Skip to content


Mangat Rai and ors. Vs. Kidar Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 184 of 1954
Judge
Reported inAIR1962P& H1
ActsPunjab Relief of Indebtedness Act, 1934 - Sections 7, 7(1), 7(2), 30 and 30(1); Usurious Loans Act, 1918 - Sections 2(3), 3, 3(2) and 3(3); Punjab Restitution of Mortgaged Lands Act, 1938; East Punjab Usurious Loans (Amendment) Act, 1948
AppellantMangat Rai and ors.
RespondentKidar Nath and ors.
Cases ReferredVaishnu Dass v. Thakar Dass
Excerpt:
.....a deliberate provision in sub-section (3) of section 2 when dealing with loan in clause (a) as such without regard to whether it was made before or after the commencement of the act, and when dealing with security in clauses (b) and (c), it has clearly and unmistakably provided that the suit to which those clauses provided that the suit to which those the commencement of the act. where the language is in itself clear, the fact that the legislature had failed to carry out its intention or the fact that relied is not available in certain circumstances on the clear language employed is no ground to make it a case of interpretation, where there is none, so as to read in the statute what is not there......redemption of any security given after the commencement of the act and in respect of a mortgage loan (a security in itself) made either before or after the commencement of the act: but if this clause is to be read in this manner, it becomes even clearer that that it does not apply for redemption of a security taken before the commencement of the act, as then it relates to security taken after the commencement of the act in respect of a mortgage loan or security before its commencement, in other words in respect of a pre-existing security. so if the security is taken after the commencement of the act, even though it is in respect of a security existing before that commencement, what will be sought to be redeemed will be the security taken after the commencement of the act to which.....
Judgment:
ORDER

Mehar Singh, J.

(1) The two questions referred to the Full Bench are--

1. Whether it is open to the legal representatives of a debtor to invoke the help of section 30 of the Punjab Relief of Indebtedness Act in a suit for possession by redemption?

2. Whether the provisions contained in Section 3 of the Usurious Loans Act, 1918, as amended in the Punjab, would govern a suit for redemption of mortgage executed before the commencement of the Act?

(2) The grandfather of the plaintiffs, Ladhia, created three mortgages between July 20, 1886, and May 21, 1897, for a total consideration of Rs. 6,400/- by the deeds Exhibits P.1 to 3 in favour of Ramji Dass, father of defendants Nos. 1 to 4, in respect of some agricultural land, one nauhra and two houses. According to the conditions of the mortgages, the mortgagee was to be in possession of the mortgaged properties and to appropriate the rents and profits towards interest on the mortgages, the rate of interest having been specified in the mortgages, and in default of payment of interest a provision having been made for charging compound interest at considerable higher rate. The mortgagee was not given possession of a part of the mortgaged property, which was already in the possession of one Shugan Chand under a mortgage.

The mortgagee sued for possession of that property. In that suit there was a compromise under which the mortgagee paid Rs. 650/- to clear off the encumbrance in favour of Shugan Chand and the mortgagor contracted to have that amount as mortgage debt on the mortgaged properties. The decree in that suit is of February 28, 1904. So the total mortgage debt comes to Rs. 7,050/-.

(3) The plaintiffs brought a suit for redemption of the mortgaged properties and obtained a decree on March 14, 1914, for possession of the properties by redemption on payment of Rs. 62,293/11/9, with costs amounting to Rs. 326/9/9. There was an appeal against that decree but that failed on November 24, 1919. However, pursuant to that decree the properties were not redeemed by the plaintiffs.

(4) Subsequently, the plaintiffs made an application under the Restitution of Mortgaged Lands Act, (Punjab Act No.4) of 1938, for restitution of the agricultural land without payment of anything on the ground that from the income of the land the mortgage consideration had completely been paid off according to the provisions of that Act and for extinction of the mortgages on the land. The Collector accepted the application and extinguished the mortgages of the land. The date of the order is not on the record, but, as present litigation does not concern agricultural land, that is not material. The present suit for redemption by the plaintiffs only concerns the nauhra and the two houses.

(5) On November 3, 1952, the plaintiffs instituted suit for redemption of the nauhra and the two houses without payment of any amount to the defendants, mortgagees, on the ground, among others, that the rule of damdupat, in accordance with section 30 of the Punjab Relief of Indebtedness Act (Punjab Act No. 7) of 1934, applies to the case, and the defendants have already received out of the income of the mortgaged properties more than twice of the original mortgaged debt under the mortgage deeds. The plaintiffs also seek to have the mortgage transactions reopened and accounts settled under section 3 of the Usurious Loans Act,(No 10) of 1918. The plaintiffs as pointed out, are the grandsons of the original mortgagor Ladhia.

