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Bhagwan Das Vs. Goswami Radhey Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1945All271
AppellantBhagwan Das
RespondentGoswami Radhey Lal
Excerpt:
- - it has been urged that the legislature could not have intended that none of the provisions of the act should apply to such a suit because the provisions of section 4 themselves must clearly apply. in the result we think that the appeal must fail. the appellants should get their costs in the two appellate courts in proportion to their ultimate success and these costs should be included in the costs of the trial court. the appellants will get their costs in the two appellate courts in proportion to their ultimate success and these costs will be included in the costs of the trial......is whether the defendant in a suit in which the plaintiff has made a declaration under section 4, debt redemption act, is entitled to claim the benefits conferred on debtors by the agriculturists' relief act. the learned judge of the lower court held that the defendant in the suit which has given rise to this appeal was so entitled. it is said in section 4, debt redemption act, the provisions of the act will not apply if a declaration is made by the plaintiff under that section. under section 27 of the act and the schedule appended thereto certain provisions of the agriculturists' relief act are repealed except in their application to advances made before the first day of june 1940 not being loans as defined in the debt redemption act. it is argued by the appellant that the provisions.....
Judgment:

Allsop and Verma, JJ.

1. The main question in this appeal is whether the defendant in a suit in which the plaintiff has made a declaration under Section 4, Debt Redemption Act, is entitled to claim the benefits conferred on debtors by the Agriculturists' Relief Act. The learned Judge of the lower Court held that the defendant in the suit which has given rise to this appeal was so entitled. It is said in Section 4, Debt Redemption Act, the provisions of the Act will not apply if a declaration is made by the plaintiff under that section. Under Section 27 of the Act and the schedule appended thereto certain provisions of the Agriculturists' Relief Act are repealed except in their application to advances made before the first day of June 1940 not being loans as defined in the Debt Redemption Act. It is argued by the appellant that the provisions of Section 27 apply even though it is said in Section 4 that the provisions of the Act shall not apply to a suit for the recovery of a loan where the creditor makes a declaration. On the face of it, it appears to us that we can assign only one meaning to the words of the section. If the provisions of the Act do not apply, then the provisions of Section 27 cannot apply and the result is that for the purposes of the suit in which a declaration has been made the provisions of the Agriculturists' Belief Act are not repealed. It has been urged that the Legislature could not have intended that none of the provisions of the Act should apply to such a suit because the provisions of Section 4 themselves must clearly apply. In so far as suits are concerned, the only provisions of Section 4 are that the provisions of the Act shall not apply where a declaration is made and that the effect of the declaration shall be incorporated in the decree passed by the Court.

2. We agree that we cannot impute to the Legislature an intention of making a self-contradictory provision and consequently it is clear that the provisions of Section 4 will apply in so far as they direct that the effect of the declaration shall be incorporated in the decree, but there is no reason for holding that any other provision of the Act will apply. The effect of Section 4 is that the plaintiff in a suit for the recovery of a loan can exercise the option of ignoring the provisions of the Debt Redemption Act. Having exercised that option, he cannot turn round and ask the Court to refer to the Act in order to hold that certain provisions of the Agriculturists' Relief Act have been repealed. It was suggested that there was a distinction between sections in the Act which would apply to a suit and sections which would not so apply, that the provisions of Section 27 came into force immediately in order to repeal certain sections of the Agriculturists' Relief Act and that they had nothing to do with any suit instituted for the recovery of a loan. We cannot see any distinction. Every section in every Act applies to a suit if it is relevant. The question has arisen in the suit whether the provisions of the Agriculturists' Belief Act have been repealed or not and any law which affects the decision must be relevant. It was necessary to consider the effect of Section 27 and consequently provisions of that section obviously apply to the suit.

3. Another argument addressed to us was that Sub-section (2) of Section 27 modified the provisions of S. S3, Agriculturists' Belief Act, and it might lead to an inconsistency if we held that Section 27 did- not apply in a suit in which a declaration had been made. In such a suit the plaintiff would get a decree for a sum of money on the assumption that the defendant was not entitled to the benefits of the Debt Redemption Act. On the other hand, if the debtor himself made an application under Section 33, Agriculturists' Belief Act, there would be no question of a declaration under Section 4,. Debt Redemption Act, and the provisions of that Act would apply so that it would be declared that the debtor was liable to pay a smaller sum after reduction of interest. Learned Counsel said that there would be an inconsistency in coming to different decisions in. two suits or proceedings between the same parties. We do not think that there would necessarily be any inconsistency. In the application under Section 33, there would be a declaration on the understanding that the whole of the debtor's property was liable to attachment and sale in execution of the decree whereas in the suit instituted by the creditor there would be a decree on the understanding that the creditor should not proceed against the land or agricultural produce or the person of the defendant. The creditor would not be bound to ask for a decree on the basis of the declaration in the proceedings under Section 33 and would be entitled to rely upon. his other decree in the suit instituted by himself. We do not think that any obvious absurdity or inconsistency would result from our holding that the provisions of Section 27, Debt Redemption Act, did not apply in a suit in which a declaration was made under Section 4 of the Act. There was also an argument that the provisions of the Agriculturists' Belief Act were repealed once for all by the Debt Redemption Act and could not be restored by the making of a declaration. We may, however, point but that the sections are not absolutely repealed. They are repealed only in respect of loans as defined in the Debt Redemption Act and do not apply to suits to which the Debt Redemption Act applies. The suit with which we are concerned is one to which the Debt Redemption Act did not apply. We are, therefore, of opinion that the provisions of the Agriculturists' Relief Act were rightly applied in the suit by the learned Judge of the Court below.

