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1998 DIGILAW 153 (KER)

Mathunni Mathai v. State of Kerala

1998-03-26

P.SHANMUGAM

body1998
Judgment :- P. Shanmugam, J. Decree holder and the petitioner in E.P. before the 1 st Additional Sub Judge is the revision petitioner. The executing court rejected the application for realisation of the balance amount due. The revision is against this order. 2. Petitioner obtained a decree dated 12.3.1985 before the Sub Court for an enhanced market value of the property acquired from him. The decree was confirmed in appeal, L.A.A. No. 237/85. Besides the High Court ordered that the petitioner is entitled to the statutory benefit conferred by the Land Acquisition (Amendment) Act, 1984. The matter was taken up before the Supreme Court. The Civil Appeal was dismissed by the judgment dated 25.4.1995 (Mathunni Mathai v. H. O. C. Ltd., 1995 (1) KLT 784). 3. The petitioner was awarded an enhanced compensation of Rs. 53,958/26 by the reference Court. The respondents made two payments, viz. Rs. 78,015/63 and Rs. 87.540/- totalling Rs. 1,65,55 5/63. The petitioner in the present execution petition, E.P. No. 546/95, claims a further sum of Rs. 72,612/39. 4. The case of the petitioner is that he is entitled to appropriate the amount deposited in the Court towards interest, cost, solatium and principal at his choice. It is his further case that the judgment rendered by the Supreme Court is binding on both the parties including the executing court. According to him, even though the judgment of Mathunni Mathai's case (1995 (1) KLT 784) was overruled in Prem Nath Kapur v. National Fertilizers Corporation of India Ltd. ((1996) 2 SCC 71), the latter decision is not applicable to the petitioner's case. 5. Learned counsel appearing on behalf of the 2nd respondent-Company had filed objections before the executing court and reiterated the position that the amount already deposited is in excess of the actual amount due to the decree holder. Learned Government Pleader who appeared on behalf of the State supports the order of the executing court relying on the latter decision of the Supreme Court. 6. I have heard the counsel. Paragraph 8 of the present execution sets out the details of the amount due which are as A perusal of the claim shows that the petitioner has worked out interest on solatium and additional solatium. Initially a deposit of Rs. 78,015/63 was made on 15.1.1988. After deducting this amount from the total amount due to the petitioner, the balance was stated to be Rs. 84,457/04. Initially a deposit of Rs. 78,015/63 was made on 15.1.1988. After deducting this amount from the total amount due to the petitioner, the balance was stated to be Rs. 84,457/04. Again interest was calculated at the rate of 15% for the said amount. The second payment of Rs. 87,540 was made on 3.8.1991. On the balance amount interest was claimed at the rate of 15%. The executing Court found that even after making two payments and appropriating the said amount the petitioner is making a claim of Rs. 72,612/39 as on 4.7.1995 with subsequent interest thereon at the rate of 15% per annum. This claim cannot be sustained and it would cause a heavy loss to the Government. The executing Court also found that L.A. Officers without making deposit of the full decree amount to record full satisfaction wilfully or not they will pay only part of the amount which are appropriated towards interest, cost, solatium and additional market value. Thereafter the claim is kept alive to make further claims. According to learned judge in this case the decree holder is not end tied to get any balance amount as claimed in the execution petition. 7. In Mathunni Mathai's case (1995 (1) KLT 784) while deciding the question whether the amount deposited is to be adjusted towards the principal amount due first or against the interest and other charges held that if the judgment debtor intends that the running of interest should cease then he must intimate in writing and ensure that it is served on the decree holder. In the absence of any intimation as required by sub-r.(2) and indication of manner of appropriation, the payment could not be deemed to have been appropriated towards principal unless the decree holder admits it to be so. The said ruling of the Supreme Court and the principle underlying were overruled in Prem Nath Kapur's case ((1996) 2 SCC 71). The Supreme Court held that the ratio in Meghraj case ((1969) 2 SCC 274) is equally inapplicable to the appropriation of debt under the Land Acquisition Act and the same is applicable only to a debtor and creditor in an ordinary civil suit governed by the provisions of the CPC. The Supreme Court held that the applicability of CPC to the proceedings under the Act stands excluded under S.53 of the Land Acquisition Act which shall prevail. 8. The Supreme Court held that the applicability of CPC to the proceedings under the Act stands excluded under S.53 of the Land Acquisition Act which shall prevail. 