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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S.DIAS, J.
Precious Blood Missionaries – Appellant
Versus
Nishanth Luize, S/o M.J.Luize – Respondent
OP(C) No. 2995 of 2018
Decided on : 06-07-2022
Code of Civil Procedure, 1908 - Order XXA - Section 35, 114, 152 - Kerala Court Fees and Suits Valuation Act - Section 42 - Constitution of India, 1950 - Article 227 – Costs - Execute registered sale deed – Recovery of amount with interest - Petitioners’ case, in a nutshell, relevant for determination of original petition is that they are defendants in O.S, filed by respondent before Court of Additional Subordinate Judge, for a decree to direct petitioners to execute registered sale deed in respect of plaint schedule properties or alternatively to permit the respondent to recover from petitioners an amount with interest - Actual realistic cost should have a correlation to costs which are realistic and practical - It cannot obviously refer to fanciful and whimsical expenditure by parties who have luxury of engaging a battery of high-charging lawyers (Para 17).
Findings of the Court :
Court below partly decreeing suit for Rs.1,00,00,000/- with interest and costs, court below has not considered statement of costs filed by respondents in its proper perspective, instead has accepted same in a mechanical and casual manner, without any application of mind, and has drawn the particulars of costs decree on plaint valuation, which is erroneous and unsustainable in law - Court hold that amount ordered as costs in Ext.P3 is unconscionable, unrealistic and disproportionate - Court is of definite view that Ext.P2 judgment has been wrongly interpreted by the court below - There is a clerical error decree as regards particulars of cost, which is liable to be corrected under Section 152 of Code of Civil Procedure and Article 227 of Constitution of India.
Result – Petition allowed.
JUDGMENT :
How is Ext.P2 judgment to be interpreted to calculate costs, is the short question for consideration in this original petition?
2. The petitioners’ case, in a nutshell, relevant for the determination of the original petition is that they are the defendants in O.S.No.35/2014, filed by the respondent, before the Court of the Additional Subordinate Judge, North Paravur, for a decree to direct the petitioners to execute the registered sale deed in respect of the plaint schedule properties or alternatively to permit the respondent to recover from the petitioners an amount of Rs.6,36,00,000/-with interest. The respondent had filed Ext.P1 plaint, inter alia, contending that the petitioners had agreed to sell their properties having an extent of 285.13 ares of land in Alangad village, elaborately described in the schedule appended to the plaint, to the respondent for an amount for Rs.1,75,000/-per cent. Pursuant to the agreement of sale dated 15.04.2011 entered into between the parties, the respondent had paid the petitioners an advance sale consideration of Rs.1,00,00,000/-on different dates. Albeit the requests made by the respondent to the petitioners, they willfully refused to execute the sale deed. Hence, Ext.P-1 was instituted. The petitioners had filed Ext.P2 written statement refuting the allegations in the plaint. The court below, by Ext.P2 judgment, partly decreed the suit by Ext.P.3 decree, permitting the respondent to recover from the first petitioner the advance sale consideration of Rs.1,00,00,000/-with interest and costs. As per Ext.P3 decree, the petitioners are directed to pay the respondent an amount of Rs.1,11,94,848/-as costs. The costs awarded by the court below are contrary to the provisions of the Code of Civil Procedure, 1908 (in short, ‘Code’) and the Rules framed thereunder. Hence, the petitioners had filed Ext.P4 application to correct the decree. The respondent had objected to the application by filing Ext.P5 counter objection. The court below, on an erroneous appreciation of the facts and the law, by the impugned Ext.P6 order, has dismissed Ext.P4 application. Ext.P6 is ex-facie illegal and unsustainable in law. Hence, the original petition.
3. Heard; Sri. Raju Joseph, the learned Senior Counsel appearing for the petitioners and Sri. T. Krishnanunni, the learned Senior Counsel appearing for the respondent.
4. Sri. Raju Joseph argued that, even though the respondent had filed the suit for the specific performance of the contract with an alternative prayer for the refund of the advance sale consideration with damages and interest amounting to Rs.6,36,00,000/-, the court below by Ext.P2 judgment has only partly decreed the suit by Ext.P3 decree, permitting the respondent to recover from the first petitioner an amount of Rs.1,00,00,000/-with interest and costs. But the court below, without any application of mind, has awarded costs on the total valuation of plaint relief No. ‘A’, i.e., Rs.12,32,93,100/-, which is patently wrong and unsustainable in law. Immediately, on noticing the error committed by the court below, the petitioners had filed Ext.P4 application to correct the decree. Nonetheless, the court below, by the impugned Ext.P6 order, rejected the application and repeated the mistake. The cost awarded by the court below is excessive and unconscionable and is liable to be set aside. Ext.P6 order may be set aside, Ext.P4 may be allowed, and Ext.P3 decree may be modified by ordering costs in tune with Ext.P2 judgment.
5. Sri. T.Krishnanunni defended Ext. P 3 decree and Ext.P6 order. He strenuously argued that the original petition is not maintainable. The proper course to be adopted by the petitioners, if they are aggrieved by Ext.P3 decree, is to challenge the decree in appeal or seek review of the decree as contemplated under Section 114 of the Code and not resort to such experimental methods by seeking correction of the decree under Section 152 of the Code. Section 152 of the Code only enables th
Point of Law - Actual realistic cost should have a correlation to costs which are realistic and practical. It cannot obviously refer to fanciful and whimsical expenditure by parties who have the luxu....
Costs must be proportionate to the amount of the modified decree in execution proceedings; excessive claims beyond the modified amount are impermissible.
A court cannot modify a decree for costs after it has been executed and satisfied, as it becomes functus officio.
The main legal point established in the judgment is that the correct payment of court fee in a suit must be determined in accordance with settled legal principles and the specific provisions of the C....
The court affirmed that a judgment on admission under Order 12 Rule 6 CPC is valid when unqualified admissions exist, despite disputes over additional costs not included in the original agreement.
It is the settled position that the relief of injunction under Section 26(c) of the Act has to be valued on the basis of the advantage sought to be derived or the loss to be averted by the plaintiff.
Point of law : though it is not necessary for the Court to make valuation and enters it in the sale proclamation in every case, it is desirable in cases of sale of valuable property that the Court sh....
The court upheld the trial court's discretion in granting specific performance of a sale agreement, emphasizing the necessity of proving execution and the bona fide intention of the plaintiff.
Omission to decree counter-claim in judgment's operative part and decree, despite favourable body findings, is substantive error not correctable under Section 152 CPC; remedy via appeal or review req....
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