Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 1058 (CAL)

State of West Bengal v. Texmaco Ltd.

2012-12-20

Subhro Kamal Mukherjee, TARUN KUMAR GUPTA

body2012
JUDGMENT This is an application for stay in an appeal against an award passed by the learned Land Acquisition Judge at Barasat, District-North 24 Parganas. The learned Judge enhanced the quantum of compensation. 2. Being aggrieved, State has preferred this appeal and an application for stay is filed seeking stay of operation of the award during the pendency of the appeal. 3. Mr. Sakya Sen, learned Advocate appearing on behalf of the appellant, strenuously, argues that since this is an appeal by the State, his client is exempted under Order 27, Rule 8A of the Code of Civil Procedure from furnishing security as a condition precedent for stay of operation of the award. 4. Order 27, Rule 8A of the 'Code of Civil Procedure was inserted by the amending Act, 1937. 5. Order 41, Rule 5 of the Code of Civil Procedure contemplates for stay by the appellate Court for sufficient cause. It is, inter alia, provided that the appeal shall not operate as a stay of the proceedings under a decree or order appealed from, but the appellate Court may, for sufficient cause, order stay of execution of the decree. 6. Order 41, Rule 6 contemplates security in case of order for execution of decree appealed from. 7. Mr. Sakya Sen, learned Advocate appearing for the appellant, therefore, emphatically, submits that this is an appeal by the State. Therefore, the State needs offer, security as a condition precedent for stay. 8. Order 41, Rule 1 sub-rule (3) was inserted by amending Act of 1976. It contemplates that where the appeal is against a decree for payment of money, the appellant shall, within such time as the appellate Court may, allow, deposit, the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. 9. The said 1937 amendment exempted operation of Rules 5 and 6 of Order 41 of the Code of Civil Procedure. In 1976, Order 41, Rule 1 (3) of the Code of Civil Procedure was inserted by making a special provision for the money decree. 10. Had the legislative intention was to offer exemption to the State authorities from furnishing security even in a case for decree for payment of money, specific provisions would have been inserted in the Code. In 1976, Order 41, Rule 1 (3) of the Code of Civil Procedure was inserted by making a special provision for the money decree. 10. Had the legislative intention was to offer exemption to the State authorities from furnishing security even in a case for decree for payment of money, specific provisions would have been inserted in the Code. When, at later stage, the legislation consciously inserted a provision regarding the decree far payment of money and no special exemption is granted to the State or the public officer in relation to decree for payment of money, we are unable to accept the contention of Mr. Sen that in view of the provisions of Order 27 Rule 8A of the Code of Civil Procedure, his client is exempted from furnishing security while moving an application for stay. 11. Mr. Sen submits that for non-furnishing the security the appeal cannot be dismissed or the appellate court cannot refuse to hear the appeal on merits. 12. We are not suggesting for a moment that unless the security is furnished, the appeal against the money decree would be incompetent. 13. The order of stay is a discretionary order. The Court while considering the application for stay has to strike a balance between the two sides. Therefore, it cannot be said that as the appellant is the State, even in case of money decree, the appellant is entitled to obtain stay as a matter of course without furnishing security although the Court feels that such security is necessary. 14. Mr. Debayan Bera, learned Advocate appearing for the referring claimant, submits that the referring claimant, in the meantime, has put the award into execution. The execution case has, since, been registered as Money Execution Case No.1 of 2012 before the learned Land Acquisition Judge at Barasat, District - North 24 Parganas. 15. We, thus, dispose of this application with the following directions : (i) There shall be an unconditional order of stay of all further proceedings in the said money execution case till February 28, 2013. (ii) The appellant is directed to deposit 50% (fifty per centum) of the enhanced awarded amount, with the learned Registrar General of this Court by February 28, 2013. (ii) The appellant is directed to deposit 50% (fifty per centum) of the enhanced awarded amount, with the learned Registrar General of this Court by February 28, 2013. If 50% (fifty per centum) of the enhanced awarded amount is deposited within the stipulated period of time as above, the interim order of stay shall continue till the disposal of the appeal. In default, the interim order of stay shall stand, automatically, vacated and the award shall be executable at once. 16. Mr. Debayan Bera, learned Advocate for the referring claimant prays for leave to withdraw 50% (fifty per centum) of the deposited amount without prejudice to the rights and contentions of the parties in this appeal and subject to the result of the appeal. 17. Mr. Sen, in his usual fairness, does not raise any objection in this regard. 18. Thus, if 50% (fifty per centum) of the enhanced decretal compensation is deposited, the referring claimant shall be entitled to withdraw 50% (fifty per centum) of such amount from the office of the learned Registrar General of this Court without furnishing security and without prejudice. 19. The Registrar General shall invest the balance sum in a short term interest bearing fixed deposit with any nationalised bank of his choice and subject to further order that has been passed by this Court in this appeal. 20. Let the hearing of the appeal be expedited. 21. Mr. Bera accepts notice of this appeal and the connected application on behalf of the referring claimant/ respondent. 22. Therefore, formal service of notice of appeal and the application is dispensed with and the appeal is treated as ready as regards service by appearance. 23. Let the lower Court's records of this case be called for by a special messenger at the cost of the respondent. Let such cost be put in by tomorrow. 24. If the costs, as aforesaid, are put in, the office is directed to call for the lower Court's records, immediately. 25. After arrival of lower Court's records, the office shall examine the same and, if found complete, shall issue notice of arrival of lower Court's records on the learned Advocate for the respondent. 26. 24. If the costs, as aforesaid, are put in, the office is directed to call for the lower Court's records, immediately. 25. After arrival of lower Court's records, the office shall examine the same and, if found complete, shall issue notice of arrival of lower Court's records on the learned Advocate for the respondent. 26. A prayed for by the learned Advocate for the respondent, the respondent is granted liberty to prepare and file requisite number of informal paper booke - printed, type-written or cyclostyled, as the case may be, out of Court, within a period of two months from the date of service of notice of arrival of lower Court's records on the learned advocate for the respondent. 27. As the respondent shall prepare the paper book, service of notice of arrival of the lower Court's records on the learned Advocate for the appellant is dispensed with, but the learned Advocate for the appellant shall supply a copy of memorandum of appeal to the learned Advocate for the respondent. 28. All formalities regarding preparation of paper books are dispensed with, but the learned Advocate for the respondent is directed to incorporate all the relevant documents in such informal paper books. 29. Liberty to mention the appeal as and when it becomes ready for hearing. We make no order as to costs.