8. The latter decision of the Supreme Court also held that compensation under S.23(1) by necessary implication, excludes the liability to pay interest on solatium. So also no solatium is payable on additional amount payable under S.23(1-a ) and no interest is payable on additional amount under S.23(1-a ) on other components except on compensation or excess compensation or part thereof determined under S.23(1) of the Act. In the latter decision the Supreme Court answered the basic question whether the claimant is entitled to appropriate from the principal amount of compensation determined under S.23(1) towards cost, and then towards interest payable under either S.34 or S.28 or after Amendment Act came into force with effect from 24.9.1984, additional amount under S.23(1-a) in the following words: "The liability to pay interest ceases on the date on which the deposit into court is made with the amount of compensation so deposited When the deposit is made towards the specified amounts, the claimant/owner is not entitled to deduct from the amount of compensation towards costs, interest, additional amount under S.23(1-A)with interest and then to claim the total balance amount with further interest". Their Lordships expressed their reasoning in the following words: "It is clear from the scheme of the Act and the express language used in S.23(1) and (2), 34 and 28 and now S.23(1-a ) of the Act that each component is a distinct and separate one. When compensation is determined under S.23(1), its quantification, though made at different levels, the liability to pay interest thereon arises from the date on which the quantification was so made but, as stated earlier, it relates back to the date of taking possession of the land till the date of deposit of interest on such excess compensation into the court. Equally, when the appellate court under S.54 further enhances the compensation, interest is payable on such excess amount determined under S.23(1). Equally, when the appellate court under S.54 further enhances the compensation, interest is payable on such excess amount determined under S.23(1). In other words, the liability to pay interest arises as and when the compensation is further enhanced and liability to pay interest would be coterminous with the payment of the amount under S.34 from the date of taking possession till date of payment of or deposit or under S.28 or S.54 from the date of taking possession till the date of deposit of such excess amount into the court. The liability to pay interest is only on the excess amount of compensation determined under S.23(1) and not on the amount already determined by the Land Acquisition Officer under S.11 and paid to the party or deposited into the court or determined under S.26 or S.54 and deposited into the court or on solatium under S.23(2) and additional amount under S.23(1-a). Thus, we hold that the liability to pay interest on the amount of compensation determined under S.23(1) continues to subsist until it is paid to the owner or interested person or deposited into court under S.34 read with S.31. Equally the liability to pay interest on the excess amount of compensation determined by the Civil Court under S.26 over and above the compensation determined by the Collector/Land Acquisition Officer under S.11 subsists until it is deposited into court. Propriovigore in case of further enhancement of the compensation on appeal under S.54 to the extent of the said enhanced excess amount or part thereof, the liability subsists until it is deposited into court. The liability to pay interest ceases on the date on which the deposit into court is made with the amount of compensation so deposited". (emphasis added) 9. In this case, it is not possible to discern from the facts set out or from the execution petition as to how the quantification has been done. The liability to pay interest ceases on the date on which the deposit into court is made with the amount of compensation so deposited". (emphasis added) 9. In this case, it is not possible to discern from the facts set out or from the execution petition as to how the quantification has been done. From the provisions of the Land Acquisition Act the award would consist of the following components: a) the compensation determined under S.23(1), b) solatium on the market value determined under S. 23(2), as additional sum for compulsory nature of acquisition, and c) payment of interest on the amount of compensation under S.11, on excess or part thereof under S.26 awarded by Court from the date of taking possession till, date of deposit into the court at the rates specified under the provisions of Ss.34 and 28 respectively, d) additional amount at 12% per annum under S.23(1-a ) shall be paid or deposited from the date of notification under S.4(1) till the date of award. The liability to pay interest under Ss.34 and 28 on the amount of compensation or on excess compensation is from the date of the award and the decree. Petitioner has set out the details of the amount due in E.P. No. 546 of 1995 as follows (Earlier E.P.): "Details of amount due: Total market value determined by the Court Rs. 1,58,691-36 Amount payable under S.23 (1A) at the rate of 12% Per annum from 4.11.1980 till 19.10. 