Disposed

Orissa State Financial Corporation v. Govindaram Choudhury

Orissa HC16 Mar 2016CMP/293/2016

Case brief

AI extract

What is this about?

CMP dismissing appeal against an order directing payment of decree execution expenses. Court held that while judgment debtors must bear costs of court-executed sale deed, they are entitled to seek refund of stamp duty paid from the executive government.

What did the court decide?

CMP disposed with direction to permit petitioners to seek refund of stamp duty paid on sale deed executed through court process.

16.03.2016 Heard Mr. P.K.Routray, learned counsel for the petitioner-Corporation and Mr.Bibekanan da Bhuyan, learned counsel for the opposite party. 2. Petitioners in the CMP assail the order dated 11.01.2016 passed by the learned Senior Civil Judge (1st Court), Cuttack in Execution Proceeding No.2228 of 2014. 3. Civil Suit (I) No.124 of 2008 filed by the opposite party for specific performance of contract was decreed on contest against the defendants (petitioners herein) with the following order:- O R D E R

C.S. (I) No.208 of 2007 is dismissed on contest against the Defendants No. 1 and 3, an d ex-parte against Defendant No. 2 with cost. C.S. (I) No. 124 of 2008 is decreed on contest a gainst the Defendants with cost. Defendant No. 1 is directed to execute the sale deed for enti re Ac. 0.76 decimals of land, including the suit land appertaining to plot No. 717, under Khat a No. 153, having Chaka No. 109 corresponding to mutated Khata No. 457/2006 of Mouza:- Kothasa hi, under Tangi Police Station, in favour of the plaintiff within 3 (three) months from the da te of this order, and he is directed to give delivery of possession of the above land to the p laintiff along with plant, building, machinery standing therein, as the plaintiff had already purchased the same being highest bidder for a sum of Rs. 47,50,000/-, which the plaintiff had already paid to the Defendants, failing which the plaintiff is at liberty to get the sale dee d executed through process of the Court along with delivery of possession of the entire Ac. 0. 76 decimals, which includes the suit land at the cost of the Defendants. Further, the Defendan ts are directed not to sell the suit land to any other person, and not to

invite any tender in this regard by way of permanent injunction and the plaintiff is also dire cted get the suit land converted under Section 8-A of the O.L.R. Act and the plaintiff is also directed to pay the premium amount in this regard to the concerned authorities i.e. in the Ta hasil of Tangi-Choudwar, as per his letter dated 11.07.1991. However, in these circumstances, the plaintiff is not entitled for any other reliefs whatsoever. Advocates fee on contested sca le.

4. At present, this Court is only concerned with CS (I) No.124 of 2008, wherein it is spe cifically directed that the defendant No.1 (petitioner No.1 herein) would execute the said dee d in question within three month from the date of the judgment failing with the plaintiff (opp osite party herein) would be at liberty to get the sale deed executed through the process of C ourt along with delivery of possession of the entire Ac.0.76 decimal of land which includes th e suit land, at the cost of the defendants. Defendant No.1, however, did not execute the sale deed within the stipulated time for which the plaintiff approached the Court by filing Executi on Case No.2228 of 2014 to execute the decree. After the sale deed was executed through Court, the opposite party party-D.Hr. filed an application for breaking upon the lock of the suit pr emises. However, vide order dated 20.12.2014, said petition was dismissed and the Execution Pr oceeding was dropped. Assailing the same, opposite party filed CMP No.192 of 2015, which was d isposed of on 30.11.2015 with the following direction:-

Be that as it may, if there is something more to be executed by virtue of the of the decree of the petitioner, it is open for the petitioner to file an application before the executing Cou rt for execution of that part of the decree and which application shall be considered independ ently, without being influenced by the observations made in the order dated 20.12.2014 and aft er giving opportunity of hearing to the judgment debtor.

