1. Regular Second Appeal No. 493 of 1946 has been referred to a Pull Bench for returning answers to the following questions of law:
1. Can a Civil Court enquire into the question whether a creditor failed to be present at a hearing before a Debt Conciliation Board for sufficient cause as contemplated by Section 13, Punjab Belief of Indebtedness Act of 1934?
2. If so, is the creditor entitled to show that he was absent for sufficient cause and that therefore his debt was not discharged?
3. Is the jurisdiction of the Civil Court affected by the fact that the creditor has or has not made an application to the Board for reviving his debt under Sub-section (4) of Section 13, Punjab Relief of Indebtedness Act of 1934?
3. The facts giving rise to this reference are these Abdul Hayi and his son Abdul Shakur mortgaged a house at Amritsar in the sum of Rs. 2000 to Sat Pal on 2nd May 1940. On 4th January 1943, Abdul Hayi submitted an application to the Debt Conciliation Board under Section 9 for conciliation of his debt. An objection raised on behalf of the creditor that the Board had jurisdiction concerning this mortgage debt was overruled by the Board on 6th February 1943. ON 5th May 1944, the Board made the following order:
Parties are present. The debt to the extent of Rs. 2600 is proved. Let the debtor bring Rs. 600 in. cash and if he does so the creditor is willing to accept instalments for the rest of the amount. The debtor-should arrange for this amount by 4th July 1914, the-next date fixed for hearing.
On 4th July 1944, the creditor was absent and was? not represented even by his Mukhtar or counsel. The Debt Conciliation Board on that date passed the following order:
The creditor is absent. Hence his debt should be considered as discharged.
On 5th July 1944, Sat Pal applied for the revival of the debt under Sub-section (4) of Section 13, Punjab Relief of Indebtedness Act, and alleged that ha was suffering from fever and his Mukhtar was attending on him and, therefore, his failure to attend on 4th July was on account of an unavoidable cause. On 13th July 1944, the Board passed an order rejecting the application and held, that even if Sat Pal was ill his Mukhtar could have come. The Board did not accept the excuss? of Sat Pal as sufficient and considered that he was not really ill. Finding that there was no> sufficient cause or no circumstances which prevented his coming to the Board on 4th July 1944; the Board dismissed the application for revival of the debt. Sat Pal also presented an application under Section 23 for a review of this order but this; was unsuccessful. With these orders the proceedings before the Debt Conciliation Board came to a close.
3. On 19th October 1044, Sat Pal instituted this suit for the recovery of Rs. 2665-10-0 against; Abdul Hayi and Abdul Shakur by the sale of the-mortgaged property. It was instituted in the-Court of the Sub-Judge, first class, Amritsar. Abdul Hayi pleaded in defence that the debt secured by the mortgage had been discharged by virtue of the order of the Debt Conciliation Board and the plaintiff's suit deserved dismissal. The plaintiff contended that the proceedings before the Debt Conciliation Board were without jurisdiction, inasmuch as Abdul Hayi was not a debtor within the meaning of the Punjab Relief of Indebtedness Act and also because the value of the property owned by him was more than Rs. 5000. It was also alleged that the order of the Board discharging the debt was ultra vires and not binding. All these matters were put into issue between the parties and were found against the plaintiff by the trial Judge and MB suit was dismissed. These findings were upheld on appeal. The plaintiff preferred a second appeal to this Court. The appeal was heard by a Division Bench consisting of my brothers Teja Singh and Kbosla, JJ.
5. It was held by the Bench that the questions whether the debt had been raised for purposes of trade and whether the total assets of the debtor exceeded Bs. 5000 were questions of fact and the findings of the lower appellate Court on those points could not, therefore, be interfered with in second appeal. On the third question a different view was, however, taken. Under this question two matters fell for decision, (1) When a dispute arises between the parties as to whether a creditor 'failed to be present before the Board on a particular hearing without sufficient cause, is the question one of jurisdiction and thus within the purview of a Civil Court or whether the Board alone is the competent authority to decide it? (2) Whether a Civil Court can go behind the order of the Board rejecting the creditor's application made under Sub-section (4) of Section 13, Punjab Belief of Indebtedness Act. It was observed by the Bench that the points were not free from difficulty and being of general importance they should be decided by a larger Bench.
