the movable and immovable properties of Dambarudhar and Bimala. They also prayed for a decree declaring the order passed by the Tahasildar, Hemagir in Mutation Proceedi ng No.360/1989 as illegal and in the alternative, they prayed for declaration of right, title and interest in respect of the suit properties being the reversioners of Bimala Sa in case the adoption is disbelieved. During pendency of the suit, he had filed IA No.89 of 2014 under Ord er 39 Rules 1 and 2, CPC to pass a mandatory injunction for protection of the compensation amo unt.

The dispute is with regard to the compensation amount in respect of part of the suit p roperty which was acquired for the purpose of Mahanadi Coal Fields Limited (MCL). They contend ed that land in Sabik Khata No.23 of village Gopalpur in the district of Sundargarh, which cor responds to Hal Khata No.109 was originally recorded in the name of late Dambarudhara Sa and a fter his death his widow Bimala Sa succeeded to the same. But the father of defendants (petiti oners herein) could manage to mutate the same in his name in Mutation Proceeding No.360 of 198 9 showing Bimala Sa to be dead by then, although by that time Bimala Sa was alive and she died only in the year 1990. The said Khata No.109 was acquired for the purpose of MCL. On the basi s of mutation ROR, they could manage to make entry of their names in the survey made by the Co al India and the authorities settled the claim amount in their favour. The entire compensation was deposited in Account No.0928010252935 of United Bank of India, Gopalpur Branch opened in the name of the present petitioner No.1 taking into consideration the order passed in the afor esaid Mutation Proceeding. Pursuant to the direction of the Honble Supreme Court, 50% of the c ompensation has been deposited in FDR and rest 50% has already been withdrawn by the present p etitioners though the opposite parties tried their level best to protect their interest before the Claims Commission set up pursuant to the direction of the Honble Supreme Court as well as Additional District Magistrate (R & R), Basundhara. Subsequently, they approached the Chairma n of the Claim Commission to freeze the account opened in the name of present petitioner No.1 on the ground of pendency of Civil Suit. The Honble Claim Commission by their order dated 21.0 8.2014 in Civil Case No.400 directed the ADM (R&R)-cum-Disbursing Authority to freeze the undi sbursed as well as fixed deposit amount deposited in the name of the present petitioners in UB I, Gopalpur Branch for a period of thirty days and directed them to get a restraint order from the competent court of law within that time. In the meantime, the opposite parties had also a pproached this Court in W.P.(C) No.805 of 2013 praying inter alia to quash the award awarded i n favour of the present petitioners which was dismissed on the ground that the report of the Commission set up by Honble Supreme Court, has already been accepted by Honble Supreme Court. 3. During pendency of the suit, the opposite parties approached the Honble Supreme Court and vide order dated 17.10.2014, the Honble Supreme Court in IAs 11, 20 and IA. (unregistered ) was pleased to direct that any payment that would be made is subject to the result of the CS said to be pending between the parties. They further pleaded that they have earlier filed IA No.73 of 2014, but the same was rejected with an observation that the Court has no jurisdictio n as the Honble Supreme Court is in seisin of the matter. But, in view of the order passed by the Honble Supreme Court in the aforesaid IAs, they filed the present I.A.

4. The present petitioners filed their show cause denying the assertions made in the I.A. They contended that the opposite parties are no way related to the family of the Dambarudhan and Bimala, as such they have no right to succeed to their properties. Rather, the father of t he present petitioners, namely, Niladri Sa was adopted son of Dambarudhar and Bimala. Taking t hat into consideration, Mutation Proceeding No.360 of 1989 was allowed by the Tahasildar Hemag ir and the land was recorded in their names after the death of Dambarudhara and Bimala. Land i n dispute was acquired under the provisions of Coal Bearing (Acquisition and Development) Act, 1957. As such, the Civil Courts have no jurisdiction and the Tribunal constituted under the A ct is only competent to decide the dispute. At the time of acquisition, they were in possessio n of the suit land, which was only source of their livelihood. Thus, pursuant to the direction of the Honble Supreme Court, report has been prepared indicting their names to receive the co mpensation. Accordingly, an Account was opened in the name of the petitioner No.1 at UBI, Gopa lpur branch, Sundargarh. Pursuant to the direction of the Honble Supreme Court, 50% of the com pensation amount has been kept in Fixed Deposit and the rest 50% has been withdrawn by them fo r their sustenance as they lost their only source of livelihood by virtue of the acquisition. They further contended that when the Honble Supreme Court is monitoring the matter, learned Ci vil Judge should not entertain any application which would affect the rights of the parties an

d prayed for dismissal of the I.A. No.89 of 2014. 5. Learned Civil Judge (Senior Division), Sundargarh vide his order dated 10.12.2014 reje cted the IA against which the present opposite parties preferred FAO No.1 of 2015. 6. Taking into consideration the materials on record and on hearing the learned counsel f or the parties at length, learned District Judge vide order dated 08.05.2015 directed as follo ws:-