1981 Rs. 18,249-50 Solatium at the rate of 30% on the enhanced market Value awarded by the court Rs. 16,187-00 Add I Solatium of 15% on the amounts already given By the land Acquisition officer Rs. 15,709-97 Enhanced market value awarded by the court Rs. 53,958-26 Total exes thus payable to the decree holder Rs. 1,04104-73 Interest thereon for one year from 21.10.81 Till 21.10.82 @ 9% per annum Rs. 9,369-42 Interest thereon from 21.10.82 till 5.11.89 at 15% p.a Rs. 85,235-71 Total Rs. 1,98,709-86 Payment of 5.4.88 Rs. 78,015-63 Balance Rs. 1,20694-23 Interest thereon from 5.4.88 till 5.11.89. at 15% per annum Rs. 28,719-32 Rs. 1,49,413-55 Cost decreed 500-00 Execution cost allowable 359-00 Total Rs. 1,50,272-55 The petitioner has added to the enhanced compensation of Rs. 53,958/26 awarded by the Court interest at 12%, under S.23(1-a) solatium @ 30% and @ 15%, totalling Rs. 1,04,104/73. 78,015-63 Balance Rs. 1,20694-23 Interest thereon from 5.4.88 till 5.11.89. at 15% per annum Rs. 28,719-32 Rs. 1,49,413-55 Cost decreed 500-00 Execution cost allowable 359-00 Total Rs. 1,50,272-55 The petitioner has added to the enhanced compensation of Rs. 53,958/26 awarded by the Court interest at 12%, under S.23(1-a) solatium @ 30% and @ 15%, totalling Rs. 1,04,104/73. Thereafter, claimed interest on this amount at 9% and 15%, ie. Rs. 9,369/42 and 85,235/71 totalling Rs. 94,605/13. After deducting the deposit of Rs. 78,015/63 further interest at 15% claimed on 1,20,694-23. Thus, the claim of interest on 12% and solatium is not permissible under law. This E.P. was closed. Even in the present E.P. the same error is committed. The quantification has to be made at different levels and different periods. 10. The Supreme Court in Prem Nath Kapur's case referred above categorically held that "when the deposit is made towards the specified amounts, the claimant/ owner is not entitled to deduct from the amount of compensation towards cost, interest, additional amount under S.23(1-a) with interest and then to claim the total balance amount with further interest". The petitioner has precisely made such a claim. S.3(1) of the KLR Act is dated 4.11.1980. The Awarding Officer determined the compensation of Rs. 1,04,733/10. The 2nd Additional Sub Judge in L.A.R.120/82 dated 12.3.1985 granted additional compensation of Rs. 53,958/26 with 15% solatium and 4% interest from 21.10.1981 and proportionate cost. This was confirmed in L.A.A. No. 237/85 dated 27.8.1986. However, High Court allowed additional amount at 12% on the market value from the date of publication of S.4(1) notification to the date of award, 30% solatium (excluding the 12% additional amount) plus 9% and 15% on the excess amount awarded. In the first E.P. 546/95 interest on 12% additional amount has been calculated. In the present E.P. though that was omitted interest on solatium had been calculated. 11. Apart from the fact that petitioner cannot claim interest on solatium, cannot also appropriate towards interest and cost. If the amount calculated towards additional amount and solatium is excluded the payment is more than sufficient to meet the awarded amount. Hence the finding that there is excess execution is correct. 12. 11. Apart from the fact that petitioner cannot claim interest on solatium, cannot also appropriate towards interest and cost. If the amount calculated towards additional amount and solatium is excluded the payment is more than sufficient to meet the awarded amount. Hence the finding that there is excess execution is correct. 12. In V.D. Modi v. R.A. Rehman (AIR 1970 SC 1475) the Supreme Court held that when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. In Bhavan Vaja v. Solanki Hanuji (AIR 1972 SC 1371) the Supreme Court held that it is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. Applying the ratio the petitioner who seeks to execute the decree of the Sub Court dated 12.3.1985 and the High Court on 28.7.1986 and seeks to appropriate towards interest and cost on solatium the executing court is entitled and bound to follow the decision of the latter Supreme Court. As per the law declared the effect of the latter decision is that provisions of S.53 shall prevail over C.P.C. and that the liability to pay interest ceases on the date on which the deposit into Court is made. The Supreme Court also held that there is no liability to pay interest on solatium and additional solatium. Thus the executing court is bound to apply the principles and the law laid down by the Supreme Court in reference to interest on solatium and manner of appropriation. I do not find any illegality in the said order. Hence the revision petition fails and it is dismissed.