(6) The learned trial Judge has found that the rents and profits of the mortgaged properties approximate to Rs. 48,571/-. He further found that on the stipulations between the parties the mortgage amount would swell to about rupees seventy-seven lacs. He came to the conclusion that the rule of damdupat does not apply to the present case. The amount due under the mortgages was determined at Rs. 62,293/11/9 under the previous redemption decree of March 14, 1914. He was of the opinion that it was after that date that the plaintiffs can have advantage of section 3 of the Act No. 10 of 1918. Making the calculation upon these considerations he found the plaintiffs liable for Rs. 80,149/- and deducting from this amount, the amount of the rents and profits realised by the mortgagees, defendants, he decreed redemption of the mortgaged properties in suit on payment of Rs. 31,578/-.

(7) It is in these circumstances that the two questions as above have come for consideration before the Full Bench as on the first question at least there is said to be a conflict of judicial opinion.

(8) The mortgages came into existence lone before the commencement of Punjab Act No. 7 of 1934. The suit has been brought after the commencement of that Act. The plaintiffs seek relied under the rule of damdupat in view of sub-section (1) of S. 30 of this Act. That sub-section provides--

'In any suit brought after the commencement of this Act in respect of a debt as defined in section 7, advanced before the commencement of this Act no Court shall pass of execute a decree or give effect be to an award in respect of such debt for a larger sum than twice the amount of the sum found by the Court to have been actually advanced, less any amount already received by a creditor in excess of the amount due to him under clause (e) of sub-section (2) of Section 3 of the Usurious Loans Act, 1918.'

The definition of the word 'debt' in Section 7(1) of this Act is inclusive and consequently not exhaustive. To the ordinary meaning of the word 'debt' it adds certain liabilities of the debtor enumerated therein, at the same time it excludes from its purview certain others of the liabilities which otherwise would be included in it. For the present purpose what is specifically included in or excluded from the definition is not material. The question is what is the ordinary meaning of the word 'debt' within the scope of Section 7(1) of this Act. In Lachhman Singh v. Natha Singh, AIR 1940 Lah 401, a Full Bench considered the meaning of this word in reference to this very section and held that

'the essence of a 'debt; is the liability of the obligor which the obligee is entitled to enforce by action. Where therefore a transaction neither imports the personal liability of the obligor to pay, nor confers on the obligee the right to recover, the amount by the coercive machinery of the law, it cannot be called a 'debt'. ''

The learned Judges held that a usufructuary mortgage is not a debt as that word is defined in Section 7(1) of this Act, because in the case of such a mortgage the mortgagor is under no obligation to pay to the mortgagee and it is his option to redeem if and when the chooses.

The test, therefore, is that where there is no liability which can be enforced to recover the amount by coercive machinery of the law, it is not a case of 'debt'. but otherwise where such recovery can be made by the coercive machinery of the law the amount recoverable is a 'debt'. Where the learned Judges refer to the 'personal liability of the obligor' in this respect, they apparently refer to his liability enforceable by section at the instance of the obligee. There is no such right in the mortgagee in the case of a usufructuary mortgage. The learned counsel for the defendants refers to this observation of Sale, J. in Hukam Chand v. Punnu, Civil Revn. No. 645 of 1942, D/- 20-3-1944 (Lah), which observation the learned Judge has made after considering the meaning of the word 'debt' as given by the learned Judges in AIR 1940 Lah 401 (FB),--

'now, it is true that a creditor can recover the amount of his debt by the coercive machinery of the law against the estate of the debtor in the hands of his legal representative but there is no personal liability so far as the legal representative is concerned; and if a usufructuary mortgage is not a 'debt' for this reason, it would follow also that a debt owed by a legal representative of the debtor is also not a debt within the meaning of the Act.'

I have shown just above that in the case of a usufructuary mortgage there is no liability enforceable by action but in the case of any other debt, in spite of the death of the original debtor, the liability is enforceable, even though it is only enforceable against the estate of the deceased in the hands of his legal representative, and I have pointed out that the definition of the word 'debt', as given by the learned Judges in AIR 1940 Lah 401 (FB), is referred to as personal liability of the obligor in the sense as enforceable by action as opposed to a case of usufructuary mortgage where there is no such liability. The observation of the learned Judge is obiter because this question did not arise in that case and the only question in that case was whether a legal representative of a deceased debtor is or is not a 'debtor' within the meaning and scope of S. 7(2) of this Act. With respect to the learned Judge I do not consider that he has quite correctly applied the definition given by the Full Bench to the case of a 'debt' due from a deceased debtor, when an attempt is being made to realise the debt from the estate of the deceased debtor, in the sense in which 'debt; has been defined by the Full Bench.