6. The determination of the questions that have been referred to the Full Bench depends on the interpretation that has to be placed on the language and the phraseology employed in Section 13, Punjab Relief of Indebtedness Act. This section is in these terms:
13. (1) On the date fixed the board shall publish, in such manner as may be prescribed, a notice, calling upon every creditor of the debtor to submit a statement of debts owed to such creditor by the debtor. Such statement shall be submitted to the board in writing within two months from the date of publication of the notice:
Provided that, if the board is satisfied that any creditor was, for good and sufficient cause, unable to comply with such direction (or to produce the documents required under Sub-section (1) of Section 14) within the time fixed, it may extend the period for the submission of his statement of the debts owed to him (or for the production of such documents).
(2) Every debt owed to a single creditor of which no such statement has been submitted to the board in compliance with the provisions of Sub-section (1) shall be deemed to be duly discharged for all purposes and all occasions against such creditors; and every debt owed to two or more creditors jointly, of which such a statement or statements signed by all such creditors or their recognised agents has or have not been so submitted, shall be deemed to be so discharged against such creditors as have failed to submit the said statement or statements, but only to the extent of their respective Bhares in the said debt:
Provided that no such debts shall be deemed to be discharged against any creditors whose names have not been included in the application made under Section 9.
(3) If the creditor or any of the joint creditors fails without sufficient cause to be present in person or by his recognised agent or legal practitioner in accordance with the provisions of Section 24 at any of the hearings fixed by the board, or fails to produce full particulars and documents as required under Sub-section (1) of Section 14, the debt due to him or to the joint creditors, as the case may be, shall be deemed for all purposes and all occasions to have been fully discharged.
(4) If any creditor proves to the satisfaction of the board, or, if no board is vested with jurisdiction by the Provincial Government, to the satisfaction of a Civil Court that the notice was not served on him and that he had no knowledge of its publication or that he was unavoidably absent at any of the hearings fixed by the board, the board or the Court, as the case may be, may revive that debt.'
7. Under Clause (1) of Section 13 the creditor has to submit a statement of debts owed to such creditor by the debtor within two month a from the date of publication of the notice, and Sub-section (2) provides that if such a statement is not submitted in compliance with the provisions of Sub-section (1) then every debt owed to a single creditor regarding which no such statement has been submitted shall be deemed to be duly discharged for all purposes and all occasions against such creditor. Sub-section (3) deals with certain defaults made by a creditor and provides that if without sufficient cause the creditor fails to be present in person or by his recognised agent or legal practitioner at any of the hearings fixed by the Board, or fails to produce full particulars and documents as required under Sub-section (1) of Section 14, the debt due to him shall be deemed for all purposes and all occasions to have been fully discharged. In Sub-section (4) a remedy has been provided for getting out of the' effects of such a discharge. In other words, the mode for the revival of the debt is laid down therein. It says that if the creditor was unavoidably absent at any of the hearings fixed by the Board, the debt may be revived. It further provides that if a notice was not served on him, even in that event the debt would be revived.
7. A similar consequence follows if the creditor proves that he had no knowledge of the publication of the notice calling upon him to file a statement of accounts. The remedy provided by Sub-section (4) seems to be exhaustive because in clear terms it has been enacted that if the Board is still vested with jurisdiction in a particular area then the application for the revival of the debt will be made to the Board, but in case the Board has ceased to exist or that no Board is vested with jurisdiction in that particular area, in that event the application will be made to the Civil Court for the revival of the debt. The Legislature has, therefore, provided an alternative forum for entertaining applications for the revival of the debt, and from that provision the only inference that can be drawn is that the intention of the Legislature was that the remedy provided by the section was the only remedy available to the creditor for the revival of the debt, and it cannot be said that the section only, provides a summary remedy and does not affect the right of the creditor to go to a Civil Court for the relief of revival. The argument that the section only provides for a summary remedy is, in my opinion, unsound because if that were the intention of the Legislature then the alternative provision conferring jurisdiction on the Civil Court for revival of the debt is redundant, and superfluous. It is a well established rule of interpretation of Statutes that no words employed by the Legislature in any enactment should be treated as redundant, but meaning and effect should be given to all the words employed in a particular section of the enactment. The view that I have expressed above finds support from a decision of Dalip Singh, J. in Pal Singh v. Sundar Das A.I.R. 1939 Lah. 97. The learned Judge observed that the Board itself has power to hear applications for revival of debt and that a Civil Court is granted jurisdiction to hear such applications only when the old Board has been dissolved and the new Board which replaces the old Board has not been granted power by the Local Government under Section 8(4) to hear applications under Section 13(2) as otherwise the creditor would have no remedy. But if the old Board exists, Civil Court has no jurisdiction to hear applications by creditors for revival of the debt.
