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Ramchand Kundanmal Vs. Sardarsingh Mohansingh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 548 of 1954
Judge
Reported inAIR1956Bom241; (1956)58BOMLR213; ILR1956Bom369
ActsDebt Law; Bombay Agricultural Debtors Relief Act, 1947 - Sections 4, 14, 15, 15(1) and 19; Code of Civil Procedure (CPC), 1908 - Sections 115 - Order 1, Rule 1
AppellantRamchand Kundanmal
RespondentSardarsingh Mohansingh and ors.
Appellant AdvocateY.V. Chandrachud, Adv.
Respondent AdvocateG.N., Adv. (sic)
Excerpt:
.....agricultural debtors relief act court -- application by debtor for adjustment of debts -- issue of general notice under section 14(b) and creditor not filing statement in response -- applications heard together and award made rejecting creditor's application on ground that he had failed to prove his debt -- whether necessary for creditor to prove his debt -- creditor's failure to submit statement in response to general notice whether extinguishes debt.;a darkhast filed by the petitioner, in respect of a mortgage decree obtained by him against the debtor, was transferred under section 19 of the bombay agricultural debtors relief act, 1947, to the bombay agricultural debtors relief act court and it was numbered as an application. the debtor also applied for adjustment of his debts and a..........it is common ground that on the application made by the debtor for the adjustment of his debts a general notice was issued under section 14. it is also common ground that in response to this general notice the petitioned did not file a statement and that provides the material on which mr. vaidya bases his argument about the extinction of the debt under section 15.if it was necessary for the petitioner to file a statement in response to the general notice under the provisions of section 14, mr. vaidya would be right. if on the other hand, it was not neces-sary for the petitioner to submit his statement though a general notice may have been issued under section 14, the argument as to the extinction of the debt must fail. that is why it is necessary to examine the provisions of.....
Judgment:
ORDER

1. This revisional application raised a short question under Ss. 14 and 15 of the B. A. D. R. Act. The question arises in this way. Tile petitioner obtained a decree against the opponents in suit No. 170 of 1943 for Rs. 1,200/-. It was a decree on mortgage. The decree was put in execution and a darkhast was filed. This darkhast was transferred to the B. A. D. R. Act Court under s. 19 and it was then numbered as Application No. 21000 of 1947. It would ap-pear that in this proceeding the debtor pleaded a subsequent adjustment as a result of which only Rs. 200/- were due from him to the decree-holders.

The debtor also applied for the adjustment of his debts and his application was numbered 14472 of 1947. The two applications were then consolidated and were fixed for hearing on 8-8-1951. On this date the debtor No. 1 was examined, but creditor No. 1 was absent. In the result the learned judge dismissed the creditor's application.

Ultimately on 25-9-1851 an award was passed and in this award the petitioner's claim wa3 rejected on the ground that he had failed to prove his debt. Against this award the petitioner preferred an appeal, He contended that it. was for the opponents to prove the alleged adjustment and since in their evidence the opponents had not deposed to the adjustment the award should have recognised the whole of the decretal debt as due and adjustable and the petitioner's claim should have been adjusted en that footing.

The lower appellate Court allowed the appeal only in part. He held that the amount of Rs. 200/- which had been admitted by the debtors as due from them to the decreeholder should be awarded to the petitioner. The rest of the claim was rejected. It is this order which is challenged before me by Mr. Chandrachud on behalf ol the creditor.

2. Mr. Chandrachud contends that his client has obtained a decree from the court of competent jurisdiction and in fact when the darkhast application was filed to execute the decree it had been transferred under Section 19, and that unless the Judgment-debtor proves that the decretal debt is satisfied or is adjusted or is otherwise barred it was incumbent on the B. A. D. R. Act Court to take the debt as proved and to deal with it under the provisions of the Act.

In my opinion this argument is obviously sound. It is difficult to understand how the learned judge who heard the adjustment applications came to the conclusion that because of the absence of the 'decreeholder it followed that his debt had not been proved. In fact the decree-holder in such a case had merely to produce the decree which he had obtained and since the application before the adjustment court was thg result of a transfer made by the executing court under Section 19, it was hardly necessary for the decree-holder to take elaborate steps to prove his debt beyond producing the decree.

The decree has been referred to in the darkhast application and the executing Court has transferred the darkhast application to the B. A. D. R. Act court. Therefore it seems to me that the learned Judges below were in error in taking the view that in the absence of proof about the subsistence of the debt the decree-holder waa not entitled to any claim at all.

The lower appellate court has no doubt given relief to the petitioner to the extent of Rs. 200/-but that is on the ground that this amount was admitted by the judgment-debtor. Even this conclusion is based upon the erroneous approach to the problem. It is for the debtor to prove how the decretal amount claimed in the darkhast is adjusted or barred.

3. Mr. Vaidya who appears for the oppo-nents has however attempted tc justify the conclusion of the lower courts with an ingenious argument. He contends that in fact the decretal debt due to the petitioner is extinguished under Section 15 of the Act.

He concedes that he has not challenged the order of the lower appellate court holding that Rs. 200/- are due to the petitioner; but he argues and rightly that even so it would be open to him to support the rest of the order on the ground that the lower appellate court has given relief to the petitioner that he deserved in law and it is this argument raised under Sections 14 and 15 of the Act which calls for a decision in the present revisional application.

Mr. Vaidya has Invited my attention to the provisions of Section 15 and he argues that the present decretal debt is one to which the last portion of Sub-section (1) of the Section 15 applies. Section 15 Sub-section (1) deals with the extinction of debts due from the debtors and one of the classes of debts to which the rule of extinction applies is covered by such debts as are due from debtors in respect of which statements are not submitted to the court by the creditors in compliance with the provisions of Section 14.

