The settled principle of law is that the actus curiae neminem gravabit - `act of the court shall not harm anybody'. In South Eastern Coal Fields Limited Vs State of M.P., (2003) 8 SCC 648, this Court held: "27. That no one shall suffer for an act of the court is not a rule confined to an erroneous act of the court; the act of the court embraces within its sweep all such acts as to which the court may form an opinion in any legal proceeding that

Reportable IN THE SUPREME COUR OF INDIA CIVIL APPELLATE JURISDICTION I.A. Nos. 4 - 6 of 2012 IN CIVIL APPEAL Nos. 1175 - 1177 OF 2012 Margret Almeida & Ors., Etc. Etc. ....Appellants Versus Bombay Catholic Coop. Housing Society Limited & Ors. ....Respondents J U D G M E N T Chelameswar, J. This is an Application filed with the prayer as follows: `In the above facts and circumstances, the Applicants / Appellants most respectfully pray that the Hon'ble Court may be pleased to: a) Clarify the order dated 30.01.2012 passed by this Hon'ble Court in Civil appeal No.1175-1177 of 2012 titled as "Margret Almeida & Ors. Etc. Etc Versus The Bombay Catholic Co-operative Housing Society Ltd. & Ors. Etc. etc." as sought in Para 6; and / or b) Pass such other further or other reliefs as the Applicants / Appellants may be found to be entitled under the facts and circumstances stated hereinabove." 2. By the Judgment dated 30-01-2012 C.A.Nos.1175 - 1177 of 2012 were disposed of setting aside the Judgment dated 2 29-08-2011 of a Division Bench of the Bombay High Court. The said Judgment was rendered in a batch of connected matters, arising out of two suits No.144 & 145 of 2010, on the original side of the Bombay High Court. The question before the Division Bench was whether the two suits were maintainable in view of Section 91 of the Maharashtra Cooperative Societies Act, 1960. It appears from the Division Bench Judgment of the High Court that the learned Trial Judge not only held that the suits are maintainable, but also, granted interim order in favour of the plaintiffs (appellants/ petitioners herein), directing the parties to the suits to maintain status quo during the pendency of the suits. 3. In view of the conclusion of the Division Bench that the suits were not maintainable, the Division Bench recorded an order of dismissal of the suits. 4. While allowing the appeals, this Court directed, at paras 41 and 42 of the Judgment, as follows: "41. Coming to the question of the interim order in view of our conclusion that the suits in question are maintainable and having regard to the fact that the suits are to be tried by the High Court in exercise of its original jurisdiction, we do not propose to pass any interim order and leave it open to the High Court to consider the applications filed by the plaintiffs for interim orders in accordance with law and pass appropriate orders. The principles governing the grant of interim orders are too well settled and we need not expound the same once again. However, we would like to indicate that on the question of the existence of a prima facie case in favour of the plaintiffs, the following factors are germane and require to be examined. Having regard to the content of the plaint, we are of the opinion that the nature of the legal right, the plaintiffs claim for seeking the relief such as the one sought in the suits necessarily depends upon the byelaws of 3 the Society, the rights and obligations of the various classes of its members with respect to the property in dispute. The High Court may examine the above aspects before passing an appropriate interim order. 42. In view of the above, we also deem it proper to direct all the parties to maintain status quo as on today for a period of two weeks to enable the Bombay High Court to examine the applications of the plaintiffs for interim orders and pass appropriate orders in accordance with law." (Emphasis supplied) And hence, the present Application. 5. The learned senior counsel for the Applicants Mr. Mukul Rohtagi, argued that the appellants (plaintiffs) had an interim order of status quo in their favour granted by the learned Trial Judge while holding that the suits are maintainable and rejected the objection to the contra by the defendants. Aggrieved by the decision of the learned Trial Judge, the defendants carried the matter in appeal before the Division Bench of the Bombay High Court. Appeals were allowed by the Division Bench, on an erroneous appreciation of the legal position regarding the maintainability of the suits. In view of the Judgement of this Court dated 30-01-2012, it is for the Division Bench of the Bombay High Court, to consider whether the interim order granted by the learned single Judge, to maintain status quo during the pendency of the suit, is to be sustained or not. The above extracted portion of the Judgement of this Court wrongly recorded that the application of the plaintiffs (appellants herein) for interim orders is required to be 4 considered, whereas, as a matter of fact, the appellants herein were granted interim order by the learned Trial Judge and it is the respondents herein, who are challenging the grant of such an interim order and, therefore, the Judgment of this Court dated 30-01-2012, is required to be clarified accordingly. 6. On the other hand, the learned senior counsel Mr. C.A. Sundaram, appearing for respondent, argued that in view of the fact that the appeals preferred by the respondents before the Division Bench of the Bombay High Court were allowed dismissing the suits, the interim order granted during the pendency of the suits, by the learned single Judge of the Bombay High Court, lapsed with the dismissal of the suits and, therefore, this Court, rightly, opined that the application of the plaintiffs for interim orders is required to be considered afresh. 7. We agree with the submission made by the learned senior counsel Mr. Mukul Rohtagi. The erroneous conclusion of the Division Bench cannot operate to the prejudice of the plaintiffs, who successfully demonstrated before this Court that the order of the Division Bench cannot be sustained. The settled principle of law is that the actus curiae neminem gravabit - `act of the court shall not harm anybody'. In South Eastern Coal Fields Limited Vs State of M.P., (2003) 8 SCC 648, this Court held: "27. That no one shall suffer for an act of the court is not a rule confined to an erroneous act of the court; the act of the court embraces within its sweep all such acts as to which the court may form an opinion in any legal proceeding that 5 the court would not have so acted had it been correctly appraised of the facts and the law. The factor attracting applicability of the restitution is not the act of the court being wrongful or mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable has resulted in one party gaining an advantage which it would not have otherwise earned; or the other party has suffered a impoverishment which it would not have suffered but for the order of the court and the act of such party." (Emphasis supplied) Therefore, we are of the opinion that the matter should be considered by the Division Bench of the Bombay High Court and decide whether the interim order granted by the learned Trial Judge is sustainable. 8. The application is accordingly allowed and the Judgement of this Court dated 30-01-2012 stands modified, as indicated above. ........................................J. ( P. SATHASIVAM ) ........................................J. ( J. CHELAMESWAR ) New Delhi; February 24, 2012.

