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Dadiba P. Arsiwalla Vs. Thakuji Ramji Gaekwad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 152 of 1941
Judge
Reported inAIR1943Bom19; (1942)44BOMLR865
AppellantDadiba P. Arsiwalla
RespondentThakuji Ramji Gaekwad
Excerpt:
.....within the meaning of the act and whether his debts are below the amount of rs. 15,000. - - that section provides that on the court being satisfied that an application is made by a debtor within the meaning of the act and that the total amount of the debts due by such debtor is not more than..........been made under section 17 of the act, the court must under section 73 stop all proceedings in the pending suit. it is argued that the jurisdiction of the court has come to an end by reason of section 73 of the act.3. in my opinion this contention is misconceived. the suit has already been filed in this court and the relevant section is section 37 of the act. that section provides that on the court being satisfied that an application is made by a debtor within the meaning of the act and that the total amount of the debts due by such debtor is not more than rs. 15,000, the court must transfer the suit to the board to which a proper application for adjustment of debts can be made under section 17. i do not think the legislature has provided that on an application being made under section.....
Judgment:

Kania, J.

This application for a stay of the suit is made under Section 73 of the Bombay Agricultural Debtors Relief Act (Bom. XXVIII of 1939). This suit was filed by the plaintiff in 1941 and as the defendant contended that he was an agriculturist within the meaning of the Dekkhan Agriculturists' Relief Act, according to the practice of our Court, the question of ascertaining his income from agricultural and non-agricultural sources for three years prior to the date of the suit was referred to the Commissioner, on May 19, 1941. Seventeen months have elapsed but the report has not yet been made. I am told that while the evidence was going on before the Commissioner, the defendant on June 2, 1942, made an application to the Debt Adjustment Board for Khed taluka appointed by the Provincial Government by Notifications Nos. 3791 and 3791-A dated December 23, 1941. He thereafter applied to the Commissioner for stay of proceedings, and as this was the first application made under the Act, the Commissioner cancelled several meetings fixed before him in July last. The defendant took out this notice of motion on July 29 for stay of all proceedings before the Commissioner and for a transfer of the suit to the Debt Adjustment Board at Khed.

2. The defendant's argument is that under Section 35 of the Act the jurisdiction to inquire whether he is a debtor and whether his debts do not exceed Rs. 15,000 are matters to be investigated by the Board, and immediately the Court is informed that such an application has been made under Section 17 of the Act, the Court must under Section 73 stop all proceedings in the pending suit. It is argued that the jurisdiction of the Court has come to an end by reason of Section 73 of the Act.

3. In my opinion this contention is misconceived. The suit has already been filed in this Court and the relevant section is Section 37 of the Act. That section provides that on the Court being satisfied that an application is made by a debtor within the meaning of the Act and that the total amount of the debts due by such debtor is not more than Rs. 15,000, the Court must transfer the suit to the Board to which a proper application for adjustment of debts can be made under Section 17. I do not think the legislature has provided that on an application being made under Section 17, Section 73 comes into operation and the Court's jurisdiction is ousted. In respect of the pending suits the jurisdiction remains in the Court to determine whether the applicant is a debtor within the meaning of the Act and whether his debts are below the amount of Rs. 15,000. The last sentence of the first para. of Section 37 in terms provides that the decision of the Court on the two above-mentioned questions shall be final. Therefore, instead of taking away the jurisdiction of the Court for determining these two questions, in my opinion, the jurisdiction of the Court is emphasised in that respect and it is further provided that the Court's decision shall be final on this point. Under the circumstances the contention as urged cannot be entertained. In order to succeed in his application the defendant must prove that he has fulfilled the two conditions provided in Section 37. As both matters are within the powers of the Commissioner to report, I direct that in the reference which is pending before the Commissioner he shall also inquire (1) whether the defendant is a debtor within the meaning of Section 2(6) (a) (iv) of the Bombay Agricultural Debtors Relief Act; and (2) whether the total debts due from him do not amount to more than Rs. 15,000. It is a matter of regret that this matter has not been completed already although seventeen months have expired since the matter was referred to him. It is expected that the Commissioner will proceed so far as possible from day to day and complete this reference at an early date. In order to enable the parties to prepare for the additional directions given by this order it will be perhaps convenient for the Commissioner to proceed with the pending reference and complete the inquiry already directed to be made under the order previously made herein, and proceed to determine the further questions referred to him by this order immediately thereafter. The Commissioner should report to the Court as soon as possible. The present motion to stand over till the report is received. Costs reserved.


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