4. The learned Judge disallowed costs under the provisions of Sections 32 and 34, Agriculturists' Belief Act. It was argued before us that the plaintiff was not a creditor within the meaning of the Agriculturists' Relief Act because he had not been in the habit of advancing loans to agriculturists in the regular course: of business. In our judgment a person to come within the definition of a creditor must advance loans in the regular Course of business, but it is not necessary that he should advance loans to agriculturists in the regular course of business provided that the particular loan in question is an advance made to an agriculturist. Learned Counsel then fell back upon the argument that his client was not a money-lender or, in other words, that he did not advance loans to anybody in the regular course of business. The learned Judge of the Court below has found as a fact that the plaintiff was in the habit of advancing loans in the regular course of business. The defendant-respondent was able to show that the plaintiff had instituted two suits on the basis of loans and the plaintiff admitted that he had advanced a loan to one Kirorimal on the basis of a hundi. Learned Counsel has urged that there is evidence only of four transactions in a period of ten years, but it has not been established that these were the only transactions. The plaintiff pretended that the two persons he had sued had executed bonds because they owed him money for the purchase of cloth, but he had to admit in cross-examination that he had previously alleged that he had advanced them cash. The learned Judge was right in his conclusion that the statement of the plaintiff could not be relied upon. We have no doubt that he was right in holding that the plaintiff was in the habit of advancing money in the ordinary course of business. It was nowhere suggested that the four instances were casual loans made to friends for their accommodation. They were obviously ordinary business transactions. In the result we think that the appeal must fail. There is a connected Second Appeal No. 588 of 1943, arising out of a suit in which the Courts below refused to give the defendant the benefits conferred by the Agriculturists' Relief Act in a suit in which a declaration had been made under Section 4, Debt Redemption Act. The appellants maintained that they were entitled to those benefits and we are of opinion that they were for the reasons which we have already given. We must, therefore, set aside the decrees of the Courts below and we must remand the suit for decision after the provisions of the Agriculturists' Relief Act have been applied.

5. The result is that we would dismiss First Appeal No. 270 of 1941 with costs. We would allow Second Appeal No. 588 of 1943, set aside the decree of the trial Court as confirmed by the lower appellate Court and remand the suit to the trial Court for decision after applying the provisions of the Agriculturists' Relief Act. The appellants should get their costs in the two appellate Courts in proportion to their ultimate success and these costs should be included in the costs of the trial Court.

Hamilton, J.

6. I agree and would only add a few words in connexion with the argument that there might be an inconsistency if the debtor brought a suit under Section 33, Agriculturists' Relief Act, and the creditor brought a suit for recovery of the loan and made a declaration under Section 4, Debt Redemption Act. A declaration under Section 33, Agriculturists' Relief Act, does not finally dispose of the matter as the loan is still due and it would only be useful to the debtor as res judicata. Such a declaratory decree would mean that by the application of Section 9, Debt Redemption Act, a certain amount would be payable and, it would be of no effect in a suit in which the creditor by making a declaration under Section 4, Debt Redemption Act, would exclude Section 9. If a suit under Section 33, Agriculturists' Relief Act, and one by the creditor for recovery of the loan were proceeding together I think the Court could stay the suit under Section 33 till decision of the creditor's suit as the latter would decide what interest would be permissible under the law applicable to the agriculturist debtor and the decree would put an end to any claim on the basis of the loan.

7. We dismiss First Appeal No. 270 of 1941 with costs. We allow Second Appeal No. 588 of 1943, set aside the decree of the trial Court as confirmed by the lower appellate Court and remand the suit to the trial Court for decision after applying the provisions of the Agriculturists' Relief Act. The appellants will get their costs in the two appellate Courts in proportion to their ultimate success and these costs will be included in the costs of the trial.


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