That, the present FAO as preferred by the above named plaintiffs/appellants be and the same is herewith allowed on contest, but without cost in the circumstances. It is herewith or dered that, account No.0928010252935 of the UBI Gopalur Branch, Sundargarh, opened in the name of the respondent No.1 in consequence to the total compensation amount awarded in favour of t he respondents by the MCL authorities in respect of some of the suit Hal plots of the suit out of which 50% has been deposited as FDR as per the order of the Supreme Court of India is here with attached and no further transaction between the bank and respondent No.1 and/or the defen dants/ respondents be entertained by the UBI, Gopalpur Branch, Sundargarh unless and until the respondents file two separate bank guarantees in respect of the 50% of the aforesaid total co mpensation amount deposited in that account simultaneously giving an undertaking to the effect that, they shall deposit the said 50% of the total claim amount if withdrawn in the meanwhile , before the Court if required by the Court in the event of disposal of the Civil Suit No.248 of 2012 on merit. And the rest 50% of the compensation amount out of the total of which has be en deposited as FDR shall not be liquidated in favour of any of the party of the suit till fin al disposal of the suit and until further order. Accordingly, the impugned order dtd.10.12.201 4 passed by the Civil Judge (Sr. Division), Sundargarh in I.A. No.89 of 2014, arising out of C ivil Suit No.248/2012, is herewith set aside. Issue an extract copy of this order to UBI, Gopa lpur Branch, Sundargarh to follow the above order.

The said order was assailed by the present opposite parties under CMP No.879 of 2015 before th is Court. This Court while dismissing the said CMP, vide order dated 19.08.2015 directed the l earned Trial Court to expedite hearing of the suit and conclude the same as expeditiously as p ossible, preferably by end of March, 2016. It is stated at Bar that the petitioners had unsucc essfully made an attempt by assailing the said order before the Honble Supreme Court in SLP ( C) No. 34878 of 2015 which was dismissed by order dated 16.12.2015. After disposal of the FAO No.1 of 2015, plaintiffs filed a petition before the learned Trial Court for issuance of a dir ection to the defendants to comply with order dated 08.05.2015 passed in the said FAO. Learned Civil Judge vide his order dated 13.10.2015 directed the defendants to comply with the direct ion made in the aforesaid FAO. Again after disposal of the CMP, learned Civil Judge vide order dated 11.02.2016 issued direction to comply with the order of this Court in CMP No.879 of 201 5 as well as FAO No.1 of 2015 passed by learned District Judge, Sundargarh within a period of ten days. Against the said order, the instant CMP has been filed. 7. Heard Mr.A.K.Nanda, learned counsel for the defendants/petitioners and Mr.P.K.Rath, le arned counsel for the plaintiffs/opposite parties.

8. On a perusal of the order of the learned District Judge, Sundargarh in FAO No.1 of 201 5 as quoted above, it appears that the learned District Judge has directed to furnish two sepa rate bank guarantees in respect of 50% of the total compensation amount deposited in the accou nt opened in the name of petitioner No.1. Simultaneously, directing the present petitioners to give undertaking to the effect that they shall deposit said 50% amount, if they have withdraw n the same in the meantime, before the learned Trial Court if required at the disposal of the CS No.248 of 2012 on merit. Mr.Nanda, learned counsel for the petitioners submits that the le arned Trial Court has misinterpreted the order of the learned District Judge. Learned District Judge in his order has only directed to furnish two bank guarantees in respect of the FDR amo unt and not in respect of the amount they have already withdrawn. He also submits that the Hon ble Supreme Court has already held in IA No.11, 20 and IA Nos (unregistered) that any amount t hat would be paid shall be subject to the result of the CS. As such, the impugned direction co uld not have been issued by the learned Trial Court in the garb of compliance of order passed in FAO No.1 of 2015. It would amount to overreach the aforesaid direction of the Honble Suprem e Court. He also submits that the petitioners have admittedly withdrawn 50% of the compensatio n amount. Thus, the direction to furnish bank guarantees can only be a condition precedent for release of FDRs. Further, the petitioners are not in a position to furnish any bank guarantee for the amount they have already received as directed in the impugned order. No such directio n can legally be issued against them imposing condition in view of the direction of the Honble Supreme Court in IA Nos.11, 20 and I.A. No. .. (unregistered).

9. Mr.Rath, learned counsel for the for the opposite parties, on the other hand, submits that in view of direction of the Honble Supreme Court in the aforesaid I.As., the amount so di sbursed in favour of the present petitioners should be protected so that the decree, in the ev ent passed in favour of the plaintiffs/opposite parties, can be effectively executed. Learned

10. On going through the order passed in FAO No.1 of 2015, it is crystal clear that 50% of the compensation amount has been deposited in a Fixed Deposit and it is directed by the learn ed District Judge that the FDR amount shall not be liquidated in favour of any of the parties till final disposal of the suit. Thus, the order requiring furnishing of the bank guarantee is essentially in respect of the rest 50% of the compensation amount which has already been disb ursed in favour of the petitioners and rightly so. Though a feeble contention by Mr.Nanda was raised to the effect that the order passed by the learned District Judge is ambiguous, the sam e is not sustainable as it has already been upheld by this Court in CMP No.879 of 2015 and by Honble Supreme Court in SLP (C) No.34878 of 2015.

Jasobanti Patel v. Nirmala Sa

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Jasobanti Patel v. Nirmala Sa

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