amendment of final decree adding a share in the stored iron ore negatived- It is well settled in law that subsoil rights do not form part of surfacial rights of the land. The pattedar / owner of the land is entitled only for the surfacial rights and subsoil rights normally vest in the State (See State of Andhra Pradesh Vs Duvvuru Balarami Reddy and others, AIR 1963 SC 264). Therefore, assuming for the sake of arguments that the appellant herein did, in fact, win the mineral from the decree scheduled property, the respondent is not entitled for the share in the same on the ground that she is entitled for a half share of the surface of the property from out of which, the iron ore was (allegedly) extracted. Extraction of the minerals is governed in this country by the Provisions of the Mines and Minerals Development and Regulatory Act, 1957, which requires a license to be acquired by any person interested in carrying on the mining activity. Such a license is granted under the said Act, subject to various rules and regulations

Non reportable IN THE SUPREME COUR OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2473 OF 2012 [Arising out of SLP (C) NO.30087 OF 2009] K. Thippanna @ Thippeswamy. ....Appellant Versus Varalakshmi & Anr. ....Respondents J U D G M E N T Chelameswar, J. Leave granted. 2. This appeal arises out of S.L.P. (Civil) No.30087 of 2009. The said S.L.P., was filed aggrieved by the Judgment dated 14-07-2009 in W.P.No.61948 of 2009, of the High Court of Karnataka, Circuit Bench at Dharwad, by the respondent therein. 3. The facts are as follows: The 1st respondent herein filed O.S.No.87 of 2002 on the file of the Civil Judge, Senior Division at Hospet, for partition of the suit scheduled property and to deliver half of the said property and also for mesne profits, etc. The 1st respondent is the brother's daughter of the appellant herein. The case of the 1st respondent is that the 2 entire suit scheduled property is the ancestral property of the coparcenery consisting of, the father of the 1st respondent and the appellant herein. By Judgment dated 18-11-2005, the Trial Court decreed the suit in part. 4. Consequent upon the abovementioned decree, the 1st respondent herein filed an application (F.D.P.No.8 of 2006) on 03-03-2006 for drawing up the final decree. Subsequently, on 29-11-2006, the 1st respondent filed an application (I.A.No.4 of 2006) for amendment of the abovementioned application. 5. The appellant herein contested I.A.No.4 of 2006 referred to above. By an order dated 08-12-2006, the said I.A., was dismissed. 6. Aggrieved by the order dated 08-12-2006, the respondent filed W.P.No.75 of 2007 in the High Court of Karnataka. The High Court by its order dated 16-06-2008 allowed the writ petition setting aside the order dated 08-12-2006 passed in I.A.No.4 of 2006. The operative portion of the order reads as follows: "Accordingly, the writ petition is allowed and the impugned order passed by the trial court on IA. No. 4 in FDP No.8 / 2008 is hereby set aside and the petitioner is permitted to amend the prayer, as prayed in the application. All contentions of the parties are left open. The trial court shall consider the application filed under Order 20 Rule 18 r/w Section 54 of CPC on its merits." Aggrieved by the said order, the appellant herein, carried the matter in W.A.No.5020 of 2008, before the Division Bench. The matter, it appears, is pending. 3 7. In the meanwhile, the Trial Court by its order dated 29-11-2008, rejected the prayer of the respondent for amendment of the application for final decree. The operative portion of the said order is as follows: "The objection raised by respondent to the extent that, there is no preliminary decree in respect of Mineral stored in the petition schedule property is upheld. The petitioner is entitled to got the fruits of preliminary decree through the process of court in respect of Item No. 1 to 4 and 6 of the B schedule properties." 8. The respondent once again carried the matter by way of W.P.No.61948 of 2009, to the High Court. By the Judgment under appeal dated 14-07-2009, the said writ petition was allowed. The operative portion of the same is follows: "The impugned order dated 29th November, 2008 insofar as it relates to the non-granting of permission to the petitioner to amend the prayer column of the petition filed for drawing up of final decree pursuant to the order of this Court in Writ Petition No.75/2007 dated 16th June, 2008 is illegal and consequently, the same is set-aside. The Executing Court shall decide FDP No.8/2006 keeping in mind the order of this court in W.P.No.75/2007. Till such time, the extracted ore shall not be lifted by either of the parties. The Writ Petition is allowed accordingly." Hence, the instant appeal. 9. The learned counsel for the appellant Mr. S.N.Bhat, very strenuously argued that the effect of allowing I.A.No.4 of 2006 would be to permit the respondent to seek a relief in the final decree, which goes beyond the relief granted in the preliminary 4 decree in the partition suit and, therefore, the High Court grossly erred in allowing the writ petition. 10. To understand the nature of the controversy, it is necessary to examine the prayer in the I.A.No.4 of 2006 as well as the prayer in the suit. The prayer in the I.A.No.4 of 2006 is as follows: "Add: Add the following sentence to the existing prayer column at Para XI (a) as:- "and also to divide the extracted loose mining product stored in the petition schedule item no.1 to 4 properties between the petitioner and the respondent no.1 as the same is part and parcel of the suit properties already decreed." Whereas, the suit is only with regard to the partition of the suit scheduled properties. 11. We have meticulously gone through the plaint. There is no whisper in the plaint regarding the "extracted loose mining product stored in the petition schedule item no.1 to 4 properties". On the other hand, there is only a stray sentence at Para 4 of the plaint that the defendant and the deceased-father of the plaintiff were carrying on mining business. The relevant portion reads as follows: "............... The land shown as item No.1 to 4 in `B' schedule are not fit for cultivation, but contain rich iron ore. Balakrishnappa and defendant started partnership concern and started to do mining business." Apart from that, there was neither an issue framed, muchless any evidence adduced in the suit regarding the winning of the mineral from that part of the suit scheduled property, which was held liable for partition. 