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Director of Industries Vs. Janardan Nanda - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 82 of 1964
Judge
Reported inAIR1969Ori58
ActsBihar and Orissa Public Demands Recovery Act, 1914 - Sections 43(3); Code of Civil Procedure (CPC) , 1908 - Sections 80
AppellantDirector of Industries
RespondentJanardan Nanda
Appellant AdvocateStanding Counsel
Respondent AdvocateL. Rath, Adv.
DispositionAppeal allowed
Cases ReferredBhagchand v. Secy. of State
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........point that the suit is to be dismissed as no notice under section 80, c. p. c. was served.8. in the result, the judgment of the learned subordinate judge is set aside and the plaintiff's suit is dismissed. the appeal is allowed with costs throughout.patra, j.9. i agree.
Judgment:

G.K. Misra, J.

1. Plaintiffs case may be put in short by eschewing out unnecessary details. He took a loan of Rs. 17000 from the Government on furnishing proper security under the Bihar and Orissa State Aid to Industries Act A certificate was issued against him for Rs. 19,200 inclusive of interest. Plaintiff filed objection before the Certificate Officer in Certificate Misc. Case No. 51/58-59. His objection was overruled. An appeal against the same was dismissed. The suit is filed under Section 43/(3) of the Bihar and Orissa Public Demands Recovery Act, 1914 (hereinafter referred to as the Act) for a declaration that the certificate is void and that the same should be cancelled. A plea was taken that no proceeding was drawn against the plaintiff under the provisions of the State Aid Industries Act to obtain his explanation for the default and that the certificate was premature and without jurisdiction.

In the written statement a plea was taken that the suit was liable to be dismissed as no notice was issued under Section 80, C. P. C. to the defendant, who is the Director of Industries. Plaintiff failed to repay the loan for three instalments which fell due on 31-3-56, 31-3-57 and 31-3-58. He also did not furnish the utilisation certificate to the effect that the loan amount had been utilised for the purpose it was granted. Accordingly the certificate for the entire loan amount inclusive of interest was validly issued. Court's jurisdiction to try the suit was also questioned.

2. The learned Subordinate Judge held that the certificate and the proceeding arising therefrom were illegal and void and that the Court had jurisdiction to try the suit. He held that notice under Section 80, C. P. C. was not necessary as the suit was a continuation of the certificate proceeding. He accordingly decreed the suit with costs. Against this decree, the defendant has filed the appeal.

3. The learned Standing Counsel contended that the suit is liable to be dismissed as no notice under Section 80, C. P. C. was served on the defendant. Admittedly no notice has been served. Mr. Rath relied upon State of Seraikella v. Union of India, AIR 1951 SC 253; Hiraluxmi v.L-T. Officer. AIR 1955 Pat 404 and Hus-sain All Mirza v. State of Andh Pra, AIR 1983 Andh Pra 164 in support of his contention that a notice under Section 80 C. P. C. was not necessary. Section 43(3) of the Act runs thus:

'43. The certificate-debtor may, at any time within six months-

X X X X (3) if he appeals, in accordance with Section 60, from an order passed under Section 10 -- from the date of the decision of such appeal.

bring a suit in a Civil Court to have the certificate cancelled, or modified, and for any other consequential relief to which he may be entitled.'

Thus the Act itself makes provision for a suit when the objection of a certificate debtor is overruled in appeal.

4. Question for consideration, however, is whether a notice under Section 80 C. P. C. is excluded by any provision under the Act,

In AIR 1951 SC 253. Rule 5 of the Federal Court Rules, framed under Section 214 of the Government of India Act, 1935, laid down that none of the provisions of the Code of Civil Procedure shall apply to any proceeding in the Federal Court unless specifically incorporated in those Rules. The provisions of Section 80 C. P. C. had not been incorporated in the Rules and that being so, their Lordships held that Section 80, C. P. C. could not affect suits instituted in the Federal Court under Section 204, Government of India Act, 1935. There is no provision in the Act which excludes operation of Section 80, C. P. C.

5. AIR 1955 Pat 404 and AIR 1963 Andh Pra 164 support the contention of Mr. Rath. In the Patna case it was held that a suit under Section 25 of the Act was merely a continuation of the previous claim proceeding under Section 21 of that Act and that no notice under Section 80, C. P. C. was necessary. The same view was taken in Andhra Pradesh case where a certificate was issued under the Government Demands Act. Their Lordships held that notice under Section 80, C. P. C. was not necessary relying on certain cases under Order 21, Rule 63, C. P. C. which, according to them, was analogous to Section 6 of the Government Demands Act.

6. In Sawai Singhai v. Union of India. AIR 1966 SC 1068 a question arose whether notice under Section 80, C. P. C. was necessary before a suit under Order 21, Rule 53 C. P. C. was instituted. Their Lordships accepted the opinion expressed in Bhagchand v. Secy. of State, AIR 1927 PC 176. The Judicial Committee had observed:

'Section 80 is express, explicit and mandatory and it admits of no implications or exceptions.

The matter was summed up by their Lordships of the Supreme Court in Paragraph 14 thus:

'It appears that on this question there has been a divergence of judicial opinion in India. But, in our opinion, the view that suits under Order 21, Rule 63 did not attract the provisions of Section 80, is inconsistent with the plain, categorical and unambiguous words used by it.

The identical reasons apply to suits under Section 43 of the Act. A notice under Section 80 is mandatory unless expressly excluded by any special statute. In view of the aforesaid Supreme Court decision, AIR 1955 Pat 404 and AIR 1963 Andh Pra 164 cannot be treated as laying down good law.

Defendant's objection that the suit is liable to be dismissed as no notice under Section 80 was served, must be upheld.

7. In view of the aforesaid conclusion, it is unnecessary to express any view on the other question decided by the learned Subordinate Judge. The appeal can be disposed of on the sole point that the suit is to be dismissed as no notice under Section 80, C. P. C. was served.

8. In the result, the judgment of the learned Subordinate Judge is set aside and the plaintiff's suit is dismissed. The appeal is allowed with costs throughout.

Patra, J.

9. I agree.


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