9. The cardinal point to decide in this reference is whether under Sub-section (3) of Section 13 the Board has any jurisdiction to determine the sufficiency of the cause for absence of the creditor and to pass an order discharging the debt if it reaches a conclusion that the creditor was absent without any sufficient cause on any of the dates fixed by the Board for hearing.
10. There is ample authority for the proposition that the Board has no jurisdiction to decide that the debt has been discharged by reason of a certain default committed by the creditor. This matter was recently examined by me sitting in Division Bench with Ram Lall, J. It was held that the discharge of a debt is the automatic result of the statutory provisions of Section 13(2) and (3), and no order of the Debt Conciliation Board is required declaring the debt to be discharged: vide Mohammad Din v. Phula Singh A.I.R. 1944 Lah. 127. I pointed out therein that it is the statutory duty of a Debt Conciliation Board to use its best endeavours to bring about an amicable settlement between the debtor and the creditor, and it is for this reason that the name 'Debt Conciliation Board' rather than Debt Discharging Board has been given to it by the statute. A similar opinion was expressed by a Full Bench of the Lahore High Court in Thambu v. Bhartu A.I.R. 1945 Lah. 309 (F.B.). The matter is so well-settled that it is hardly necessary to multiply authorities for the above proposition. The phraseology employed in the statute itself is quite unambiguous and says that on a certain event happening the debt shall be deemed to have been discharged. In other words, by a fiction the debt is discharged on account; of certain defaults on the part of the creditor. Normally a debt 'can only be discharged by payment and not by reason of any defaults on the part of the creditor. The statute says that the result of certain defaults will be the discharge of the debt. The discharge of a debt, therefore, is the automatic result of a certain conduct on the part of the creditor. In these circumstances the order of the Debt Conciliation Board dated 4th July 1944 discharging the debt is wholly ultra vires and the civil Court has to ignore it.
11. The next question for consideration is, which is the proper tribunal for pronouncing on the question whether in a certain case the statutory result regarding the discharge of a debt has been reached or not? There is no provision in any section of the Punjab Relief of Indebtedness Act conferring jurisdiction on the Debt Conciliation Board and making it the tribunal for the decision of the question whether in a particular case and by reason of a particular conduct on the part of the creditor the debt stands discharged.' The only power given to the Board, and in a case where the Board does not exist, to the civil Court, is the power for the revival of the debt, but the statute is silent on the question as to who is the competent authority to declare that a particular debt stands discharged by reason of a certain default committed by the creditor. On general principles of law the only proper tribunal to adjudicate on this matter would be the tribunal before whom this question is raised. In other words, it would be the executing Court in a case where a decree has been passed already and the execution of it is sought after the Board has dealt with the matter and has exhausted its jurisdiction, but where the stage has not been reached then it would be the civil Court when the matter is taken there by the creditor in a regular suit. The creditor as a matter of course, when he seeks execution of decree or institutes a suit will ignore the opinion of the Board on the ground that it is ultra vires. He will not admit any defaults on his part. The matter can only be pleaded by the debtor in the nature of a plea in bar, on the basis of certain defaults committed by the creditor before the Debt Conciliation Board which result in the automatic discharge of the debt. Such a plea, therefore, can only be raised in a civil Court. Once the plea is raised the civil Court is bound to adjudicate on it, and in adjudicating on this plea it will have to consider and to decide whether circumstances have been proved which produce the result contemplated by the provisions of Section 13, namely, the discharge of the debt. On this view of the case the civil Court is bound to take evidence of both the parties and to give its decision on the question of the sufficiency of the cause. If it is a case of absence of the creditor on any hearing fixed by the Board, it will decide whether the absence was for an unavoidable reason or whether there was sufficient cause for that. Where the default is in not filing a statement of accounts within the time prescribed the Court will have to find whether the notice was published and was served on the creditor and that he failed within two months of the service of the notice to put in his statement of accounts. In other cases the Court will have to find whether the documents required by Section 14(1), Punjab Relief of Indebtedness Act, were filed by the creditor or not, and whether any one of those documents was necessary to be filed. A case might as well arise where the creditor was never served with a notice and, therefore, it was contended by him that he had not earned the consequences of any default whatsoever on his part. Once it is held that the Civil Court, that is, either the executing Court or the Court trying the civil suit, has to pronounce on the plea in bar raised by the defendant then necessarily be-fore arriving at a decision the Court has to record evidence on all these matters and give its decision.