5 12. Even assuming for the sake of arguments that there is iron ore extracted from and stored on the decree scheduled property by the (defendant) appellant herein, in our opinion, the respondent is not entitled, as of right, to a share in the iron ore by virtue of her being a co-sharer in the decree scheduled property. It must be remembered that the suit was for partition of the suit scheduled property, on the ground that the same is the joint family property of the 1st respondent's father and the appellant herein. The plaint schedule does not deal with the subsoil rights of the various items of landed property included therein. It is well settled in law that subsoil rights do not form part of surfacial rights of the land. The pattedar / owner of the land is entitled only for the surfacial rights and subsoil rights normally vest in the State (See State of Andhra Pradesh Vs Duvvuru Balarami Reddy and others, AIR 1963 SC 264). Therefore, assuming for the sake of arguments that the appellant herein did, in fact, win the mineral from the decree scheduled property, the respondent is not entitled for the share in the same on the ground that she is entitled for a half share of the surface of the property from out of which, the iron ore was (allegedly) extracted. Extraction of the minerals is governed in this country by the Provisions of the Mines and Minerals Development and Regulatory Act, 1957, which requires a license to be acquired by any person interested in carrying on the mining activity. Such a license is granted under the said Act, subject to various rules and regulations 6 and including a requirement of payment of royalty on the part of the licensee as the mineral essentially belongs to the State. Without any pleading or proof in this regard to the effect that the respondent is a licensee under the provisions of the abovementioned Act, the respondent is not entitled, automatically, to claim a share in the mineral alleged to have been extracted by the appellant herein. 13. For the above mentioned reasons, this appeal is allowed. The Judgment of the High Court is set aside. ........................................J. ( P. SATHASIVAM ) ........................................J. ( J. CHELAMESWAR ) New Delhi; February 24, 2012.

Civil Writ Petition No. 2416 of 2002 and R.A. No.134 of 2002 filed by the appellant seeking refund of Rs.10 lakhs deposited towards security pursuant to the order passed by the High Court has been dismissed. = the respondent-Corporation's right to forfeit the security amount or to recover the extra expenditure incurred in getting the work executed from alternative agency was not disputed by him. 12

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.8569-8570 of 2003 Krishan Lal ...Appellant Versus Food Corporation of India & Ors. ...Respondents O R D E R T.S. THAKUR, J. 1. These appeals by special leave arise out of an order passed by the High Court of Punjab and Haryana whereby Civil Writ Petition No. 2416 of 2002 and R.A. No.134 of 2002 filed by the appellant seeking refund of Rs.10 lakhs deposited towards security pursuant to the order passed by the High Court has been dismissed. 2. On 12th November, 1999 the Food Corporation of India invited tenders for appointment of Handling and 1 Transportation Contracts at various depots including the depot at Dabwali in the State of Haryana. Several persons appear to have submitted their tenders in response to the said tender notice including M/s R.R.S. Chautala & Company who eventually bagged the contract in question having offered to undertake the contracted work in consideration of payment at 186% above the schedule of rates. The appellant questioned the said allotment in Writ Petition No.1368 of 2000, inter alia, alleging that he had been illegally prevented from submitting his tender by being denied the requisite form for submission of the tender. The appellant also asserted that he was ready to undertake the Handling and Transportation work at a much lower rate of 110% above the schedule of rates as against 186% offered by the successful tenderer mentioned above. The appellant even offered to deposit a sum of Rs.10 lakhs by way of security to show his bona fides. An affidavit to that effect was also, it appears, filed by the appellant. 3. The Writ Petition filed by the appellant was eventually allowed by the High Court by its order dated 5th April, 2001. The High Court held that the decision taken by the Food 2 Corporation of India was without consideration of relevant facts and was not reasonable. The High Court therefore, found a case justifying interruption of contract and setting aside of the allotment of work in favour of the successful tenderer. Having said that, the High Court issued the following directions: "It is directed that the fifth respondent shall cease to operate immediately. The respondent-corporation shall invite fresh tenders and proceed to allot the work in accordance with law. The petitioner shall be bound by his offer to work at 110% above the schedule of rates. He would deposit an amount of Rs.10 lacs by way of security within one week from today with the office of the Senior Regional Manager, Food Corporation of India, Chandigarh. This amount shall be adjusted towards security, etc. if the work is allotted to the petitioner. Otherwise, it would be refunded within one week of the final decision regarding the allotment of the work." 4. In obedience to the above directions the respondent- Food Corporation of India (FCI) invited sealed tender for handling and transport contact for its Dabwali depot for a period of six months. The short term tender notice required the intending tenderers to submit their tenders along with complete documents and the earnest money prescribed in the form of a Demand Draft. 