When it is due from a legal representative of the original debtor it still is a 'debt' within the meaning of the word in S. 7(1) of this Act, because as a result of the death of the original debtor the debt does not cases to be a 'debt; and it does not cases to be recoverable by the coercive machinery of the law. The fact that its recovery is to be from the estate of the deceased in the hands of his legal representative does not render it no longer recoverable by action and thus no 'debt'.

(9) In sub-s. (2) of S. 7 of Punjab Act No. 7 of 1934, 'debtor' is defined to mean a person who owes a debt and has one of the three other qualifications mentioned therein. The definition of 'debtor' in this provision is a narrower definition on account of one of the three additional qualifications, than the meaning of this word as a person who owes a debt. This narrower definition is given in this provision for the purposes of Part IV of the Act dealing with proceedings before Debt Conciliation Boards and it is confined only to this Part.

It has been contended on behalf of the defendants that the meaning of the word 'debt' in S. 7(1) of this Act should be confined only to a 'debtor' as defined in sub-s. (2) of that section, but for that there is no justification as the word 'debtor; is specially defined in sub-s. (2) with limited meaning for the purposes of Part IV of this Act, while the meaning of the word 'debt; in sub-s. (1) being inclusive is not narrowed by the definition. It is true that some defined liabilities are excluded from that definition but that does not make the meaning of the word 'debt; is sub-s. (1) as merely confined to a debt owed by a 'debtor' as defined in sub-s (2).A 'debtor' as defined in that sub-section of course is a person who owes a debt, but a 'debt' as defined in sub-section (1) may be owned by a 'debtor' as defined in sub-s. (2) and may also be owed by a debtor falling outside the narrower definition of the word 'debtor' as given in sub-s. (2).

The learned counsel for the defendants contends in reference to Sahib Ditta Mal v. Mohra Mal, AIR 1945 Lah 58, and Dalip Singh v. Honda Ram,AIR1947 Lah 240, that it is only the debtor, personally owing the debt, who is within the meaning of the word 'debtor' as used in sub-s. (2) and consequently the legal representative of such a debtor or a transferee from such a debtor not being under any personal liability is no a 'debtor' within the meaning of that provision, which is a proposition supported by the authorities and not open to exception. It is, however, not quite clear how this helps to advance the argument on behalf of the defendants, except on the consideration that the word 'debt; in sub-s. (1) is confined to a 'debt' owed by a 'debtor' as defined in sub-s. (2), and it has already been shown that this contention is untenable. These two cases do not assist the defendants and this argument, in my opinion, cannot be accepted.

The learned counsel for the defendants then refers to Balkishan v. Baldeo Kumar, AIR 1953 Punj 297, and contends that in that case, in regard to a mortgage debt, the learned Judge held that that was not a case of 'debt' as the word is used in S. 7, but that was a case of usufructuary mortgage, and as has already been shown a usufructuary mortgage is not a 'debt' within the meaning of that section. This case is not helpful to the defendants either.

(10) In sub-section (1) of S. 30 of Punjab Act No. 7 of 1934 prohibition is against passing or executing the decree in a suit in respect of a debt as defined in S. 7 of this Act. Section 30 makes no reference to a 'debtor' as defined in S. 7(2), it only refers to a 'debt' as defined in S. 7(1). It the suit relates to a 'debt' as defined therein, the rule of damdupat, as enacted in Section 30, is immediately attracted, whether or not the party seeking its benefit is within or outside the scope of the word 'debtor' as defined in S. 7(2). So reference to the definition of the word 'debtor' in S. 7(2) of this Act is besides the point. When the suit is in respect of a 'debt' as defined in S. 7(1), irrespective of who the debtor is and in what capacity he is being sued, the rule of damdupat applies under S. 30 of this Act.

A Division Bench of this Court in Hukam Singh v. Duli Lal Singh, AIR 1959 Punj 566, has taken the same view. In reference to a similar argument in that case, as in the present case, the learned Judges observed that

'it may be that the plaintiff in this case who is a legal representative of the original debtor, is not a debtor as defined in sub-s. (2) of S. 7, but that fact cannot alter the fact that the suit has been brought in respect of a debt as defined in S. 7(1). In these circumstances it was in my opinion the duty of the Court to do what it has actually done, namely to give effect to the rule of damdupat and to refrain from passing a decree in contravention if the provisions of S. 30 of the statute.'

