IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.7901 OF 2017 (GM-CPC) BETWEEN:
SRI. S.R.VENKATESH BABU, SON OF LATE S.V.RAJAIAH, AGED ABOUT 55 YEARS, RESIDING AT NO.324, 2ND FLOOR, 6TH MAIN ROAD, SRINAGARA, BANASHANKARI 1ST STAGE, BENGALURU - 560 050. ... PETITIONER (BY SRI. ABHINAY Y.T, ADVOCATE) AND:
1. THE REGISTRAR, CITY CIVIL COURT, CITY CIVIL COURT COMPOUND, K.G. ROAD, BENGALURU - 560 001.
2. SMT. GITA SUBRAMANIAN, WIFE OF C.N.SUBRAMANIAN, AGED ABOUT 65 YEARS, AND RESIDING AT B-1/1803, SOUTH CITY APARTMENTS, NEAR ARAKERE, MICO LAYOUT, OPP BANNERGHATTA ROAD, BENGALURU - 560 076.
3. M/S FINE HOMES DEVELOPERS, #3, 11TH "B" CROSS, MALLESHWARAM, 11TH MAIN ROAD, BENGALURU - 560 003, REPRESENTED BY ITS MANAGING DIRECTOR.
4. MANOHAR KARKAL, SON OF LATE K.S.RAO, AGE NOT KNOWN TO THE PETITIONER AND RESIDING AT #706, SHASHIKIRAN APARTMENTS, 18TH CROSS, MALLESHWARAM, BANGALORE - 560 055.
5. SANJEEV NEDUNGADI, SON OF K.RAMACHANDRAN, AGE NOT KNOWN TO THE PETITIONER AND RESIDING AT VEERAPPA BLOCK, 68/2, 17TH CROSS, MALLESHWARAM, BANGALORE - 560 003.
6. M.V.RAJARATHNAM, SON OF M.V.VEERAPPA, AGE NOT KNOWN TO THE PETITIONER AND RESIDING AT #109, 6TH CROSS, GANDHINAGAR, BANGALORE - 560 009.
7. M.V.SRINIVASAN, SON OF M.V.VEERAPPA, AGE NOT KNOWN TO THE PETITIONER AND RESIDING AT # 65, SSI AREA, RAJAJINAGAR, BANGALORE - 560 010.
8. RAJEEVA NENDUNGADI, SON OF K.RAMACHANDRAN, AGE NOT KNOWN TO THE PETITIONER, AND RESIDING AT 2ND FLOOR, SHASHIKIRAN APARTMENTS, 18TH CROSS, MALLESHWARAM, BANGALORE - 560 055. ... RESPONDENTS (BY SRI.R.SUBRAMANYA, AAG A/W SMT.M.JYOTHI BHAT, HCGP FOR R1) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.2.3.2016 PASSED ON IA FILED BY THE PETITIONER UNDER SECTION 151 OF CPC IN EX.NO.2420/2002 BY THE LEARNED XIX ADDL. CITY CIVIL AND SESSIONS JUDGE AT BANGALORE CITY VIDE ANNEX-J AND THEREBY ISSUE A DIRECTION TO THE OFFICE OF THE TRIAL COURT TO PAY A SUM OF RS.22,52,250/- TOWARDS THE INTEREST ON THE FIXED DEPOSIT OF RS.77,00,000/- FROM 21.4.2009 TO 31.7.2012 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the auction purchaser of a portion of the subject property in Execution Petition No.2420/2002, is knocking at the doors of writ court for assailing the order dated 02.03.2016, a copy whereof is at Annexure – J, whereby the learned XIX Addl. City Civil Judge, Bangalore (CCH-18), has refused to direct his Registry to pay him a sum of Rs.22,52,250/- arguably being the loss of interest, which the amount deposited by him had been put into interest earning bank deposit in terms of the direction of the court below.
2. The learned Addl. Advocate General Sri.R.Subramanya assisted by learned HCGP Smt.M.Jyothi Bhat having entered appearance for the 1st respondent- Registry of the Court below, resists the Writ Petition by filing the Statement of Objections.