3 5. In response to the above tender notice, the appellant also submitted a tender offering to undertake the work @ 50% above the schedule of rates. This offer was accepted by the respondent-Corporation with a direction to the District Manager, FCI, Hissar that no amount towards security be demanded from the appellant as the security amount of Rs.3,09,500/- stood deposited in the Regional Office. Shortly after the allotment of the contract to the appellant, the appellant sent a fax message expressing his inability to undertake the handling and transport contract and withdrawing the offer made by him. By this time the appellant had already executed a formal agreement with the respondent-Corporation on 28th May, 2001. In response, the respondent-Corporation informed the appellant that any withdrawal after the execution of the formal agreement was tantamount to a breach of the terms and conditions of the contract and would attract action under Clause X(b) of the agreement. The appellant was requested to take up the handling and transport work within one week positively, failing which the respondent- Corporation proposed to take recourse to Clause X(b) of 4 the agreement to get the work done at the risk and cost of the appellant. 6. It is common ground that the appellant did not undertake the work. He cited some security problems which according to the appellant prevented him from discharging his contractual obligations. Not only that the appellant demanded the refund of Rs.10 lakhs which stood deposited with the respondent-Corporation pursuant to the direction issued by the High Court in the writ petition referred to earlier. Upon refusal of the respondent- Corporation to refund the amount in question the appellant filed Writ Petition No.2416 of 2002 in the High Court of Punjab and Haryana for a mandamus directing the respondent-Corporation to refund the same. The High Court dismissed the said petition holding that since the parties had entered into a written contract their mutual rights and obligations were governed by the terms and conditions of the said contract. The High Court observed: "It appears from the record of the case and in particular Annexure-P-5 dated 20.6.2001 addressed to the petitioner by the F.C.I. that the petitioner had executed agreement in the office on 28.5.2001 and his offer at 50% ASOR was accepted by the office vide 5 telegram dated 25.5.2001, a copy whereof was sent to the petitioner through registered post. It has been clearly mentioned in Annexure-P-5 that the F.C.I had accepted the offer of the petitioner and that being so, in our view, a concluded contract had come into existence. Withdrawal of offer would certainly attract relevant condition of the contract. "The contract that has been arrived at between the parties has not been placed on records. The terms of contract in the event a party, after its offer has been accepted, may back out, are, thus, not known. There is, however, sufficient indication forthcoming from Annexure-P-5 that Clause 10(b) would apply in the event of contractor may not carry out the work allotted to him. This clause too has not been shown to us nor made a part of pleadings. All that we would, thus, like to observe at this stage is that once the parties have arrived at concluded contract, the terms thereof would alone determine the rights inter se parties. Be that as it may, petitioner cannot ask for refund of Rs.10 Lacs on the dint of orders passed in his earlier petition bearing No.1368 of 2000 as it is only in the event work was not to be allotted to him that, he could ask for refund of the money deposited by him." 7. We have heard learned counsel for the parties at some length. The material facts are not in dispute. It is not in dispute that the amount of Rs.10 lakhs was deposited by the appellant in terms of the order of the High Court in Writ Petition No.1368 of 2000. The said amount had to be refunded to the appellant if the work was not allotted to the appellant upon the issue of the fresh tenders. In case the appellant succeeded in bagging the contract the amount was to be adjusted towards security. This clearly implied 6 that the order passed by the High Court envisaged a situation where the appellant would not succeed in securing the contract pursuant to the fresh tender process, in which event the amount deposited by the appellant had been refundable in toto. In case, however, the appellant succeeded in bagging the contract which obviously depended upon whether he offered the lowest rate for undertaking the work in question, the amount deposited by him had to be adjusted towards security in relation to the said contract. It is also not in dispute that a short-term tender was issued pursuant to the direction of the High Court and that the security amount required to be furnished by the appellant was limited to a sum of Rs.3,09,500/-. The High Court order did not provide for a situation where the security amount required under the contract may be Rs.3,09,500/- for other tenderers but Rs.10 lakhs in the case of the appellant. That a formal agreement was executed between the parties is also admitted before us as indeed it was before the High Court. Withdrawal of the offer tantamount to refusal to undertake the contract, hence a breach of the terms of the contract, and shall attract the 7 penal provisions contained in the same is also not in question. Our attention was, in this regard, drawn by learned counsel for the appellant to Clause X (b) and XI (f) of the agreement which read as under: "X(b) The Senior Regional Manager shall also have without prejudice to other rights and remedies, the right, in the even of breach by the contractors of any of the terms and conditions of the contract to terminate the contract forthwith and to get the work done for the unexpired period of the contract at the risk and cost of the contractors and/or forfeit the security deposit at any part thereof for the sum of sums due for any damages, losses, charges, expenses of costs that may be suffered or incurred by the corporation due the contractor's negligence or unworkment like performance of any of the services under the contract. XI (f) In the event of termination of the contract envisaged in clause X, of the Senior Regional Manager shall have the rights of forfeit the entire or part of the amount of security deposit lodged by the contractors or to appropriate the Security Deposit or any part thereof in or towards the satisfaction of any sum due to be claimed for any damages, losses, charged expenses or cost that may be suffered or incurred by the Corporation." 