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Bhagwani Enterprises Vs. Tarachand Tharoomal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 844 of 1981
Judge
Reported in1983(1)BomCR345
ActsCode of Civil Procedure (CPC) , 1908 - Order 37; Maharashtra Debt Relief Act, 1975 - Sections 2, 11 and 12; Evidence Act, 1872 - Sections 106
AppellantBhagwani Enterprises
RespondentTarachand Tharoomal
Appellant AdvocateC.K. Jaisinghani, Adv.
Respondent AdvocateN.H. Gurshani and ;A.A. Irani, Advs.
Excerpt:
.....case and which requires to be settled and decided by the authorised officer under the maharashtra debt relief act. 3. the affidavit in reply, which was filed on july 16, 1981 by the plaintiff opposing to the claim for reference of suit clearly sets out in para 5 that the defendent has got office in bombay and pune and his own immoveable property and number of telephones. the failure to give such particulars ultimately leaves the court in dark as to the status of the defendant. but it was informed at the bar that all hundis approximately have been executed during the year 1975. a mere look on these figures and the suits will show that a person like the defendant who is engaged in such a calling as distribution of pictures which involves obtaining loans in such amounts and discharge..........the application of the original defendant to refer the issue to the officer under the maharashtra debt relief act. the facts giving rise to this revisions, are, the plaintiff respondent filed a summary suit on the basis of a hundi executed by the defendant. this suit was filed under order 37 of the civil procedure code. the defendant filed his written statement to which i will refer later. the suit procedure for trial and it appears that a conditional leave was granted to the defendant to defend the suit and an amount of rs. 2,000/- was also deposited accordingly. during the pendency of the suit on july 14, 1981 the suit was proceeded ex parte and the plaintiff's evidence was recorded. it appears that on july 15, 1981 the defendant filed an application in this suit praying that an issue.....
Judgment:

S.J. Deshpande, J.

1. This revision arise out an order passed by the learned Judge of the Small Causes Court at Bombay in Summary Suit No. 2115/2510 of 1978 pending in his Court on September 14, 1981 by which he dismissed the application of the original defendant to refer the issue to the officer under the Maharashtra Debt Relief Act. The facts giving rise to this revisions, are, the plaintiff respondent filed a summary suit on the basis of a Hundi executed by the defendant. This suit was filed under Order 37 of the Civil Procedure Code. The defendant filed his written statement to which I will refer later. The suit procedure for trial and it appears that a conditional leave was granted to the defendant to defend the suit and an amount of Rs. 2,000/- was also deposited accordingly. During the pendency of the suit on July 14, 1981 the suit was proceeded ex parte and the plaintiff's evidence was recorded. It appears that on July 15, 1981 the defendant filed an application in this suit praying that an issue arises in this case which requires to be decided by the officer under the Maharashtra Debt Relief Act of 1975 and, therefore, he prayed in his application that it should be sent to that authority and proceeding of the suit should be stayed. This application was opposed and an affidavit in reply was filed to this application by the plaintiff on July 16, 1981. There is another affidavit on record made by the defendant on August 10, 1981, about which there is some controversy. It is stated that this affidavit was filed during the course of arguments and the learned Judge had refused to take it on record. The Counsel for the petitioner has informed at the Bar that the affidavit was filed in this paper-book and it may be taken on record. After going through these replies the learned Judge passed an order rejecting the application on his finding that the defendant's claim for protection under the Maharashtra Debt Relief Act is not sustainable. This order was made on September 14, 1981. Then the defendant has challenged this order in revision before this Court. Mr. Jaisinghani, the learned Advocate for the petitioner has stated before me that his client is carrying out a trade which he has chosen to call as calling of distribution of pictures. According to Mr. Jaisinghani his client is a worker as defined in Maharashtra Debt Relief Act, under section 2 Clause (e) of the Maharashtra Debt Relief Act, 1975. The said definition about the 'worker' is as follows:-

'2(e) 'worker' means a person who earns his livelihood through any profession, calling or trade and also a person who is working in any factory (including a badli worker therein);'

In the Explanation Clause (3) it is further added as under :-

'(3) for the evidence of doubt, it is hereby declared that the expression 'profession, calling or trade' shall include and shall be deemed always to have included 'employment', and that expression shall be construed accordingly'.

Relying on the said provisions and definition of 'debt' as defined under this Act in Clause (e) of section 2 which I need not quote and further relying on the provisions contained in section 4 of this Act, Mr. Jaisinghani the learned Counsel for the petitioner contended that the defendant being a worker had his income less than the limit provided by the Act on the appointed day and the appointed day is 22-8-1975 and as the business was also in loss and, therefore, under section 4 claims that the defendant is entitled to get a discharge of his debt. Before I proceed to deal with this contention, it requires to be noticed that the defendant has filed his written statement in this case. The Advocate for the petitioner relied on paras 1 and 4 of the written statement to support his case that the defendant has satisfied the requirements of the definition of the debt and the debtor and Clause (a) as stated above. In para 1, the defendant has stated that the defendant denies that they are traders as alleged. He has further stated that the defendants obtained prints of pictures from the main distributors. The defendants are not a trader as defined in Money Lenders Act. The defendants further state that the said loan transaction is hit by the provisions of the Bombay Money Lenders Act. The defendants also state that the distribution of cinematograph pictures is their calling and they are mere sub-distributors. These are the statements of facts in para No. 1. In para 4 in the following statements are made :---

