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Raman Pillai Balkrishna Pillai Vs. P. Vasudevan - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 1542 of 1973
Judge
Reported inAIR1976Ker133
ActsKerala Agriculturists Debt Relief Act, 1970 - Sections 4, 4(2), 4(3), 4(5), 5, 10, 14, 14(4) and 20(8); Code of Civil Procedure (CPC) - Order 21, Rule 90
AppellantRaman Pillai Balkrishna Pillai
RespondentP. Vasudevan
Appellant Advocate C.V. Vasudevan, Adv.
Respondent Advocate K.S. Rajamony,; Shahul Hameed and; Siby Mathew, Advs
DispositionPetition allowed
Cases ReferredThankappan Nair v. Mathew
Excerpt:
commercial - setting aside sale - sections 4, 5 and 20 (8) of kerala agriculturists debt relief act, 1970 - petitioner who is the judgement-debtor sought to set aside sale of his property on court auction - sale in question had taken place prior to commencement of act and not been confirmed before act came into force - application to set aside sale objected by decree-holder on ground that first installment to be deposited under section 4 not being deposited by judgment-debtor before expiry of six months from date of commencement of act and judgment-debtor cannot seek to set aside sale - no such requirement in section 20 (8) - section 20 (8) provides that notwithstanding sale having so taken place but not yet been confirmed debtor entitled to discharge debt under provisions of sections 4.....govindan nair, c.j. 1. the revision petitioner is the judgment debtor in o. s. no. 192 of 1967. the property of the revision petitioner was sold in court auction on 24-11-1969. on 2-1-1970 he filed an application to set aside the sale on the ground of material irregularity and fraud. the kerala agriculturists' debt relief act, 1970 (act 11 of 1970) (hereinafter referred to as the act) came into force on 14-7-1970. the application for setting aside the sale was dismissed on 23-8-1971. the same day the revision petitioner filed e. a. no. 537 of 1971 under section 20, sub-section (8) of the act to set aside the sale depositing the amounts due for two instalments. the execution court overruling the objection of the decree holder that the explication is not maintainable since the first.....
Judgment:

Govindan Nair, C.J.

1. The revision petitioner is the judgment debtor in O. S. No. 192 of 1967. The property of the revision petitioner was sold in Court auction on 24-11-1969. On 2-1-1970 he filed an application to set aside the sale on the ground of material irregularity and fraud. The Kerala Agriculturists' Debt Relief Act, 1970 (Act 11 of 1970) (hereinafter referred to as the Act) came into force on 14-7-1970. The application for setting aside the sale was dismissed on 23-8-1971. The same day the revision petitioner filed E. A. No. 537 of 1971 under Section 20, Sub-section (8) of the Act to set aside the sale depositing the amounts due for two instalments. The execution Court overruling the objection of the decree holder that the explication is not maintainable since the first instalment due under the Act had not been deposited by the judgment-debtor as required by Section 20 (8) within the time stipulated in Section 4(3) of the Act and that such a deposit was a condition precedent for setting aside the sale, allowed the application and set aside the sale. In appeal the Subordinate Judge held that in order to have the sale set aside the deposit of the first instalment must be made by the judgment debtor within the time specified in Section 4(3) of the Act and allowed the appeal relying on the decision of this Court in Thankappan Nair v. Mathew, (1962 Ker LT 267). This appeal is against that decision.

2. The learned single Judge before whom the appeal came up for hearing referred the case to a Division Bench which passed the following order of reference :

'In view of the fact that we see some conflict between the two Division Bench decisions of this Court noticed here and also in view of the fact that the question arising for decision is rather important, we think, this is a case which should be referred to a Full Bench. We accordingly direct the case to be posted before the learned Chief Justice for orders for posting the case before a Full Bench.'

The relevant sections to be considered are Sections 4, 10, 14 and 20 (8) which are extracted below :

'4. Payment of debt in instalments.--(1) notwithstanding anything contained in any law or contract or in any decree or order of Court, but subject to the provisions of Sub-section (5), an agriculturist may discharge his debts in the manner specified in Sub-sections (2) and (3).

(2) If any debt is repaid in seventeen equal half-yearly instalments together with interest at the rate specified in Section 5 on the principal outstanding at the time of each payment, the whole debt shall be deemed to be discharged :

Provided that-

(a) in the case of debts due to a banking company, the number of instalments in which the debt shall be repaid shall be twelve where the debt does not exceed three thousand rupees and eight where it exceeds three thousand rupees;

(b) in the case of arrears of rent or michavaram accrued due on or after the 1st day of May, 1968 and before the commencement of this Act, the number of instalments in which such arrears shall be repaid shall be five.