12. There is a string of authority in the Lahore High Court for the view that any decision as regards the discharge of a debt can only be given by the civil Court either on its regular side or on the execution side and not by the Debt Conciliation Board. Reference in this connection may be made to the case of Nawab v. Moti Ram A.I.R. 1942 Lah. 161 (1) in which it was held that there is nothing in the Act which gives the Board power to pass an order of discharge in any circumstances at all, and that what is actually provided in Section 13 is that if a statement of debts is not submitted in time, the debt shall for all purposes be deemed to have been duly discharged, and, therefore, it is for the executing Court to decide whether the debt should be deemed to have been discharged by reason of any failure on the part of the decree-holder, or not. If there has been any such failure, no order of the Board for discharge of the debt is necessary. On the other hand, if there has in fact been no failure it is not in the power of the Board to discharge the debt.
12. In the case of Babu Ram v. Mohammad Ali and Anr. A.I.R. 1942 Lah. 80 it was observed that a Debt Conciliation Board had no power to discharge a debt under Section 13(2) and that it was for the executing Court to decide whether the creditor had failed to submit his accounts within the prescribed time. In the Full Bench case Thambu v. Bhartu A.I.R. 1945 Lah. 309 (P.F.) the same view was expressed and at p. 344 of the report the following observations occur:
In fact it has been held that it is not open to the Board to pass an order discharging a debt but that after two months have elapsed from the publication of the notice, the debt is automatically discharged by the operation of the statute without any order being passed to that effect. In this case, therefore, the debt would have been automatically discharged on 27th January 1941 but five days before that date the creditor offered to produce his accounts. Reference may be made in this connection to Nawab v. Moti Ram A.I.R. 1942 Lah. 164. Both the learned Counsel conceded that there is nothing in the Act which gives the Board power to order a discharge of the debt in any circumstances. What is actually provided in Section 13 is that if a statement of debts is not submitted in time, the debts shall for all purposes be deemed to have been duly discharged. It is for the executing Court to decide whether the debt should be deemed to have been discharged by reason of any failure on the part of the decree-holder or not.
In Balwant Singh v. Barhat Ram A.I.R. 1943 Lah. 158 Monroe, J., expressed a similar opinion.
In Bansi Ram v. Modan Singh A.I.R. 1948 E.P. 33 a similar question arose before my brother Teja Singh. Two points were urged before my brother (1) that the Board had no jurisdiction to adjourn the case from 3rd February 1944 to 16th March 1944 and consequently their final order discharging the debt on account of the failure of the decree-holders to put in appearance on 16th March was illegal, and (2) that even if the order of the Board dated 3rd February was not without jurisdiction, the decree-holders had sufficient cause for their failure to appear on the next date and there was no justification on the part of the Board to discharge their debt. The decision of the second question was given in these terms:
As regards the second point, the question whether the decree-holders had a sufficient cause for not appearing before the Board on 16th March 1944 is concluded by the finding of the learned District Judge, which is one of fact and cannot be disturbed in second appeal. Besides this, my opinion is that the finding is perfectly sound.
13. It appears that neither in the two Courts below nor before my learned brother any dispute was raised to the effect that Courts had no power to examine the sufficiency of the cause for absence and give their verdict on that point.
14. It is axiomatic that the provisions of Section 13 are highly penal and should be construed against those in whose interest they were enacted. Reference in this connection may be made to the observations made in Gian Das v. Saudagar Singh and Ors. A.I.R. 1943 Lah. 259. In this case a copy of a decree had been filed and no other statement of account had been submitted to the Board and the Board discharged the debt. When the matter came up before the civil Court it was examined by the civil Court and it was held that the filing of a copy of the decree was quite sufficient a compliance with the provisions of this statute, and, therefore, the failure in the filing of the statement of account before the Board when a copy of the decree had been filed did not result in the discharge of the debt. The civil Court, therefore, in this case examined the ground on the basis of which a plea had been raised that the debt stood discharged. In Taja v. Mt. Devi A.I.R. 1939 Lah. 327 a creditor in pursuance of a notice under Section 13(1) submitted a statement of his claim within the time fixed stating the amount due to him and he also produced his account books from the date when the first cash advance was made and was signed by the debtor. The Board passed an order discharging the debt under Section 18(2) on the ground that the earlier accounts had not been produced by the creditor. It was held by Tek Cband, J., that such an order was ultra vires of the powers of the Board and there was no bar to the consideration of this matter by the civil Court. The civil Court took the view that it was not necessary to file the old account books under the provisions of the Punjab Relief of Indebtedness Act and any default in producing those books did not involve the consequence of the discharge of the debt.