'4. The defendants firm is a proprietory firm of which Shri Ram Bhagwani is the proprietor. The proprietor of the defendants is a work as defined under the Maharashtra Debt Relief Act, 1975. Taking into consideration the amount of income and expenditure of the distribution activity, the defendants have suffered losses and there was no income for the year immediately before 1-8-1975. The defendants say that the assessment order from the Income-tax authorities who have assessed the said properties income during the year 1st January, 1974 to 31st December, 1974 will show that the said proprietor has suffered a loss of Rs. 1,64,150/-. Further the said proprietor has filed his return for the year from 1st January, 1975 to 31st December, 1975. In that year the said proprietor suffered a loss of Rs. 3,53,673.18 paise. The said proprietor has no income from any other source. The said proprietor is staying with his friend Mr. C.T. Jagtyani who does not charge any amount towards rent or compensation. The said proprietor has three sons out of whom two are earning. They are supporting the family including the said proprietor. The said proprietor has no immovable property. The debts of the plaintiff stands discharged under the Maharashtra Debt Relief Act and the suit is liable to abate.'

Relying on these statements in para 4 in contended that the defendant is a worker as defined in Maharashtra Debt Relief Act. Now if we look at the application which was made specifically claiming reference to the Court which is at Exh. 'C' page 14 of the paper-book and this application does not refer to any of the details of income or particulars whatsoever. It refers on the contrary only to a judgment of the High Court to which I will refer in due course. It is further stated that in view of the Division Bench decision this Honourable Court has no jurisdiction to entertain and try the suit or issues which arise from the written statement filed by the defendants.

2. Now this application was filed on July 15, 1981 and if the defendant was very serious, it passes comprehension why this application could not contain sufficient details and necessary particulars with regard to the source of income and other necessary circumstances to show that he has no property or the existing property is below the existing limit provided by the Act. On this technical defect alone this application is liable to be rejected. But as the Advocate for the petitioner has relied on the written statement which is quoted above, I purpose to deal with argument. In fact it would have been accepted that this application dated July 15, 1981 should have at least stated that the roznama filed earlier is filed for the purpose of claiming reference to an issue to be decided by the officer under the Maharashtra Debt Relief Act. This is a case and an attitude of an uncertain character. It does not furnish particulars before the Court to find the claim of protection under the Maharashtra Debt Relief Act. Apart from that, if we look to para 4 which is quoted above and as was rightly pointed out by the learned Advocate, Mr. Nari H. Gursahani for the respondent, para 4 of the written statement is bad in respect of necessary particulars. What is stated is that the proprietor has suffered a loss of Rs. 1,64,150/- during the year 1974. There is a further mention of loss of Rs. 3,53,673.18 paise. In the absence of turnover of the business it is difficult to appreciate these fabulous figures of losses. At the outset one may be impressed that these figures only are sufficient to dis-entitle any person claiming protection under the Act calling himself to be a worker. A worker who suffers a loss of Rs. 1,64,150/- and of Rs. 3,53673.18 according to my view cannot claim the protection under the provisions of the Maharashtra Debt Relief Act. Apart from this there is a statement in para 4 that the concern of the defendant is a sole proprietary concern. There is a reference to Income-tax assessment but no returns are filed as to what extent the income of the defendant was. It would have been ways to find out from Income-tax returns as to what income is assessed. There is a further reference that two sons of the defendants are earning. It is not shown as to what extent they are earning, whether the family is a joint or divided, whether the earnings are separate earnings. A sentence is added that the defendant has no immoveable property, and the debt stands discharged. If this be the contention of the allegations in regard to he particulars supplied, I fail to understand how a Court can decide whether an issue arises in this case and which requires to be settled and decided by the authorised officer under the Maharashtra Debt Relief Act. It is true, that the provisions of this Act are meant to relieve the unfortunate debtors and marginal farmers and it is with a view to provide protection against this class of debtors when this enactment was made by the State Government. Legislative intended to spare under he particular class by name i.e. 'worker', 'Marginal Farmer', 'member of a family', 'rural laborer' or 'rural artisan'. These labels cannot be adopted by using these words and an application cannot be made to the Civil Court just to frame the issue or to set the Court to decide on jurisdiction and send the issue to the officer concerned. In the very judgment which was relied on by the learned Advocate for the petitioner reported in 1981 MH LJ 216 in the case of Bhagwan Motiram Mali (Mahajan) v. Jayant Shridhar Khare and another, it has been observed as under:-

'26. We may, however, sound a word of caution to the civil courts that while it obligatory upon them to give effect to the provisions of sections 11 and 12 before making a reference to the authorised officer, it would be the duty of the civil courts to first come to the conclusion that the issues which are asked for being referred to the authorised officer arise in the case and that they are required to be decided for the purposes of the suit. The Civil Court is not mechanically required to stay its hands the moment a plea is taken. It is common experience that vague peals are taken by the defendants merely with a view to delay the proceedings in civil courts.'