There is no conflict in the decision of this case with the decision in the case of AIR 1945 Lah 58, as in the later case only the meaning of the word 'debtor' is considered and not the meaning of the word 'debt', and that is considered only for the purposes of proceedings before a Debt Conciliation Board under Part IV of this Act and not for the purposes of the rule of damdupat as enacted in Part V, S. 30. The answer to the first question, therefore, is that it is open to the legal representative of a debtor to invoke the help of S. 30 of Punjab Act N0. 7 of 1934 in a suit for possession by redemption of a mortgage. This obviously does not apply to the case of a usufructuary mortgage for such a mortgage is not a debt.

(11) The provisions of S. 2, sub-s (3), of fact No. 10 of 1918 have been amended in Punjab by the Usurious Loans (East Punjab Amendment) Act, (East Punjab Act No. 4) 1948, and as amended S. 2(3) reads--

'2(3) 'suits to which this Act applies' means any suit--

(a) for the recovery of a loan made whether before or after the commencement of this Act; or

(b) for the enforcement of any security taken or any agreement, whether by way of settlement of account or otherwise, made, after the commencement of this Act, in respect of any loan made either before or after the commencement of this Act; or

(c) or the redemption of any security given after the commencement of this Act in respect of any loan made either before or after the commencement of this Act.'

Initially there were only the first two clauses in the sub-section and it was in 1926 that clause (c) was added in consequence of the decision in Chunilal Mokamdas Marwadi v. E. Christopher, AIR 1926 Bom 65, in which case the plaintiffs had sued to redeem ornaments and sought to have the transaction opened under section 3 of Act No. 10 of 1918. The learned Judges held that the Act applied according to section 2(3) to a creditor's suit to enforce the security under clause (b) and not to a debtor's suit to redeem. The position was that if in regard to the same security the creditor enforced it, the debtor could have benefit of section 3 of the Act, but not if the debtor sued for redemption of the security. It was in consequence of this decision of the Bombay High Court that clause (c) was added to sub-section (3) of section 2 of the Act.

In the Punjab the effect of amendment of clause (a) of section 2(3) is that whenever a suit is brought for the recovery of a loan, the debtor can have benefit of section 3 of the Act irrespective of the fact whether the loan was made before or after the commencement of the Act. In other words, the debtor can have benefit of section 3 in all cases. Where it is a case of enforcement of a security or redemption of a security taken, after the commencement of the Act, in respect of any loan made either before or after such commencement, the debtor can still have benefit of section 3. But clauses (b) and (c) of section 2(3) apparently apply to enforcement of a security or redemption of it taken after the commencement of Act. The words of the clauses are unmistakably clear and there being no ambiguity in the language, the clauses cannot possibly apply to enforcement of a security or redemption of it taken before the commencement of the Act.

It has been said that both clauses refer to loan made either before or after the commencement of the Act and this is true, but that reference is only descriptive of the consideration for the security, as it is stated that the Act applies to security taken after its commencement thought in respect of loan before or after its commencement. Clauses (b) and (c) do not relate to recovery of a loan. In these clauses the word 'loan' is used, and this word is defined in section 2(2) of the Act to mean 'a loan whether of money or in kind, and includes any transaction which is, in the opinion of the Court, in substance a loan.' The learned counsel for the plaintiffs contends that thus this definition of the word 'loan' includes a secured loan or a mortgage loan but on the plain language of sub-sections (2) and (3) of section 2 it is clear that a loan is treated as a loan whether of money or in kind and the case of a security for the loan is separately dealt with in clauses (b) and (c) of sub-section (3) of section 2. So the Act treats the case of security on a separate basis as compared to that of a loan.

In fact, in clauses (b) and (c) of sub-section (3) of section 2 the words 'security' and 'loan' are separately used with obviously separate meanings. In these clauses the words do not have the same meanings even for the purposes of some cases only. This arguments was urged before the learned Judge in Vaishnu Dass v. Thakar Dass, AIR 1953 Punj 116, and it was contended that inconsistency between the working of section 2(3) and section 3(3) of the Act. The learned Judges were of the opinion that there was force in the argument as they considered that section 3(3) it interpreted literally must apply to redemption suit seeking redemption of a security before the commencement of the Act, as was the case before them, and that clauses (c) of sub-section (3) of section 2 could only be reconciled with that provision if the interpretation was accepted that in clause (c) of sub-sections (3) of section 2 the word 'loan' includes mortgage loan.