3. BRIEF FACTS OF THE CASE:
(a) the award dated 30.11.1999 entered by the Karnataka State Consumer Disputes Redressal Commission, Bengaluru, was sought to be enforced in Execution Petition No.2420/2002 wherein the property of the judgment debtor was put to auction on 16.12.2008; petitioner being the highest bidder, his bid having been accepted, deposited a sum of Rs.77,00,000/- with the respondent-Registry on 12.01.2009;
(b) the Registry in terms of the court instruction, had executed and got registered a sale deed dated 3.5.2009 comprising the subject property in favour of petitioner; however, the obstructors applications having been favoured by the Executing Court, a substantial part of the property comprised in the sale deed was ordered to be retained by the objectors and petitioner’s challenge thereto in R.F.A.No.1813/2010 came to be negatived by the Division Bench of this Court vide judgment dated 22.09.2014, although by granting some equitable remedy whereunder petitioner retained only a portion of the auctioned property, over which obstructors had no claim;
(c) in terms of the judgment in the above RFA, a Rectification Deed came to be executed and registered on 18.02.2015 restricting a particular portion of property in favour of the petitioner at the rate of Rs.2,057/- per sq. ft. and consequently, the petitioner was refunded a sum of Rs.92,76,320/- including the interest that had accrued due thereon during the period between 1.08.2012 and 24.03.2015;
(d) petitioner made an application under section 151 of CPC requesting the Executing Court to direct its Registry to pay him a sum of Rs.22,52,250/- contending that his amount in deposit would have earned so much by way of interest, had the same been put in interest-earning-deposit in any bank; however, by the impugned order, the said application came to be negatived and that is why the petitioner is grieving before this court;
4. CONTENTIONS OF THE PARTIES:
(a) Learned counsel for the petitioner vehemently argues that when there was a specific order by the court below directing the Registry to deposit his amount in an interest earning scheme in the Nationalized Bank, the Registry having not obeyed the same, is liable to reimburse the loss of interest, to the petitioner; although the court as such enjoys immunity, the same does not extend to the ministerial functionaries of it’s Registry; after making good the loss, Registry can recover the same from it’s erring officials; so arguing, he seeks allowing of the Writ Petition;
(b) the learned Addl. Advocate General Sri.R.Subramanya opposes the Writ Petition inter alia contending that the Registry acts as an extended arm of the Court and therefore, even if there is some mistake, that would not give a choate cause of action for maintaining the Writ Petition in the absence of a legal provision to the contrary; even otherwise also, there was lapse on the part of the petitioner in not seeking implementation of the lower court order for depositing his amount in bank; in any event, public law remedy does not avail to the petitioner; so contending, he seeks dismissal of the Writ Petition.
5. Having heard the learned counsel for the parties and having perused the Petition Papers, relief needs to be granted to the petitioner for the following reasons:
(i) admittedly, the petitioner had deposited a sum of Rs.77,00,000/- with the Registry of the Court below on 12.01.2009 pursuant to acceptance of his highest bid in the auction purchase; the Executing Court vide order dated 21.04.2009 had directed it’s Registry to invest the said amount in an interest earning bank deposit; subsequently on 1.7.2009, at the request of the petitioner, the same direction was reiterated; however, despite these two orders, money of the petitioner was not invested in the bank deposit and no plausible explanation is forthcoming for not obeying the court order;
(ii) during the period between 21.04.2009 and 31.07.2012, if petitioner’s money was invested in the bank, it would have earned huge interest to his advantage and to the disadvantage of none; this having not been done by the Registry of the court below, petitioner is unjustifiably put to loss of money and therefore, he is entitled to be suitably compensated; after all, act of the Registry is not act of the Court and therefore, the immunity otherwise available to the court as such, does not protect the Registry;
(iii) assuming for the sake of argument that the Registry is an extended arm of the Court, still it cannot claim immunity from the civil liability arising from it’s inaction namely disobedience of the Court direction to invest petitioner’s money in bank deposit; Broom’s Legal Maxims, 10th Edition, Universal Law Publishing Company Pvt. Ltd at page 73 states: “Actus Curiae Neminem Gravabit – an act of the court shall prejudice no man… This maxim is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law”; therefore, an injured litigant cannot be asked to put up with the injury sans any solace; the argument to the contra cannot be countenanced without offending the rule of law;
(iv) petitioners right to legal remedy arises from the maxim ubi jus ibi remedium, which is a fundamental of any civilized legal system; he had the right to have his money invested in the bank deposit under the order of the Court below; the corresponding duty rested on the shoulders of the Registry of the Court below; petitioners right has been infringed and this act of infringement is a legal wrong from which the remedial right arises; it hardly needs to be stated that where there is a right, there has to be the remedy; a contra view militates against the notion of law and justice;
(v) the Constitution Bench of the Apex Court in A.R.Antulay Vs. R.S.Naik, (1988) 2 SCC 602 at paras 50, 62 & 83 has held that the basic fundamentals of the administration of justice are that no man should suffer because of the mistake of the court; no man should suffer a wrong by technical procedure of irregularities; ex dubito justitiae, the court must do justice to an aggrieved party; if a man has been wronged, so long as it lies within the human machinery of administration of justice, the wrong must be remedied; these observations of the Apex Court come to the aid of the petitioner who has suffered loss at the hands of the Registry of the court below and therefore, he needs to be suitably compensated, subject to recovery from the erring officials of the Registry;
(vi) during the period between 1.07.2009 and 31.07.2012, had petitioner’s money in a sum of Rs.60,82,869/- been invested in any bank, the sum would have swelled by the accrual of interest thereon and that is the reason why the court below had directed it’s Registry to put the money in bank deposit vide order dated 21.04.2009 and the same was reiterated vide order dated 1.07.2009 at the instance of the petitioner; therefore, petitioner is entitled to be compensated in some way known to law i.e., by way of damages; in adjudging the damages, this court has kept in mind the likely interest which the petitioner’s money would have fetched during the relevant period; ideally speaking petitioner ought to have again reminded the court below, is also true;
6. In the above circumstances, this Writ Petition succeeds in part; the impugned order is invalidated; a writ of mandamus issues to the 1st respondent to calculate and pay to the petitioner within eight weeks [by way of damages] the interest at the rate of 4% per annum on a sum of Rs.60,82,869/- for the period between 1.07.2009 and 31.07.2012; this public money after payment to the petitioner shall be recovered in accordance with law from the erring officials of the Registry who are responsible for all this.
Compliance report to be filed with the Registrar General of this Court on or before 31.12.2019.
The Registrar General of this Court is requested to circulate this judgment amongst all the Judges of Service Judiciary, so that accountability for the lapse is reinforced.
No costs.
Sd/- JUDGE cbc