(3) The first instalment of any debt payable under Sub-section (2) shall be paid before the expiry of a period of six months from the commencement of this Act, and each of the remaining instalments shall be paid on or before the expiry of a period of six months from the last day on which the previous instalment was due.

(4) Notwithstanding anything contained in Sub-section (2), except in the case of the last instalment, the amount paid at each instalment shall not be less than five rupees.

(5) Where any instalment of a debt is not paid on the due date, the creditor shall be entitled to recover the same as provided in Section 10, but the debtor shall not forfeit the benefits conferred by this section;

Provided that if default is made in payment of three consecutive instalments, the debtor shall not be entitled to the benefits of the provisions of Sub-sections (2) and (3), and the whole debt together with such interest as may have accrued thereon less any amount which has already been paid shall be payable forthwith.

(6) The provisions of this section shall not apply to mortgages to which Section 11 applies, except as provided in Sub-section (8) of that section.

10. Decree and orders against debtor.--(1) Where in respect of a decree for debt passed before the commencement of this Act, a debtor fails to make any one of the payment specified in Sub-sections (2) and (3) of Section 4 or in the order on the application made under Section 7, the decree-holder shall be entitled to execute the decree in respect of the instalment which is in arrear.

(2) Where in any suit for the recovery of a debt pending at the commencement of this Act, the debtor claims to be an agriculturist, the Court, on being satisfied that the debtor is an agriculturist, shall pass a decree for the immediate payment of such instalment or instalments as would have become payable under the provisions of Sub-sections (2) and (3) of Section 4 and for the payment of the balance in further instalments as specified in the said sub-sections.

(3) In any suit filed after the expiry of six months from the commencement of this Act for the recovery, of a debt due from an agriculturist, the Court in decreeing the suit shall provide for the immediate payment of such instalment or instalments as would have become due under the provisions of Sub-sections (2) and (3) of Section 4 and for the payment of the balance in further instalments as specified in the said sub-sections.

(4) Where in any suit for the recovery of a debt or in any application for the execution of a decree in respect of a debt, the debt is payable by an agriculturist jointly with a non-agriculturist, the Court shall pass a decree or make an order for the payment of the debt found due from such agriculturist as provided in Sub-sections (2) and (3) of Section 4 and make such provision in the decree or order against the non-agriculturist as the circumstances of the case may warrant.

14. Deposit of debt in Court :-- (1) An agriculturist entitled under Section 4 to pay his debt in instalments may deposit any of the instalments of the debt as provided in Section 4 in the Court having jurisdiction to entertain a suit for the recovery of the debt or, where the debt has ripened into a decree, in the Court which passed the decree or to the Court to which the decree has been sent for execution, and apply to that Court for recording part satisfaction of the debt.

(2) Where an application and deposit are made as provided in Sub-section (1), the Court shall pass an order recording part-satisfaction of the debt if the amount deposited is the correct amount.

(3) The Court shall dismiss the application-

(a) if the applicant is not an agriculturist; or

(b) if the liability is not a debt; or

(c) if the amount deposited is insufficient and the applicant on being required by the Court to deposit the deficit amount within a period fixed by the Court, fails to do so.

(4) Any agriculturist entitled to make such deposit may, before the date on which any instalment is due, apply to the Court having jurisdiction under Sub-section (1) for an extension of the time for making the deposit of the whole or any portion of such instalment, and the Court may, after notice to the creditor, extend the time for payment of such instalment or part thereof for such period as it thinks fit.

(5) The procedure laid down in the Code of Civil Procedure, 1908, for the trial of suits shall, as far as may be, apply to applications made under this section.

20 (8). In respect of any sale of immovable property which has not been confirmed, the judgment-debtor if he is an agriculturist shall be entitled to pay the decree debt in accordance with the provisions of Sections 4 and 5 and on the deposit of the first instalment thereof, the sale shall be set aside'.

3. A reading of Sub-section (8) of Section 20 makes it clear that it is only on deposit of the first instalment that an execution sale (which of course had not been confirmed) could be set aside.