In other words if a debt is due from a debtor and the creditor has not submitted a statement in compliance with the provisions of Section 14 in respect of the debt due to him the said debt shall be deemed to be extinguished. It is common ground that on the application made by the debtor for the adjustment of his debts a general notice was issued under Section 14. It is also common ground that in response to this general notice the petitioned did not file a statement and that provides the material on which Mr. Vaidya bases his argument about the extinction of the debt under Section 15.

If it was necessary for the petitioner to file a statement in response to the general notice under the provisions of Section 14, Mr. Vaidya would be right. If on the other hand, it was not neces-sary for the petitioner to submit his statement though a general notice may have been issued under Section 14, the argument as to the extinction of the debt must fail. That is why it is necessary to examine the provisions of Section 14.

4. Now Section 14 requires service of notices on the debtors and submission of statements of debts by creditors. Sub-clause (a) of the Section 14 provides that the court shall give notice to the debtor (unless the debtor is himself an applicant) and to every creditor (other than the cre-,ditor who is himself an applicant) whose name and address are given in the application; and Sub-clause (b) provides for the publication of a general notice requiring the prescribed form within one month from the date of the service of the notice or the publication of the general notice whichever is later.

Mr. Vaidya naturally relied on the latter portion of Sub-clause (b) of the Section 14 and he contends that all the creditors are required in response to the publication of a general notice to submit statements in the prescribed form, and if this obligation can be inferred from the words of Section 14 (b) his argument will receive support that the debt has been extinguished under Section 15. It is true that the words used in Section 14 (b) are general and prima facie they seem to require all the creditors to submit a statement in the prescribed form.

But in construing these words we must have regard to the provisions contained in Section 14 (a) Itself. If it appears that under Section 14 (a) an individual notice is not required to be issued to the present petitioner then it would be difficult to hold that his failure to submit a statement in response, to a general notice would be fatal to his claim.

In considering the effect of the provisions of Sub-clauses (a) and (b) of Section 14, it would be necessary to bear in mind that the forms which are prescribed for making an application for adjustment of a debt as well as for submitting state merits in response to the notice show that the application for adjustment of a debt by the creditor is identical with the statement which he is required to file in response to the notice. Form II is in respect of an application for adjustmenU of debts made by a creditor and Form V is la respect of statements required to be submitted by creditors in response to a general notice.

The details required to be filled in both the: forms are exactly alike and apart from anything else in common sense it seems very difficult to understand why the same party should be required as a matter of legal obligation to submit the same statement in the same form twice over during adjustment proceeding. Besides Section 14 (a) clearly provides that if the creditor himself has made an application for adjustment of debts due to him notice of the application for the adjustment in question is not required to be issued for him, and that would be obviously fair.

If the debtor applied for adjustment of his debts this notice of his application is given to all his creditors and not to himself. Similarly if the creditor applies for adjustment of debts due to him from specified debtors notice of the application would be issued to the debtors and ether creditors of the debtors and need not be issued to the applicant himself.

In dealing with the case of an applicant creditor it would be difficult to hold that merely because a general notice is published he is re-quired by Section 14 (b) to submit a statement which would be exactly similar to the statement which he has already submitted in making an application under Section 4.

Therefore I am not prepared to accept the argument that in the present case the petitioner was required to furnish a statement in the pre-scried form under Section 14 (b). It is true that in the present case the dark hast application has been transferred under Section 19 and it may be that the darkhast does not conform to form II which is prescribed. But if Mr. Vaidya's argument 19 right it makes no distinction between a darkhast which is transferred under Section 19 and at) application which is made by the creditor under Section 4 for adjustment of his debts.

According to Mr. Vaidya even ff the creditor applies for adjustment of the debts due to him from his debtors in the prescribed form he must still submit a statement in response to thai general notice which is issued on the debtor's application for adjustment of debts. Therefore I do not think that for the construction of Section 14 it makes any material difference that in the present case the darkhast may not conform to the form prescribed.

As a result of Its transfer under the provisions of Section 19 the darkhast application made by the creditor has to be treated as an application made under Section 4 and the position of the creditor in law must be deemed to be that of a creditor applicant who has applied for adjustment of debts under Section 4.

Therefore I am not satisfied that the debts due to the petitioner is extinguished under Section 15.

5. Mr. Vaidya has then argued that the appeal preferred by the petitioner in the lower appellate court and the present revisional application are bad for non-joinder. He argues that all the creditors who are interested in the award were necessary parties to the appeal and to the revisional application because as a result of the petition being allowed their position would be affected.

An argument of non-joinder cannot in my opinion be successfully urged at the present stage. When the appeal was preferred it was open to Mr. Vaidya's clients to raise the point of non-joinder; they did not do so. I do not think it would be right to allow this argument to be raised for the first time in a revisional application.

When I make these observations I should not be taken to have assumed that there is any substance in the plea of non-joinder. I have not Considered the point and since I take the view that the point should not be raised I do not propose to deal with it on the merits.

6. Lastly Mr. Vaidya has argued that when the darkhast application made by the petitioner was dismissed for default the petitioner should have preferred an appeal. There is no substance in this argument. Section 43 provides for appeals and I do not see any provision under which an appeal could have been made by the petitioner against the dismissal of the darkfast for default. This order is ultimately merged in the final award and an appeal against the award has been filed by the petitioner.

7. The Revisional application must accordingly be allowed and the matter sent back to the trial court for adjustment of the debts due from the opponents on the footing that the darkhasb claim made by the petitioner is valid and subsisting. There would be no order as to the costs in this court and the lower appellate court. Costs in the trial court would be costs in the cause.

8. Order accordingly.


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