15. In Ghulam Akbar Shah and Anr. v. Ram Chand A.I.R. 1941 Lah. 8. Bhide, J., held that where a statement of account had been duly furnished in compliance with a written order under Section 13(1), then any order made under Section 13(2) by the Board was ultra vires. The civil Court examined in this case whether a statement of account had been duly furnished in accordance with law by the creditor, and once it found that such a statement had been furnished then it ignored the opinion of the Board that it had not so been furnished and arrived at an independent decision on the point.
16. In Qumaruddin v. Kishan Das A.I.R. 1945 Lah. 223 a Full Bench of the Lahore High Court expressed a similar opinion. What happened here was that the creditor stated that he had no bahis whatsoever and that he did not keep any kind of account books and, therefore, he was not able to produce them in support of the claim made by him. The Debt Conciliation Board took the view that there had been a failure to produce the account books under Section 14(1) and that resulted in the consequence laid down in Section 18(3) of the Act. The Lahore High Court held that the civil Court was the Judge of the failure committed by the creditor, and that when the creditor had said that he did not keep any bahis in those circumstances he was not bound to produce what he did not possess and no penal consequences could follow in that situation. Whether there had been a default and what were the causes for such a default the question was examined by the Full Bench itself.
17. The position, therefore, is that the case law justifies the proposition that the Court before which a plea is raised that the debt has been discharged by the operation of the statutory provisions has to adjudicate upon it. The plea has to be made good by the person who raises it and the Court has to find on the evidence whether the defaults alleged have taken place and have resulted in the consequence mentioned in Section 13(3), Punjab Belief of in debtedness Act. In the case of absence on any hearing of the creditor the Court has to find' whether the absence was for an unavoidable reason and there was sufficient cause for the creditor not to appear before the Board on that date; in the case of a notice it has to find whether the notice was served on the creditor or not, while in the case of an alleged failure in filing a statement of account it has to be found whether the notice was served on the creditor and he failed to put in a statement of account within two months. It may also have to be found what was the terminus a quo for the period of two months. The Court has also to find in some cases whether the documents filed under Section 14(1), Punjab Relief of Indebtedness Act were the proper documents and whether any omission to file some of them resulted in discharge of the debt. Once the Court finds that a default has happened then the legal consequences laid down in the statute would automatically follow, but if the Court finds that the default has not taken place then the plea taken up by the debtor will have to be repelled. As I have already pointed out the Debt Conciliation Board has not been given the power to pronounce on this plea, under Section 18(8), Punjab Relief of Indebtedness Act. Its jurisdiction is limited to Sub-section (4) of Section 13 when it is moved by the creditor for the revival of his debt. In that event the Debt Conciliation Board becomes the final judge of the sufficiency of the cause for the absence and it alone can pronounce upon it. Where, however, no Debt Conciliation Board exists then the matter of the revival of the debt even has to go to the Civil Court.
