IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 256 of 2006()
1. STATE OF KERALA, REPRESENTED BY
... Petitioner
Vs
1. K.M.THOMAS, S/O. LATE MATHEW,
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.RAJU K.MATHEWS
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :22/07/2009
O R D E R
P.R.RAMAN & P.BHAVADASAN, JJ.
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FAO 256 OF 2006
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Dated 22nd July 2009
Judgment
RAMAN, J.
This is an appeal arising out of an order dated 8.12.2005 in
EP No.126/001 in LAR No.20/96 at the Sub Court, Thodupuzha.
The State is the appellant. By the impugned order, the
application filed by the appellant to set aside an order of
confirmation of sale was dismissed. True, that consequent upon
the non-deposit of the EP amount, the property belonging to the
State was put in auction and purchased by the decree holder
himself. An application filed under Order XXI Rule 90 CPC was
dismissed and on the same day, the sale was confirmed. The
appellant, instead of challenging that order before this court,
chose to file another application to set aside the order of
confirmation and the court below rightly dismissed the same.
We, in such circumstances would not have normally interfered
with the matter, But, the decree holder himself fairly submitted
before this court that he was more concerned about the
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compensation payable to him and if the entire amount payable
to him is paid, he is agreeable to set aside the order of
confirmation of sale.
2. We have heard the parties. Admittedly, the property
belonging to the Government has been sold for non-payment of
the EP amount. The property originally belonged to the
respondent which was acquired by the Government, so, it is
bound to pay the legal compensation awarded. The
compensation was awarded and enhancement granted, but it
remained unpaid. Therefore, while the interest of the respondent
is only to get the compensation amount, that need not
necessarily result in unlawful enrichment also. In the
circumstances, we set aside the impugned order, however on
the following conditions :
(1) A statement has been filed by the State showing that an
amount of Rs.4,18,347.60 alone was due and payable as on
15.7.2006 which has since been paid later as per challan
produced and there is no balance to be paid. As per the
statement produced by the respondent, an amount of
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Rs.9,94,612/- is due as on 31.03.2007. However, he has not
credited the amount subsequently paid as per challan for
Rs.4,18,347/-. Therefore, if that amount is deducted, the
balance amount as on 31.03.2007 comes to Rs.5,76,265/-. But
the State has got a contention that he has adjusted the amount
of interest as against the amount earlier deposited which is
contrary to the provisions of the Act. We agree that as far as the
land acquisition amount is concerned in the EP, the amount paid
cannot be adjusted towards interest first. At the same time, the
petitioner is also entitled for a reasonable rate of interest on the
amount which became due as on the date of sale. But,
subsequently, the State has also deposited amounts. Therefore,
we direct that after making lawful adjustment of the amounts
deposited by the State on the relevant dates, the balance
outstanding should fetch reasonable interest @ 8% on the
amount due till the last pie is paid. Therefore, re-calculation of
the amount due to the respondent will be made by the court
below and the balance amount arrived at shall be paid by the
State within one month from the date of such determination. On
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such condition alone, the sale will stand set aside. However, on
making the aforesaid deposit, if there is any dispute, it is open to
the State to agitate the same before the appropriate forum.
Since the parties are before us and since the matter has to be
disposed of at an early date, we direct that both parties shall
appear before the court below formally on 24.8.2009 and
thereafter, on such date, as the matter may stand adjourned by
the execution court.
The appeal is disposed of as above.
P.R.RAMAN, JUDGE
P.BHAVADASAN, JUDGE
sta
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