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Nagarmal Surajmal Vs. Gotulal Laxminarayan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 38 of 1948 and Suit No. 254 of 1948
Judge
Reported inAIR1949Bom348; (1949)51BOMLR525
AppellantNagarmal Surajmal
RespondentGotulal Laxminarayan
Excerpt:
.....referred to in section 19-whether such courts include original side of high court-expression 'city of bombay' in section 1(2), interpretation of-whether applies to courts in city of bombay.;the civil or revenue courts referred to in section 19 of the bombay agricultural debtors' relief act, 1947, include the original side of the high court.;the expression 'city of bombay' in section 1(2) of the bombay agricultural debtors' relief act, 1947, does not apply to the courts in the city of bombay, but to the people residing in the city of bombay. the exception only means that if there is an agriculturist ordinarily resident in the city of bombay, he would not be entitled to the benefits and provisions of the act. it certainly does not mean that although an agriculturist may ordinarily..........the court of the civil judge, senior division, having ordinary jurisdiction in the area where the debtor ordinarily resides, and if there is no such civil judge, the court of the civil judge, junior division, having such jurisdiction. therefore, the court set up for the purposes of this act, as far as this particular defendant is concerned, would be the court of the civil judge, junior division, at chalisgaon, and this court has to try certain preliminary issues as laid down in section 17 of the act, and these preliminary issues are:(a) whether the person for the adjustment of whose debts the application has been made is a debtor?(b) whether the total amount of debts due from such person on the date of the application exceeds rs. 15,000?now, there is no warrant for suggesting that the.....
Judgment:

M.C. Chagla, C.J.

1. This is an appeal from an order of Mr. Justice Coyajee dismissing a summons for judgment taken out by the plaintiffs on the ground that this Court had no jurisdiction to try the suit. The defendant against whom the summons was taken out contended that he was a resident of Chalisgaon, that he was: a debtor within the meaning of Act XXVIII of 1947, and, therefore, this Court had no jurisdiction to try this suit.

2. Mr. Desai on behalf of the plaintiffs has argued before us that in view of the fact that Act XXVIII of 1947 is not applicable to the City of Bombay, and this suit having been filed on the Original Side of the High Court, this Court had jurisdiction to try the suit notwithstanding the fact that the defendant might be a debtor within the meaning of the Bombay Agricultural Debtors' Relief Act. Turning to the scheme of the Act, it is clear that the Act was enacted for the purpose of giving relief to agricultural debtors in the Province of Bombay, and one exception that was made by Section 1(2) was that although the Act was made applicable to the whole of the Province of Bombay it did not apply to the City of Bombay. Under Section 19 of the Act,

All suits, appeals, applications for execution and proceedings other than revisional in respect of any debt pending in any civil or revenue Court shall, if they involve the questions whether the person from whom such debt is due is a debtor and whether the total amount of debts due from him on the date of the application exceeds Rs. 15,000, be transferred to the Court.

And the Court to which these suits, appeals and application are to be transferred is defined in the Act itself, and the Court is, for the purposes of this Act, the Court of the Civil Judge, Senior Division, having ordinary jurisdiction in the area where the debtor ordinarily resides, and if there is no such Civil Judge, the Court of the Civil Judge, Junior Division, having such jurisdiction. Therefore, the Court set up for the purposes of this Act, as far as this particular defendant is concerned, would be the Court of the Civil Judge, Junior Division, at Chalisgaon, and this Court has to try certain preliminary issues as laid down in Section 17 of the Act, and these preliminary issues are:

(a) Whether the person for the adjustment of whose debts the application has been made is a debtor?

(b) Whether the total amount of debts due from such person on the date of the application exceeds Rs. 15,000?

Now, there is no warrant for suggesting that the civil or revenue Courts referred to in Section 19 do not include the Original Side of the High Court. Section 19 is general in its terms and it precludes any civil or revenue Court from continuing with any proceeding pending before it, if such a proceeding involves the question whether the person from whom a debt is due is a debtor and also the question as to what the total amount of debt is. The object of the Legislature was that both these questions should not be determined by the ordinary civil and revenue Courts in the Province, but by the Special Courts set up under this Act, and as far as the defendant is concerned, as I pointed out earlier, that Special Court is the Court within whose jurisdiction he ordinarily resides, and he residing ordinarily at Chalisgaon, that Court would be the Court of the Civil Judge, Junior Division, at Chalisgaon.