8. It was argued on behalf of the appellant that even the widest and most favourable interpretation of the above terms would not entitle the respondent-Corporation to forfeit any amount besides the security deposit and recover any damages, losses or cost that may be suffered or incurred by the respondent-Corporation in getting the 8 contracted work executed through some other agency. Such being the position the respondent-Corporation could at best forfeit the sum of Rs.3,09,500/- towards security deposit and a sum of Rs.2,17,274/- which the respondent- Corporation claimed to have incurred towards extra expenditure in getting the work executed at the risk and cost of the appellant. The extra expenditure incurred by the respondent-Corporation after termination of the contract allotted to the appellant, it is noteworthy, has been quantified by the respondent-Corporation in para 5(i) & (ii) of the counter-affidavit filed on its behalf. The respondent- Corporation has inter alia said: "I say that during the contract period of six months of the petitioner, the Respondent Corporation had to incur an extra expenditure of Rs.2,17,274/- and suffered heavy losses. I say that security amount of Rs.10 lakhs was furnished by the petitioner as security for fulfilment of contract in terms of High Court order. Even after depositing Rs.10 lakhs as per the High Court Orders, the petitioner did not resume the work and the entire amount of Rs. 10 lakhs was rightly forfeited against excess payment made towards alternative arrangements made at the risk and cost of the petitioner. I say that the amount of Rs.10lakhs was stand forfeited under Clause X(b) read with Clause XI(f) of the contract." 9. It was in the light of the above assertions, argued Mr. Jha, learned counsel for the appellant, that the respondent- 9 Corporation could not lay any claim against the amount in question in excess of Rs.3,09,500/ plus Rs.2,17,274/- and that the balance amount was liable to be refunded to the appellant. 10. On behalf of the respondent-Corporation it was argued that the appellant ought to have resorted to the arbitration clause under the agreement instead of filing a writ petition in the High Court. Alternatively, it was argued that the security deposit having been made under the orders of the High Court, the entire amount of Rs.10 lakhs was liable to be forfeited on the failure of the appellant to work once the same was allotted to him. 11. It is true that there was an arbitration clause in the agreement executed between the parties. It is equally true that, keeping in view the nature of the controversy, any claim for refund of the amount deposited by the appellant could be and ought to have been raised before the Arbitrator under the said arbitration. The fact, however, remains that the High Court had entertained the writ petition as early as in the year 2002 and the present appeals have been pending in this Court for the past ten 10 years or so. Relegating the parties to arbitration will not be feasible at this stage especially when the proceedings before the Arbitrator may also drag on for another decade. Availability of an alternative remedy for adjudication of the disputes is, therefore, not a ground that can be pressed into service at this belated stage and is accordingly rejected. 12. Equally untenable is the alternative argument that since the amount of Rs.10 lakhs had been deposited pursuant to the order passed by the High Court the same was liable to be forfeited in toto in the event of any breach of the agreement between the parties. The deposit was, no doubt, made pursuant to the direction of the High Court but the said direction did not go further to say that in case the appellant committed a breach of the agreement executed between the parties, any such breach would result in the forfeiture of the entire amount of Rs.10 lakhs. A closer reading of the order passed by the High Court leaves no manner of doubt that the amount was deposited but was refundable in case the contract was not allotted and was adjustable towards security if the appellant succeeded in 11 emerging as the successful tenderer. In the event of adjustment of the amount towards security the breach of the contract would have led to the forfeiture of the security amount alone and not the entire amount deposited by the appellant. 13. Even so, the terms of the contract provided for execution of the contracted work through another agency at the risk and cost of the appellant. It is not in dispute that the respondent-Corporation had engaged an alternative agency for getting the work executed. It is also not in dispute that an extra amount was incurred by the respondent-Corporation in that regard. If that be so, the amount lying with the respondent-Corporation could be utilised for recovery of the loss. The respondent- Corporation could therefore make a claim for recovery of the extra expenditure, incurred by it. We must mention, in fairness to Mr. Jha, that the respondent-Corporation's right to forfeit the security amount or to recover the extra expenditure incurred in getting the work executed from alternative agency was not disputed by him. 12 14. That being the position, the respondent-Corporation would be entitled to retain a sum of Rs.3,09,500/ plus Rs.2,17,274/- = Rs.5,26,774/-. The balance amount of Rs.4,73,226/- ought to have been refunded to the appellant on the admitted factual and contractual premise. 15. In the result, we allow this appeal, set aside the order passed by the High Court and direct the respondent- Corporation to refund the balance amount of Rs.4,73,226/- to the appellant within a period of three months from today failing which the said amount shall start earning interest @ 10% p.a. from the date of expiry of the stipulated period of three months mentioned above. We are consciously making no order for payment of interest on the amount held refundable to the appellant, for we are of the opinion that the appellant had without any real intention to perform the work in question got the earlier contract terminated by a judicial order and put the Corporation through the unnecessary botheration and consequential prejudice of calling for fresh tenders. The appellant, it appears to us, was interested only in scoring a point over his rival for whatever reasons he had in view. The conduct of the 13 appellant has, therefore, dissuaded us from directing payment of any interest to him on the amount that is held refundable. 16. These appeals are, with above directions & observations, allowed and disposed of leaving the parties to bear their own costs. ........................................... ...J. (T.S. THAKUR) ........................................... ...J. (GYAN SUDHA MISRA) New Delhi February 24, 2012 14

whether penalty and interest can be levied and collected when the duty has been paid before the issue of Show Cause Notice under the provisions of the Central Excise Act, 1944 (`the Act' for short).