The instant written statement which is quoted above contains such an instance of vague plea and in my opinion, it is not possible from the contents of these written statements to ascertain the true character or status of the defendant as worker as defined under the Maharashtra Debt Relief Act.

3. The affidavit in reply, which was filed on July 16, 1981 by the plaintiff opposing to the claim for reference of suit clearly sets out in para 5 that the defendent has got office in Bombay and Pune and his own immoveable property and number of telephones. They have huge turnover and big business. They employ more then a dozen people. In para 9 it is stated that the defendants have not given any details of their assets and liabilities. It is true that this is merely an affidavit on record. But then according to the section 106 of the Evidence Act, the particulars regarding the income and the status of the defendant are within the knowledge of the defendant himself and the plaintiff could not help except denying the fact. It was obligatory on the part of defendant if he was really claiming himself to be a bona fide worker and he should have set out all details or particulars about his income. The necessary returns which he filed during the relevant years i.e. 1974-75 and the actual income and the loss which is suffered. In the absence of such particulars given by him, I have no reason to discard the affidavit filed by the plaintiff.

4. Now reasoning of the learned Judge which appears to have been based merely on the fact that the defendants are such persons that they have dealings in lakhs of rupees and they have suffered a loss to the tune of Rs. 1,64,150/- in their business, such persons dealing in lakhs of rupees, how can they come within the preview of Maharashtra Debt Relief Act. It is true that such a wide observation merely referring to the loss and then basing the judgment on expressing this particular facts is not strictly correct and to that extent the grievance of the learned Advocate for the petitioner is justified. But looking to the circumstances of the matter, as I have said above, I find from the record that the petitioner has not raised this plea on the ground after furnishing sufficient materials. In fact, the affidavit which was filed on August 10, 1981 which is on record and about which the Advocate for the petitioner has made a grievance that it was rejected by the trial Court, is silent on many grounds. It was a further occasion for the defendant to amplify his case and furnish particulars about his income and other things during the materials years. The failure to give such particulars ultimately leaves the Court in dark as to the status of the defendant.

5. The provisions of the Maharashtra Debt Relief Act are meant for the protection of a person who was really indebted and worker and genuine worker and not merely, mock claimant to the status of a worker filing an application before the courts in the matter of debts which he has incurred on certain negotiable instruments. I do not mean to say that a person who is executing negotiable instrument can never be a debtor. But the facts of this are peculiar and different. It appears that there are as many as 7 summary suits filed against the present defendant by different persons and the mere figures which are given to me by the learned Advocate range from 35,000 to 45,000/- involved in these suits. All these suits are based from Hundis and other deeds which are not settled. But it was informed at the Bar that all Hundis approximately have been executed during the year 1975. A mere look on these figures and the suits will show that a person like the defendant who is engaged in such a calling as distribution of pictures which involves obtaining loans in such amounts and discharge liabilities is itself sufficient to doubt the veracity of his statements that he is a worker within the meaning of section 2(e) of the Maharashtra Debt Relief Act. In this particular case I am satisfied that the defendant has raised merely a vague plea and, therefore, the judgment of the trial Court was right. The Advocate or the petitioner pointed out to me that although 7 suits are pending, their orders have been passed and a conditional leave has been granted and in one such case which is referred to in affidavit, in fact an amount of Rs. 30,000/- is ordered to be deposited by the defendant. It was contended by the learned Advocate for the petitioner that although he has raised a plea in this case claiming protection under the Act, the plea count not be perused, because during that time a judgment of this High Court delivered by a Single Judge and according to that judgment debts were not covered by the Act and, therefore, in these proceedings conditional leave was granted and the plea of the defendant was not pursued. It is true that the judgment of the learned Single Judge does support the contention of the learned Advocate for the petitioner, but then as the Division Bench has delivered a judgment overruling the view of the learned Single Judge and the observations of the Divisions Bench, which I have stated above clearly support the contention of the petitioner that under sections 11 and 12 of the Maharashtra Debt Relief Act the officer authorised under the Act is entitled to settle and decide the issued and no Civil Court can deal with the issue assigned under the Act. It is true that the issue whether a person is a worker or not is an issue which arises under the Act and, therefore, it requires to be decided by the authorised officer under the Act and under section 12 if in a suit such an issue arises the issue must be referred to the authorised officer. I am following the above judgment and it is true that the issue when it arises must be referred to the authorised officer. But then section 12 of the Act clearly states that the issue must be involved and that issue must be required to be settled or dealt with by the authorised officer. It is only when the issue is involved and it arises that the statutory reference is to be made to the authorised officer. In the facts and circumstances of this case, which I have narrated above, if the plea would have been really effectively raised and supported by material, it would have involved an issue as provided by section 12 of the Maharashtra Debt Relief Act. But in this particular case the defendant has failed to give sufficient particulars and wants to rely only on a vague plea which cannot be permitted and, therefore, in my opinion the defendant is not entitled to claim reference of the issue to the authorised officer.

6. In this view of the matter, rule stands discharged with costs and the stay granted on September 28, 1981 is vacated.


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