Apolinario Coutinho vs Pinto Associates

-THE present revision is directed against the order of the District Forum dated 6.4.2006 ordering the Judgment Debtor to pay an amount of Rs. 88,954 to the Decree Holder as on 4.9.2005 together with simple interest at the rate of 12% thereon till the date of actual payment on the basis of method of calculation as indicated in the calculation sheet attached to the order.

THE short question that arises for consideration is whether the amounts pursuant to the decree have correctly been appropriated towards principal and interest. A complaint was filed by the Complainant against the opposite party. The District Forum decided the complaint in favour of the Complainant on 13.3.2002. A decree was passed in favour of the Decree Holder for a sum of Rs. 2,78,000 plus interest and a sum of Rs. 2,11,660 and compensation of Rs. 11,000. The amount of Rs. 2,11,660 is the interest component on the amount paid by the Decree Holder between 10th January, 1994 and 5th April, 1994. The Decree Holder was entitled to interest from the date when the amounts were paid till the date of possession. The Decree Holder was given possession on the 10th of October, 2000.

When the opposite party failed to comply with the said order the Complainant filed an execution petition.

THE District Forum while making its calculations divided the payment due into three components. (a) Rs. 2,78,000-This is the amount that bears interest. (b) Rs. 2,11,660-This amount bears no interest beyond 10.10.2000 till it becomes part of the decretal amount. (c) Rs. 11,000 compensation and costs awarded-do not bear interest.

The District Forum first appropriated the instalments towards interest on (A) and then on the principal amount (A). At the end of the calculations since the interest calculated on the principal amount was Rs. 1200 in the negative this amount was deducted towards other settlement due i.e. to a sum of Rs. 2,11,660. Therefore as on 30.11.2004 the amount due became Rs. 2,10,460. In terms of these calculations the principal amount due on 4.9.2005 worked out to Rs. 88,954 which was to be paid at the rate of 12% simple interest. This amount was added the figure (C).

DURING the pendency of the execution petition the Complainant filed a revision before the State Commission assailing the order passed on 6.4.2006. The revision was filed in May and service could only be effected on the opposite party in 18th December, 2006. In the meanwhile the Decree Holder continued to appear before the District Forum. The Judgment Debtors made payments to the Decree Holder from time-to-time. The Decree Holder claimed an amount Rs. 30,501.09 payable to him in terms of the earlier order of the District Forum. The District Forum recorded on 12.10.2006 that final payment had been made of a sum of Rs. 30,502. In the presence of the parties the matter was closed as no further details were provided on accounts by the Decree Holder. Members of the State Commission who heard this Revision differed in their views and it is on account of their divergence that the matter is now before me. Member Caroline dismissed the Revision Petition as being infructuous in light of the order of the District Forum dated 19.10.2006. Member Sandra passed a dissenting order setting aside the orders dated 6.4.2006 as well as the final order dated 19.10.2006.

I have heard learned Counsel for the parties at some length and have also perused the records and the calculations made by the District Forum.

MR. Kantak, Counsel for the Decree Holder states that the appropriation of the amounts due have incorrectly been made inasmuch as the appropriation ought to have been made towards interest on Rs. 2,78,000 and interest of Rs. 2,11,660. It is only thereafter that the District Forum ought to have proceeded to adjust the amounts towards Rs. 2,78,000. Mr. Kantak further contends that whatever amounts were found due and payable to the Decree Holder were amounts arrived at on the calculations made by the District Forum on the basis of the method adopted by the District Forum. Therefore any orders made by the District Forum in respect of final payments are not orders recording final satisfaction of the decree. If the basis of calculation is incorrect he is at liberty to challenge the same. The basis of calculation is incorrect thus the order of the District Forum is liable to be set aside.

Mr. Couto, Counsel for the Judgment Debtor controverts the aforesaid submission and states that the appropriations have been correctly made and the matter having been finally settled and disposed of by the District Forum could not be re-opened at this stage.

ON going through the calculations made by the District Forum it was discovered that there are patent errors therein apparent on the face of the record. During the course of the arguments the Counsel for the parties were apprised of the fatal errors in the calculations under head "A" and head "B". Under head "B" interest over interest has been calculated by the District Forum which is opposed to all norms and contrary to the parameters laid down in the order dated 6.4.2006. The interest component of Rs. 2,11,660 was calculated on the amount paid/deposited between January and April 1994 at the rate of 12% till the date of handing over possession. The said amount bore no interest beyond 10.10.2000. Appropriation of amounts would have to be adjusted first towards liquidating of the interest component on Rs. 278,000 and thereafter towards the interest component under head B and then towards the principal amount under head "A". Under head "A" there is overlapping of days in the calculation which if corrected would show a difference of Rs. 7,729 instead of Rs. 8,151 upto 7.11.2002. Moreover the excess amount determined on making correct calculations would then have to be appropriated against interest under head "B" before appropriation is commenced towards the principal amount under head "A". It is thus not necessary to deal with the issue with regard to closure of the proceedings before the District Forum in terms of the order dated 19.10.2006 when the very basis of the calculations is incorrect and any payments made during the pendency of the Revision Petition that was continuing before the District Forum. would later be affected when calculations are made afresh. There is no order recording full and final satisfaction of the decree. To hold that the matter was closed would be doing injustice to the parties when it is clear from perusal of the calculations that they are erroneous.

IN light of the aforesaid position as explained and acknowledged by Counsel for the parties, they agreed and concur that the calculations made by the District Forum are not correct and that it would be appropriate to send the matter back to the District Forum for making calculations afresh. Member Sandra has also taken the view that the calculations made by the District Forum are not correct. Accordingly the Revision Petition is allowed and the impugned order passed by the District Forum is set aside to the extent of the calculations made therein. The District Forum shall make fresh calculations in light of the observations above. Parties to appear before the District Forum on 26.11.2008. File to be sent back immediately to the District Forum, North Goa. Revision Petition allowed.