1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2012 (@ DY.NO.11065 OF 2006) COMMNR.OF CENTRAL EXCISE, KOLKATA ... APPELLANT VERSUS M/S.PLAXAIR INDIA PVT. LTD. ... RESPONDENT O R D E R 1. Delay condoned. 2. Learned counsel for the sole respondent appears and takes notice. Hence notice waived. 3. Appeal admitted. 4. The issue raised in this appeal lies in a very narrow compass. Therefore, by consent of the learned counsel for the parties to the lis, the matter is taken up for final hearing. 5. The issue in this appeal is, whether penalty and interest can be levied and collected when the duty has been paid before the issue of Show Cause Notice under the provisions of the Central Excise Act, 1944 (`the Act' for short). 2 6. In the present case, it is the stand of the assessee that the assessee had paid the duty under the provisions of the Act before the issue of the Show Cause Notice and, therefore, not liable for the payment of penalty and interest on the duty so paid under Section 11 AC of the Act. 7. The Tribunal, accepting the stand of the assessee and by relying on the observations made by this Court in the case of Rashtriya Ispat Nigam Ltd. Vs. CCE., Visakhapatnam, 2004 (163) ELT A 53 (SC), has allowed the assessee's appeal and has set aside the demands raised by the Revenue for payment of penalty and interest. The Revenue, being aggrieved by the orders passed by the Tribunal, is before us in this appeal. 8. Mr. R.P. Bhatt, learned counsel appearing for the Revenue, would submit that the issue raised in this appeal is now squarely covered by the decision of this Court in Union of India Vs. Dharmendra Textile Processors & Ors., (2008) 13 SCC p.369 and, therefore, submits that the judgment and orders passed by the Tribunal requires to be annulled by this Court. Per contra, learned counsel appearing for the assessee would submit that though the issue is now covered by the decision of this Court in the case of Dharmendra Textile Processors (supra), the matter 3 requires to be remitted to the Tribunal for fresh consideration and decision. In this connection, the learned counsel invites our attention to para 20 of the judgment in Dharmendra Textile Processors (supra). 9. This Court, in the aforesaid cited decision after considering the effect of Section 11 AC of the Act, has come to the conclusion that the view expressed in Dilip N. Shroff Vs. C.I.T., (2007)6 SCC 329 is not correctly decided and accordingly has accepted the view taken in S.E.B.I. Vs. Cabot International Capitals Corporation, (2006) 5 SCC 361. After doing so, the three Judge Bench of this Court thought it fit to set aside the orders passed by the High Court and the Tribunal and remitted the matter to the High Court/Tribunal, as the case may be, for fresh adjudication in the light of the decision of this Court in Dharmendra Textile Processors case (supra). 10. In view of the above, we are left with no other alternative but to set aside the orders passed by the Tribunal in Appeal No.E/711/03 dated 16.8.2005 and remit the matter to the Tribunal for its fresh consideration and decision. We also make it clear that the Tribunal now will decide the issue afresh, keeping in view the observations made by this Court in Dharmendra Textile 4 Processors case (supra). 11. With these observations and directions, the appeal is disposed of. No costs. ...................J. (H.L. DATTU) ...................J. (ANIL R. DAVE) NEW DELHI; FEBRUARY 22, 2012

Apex court converted the death penalty to the full life imprisonment= rape followed by murder by a young man, instead of death sentence a life imprisonment should be awarded with a direction that life sentence imposed will extend to the full life of the appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reasons. - we convert the death sentence awarded to the appellant to imprisonment for life and direct that the life sentence of the appellant will extend to his full life subject

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 1905 of 2011 Amit ...... Appellant Versus State of Uttar Pradesh ...... Respondent J U D G M E N T A. K. PATNAIK, J. This is an appeal by way of special leave under Article 136 of the Constitution of India against the judgment dated 29.07.2009 of the Allahabad High Court in Criminal Appeal No.7361 of 2007 and in Reference No.26 of 2007 confirming the conviction of the appellant under Sections 364, 376, 377, 302 and 201 of the Indian Penal Code (for short `IPC') as well as the sentences of imprisonments and death awarded by the learned Additional Sessions Judge. 2 2. The facts very briefly are that on 19.03.2005, one Radhey Shyam lodged a First Information Report (for short `FIR') at the Daurala Police Station in District Meerut at 21:15 hours alleging that while his mother Manno and wife Shakuntala were present at house, his neighbour Amit, the appellant herein, took away his daughter Monika, aged 3 years, from his house on the pretext that he would give biscuits to her but neither his daughter nor the appellant returned and when at about 5.00 p.m. the appellant came back to his house, he inquired about the whereabouts of Monika, but the appellant did not reply and ran away. Crime No.90 of 2005 for the offence under Section 364, IPC, was registered. The appellant was apprehended on 20.03.2005 near the Pawli Khas Railway Station, Modipuram, P. S. Daurala in District Meerut and his shirt, which bore blood-stains on its right arm, was taken off from his person. On the statement of the appellant, the dead body of Monika kept in a plastic bag was recovered from the wheat field in the out skirts of village Palhara in the 3 presence of Radhey Shyam and Iqbal Singh. A pair of green colour chappals, which were blood-stained, were also recovered from the corner of a room of the house of the appellant on the statement of the appellant in presence of Radhey Shayam and Iqbal Singh. The shirt of the appellant and the chappals, frock, underwear of Monika and a back thread were sent to the Forensic Science Laboratory Uttar Pradesh, Agra, which confirmed presence of human blood and human sperms on some of these materials. After investigation, chargesheet was filed against the appellant under Sections 364, 376, 377, 302 and 201, IPC, and charges were accordingly framed by the learned Additional Sessions Judge, Court No.12, Meerut, and Sessions Trial No.449 of 2005 was conducted. 