18. I can visualise a number of cases where a creditor may think that it is wholly unnecessary to make an application for the revival of the debt under Sub-section (4) of Section 13. He may have a very strong case for the contention that he had done nothing which could entail the penal consequences laid down in Section 13(3). Take for instance the case of a person who is arrested binder the Punjab Safety Act on the date on which hearing is fixed of his case before a Debt Conciliation Board. Obviously this is an un-avoidable reason for his not attending on that date before the Debt Conciliation Board. The factum of his arrest can well be established by unimpeachable evidence. Can it be said in such a case that the creditor must go to the Debt Conciliation Board for the revival of his debt and that he will not be justified in bringing a suit for the recovery of the debt or seeking execution of his decree in the civil Court without caring for any order that the Debt Conciliation Board may have made regarding the discharge of the debt? When a plea is raised in the executing Court or in the civil Court that the debt stands discharged by reason of his absence on a particular date he can very well say that he was arrested on that date by the Government and was prevented from appearing before the Debt Conciliation Board and that he 'was not given any opportunity to see anybody by the police and he could not, therefore, either engage a counsel or appoint a Mukhtar. In such circumstances there is nothing in law which forces him to make an application for the revival of the debt under Sub-section (4) of Section 13. Another casa may arise where a man is suddenly taken ill and becomes unconscious and is immediately carried to a hospital where he remains unconscious for a number of days. In such a case again he may consider it wholly unnecessary to invoke the provisions of Sub-section (4) of Section 13. Cases have arisen and do arise where a man is actually present before a Debt Conciliation Board but the Debt Conciliation Board writes an order saying that he is absent and discharges the debt. On one hearing of this very case this thing happened before the Debt Conciliation Board. The Mukhtar of the creditor was present the fore the Debt Conciliation Board, yet the debt 'was discharged for absence of the creditor. In such a case again, if the creditor feels certain -of his ground and has unimpeachable evidence lie may deem it unnecessary to make an application under Sub-section (4) of Section 13. In all those cases one can visualise that proceedings under Sub-section (4) of Section 13, may not be put into motion all these cases, therefore, the matter will have to be adjudicated by the Court before whom a plea in bar is raised based on the provisions of Section 13(8).
19. The matter is, however, different if a creditor invokes the jurisdiction of the Board conferred on it under Sub-section (4) of Section 13 and the Board gives its decision on the question of the sufficiency of the cause or on the question whether the creditor was prevented for some unavoidable reason from appearing at the hearing fixed by the Board. In other cases also when the Board decides that there was no sufficient cause for the creditor in not filing a statement of account or for producing all the documents that he was required to produce the matter has to be viewed from a different angle of vision. If a decision is given on these points by the Board on an application presented under Sub-section (4) of Section 18, then it seems to me that to that extent the civil Court is bound to accept it and cannot go behind it. The Board or in the alternative the civil Court has been constituted as an exclusive tribunal for determination of questions that arise under Sub-section (4) of Section 13, Punjab Belief of Indebtedness Act, and once that exclusive tribunal has given findings on those questions those findings operate as res judicata and bar a subsequent trial of those matters. It is immaterial that the decision on those questions is given by the Board or in case of its non-existence by the civil Court. Whether the Board gives a decision or a civil Court gives it as an alternative Court, in both events the rule of res judicata on general principles of law would bar re-trial of the issues decided in an enquiry under Sub-section (4) of Section 13. The matter has to be decided on first principles of law and is bare of authority, but I have no hesitation in holding that if sufficiency of the cause is determined by the Board under Sub-section (4) of Section 13 then the civil Court has no jurisdiction to examine that matter.
20. In view of the above discussion my answers to the questions referred to the Pull Bench are these.
21. On the first question my answer is that the Civil Court can enquire into the question whether a creditor has failed to be present at a hearing before a debt conciliation Board for sufficient cause as contemplated by Section 13(3), Punjab Relief of Indebtedness Act of 1934. The answer to the second question is that the creditor is entitled to show that he was absent for sufficient cause and that therefore his debt was not discharged. My answer to the third question is that the jurisdiction of the civil Court is affected by the fact that the creditor has made an application to the Board for revival of his debt under Sub-section (4) of Section 13, Punjab Relief of Indebtedness Act of 1934. If a finding has been given on the question of sufficiency of cause by the Board in an enquiry under that sub-section that finding is conclusive and the Civil Court cannot go behind it.
Teja Singh, J.
22.I agree in the answers Ito the questions proposed by my learned brother.
23. I have had the advantage of seeing the judgment of my learned brother Mahajan, J. I agree entirely with the opinion of my learned brother Mahajan, J. and with the reasons upon which this opinion is based. I should, however, like to add a few words of my own.
