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2009 DIGILAW 1349 (JHR)

State of Jharkhand v. Baban Pandy

2009-10-29

R.K.MERATHIA

body2009
Order Heard Mr. Tandon, appearing for the State-petitioners and Mr. Srivastava, for the respondent. 2. This C.M.P. has been filed for modification/correction of the decree dated 14.12.2006. 3. Mr. Tandon referred to the following portion of the judgment dated 29th April, 1997, passed in F.A. No. 291 of 1994 R. on the basis of which the impugned decree has been prepared:- "11 ……... In that contingency the quantum of damage will not exceed Rs.2,70,000/-. because Rs. 1,35,000/- or so was paid as royalty and remaining Rs. 1,35,000/- will be the profit and other expenses. So even in the higher scale the quantum 6f .damages will be not more than As. 2,70,000/-including amount of royalty and sales tax deposited by the plaintiff in favour of defendant no. 7. Considering all these facts, I am of the opinion, that the plaintiff in any view of the matter is only entitled to realize Rs. 2,70,000/- only by way of compensation and damages from appellants/defendants and award of Rs. 4,50,000/- by the trial court appears to be excessive. 12. In the Circumstances and in view of the discussions made above, this appeal is allowed in part only with proportionate cost throughout and it is hereby, ordered that the plaintiff will be entitled to realize Rs. 2,70,000/- including the amount he deposited by way of damages from the defendant/appellants and further the plaintiff is also entitled to interest@ 6% p.a. on this amount of damages from the date of institution of the suit till realization of the amount. Pleader's fee Rs. 250/- only. 13. In the result, this appeal is allowed in part in the manner indicated above. He further referred to the following portion of the impugned decree:- "It is ordered and decreed that this First Appeal is allowed in part only with proportionate cost throughout arid it is hereby ordered that the plaintiff will be entitled to realize Rs. 2,70,000/- including the amount he deposited by way of damages from the defendant! appellants and further the plaintiff is also entitled to interest @ 6% p.a. on this amount of damages from the date of institution of the suit till realization of the amount. Pleader's fee Rs. 250/only. Accounts noted below 1. Plaintiff/Respondent entitled to get damage Compensation ...Rs. 2,70,000.00 2. Including the amount he deposited ... Rs. 1,35,063.04 ... Rs. 4,05,063.04 ... " He submitted that thus the amount of Rs. Pleader's fee Rs. 250/only. Accounts noted below 1. Plaintiff/Respondent entitled to get damage Compensation ...Rs. 2,70,000.00 2. Including the amount he deposited ... Rs. 1,35,063.04 ... Rs. 4,05,063.04 ... " He submitted that thus the amount of Rs. 1,35,063.04 has been wrongly added, though the same was made part of the damages awarded to the tune of As. 2,70,000/-. Moreover, interest has been added on such wrong calculation i.e. Rs. 4,05,063.04. He also submitted that as per the said judgment, the State paid the awarded amount i.e. Rs. 2,70,000/- alongwith interest @ 6% p.a., which was received by the respondent on full satisfaction and the execution case i.e. Execution Case No. 4 of 1994 was dropped on 20.8.2006, but thereafter when the decree was prepared by mistake in the manner aforesaid on 14.12.2006, the respondent filed a fresh execution case i.e. Execution Case No. 5 of 2007 for execution of the said decree prepared by mistake. 4. Mr. Srivastava, on the other hand, tried to justify the said decree and submitted that it has been prepared correctly. 5. It is clear from the portion of paragraphs 11 and 12 of the said judgment dated, 29.4.1997, passed in First Appeal No. 291 of 1994(A), quoted above, that it was clearly said that the quantum of damage will not exceed Rs. 2,70,000/because Rs. 1,35,000/- or so was paid as royalty and remaining Rs. 1,35,000/- would be the profit and other expenses and therefore, even in the higher scale, the quantum of damages will not be more than As. 2,70,000/- including the amount of royalty and sales tax deposited by the plaintiff (respondent herein). This position was further clarified in paragraph 12 of the said judgment holding that the respondent will be entitled to realize Rs. 2,70,000/- including the amount he deposited by way of damages from the defendant (petitioner herein). It is not disputed that the amount as per the said judgment i.e. Rs. 2,70,000/and interest was deposited in the court below in earlier Execution Case No. 4 of 1994 and the same was withdrawn by the plaintiff (respondent) and accordingly the execution case was dropped. 6. In the circumstances, the impugned decree is set aside and the office of this Court is directed to prepare a fresh decree on the basis of the total amount of damages awarded i.e. Rs. 2,70,000/- and interest thereon. 6. In the circumstances, the impugned decree is set aside and the office of this Court is directed to prepare a fresh decree on the basis of the total amount of damages awarded i.e. Rs. 2,70,000/- and interest thereon. @ 6% p.a. from the date of institution of the suit till realization of the amount. It goes without saying that till preparation of fresh decree, no coercive steps shall be taken against the petitioner in Execution Case No.5 of 2007, pending before the Sub-Judge-II, Garhwa. The plaintiff (respondent) will move for modification of the Execution Case No. 5/2007 in view of the fresh decree. With these observations and direction, this C.M.P. is allowed. However, no costs. Let a copy of the order be given to Mr. Tandon, as prayed. this order be sent to the learned Aegistrar General for issuing warning to the concerned staff(s) of the High Court, responsible for preparation of the decree which is apparently wrong, and due to which there has been unnecessary litigation.