3. Now, our attention has been drawn to a judgment of Mr. Justice Desai which he delivered on July 22, 1948, (Juharimal Senaji v. Liladhar (1948) 51 Bom. L.R. 485 holding that notwithstanding Act XXVIII of 1947 and notwithstanding the contention taken up by the defendant that he was a debtor within the meaning of that Act, the Original Side of the High Court had jurisdiction to try such a suit. The learned Judge took the view that as there was no provision in this Act expressly ousting the jurisdiction of the High Court, it must be held that the jurisdiction of the High Court was not affected by Act XXVIII of 1947. In my opinion, the words of Section 19 are wide enough and general enough to apply to the High Court as well as to the other civil and revenue Courts in the Province, and, therefore, I read Section 19(1) as in fact expressly ousting the jurisdiction of this Court to try those matters which involve the questions mentioned in that sub-section. Therefore, the only proper interpretation to give to the expression 'City of Bombay,' as it occurs in Section 1(2), is not to apply it to the Courts in the City of Bombay but to the people residing in the City of Bombay. This exception only means that if there is an agriculturist ordinarily resident in the City of Bombay, then he would not be entitled to the benefits and privileges of Act XXVIII of 1947. It certainly does not mean that although an agriculturist may ordinarily reside in a part of the Province to which the Act applies, he would still not be entitled to the benefits and privileges of this Act merely because his creditor chooses to file a suit against him on the Original Side of the High Court of Bombay.

4. The learned Judge has dismissed the summons for judgment. With respect to him, it was clearly erroneous because all that Section 19 lays down is that the suit should be transferred to the Court specified in the Act for the purpose of the trial of the two preliminary issues. This Court has undoubtedly jurisdiction to entertain the suit, but it has no jurisdiction to try those two preliminary issues which will determine whether he is entitled to the benefit of the Act or not. It may be that he may fail to satisfy the Chalisgaon Court that he is a debtor within the meaning of the Act. In that case the proceedings will come back to this Court. If, on the other hand, he succeeds in establishing that he is a debtor as contemplated by the Act, then further proceedings will have to be taken as laid down in the Act. Therefore, the proper order that the learned Judge should have made was to transfer the suit which has been filed here to the Court of the Civil Judge, Junior Division, Chalisgaon.

5. We would, therefore, set aside the order made by the learned Judge and order that there will be no order on the summons except that the suit be transferred to the Civil Judge, Junior Division, at Chalisgaon. Costs of the summons, costs of the suit, and costs of the appeal to be costs in the' cause.

6. Liberty to the plaintiffs' attorneys to withdraw the sum of Ks. 500 deposited by them in Court for costs of the appeal.

Bhagwati, J.

7. I agree. The Act was enacted for the specific purpose of giving relief to the agricultural debtors in the Province of Bombay and for certain other purposes specified in the Act. The extent of the Act was defined over the whole of the Province of Bombay except the City of Bombay. What the Legislature meant by the words 'except the City of Bombay' has given rise to this controversy, which has been raised before us, whether they apply to debtors ordinarily residing in the City of Bombay or to the Courts situate in the City of Bombay. The words 'except the City of Bombay' are capable of these two constructions, but what construction is right would have to be determined having regard to the object and intendment of the Act itself. The object, as it is to be gathered from the preamble, is that the agricultural debtors in the Province of Bombay have got to be relieved. The object, therefore, of the Act is that those persons who enjoy the status of being agricultural debtors in the Province of Bombay have the provisions of the Act enacted for their benefit, and, therefore, it stands to reason that apart from other considerations, the exception which is made with regard to the City of Bombay being excluded from the operation of the Act should be with reference to debtors who are ordinarily residing in the City of Bombay. The other construction which has been contended for on behalf of the appellants would lead to an absurd result. If there were debtors ordinarily residing in the Province of Bombay except the City of Bombay, then the result would be that even in the case of those debtors who would be entitled to the benefit of the provisions of the Act, they would be deprived of those benefits in those cases where it were possible by having resort to the provisions of Clause 12 of the Letters Patent to file suits against them in the High Court of Bombay. That could never have been the intendment of the Act which is mainly for the relief of the agricultural debtors in the Province of Bombay. The provisions of the Act which have been referred to in the judgment just delivered by my Lord the Chief Justice also lend support to that construction. The Courts which have got to be set up for the adjustment of debts are the Courts which are defined in Section 2(3) of the Act and they also have reference to the debtors ordinarily residing within their jurisdiction. It could not have been intended by the Legislature that the civil or revenue Courts which are referred to in Section 19 of the Act have got to be the civil or revenue Courts in the Province of Bombay except those which are situated in the City of Bombay. The words are wide enough to cover even the High Court which would have jurisdiction by virtue of Clause 12 of the Letters Patent. The only determinative factor is where the debtor ordinarily resides. If the debtor ordinarily resides within the Province of Bombay except the City of Bombay, then the High Court which would have jurisdiction to entertain a suit against the debtor by virtue of Clause 12 of the Letters Patent would also have to transfer by reason of the enactment of Section 19 of the Act the proceedings which fall within Section 19(1). It is only in those cases where the debtor ordinarily resides in the City of Bombay that there being no Court established for the purpose of the adjustment of debts the jurisdiction of the Court would be saved by reason of the enactment of Section 1(2) of the Act. I, therefore, agree with the order which has been proposed in the judgment of my Lord the Chief Justice.


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