24. I view the matter from a practical point of view. Let us visualise what happens when the Board takes up an application under Section 9 for consideration. Suppose, on that day the creditor is absent but the debtor is present; what must the Board do? It is clear that the Board must first of all record a note to the effect that the creditor is absent. In my view, nothing more remains to be done for the Board, for by operation of law the debt of the creditor is automatically deemed to have been discharged. It has been suggested that the Board is not' obliged to record mechanically the absence of the creditor but must exercise its mind and give a decision regarding the reasons which led to the creditor's absence; in other words, the Board must give a finding to the effect that the absence of the creditor was without sufficient cause and that unless this is done the provisions of Sub-section (3) of Section 13, Punjab Relief of Indebtedness Act are not complied with. I am unable to accept this view. The Board is not obliged to launch into an enquiry relating to the causes which kept the creditor away. The use of words 'without sufficient cause' in Sub-section (3) does not mean that the Board must give a finding on this question and the Board cannot simply record the absence of the creditor. Faced with the situation that the debtor is present but the creditor is absent the Board has only one course open to it, namely, to record the state of affairs and declare that by reason of the creditor's absence the debt must be deemed to have been discharged. An enquiry into the sufficiency of the cause which resulted in the creditor's absence would mean that the Board is giving a judicial finding and passing an order based on this judicial finding. It is well-settled law that the Board does not discharge the debt. The discharge of the debt follows automatically from the absence of the creditor. Therefore, it is clear that at that stage the Board does not make any enquiry into the reasons which kept the creditor away but merely records the fact that the creditor is absent and that, therefore, the debt must be deemed to have been discharged.
25. This interpretation of Sub-section (3) is borne out by the fact that Sub-section (4) provides for an enquiry into the matter and gives power to the Board to revive the debt. Here, the Board performs the positive act of reviving an already discharged debt and this positive act is the result of a judicial enquiry into the causes which led to the discharge of the debt.
26. Now, let us consider the position of the creditor whose debt has been discharged by reason of his absence. He may take up on(c) of two attitudes. He may either take the view that his absence was due to sufficient cause and, therefore, his debt was never discharged or he may take the view that the debt must be deemed to have been discharged but may be revived on the ground that his absence was due to sufficient cause. These are two ways of looking at the same thing and each way connotes a distinct remedy which is open to the creditor. If he takes the view that the debt was never discharged because his absence was due to sufficient cause he may ignore the proceedings before the Debt Conciliation Board and go to a Civil Court with the contention that his absence was due to sufficient cause and, therefore, his debt was never discharged. There is nothing in the Punjab Belief of Indebtedness Act which prevents him from taking such a course. On the other hand, he may wish to submit to the jurisdiction of the Board and take the remedy of reviving his debt. This he can do under Sub-section (4) of Section 13. There is no contradiction in this and it cannot be said that the Civil Court would be trespassing ors the domain of the Board by entertaining the creditor's plea in this respect. On the happening of a certain contingency the debt may be-deemed to be discharged and if that contingency has, in fact, not occurred the debt cannot be deemed to have been discharged and a Civil Court can obviously give a declaration to this effect. On the other hand, the creditor also has the remedy of going to the Board and pleading before it that as there was a sufficient cause fox his absence his debt may be revived and if he does this the jurisdiction of the Civil Court is explicitly barred by the provisions of Sub-section (4).
27. I may put the same argument in another way. When the creditor is absent all that the Board has to do is to record that he is absent. As to what the consequences of this absence are is hardly the concern of the Board. The Board is not competent to modify or vary the result of this absence. For instance, the Board cannot say that although the creditor is absent his debt shall not be discharged or that only half of the debt shall stand discharged. The Board has only to record the absence of the creditor and the other consequence follows inevitably by the operation of law. Now> if the creditor does not wish to accept this fact he may go to a Civil Court and say that there was good ground for his absence and, therefore, the discharge of his debt did not follow as a necessary corollary on his absence. On the other hand, he may submit to the fact that the debt was discharged and may go to the Board and say:
Owing to my absence my debt was automatically discharged but as my absence was due to sufficient cause I am entitled to have the debt revived.' There is no contradiction here in the position taken up by the creditor.
28. If the Board were to give a finding either ex parte or after due investigation that the absence of the creditor was without sufficient cause then there would be no room left for a further enquiry into the matter when the creditor comes and makes an application for the revival of the debt under Sub-section (4). The fact that an enquiry into the causes of the creditor's absence is provided for in Sub-section (4) clearly means that no such enquiry is to be made under Sub-section (3). The Board would, therefore, be wrong in recording that the creditor's absence was not due to sufficient cause and that, therefore, his debt must be deemed to have been discharged.
29. I would, therefore, answer the questions referred to the Full Bench as follows: (1) A Civil Court can enquire into the question whether a creditor failed to be present at a hearing before a Debt Conciliation Board for sufficient cause. (2) The creditor is entitled to show that he was absent for sufficient cause and that, therefore, his debt was not discharged. (3) If a creditor makes an application for reviving his debt under Sub-section (4) of Section 13 the jurisdiction of the Civil Court to enquire into the matter is barred.