5. Pursuant to the aforesaid order passed in CMP No.192 of 2015, opposite party filed an application seeking for a direction to the J.Drs. to pay the decreetal dues described in Sche dule-A of the petition, which is quoted hereunder:-

dt. 03.12.2013 till 11.12.2015. Rs. 3,82,347/-. 3. Cost of taking delivery of possession. Rs. 5,000/-. 4. Cost of Execution towards Litigation, Cost, Lawyers Fees, Legal Expenses. Rs. 20,000/-. Total- Rs. 19,93,877/-. (Rupees Nineteen Lacs Ninety Three Thousand Eight Hundred Seventy Seven)

The Executing Court disposed of the said application directing the J.Drs.(petitioners herein) to pay a sum of Rs.10,685/- towards the cost of the decree and Rs.15,75,845/- towards expenses incurred in registration of the suit schedule land.

6. Mr. Routray, learned counsel for the petitioner-Corporation taking exception to the di rection made on claim at Sl. No.2 of Schedule-A (supra) submits that the stamp duty on a sale deed is not payable by the Corporation as per the notification/order No.Regn-16/07-17751/RDM d ated 7th May, 2007 issued by the Government in Revenue and Disaster Management Department (Ann exure-6) and Office Order No.2095/III-MSME-(OSFC)-61/2013 dated 27.04.2013 issued by the Gover nment of Odisha in MSME Department (Annexure-7). He submits that the stamp duty is always paya ble by the executant and the petitioner-Corporation being executant of the sale deed no stamp duty is payable in view of the aforesaid notification (Annexure-6) and Office order (Annexure- 7). Thus, he prays to set aside the impugned judgment, wherein, the J.Drs have been directed t o pay a sum of Rs.15,75,845/- towards expenses incurred in registration of the suit schedule l and.

7. Mr. Bhuyan, learned counsel for the opposite party vehemently objects to the same and submits that the petitioners were at liberty to execute the sale deed within the period stipul ated in the judgment, i.e., within three months from the date of the judgment. When they faile d to do so, opposite party was constrained to put the decree to execution and in executing the sale deed he has incurred the cost as reflected at Sl. No.2 of Schedule-A (supra). The trial Court in the judgment specifically directed that on failure of execution of the sale deed wit hin three months by the J.Drs., the D.Hrs. will be at liberty to get the sale deed executed th rough the process of Court along with delivery of possession, which includes the suit land, at the cost of the defendants. When there is specific direction of the Trial Court to the J.Drs. to

bear the cost of such execution on his failure to execute the sale deed within the stipulated period, the learned Executing Court is correct in issuing the impugned direction. Hence, the i mpugned order needs no interference. 8. Having heard the learned counsel for the parties and on perusal of records, this Court finds that there is no infirmity in the impugned order as there is specific direction in the judgment and decree in C.S. (I) No.124 of 2008, which is put to execution in Execution Case No .2228 of 2014, that on failure of the defendants to execute the sale deed within the stipulate d period, the plaintiff would be at liberty to execute the same through process of the Court a t the cost of the defendants. Admittedly, plaintiff/opposite party has spent the impugned amou nt towards stamp duty and other miscellaneous expenses, which is accordingly payable by the de fendants. At the same time, the submission of Mr.Routary, learned counsel for the petitioners cannot be ignored. It is his submission that the petitioners are exempted from payment of stam p duty in view of the notifications/orders under Annexures-6 and 7. 9. In that view of the matter, this Court disposes of the CMP with a direction that it wo uld be open for the petitioners to seek for refund of the stamp duty paid on the sale deed exe cuted through the process of the Court in Execution Proceeding No.2228 of 2014 of the Court of Civil Judge (Senior Division), 1st Court, Cuttack in accordance with law. 10. With the aforesaid observation and direction, the CMP stands disposed of.

Orissa State Financial Corporation v. Govindaram Choudhury

Case brief

What is this about?

What did the court decide?

Orissa State Financial Corporation v. Govindaram Choudhury

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Pratap Chandra Kar Vs Narayan Dutta

Manjulata Choudhury Vs Rasmi Patel

Jasobanti Patel Vs Nirmala Sa

Manoranjan Das Vs Antaryami Senapati

Akuli Ch.Das Vs Sangram Keshari Patr

Adikanda Panigrahi Vs Jyotiranjan Ray