3. At the trial, Radhey Shyam was examined as PW-1. His wife and mother were examined as PWs-2 and 3. Iqbal Singh, the witness to the seizures made pursuant to the statements of the appellant, was examined as PW-4. Dr. Vikrama Singh, Senior 4 Pathologist, who carried out the post-mortem on the body of Monika, was examined as PW-5 and the Investigating Officer was examined as PW-6. In his statement under Section 313, Criminal Procedure Code (for short `Cr.P.C.'), the appellant denied having committed the offences but no evidence was adduced by him in his defence. The trial court considered the evidence, heard the arguments and found the appellant guilty of the charges under Sections 364, 376, 377, 302 and 201, IPC. After hearing the appellant on the question of sentence, the trial court imposed the punishment of life imprisonment and a fine of Rs.5,000/- for the offence under Section 364, IPC, and a further sentence of six months if the appellant failed to pay the fine. For the offence under Section 376, IPC, the trial court also imposed the punishment of life imprisonment and a fine of Rs.5,000/- and on failure to pay the fine, a further sentence of six months. For the offence under Section 377, IPC, the trial court also imposed the punishment of life imprisonment and a fine of 5 Rs.5,000/- and on failure to pay the fine, an additional sentence of six months' imprisonment. For the offence under Section 201, IPC, the trial court imposed a sentence of five years imprisonment and a fine of Rs.2,000/- and on failure to pay the fine, an additional sentence of two months' imprisonment. The trial court took the view that this is one of those rarest of rare cases in which the appellant was not eligible for any sympathy of the Court and imposed the sentence of death and a fine of Rs.5,000/- on the appellant for the offence under Section 302, IPC. The High Court, as we have already noted, has not only confirmed the convictions under Sections 364, 376, 377, 302 and 201, IPC, but also the sentences awarded by the trial court. 4. At the hearing of the appeal, learned counsel for the appellant submitted that PW-3 was the only person who was witness to the appellant taking away Monika from the house of PW-1, but PW-3 was an aged woman and she has admitted in her cross- examination that she cannot see with her right eye. 6 He submitted that PW-3 was an interested witness inasmuch as she was the grandmother of Monika and her evidence should not be relied on. He argued that no Test Identification Parade was conducted during investigation for the witness to identify the appellant. He further submitted that no independent witnesses were taken by the Police for recovery of the articles and instead the father of Monika (PW-1) was made a witness to the recovery of various articles and there is evidence to show previous enmity between PW-1 and the appellant and PW-1 has planted this case against the appellant. He also argued that the weapon by which Monika was killed has not been recovered and hence there is no proof that the appellant has committed the offence under Section 302 IPC. 5. Learned counsel for the State, on the other hand, took us through the evidence of PWs-1, 2, 3 and 4 as well as the three memoranda of recovery made on 20.03.2005 pursuant to the confessional statements of the appellant admissible under Section 27 of the 7 Evidence Act as well as the report of the Forensic Science Laboratory to show that the trial court rightly convicted the appellant and the High Court rightly confirmed the conviction under Sections 364, 376, 377, 302 and 201, IPC. 6. We may first consider the contention of the learned counsel for the appellant that the evidence of PW-3 who saw the appellant taking away Monika from her lap should not be relied on. PW-3 is no doubt the grandmother of Monika but she is not an interested witness. As has been held by this Court in State of Rajasthan v. Smt. Kalki and another [(1981) 2 SCC 752], Myladimmal Surendran and others v. State of Kerala [(2010) 11 SCC 129] and Takdir Samsuddin Sheikh vs. State of Gujarat and another [(2011) 10 SCC 158], an interested witness must have some direct interest in having the accused somehow convicted for some extraneous reason and a near relative of the victim is not necessarily an interested witness. There is no evidence to show that PW-3 was somehow interested in having the appellant 8 convicted. PW-3, however, is an aged woman and she has admitted in her cross-examination that she cannot see with her right eye but she has also stated in her cross-examination that she can see with her left eye and the sight of her left eye has not diminished on account of old age and she can fully see everything and can also pass a thread through the eye of the needle and that she does not use spectacles and can see without spectacles. Hence, the evidence of PW-3 that the appellant came to her house and took away Monika from her lap on the pretext of giving biscuits to her cannot be disbelieved. 7. We may now deal with the contention of the learned counsel for the appellant that no Test Identification Parade was conducted during investigation for the witness to identify the appellant as the person who had taken away the child from her lap. Test Identification Parade would have been necessary if the appellant was unknown to PW-3 but as the appellant was the neighbour of PW-3 and known to her no Test Identification Parade was necessary for 9 PW-3 to identify the appellant. In fact when PW-1 returned home, he was told by PW-3 that the appellant had taken away Monika on the pretext of giving her biscuits because PW-3 knew the appellant. Moreover, on such information received from PW-3, PW-1 lodged the FIR naming the appellant as the person who had taken away Monika on the pretext of giving her biscuits. Hence, the argument of learned counsel for the appellant that no Test Identification Parade was conducted for PW-3 to identify the appellant is misconceived in the facts of this case. 8. Regarding the contention of learned counsel for the appellant that no independent witnesses were taken by the police for recovery of the articles and PW-1, who was the father of Monika and who was inimical to the appellant was made a witness to the recovery of the articles, we find from the memo Ex.Ka-10 recording the recovery of blood- stained shirt of the appellant that the recovery was made in presence of two Constables, namely, Harender Singh and Jasbir Singh, and PW-1 was not a witness to this recovery. 