With due deference to the learned Judges this is not so. If it were so, a mortgage loan is a security in itself, and clause (c) would then read as if it relates to a suit for redemption of any security given after the commencement of the Act and in respect of a mortgage loan (a security in itself) made either before or after the commencement of the Act: but if this clause is to be read in this manner, it becomes even clearer that that it does not apply for redemption of a security taken before the commencement of the Act, as then it relates to security taken after the commencement of the Act in respect of a mortgage loan or security before its commencement, in other words in respect of a pre-existing security. So if the security is taken after the commencement of the Act, even though it is in respect of a security existing before that commencement, what will be sought to be redeemed will be the security taken after the commencement of the Act to which alone the Act applies, and there can be no question of redeeming the earlier security which has in fact ceased to exist by its merger with the subsequent security taken after the commencement of the Act for in express words it only applies to security taken after its commencement.

The argument of the learned counsel for the plaintiffs if accepted would amount to this, that the clause applies to security taken before and after the commencement of the Act, but if that was so, the Legislature would have stated so in such clear terms. Again with respect to the learned Judges I consider that this approach is not supported by the language of sections 2(3) and 3(3). Sub-section (3) of section 3 says--

'This section shall apply to any suit, whatever its form may be, if such suit is substantially one for the recovery of a loan or for the enforcement of any agreement or security in respect of a loan or for the redemption of any such security.'

Section 3 starts, with this, that the provisions of the section apply to any suit to which the Act applies. Sub-section (3) of section 2 of the Act enumerates the types of suits to which the Act applies. So section 3 only applies to such suits as are referred to in sub-section (3) of section 2. That being so any provision in section 3 is subject to what is provided in sub section (3) of section 2, and there can be no case of conflict between section 3(3) and section 2(3). On another consideration there is really no conflict between these two provisions. Section 3(3) relates to the form of a suit and it is enacted to meet a situation in which an attempt may be made to so frame a suit as to take it out of the scope of the suits referred to in section 2(3), and what section 2(3). Because in section 3(3) the Legislature was merely guiding against the evasion of the statute by form of pleading, it was not necessary in that provision to repeat the words 'the suits to which the Act applies', that having been clearly done in the beginning of section 3.

So section 3(3) merely relates to the form of a suit and enjoins upon the Court to look to the substance and if on consideration of the substance, the suit is of the type as referred to therein then to that section 3 will apply, but sub-section (1) of section 3 clearly says that the provisions of section 3 apply to any suit to which the Act itself applies and according to section 2(3), the Act applies to suits described and mentioned therein. On literal construction of the two provisions, sections 2(3) and 3(3), if I may say so with respect to the learned Judges, no conflict arises. Therefore the case relied upon by the learned counsel for the plaintiffs in this respect does not advance the argument on their behalf.

One other argument which prevailed with the learned Judges in that case was that if clause (c) of sub-section (3) of section 2 is not interpreted to apply to redemption of security taken before the commencement of the Act, then if a creditor brings a suit for the recovery of a loan the Act will apply in the Punjab whether the loan was advanced before or after the commencement of the Act and if the mortgage enforces his mortgage the debtor would be entitled to get relief as provided by amending East Punjab Act No. 4 of 1948, but if the debtor wishes to pay back the creditor and wishes to redeem his property, he will not be entitled to get the relief, which the learned Judges thought was wholly inconsistent with the underlying idea of the Act.

There is this difference, for it appear that the Legislature has made a deliberate provision in sub-section (3) of section 2 when dealing with loan in clause (a) as such without regard to whether it was made before or after the commencement of the Act, and when dealing with security in clauses (b) and (c), it has clearly and unmistakably provided that the suit to which those clauses provided that the suit to which those the commencement of the Act. The difference, or what is described as inconsistency by the learned Judges, existed even before 1926 in certain respect. The Act was then amended. It has subsequently been amended by the Legislature of this State. But while one hardship has been removed, the Legislature has not considered it necessary to extend the provisions of the Act to securities taken before the commencement of the Act.

It is only where there is ambiguity in the language employed by the Legislature that there is room for interpretation. Where the language is in itself clear, the fact that the Legislature had failed to carry out its intention or the fact that relied is not available in certain circumstances on the clear language employed is no ground to make it a case of interpretation, where there is none, so as to read in the statute what is not there. That would be doing what should be done by the Legislature and a Court of law is not to do that under the guise of trying to interpret a law that needs no interpretation. With respect to the learned Judges in AIR 1953 Punj 116, it is not possible to accept the two reasonings that prevailed with them on the basis of which their decision proceeds and that case may now be considered as overruled.

(12) The answer to the second question is, therefore, in the negative that section 3 of Act No. 10 of 1918 as amended in the Punjab, does not govern a suit for redemption of a mortgage executed before the commencement of that Act.

A.N. Grover, J.

(13) I concur.

D.K. Mahajan, J.

(14) I agree.

(


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //