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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sunil Hali, J.
Union of India - Appellant
Versus
Sunil Gupta & Ors. - Respondent
Restoration (C) No.352/2003
Decided On : 26 November, 2008
Relevant Acts and Sections: J&K Requisitioning and Acquisition of Immovable Property Act, 1968 - Section 8; Code of Civil Procedure - Section 145 Summary: The court referred to Section 8 of the J&K Requisitioning and Acquisition of Immovable Property Act, 1968, which provides for arbitration in cases of compensation disputes. The court also referred to Section 145 of the Code of Civil Procedure, which deals with the enforcement of liability of the surety. The court interpreted these provisions to determine the liability of the legal representatives and the enforceability of the surety bond.
Fact of the Case:
This application is for the recovery of an amount with interest from the respondents on account of solatium and interest in a land acquisition case. The legal representatives of the deceased landowner were directed to reimburse the amount by the Supreme Court. The court inquired into the liability of the legal representatives and found that they had not inherited any property of the deceased. The court held that the surety bond executed by one of the legal representatives could be enforced to recover the amount. The court also held that no interest was payable by the surety as he had not withheld or utilized any amount. However, he was liable to pay interest on 50% of the total amount from the date of the judgment.
Finding of the Court:
The court analyzed the liability of the legal representatives and the enforceability of the surety bond. It referred to Section 145 of the Code of Civil Procedure which deals with the enforcement of liability of the surety. The court held that the surety bond created a personal liability for the surety to repay the amount as directed by the court. The court also relied on precedents to support its decision.
Ratio Decidendi: The legal representatives of a deceased person are liable only to the extent of the property of the deceased that has come into their hands. The liability of a surety is co-extensive with that of the principal debtor unless otherwise provided by the contract. The court has the duty to execute and implement its orders and cannot plead helplessness in the matter of execution. Interest is payable as compensation for withholding of an amount, and if no amount has been withheld or utilized by the surety, no interest is payable by the surety.
Result: The court held that the legal representatives were not liable to reimburse the amount as they had not inherited any property of the deceased. However, the surety was held liable to pay 50% of the total amount in accordance with the surety bond. No interest was payable by the surety, but he was liable to pay interest on 50% of the total amount from the date of the judgment.
2. In order to appreciate the controversy, the brief facts are necessary to be noticed.
3. Land measuring 58 kanals 14 marlas situated in village Talwal, Tehsil and District Rajouri, belonging to one Dhanwanti (deceased), came to be acquired by the Union of India. Feeling aggrieved with the compensation assessed by the Deputy Commissioner, Rajouri, ex-land owner sought arbitration under Section 8 of the J&K Requisitioning and Acquisition of Immovable Property Act, 1968. The learned Arbitrator vide his award dated 06.03.1991 assessed the compensation amounting to Rs.41,09,000/- in favour of Smt. Dhanwanti Devi (deceased) at the rate of Rs.70,000/- per kanal. The arbitrator further allowed solatium at the rate of 15% amounting to Rs.6,16,350/- with interest at the rate of 4% per annum on the award amount. Thereafter an appeal was preferred against this order by the Union of India in this court.
4. This court on 07.05.1991 directed the Union of India to deposit an amount of Rs.37,94,705/-. The said appeal came to be dismissed by this court on 29.09.1992. The award of the arbitrator was maintained. Thereafter a Special Leave Petition came to be filed by the Union of India before the Supreme Court. The Apex Court did not interfere with the amount of compensation but set aside the awarding of solatium and interest on the amount of compensation awarded in favour of the respondents. It is pertinent to mention that during the pendency of the SLP, Smt. Dhanwanti died and her legal representatives, namely, Sunil Gupta, Rohit Gupta and Vishal Gupta came to be brought on record.
5. In view of the decision of the Supreme Court the amount of solatium and interest awarded by the arbitrator in favour of the claimants and upheld by the High Court was to be recovered from them. It is important to mention that this court vide order dated 30.05.1991 directed for releasing the award amount in favour of the owner (Dhanwanti Devi-deceased) subject to the condition of her furnishing a bank guarantee of 50% of the amount and a surety bond and personal security of the balance of 50%. Respondent no.1 Sunil Gupta executed a surety bond thereby giving surety to the tune of Rs.19,09,852.50 which was released in favour of the owner-Dhanwanti Devi and undertook to pay the amount in case the court directs. It is also important to mention that late Dhanwanti Devi executed a General Power of Attorney and a personal bond on 03.06.1991 undertaking to pay 50% of the amount. Both the documents are part of CIA No.31/1991.
6. In the application for restitution, petitioner- Union of India states that the excess amount of Rs.10,35,805 is recoverable from the claimants with interest @ 18% p.a. which comes to Rs.41,09,000/-This amount is sought to be recovered from the respondents on the ground that they are the legal representatives of late Dhanwanti. This fact has been admitted by them before the Supreme Court, where they were incorporated as legal representatives of late claimant-Dhanwanti Devi.
7. The respondents in their objections have stated that the present application is not maintainable. It is stated that the proper remedy available to the petitioner was to file a petition under Order 21 CPC. It is further stated that they have not inherited the estate of the deceased at all. It is admitted that they were summoned as legal representatives of late Dhanwanti Devi. However, legal representatives are different than legal heirs. The respondents have also denied that no interest is payable to them as there was no direction from the Supreme Court. The respondents have also stated that the application seeking restitution was barred by time.
8. This court vide its order dated 30.03.20
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