10 Thereafter, the appellant made a confession that he had concealed the dead body of Monika in the wheat field and pursuant to this confession the dead body of Monika kept in a plastic bag was recovered in presence of not only PW-1 but also PW-4 (Iqbal Singh). The recovery memo (Ext.Ka-2) with regard to the dead body of Monika and the recovery memo Ext.Ka-3 with regard to plastic bag bear the signatures of the two witnesses PW-1 and PW-4. Pursuant to the statement made by the appellant, the chappals which Monika was wearing at the time of murder were also recovered from the house of the appellant in presence of PW-1 and PW-4 and the recovery memo with regard to the chappals (Ext.Ka-5) also bears the signatures of PW-1 and PW-4. Thus, it is not correct, as has been submitted by learned counsel for the appellant, that only PW-1 was a witness to the recovery of various articles and that this was a case which PW-1 had planted on the appellant on account of previous enmity. PW-4 was also a witness to the recovery of the articles which 11 implicate the appellant in the offence and it is not the case of the appellant that PW-4 was in any way inimical to the appellant. 9. Coming to the argument of the counsel for the appellant that the weapon with which Monika was killed has not been recovered, it appears from the evidence of the senior pathologist Dr. Vikrama Singh, PW-5, who carried out the post mortem report on the body of Monika that there were swelling marks on her head and left side of the face which established that she has been hit on her head and her left side of the face. PW-5 has also stated in his evidence that there was a ligature mark all around her neck which indicates that she was also strangulated. PW-5 has further deposed that there was a lacerated wound on the anterior part of arms anus and her vagina was inflamed and congested which prove that unnatural offence and rape was committed on her. PW-5 has opined that all the injuries together are the cause of the death of Monika. The report of the Forensic Science Laboratory (Ex.A-23) confirms human blood 12 and human sperms on the underwear of Monika. Thus, even if the object with which Monika was hit has not been identified and recovered, the evidence of PW-3, the recovery of various articles made pursuant to the confession of the appellant, the evidence of PW-5 and the report of the Forensic Science Laboratory Ex.A-23 prove beyond all reasonable doubt that it is the appellant alone who after having kidnapped Monika committed unnatural offence as well as rape on her and killed her and thereafter caused disappearance of the evidence of the offences. The High Court has, therefore, rightly confirmed the conviction of the appellant under Sections 364, 376, 377, 302 and 201 IPC. 10. We may now consider the contentions of the learned counsel for the parties on the sentence for the offence under Section 302, IPC. Learned counsel for the appellant submitted that the appellant was a young person aged about 28 years when he committed the offences and may reform in future. He cited the judgments of this Court in Sebastian Alias Chevithiyan v. State of Kerala [(2010) 1 13 SCC 58] and Rameshbhai Chandubhai Rathod (2) v. State of Gujarat [(2011) 2 SCC 764] in which this Court in similar cases of murder of a child after rape by a young person has held that imprisonment for life and not death sentence is the appropriate punishment. He submitted that the appellant, therefore, should not be awarded death sentence. 11. Learned counsel for the State, on the other hand, submitted that the trial court has held that kidnapping and raping a three years old daughter of a neighbour by another neighbour on the pretext of offering biscuit is a heinous and inhuman act and comes under the category of rarest of rare cases as has been held by this Court in several decisions. He submitted that the view taken by the trial court is consistent with the decisions of this Court in State of U.P. v. Satish [(2005) 3 SCC 114] and Bantu v. State of Uttar Pradesh [(2008) 11 SCC 113]. According to him, death sentence is the appropriate punishment for rape of a child followed by murder. 14 12. We find that the trial court has relied on the decision of a two Judge Bench of this Court in State of U.P. v. Satish (supra) in which the offence of rape of a child followed by brutal murder of a child has been held to fall in the rarest of rare category for which death sentence is appropriate. In Bantu v. State of Uttar Pradesh (supra), a two-Judge Bench has similarly awarded death sentence to the accused for having committed murder after rape of a young girl of 5 years. In the subsequent decision in the case of Sebastian Alias Chevithiyan v. State of Kerala (supra), however, a two-Judge Bench of this Court in a similar case of a rape followed by murder of a young child by a young man of 24 years has taken a different view and has modified the sentence of death to one imprisonment for the rest of his life. In Rameshbhai Chandubhai Rathod (2) v. State of Gujarat (supra), which was also a case of a rape followed by murder of a girl child by a young man, while Dr. Arijit Pasayat, J. took the view that death sentence is the appropriate punishment, A.K. Ganguly, J. was of the view that as the accused was young in age and may be rehabilitated in future, death sentence is not the 15 appropriate punishment. The difference between the two Judges was referred to a three-Judge Bench of this Court and the three-Judge Bench held that in such cases of rape followed by murder by a young man, instead of death sentence a life imprisonment should be awarded with a direction that life sentence imposed will extend to the full life of the appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reasons. In the present case also, we find that when the appellant committed the offence he was a young person aged about 28 years only. There is no evidence to show that he had committed the offences of kidnapping, rape or murder on any earlier occasion. There is nothing on evidence to suggest that he is likely to repeat similar crimes in future. On the other hand, given a chance he may reform over a period of years. Hence, following the judgment of the three-Judge Bench in Rameshbhai Chandubhai Rathod (2) v. State of Gujarat (supra), we convert the death sentence awarded to the appellant to imprisonment for life and direct that the life sentence of the appellant will extend to his full life subject 16 to any remission or commutation at the instance of the Government for good and sufficient reasons. 13. While therefore sustaining the conviction of the appellant for the different offences as well as the sentences of imprisonment awarded by the trial court for the offences, we allow the appeal in part and convert the sentence of death to life imprisonment for the offence under Section 302 IPC and further direct that the life imprisonment shall extend to the full life of the appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reasons. The appeal stands disposed of. .............................J. (A. K. Patnaik) .............................J. (Swatanter Kumar) New Delhi, February 23, 2012.