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2014 DIGILAW 140 (JK)

Union Of India v. Mohd. Sultan Malik

2014-03-28

DHIRAJ SINGH THAKUR

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1. The present revision petition has been filed against the judgment and order dated 30th April, 2012, passed by the Court of 4th Additional District Judge, Srinagar, whereby Union of India has been directed to deposit an extra amount of Rs. 13,51,920/ for purposes of satisfying the judgment and decree dated 2nd February, 1998. 2. Counsel for the petitioner submits that the Union of India has already satisfied the judgment and decree in its totality and that the executing Court without relying upon the calculation sheet submitted by the Union of India has passed the judgment and order dated 30th April, 2012. 3. Reference to the computation sheet, Annexure-E to the present petition, would show the same does not calculate the interest on solatium at all. The issue therefore is does solatium form part of compensation and if it does, whether interest should be calculated thereupon. 4. Learned counsel for the petitioner submits that solatium does not form part of compensation, therefore, interest cannot be calculated thereupon. 5. The issue `as to whether solatium forms part of compensation' is no longer res Integra. The Apex Court in Gurpreet Singh v. Union of India, (2006) 8 SCC 457, held as under:- "One other question also was sought to be raised and answered by this Bench though not referred to it. Considering that the question arises in various cases pending in Courts all over the country, we permitted counsel to address us on that question. That question is whether in the light of the decision in Sunder (supra), the awardee/decree holder would be entitled to claim interest on solatium in execution though it is not specifically granted by the decree. It is well settled that an execution court cannot go behind the decree. If, therefore, the claim for interest on solatium had been made and the same has been negatived either expressly or by necessary implication by the judgment or decree of the reference court or of the appellate court, the execution court will have necessarily to reject the claim for interest on solatium, based on Sunder (supra) on the ground that the execution court cannot go behind the decree. But If the award of the reference court or that of the appellate court does not specifically refer to the question of interest on solatium or in cases where claim had not been made and rejected either expressly or impliedly by the reference court or the appellate court, and merely interest on compensation is awarded, then it would be open to the execution court to apply the ratio of Sunder (supra) and say that the compensation awarded includes solatium and in such an event interest on the amount could be directed to be deposited in execution. Otherwise, not. We also clarify that such interest on solatium can be claimed only in pending executions and not in closed executions and the execution court will be entitled to permit its recovery from the date of the judgment in Sundor (September 19, 2001) and not for any prior period. We also clarify that this will not entail any re-appropriation or fresh appropriation by the decree-holder. This we have indicated by way of clarification also in exercise of our power under Articles 141 and 142 of the Constitution of India with a view to avoid multiplicity of litigation on this question. 6. From the records, the counsel for the petitioner could not show to this Court as to whether the claim of interest on solatium was ever made or rejected, either expressly or impliedly, by the reference court or the appellate court. In absence thereof, it would be open to the executing court to hold that compensation awarded includes solatium and in that event interest on the total amount could be given during the execution proceedings. 7. It is submitted that certain amounts had been received by the respondent No. 1 during the pendency of the proceedings before the Court. The issue is `how does the amount so received get appropriated against the awarded amount as per the decree'. This issue was dealt with in M/S Industrial Credit and Development Syndicate now called I. C. D. S. Ltd. v. Smt. Smithaben H. Patel and others ( AIR 1999 SC 1036 ). In paragraph 14 of the judgment supra, the Supreme Court held as under:- "14. This issue was dealt with in M/S Industrial Credit and Development Syndicate now called I. C. D. S. Ltd. v. Smt. Smithaben H. Patel and others ( AIR 1999 SC 1036 ). In paragraph 14 of the judgment supra, the Supreme Court held as under:- "14. In view of what has been noticed hereinabove, we hold that the general rule of appropriation of payments towards a decretal amount is that such an amount is to be adjusted firstly strictly in accordance with the directions contained in the decree and in the absence of such direction, adjustments, be made firstly in payment of interest and costs and thereafter in payment of the principal amount. Such a principle is, however, subject to one exception, i.e. that the parties may agree to the adjustment of the payment in any other manner despite the decree. As and when such an agreement is pleaded, the onus of proving is always upon the person pleading the agreement contrary to the general rule or the terms of the decree schedule. The provisions of Sections 59 to 61 of the Contract Act are applicable in cases where a debtor owes several distinct debts to one person and do not deal with cases in which the principal and interest are due on a single debt." 8. From the reading of the aforementioned judgments in the light of the facts of the present case, solatium would constitute a part of the compensation. Interest, as payable, as per the decree on the aforesaid amount, has to be calculated separately and shall not become part of the compensation amount. Whatever amount is deposited by the Union of India, has to be first appropriated towards interest element and cost and thereafter towards payment of principle amount. The executing court shall follow the aforementioned principle, re-calculate the entire amount on the basis thereof and issue appropriate directions for recovery and payment 9. Revision petition is accordingly disposed of.