4. The Act, as stated already, came into force on 14-7-1970 and by virtue of Section 4 (3) the first instalment should have been deposited before the expiry of a period of six months from then, that is, before 14-1-1971. The deposit was made only on 23-8-1971. There was no application under Sub-section (4) of Section 14 before the first instalment was due for an extension of time for deposit. If no such application had been made time cannot be extended has been ruled in Philipose Kurian y. Barbara Mary Lopez, (1959 Ker LT 917). To the same effect is the ruling of this Court in Gopalakrishna Panicker v. Govinda Menon, (1960 Ker LT 1069) and no point was made before us that the deposit made on 23-8-1971 would be or should be treated as a valid deposit of the first instalment in accordance with Section 4 (3) of the Act, or that time must be extended by the Court -- which of course cannot be done in view of the decisions referred to and the wording of the section. Reliance was placed on Sub-section (5) of Section 4 for the contention that the default of an instalment will only have the effect of conferring on the creditor the right to recover the amount of the defaulted instalment as provided in Section 10 but that the debtor will not forfeit the benefits conferred by the Act and that the right so to discharge the debt would be lost only if three consecutive instalments had been defaulted as enacted in the proviso to Sub-section (5) of Section 4. So it was urged that the debtor could, notwithstanding the failure to deposit the first instalment within the time stipulated under the Act, claim that the sale be set aside under Section 20 (8), arid that the Court would be bound to set aside the sale. The above argument does not appeal to me. As I see the provisions in the Act two separate rights have been conferred by the Act. One, the right to discharge the debt in accordance with the provisions in Sections 4, 10 and 14 of the Act, and the other to have an execution sale set aside under Section 20 (8) in cases where the sale had not been confirmed. The two are distinct and separate rights. the provision in Sub-section (5) of Section 4 is that 'where any instalment of a debt is not paid on the due date the creditor shall be entitled to recover the same as provided in Section 10, but the debtor shall not forfeit the benefits conferred by this section'. It is clearly and specifically stated that the saving is only of the benefits conferred by the section. But this aspect has not been noticed in Parame-swaran Pillai v. Joseph, (1960 Ker LT 1073). Perhaps it was unnecessary considering the question that arose therein. The extract from that judgment in the order of reference inadvertently states, 'if the intention of the legislature was to deny the benefits of the Act'. (The emphasis is mine). This, with respect, is misleading. Sub-section (5) saves only the benefits conferred by the section. There is an additional and separate benefit in cases where an execution sale had taken place but had not been firmed; the right to have such a sale set aside. This is provided in Section 20 (8). This provision by the wording of the subsection clearly makes the benefit conditional on the deposit of the first instalment. This benefit can therefore be availed of only by the deposit of the first instalment. Such instalment will have to be deposited in accordance with the terms of Section 4 (2) and within the time stipulated in Section 4 (3). This is evident from the provisions of Sub-sections (2) and (3) of Section 4 read with Section 14. It was suggested that the words 'the judgment-debtor if he is an agriculturist shall be entitled to pay the decree debt in accordance with the provisions of Sections 4 and 5' in Sub-section (8) of Section 20 have to be given a meaning and it was argued that those words occurring in that Sub-section give a specific right to have a debt discharged, even after a Court sale had taken place, in accordance with the provisions of Sections 4 and 5, and as long as such a right subsisted the sale will have to be set aside at the request of the debtor even if the deposit of the 1st instalment had not been made. The words in the section do not confer any additional right which a judgment-debtor did not possess in the absence of those words in Sub-section (8) of Section 20. Section 4 of the Act has conferred the rigiht to have a debt discharged. But for discharge of a debt it must exist. The question may arise whether the debt can be said to subsist after a Court sale even if the sale had not been confirmed. If the debt subsisted after the Court sale it certainly could be discharged as provided by Sections 4 and 5. Why then the words in Sub-section (8) of Section 20. It is evidently for the purpose of clarifying the position that the debt subsisted even after the Court sale. No doubt it had been held by the judicial committee of the Privy Council, (AIR 1933 PC 101) long before the Act was passed that a debt continued to exist even after a Court sale. This decision of the judicial committee has been followed by this Court in the decision in Omana Amma v. Lekshmi, (1962) 2 Ker LR 532). It may however be noticed that the question of the point of time at which a debt can be said to get discharged after a Court sale had risen and in the Full Bench decision of the Travancore High Court in Lakshmi Ammal Meenakshi Ammal v. Ponnambalam Pillay Subbayya Pillai, (1944 Trav LR 41). Chief Justice Krishnaswami Iyer and Justice Abrahan took different views on this matter. Sub-section (8) of Section 20 makes the position clear that the debt subsisted after a Court sale provided the sale had not been confirmed but the debt ceased to exist after confirmation of the sale. This is implied by the wording of the Sub-section, for the subsection only permits the setting aside of a sale which had not been confirmed.

5. After confirmation of the sale and after it became absolute, at least in cases where the decree-holder himself was the auction purchaser the debt might get discharged. Satisfaction of the decree will have to be entered in whole or in part even before the confirmation in cases the purchase was by the decree-holder, (vide Sub-rule (2) of Rule 72 of Order XXI of the Code of Civil Procedure). The words in Sub-section (8) of Section 20 importing that the debt may be discharged even after the Court sale, are meant apparently to clarify the position and place the matter beyond the realm of controversy that a debt subsisted even after a Court sale, even if the purchaser was the decree holder himself. I would not attach any further importance to those words. It has also to be noticed that when a Court sale had taken place and when there has been no application under Rule 89, 90 or 91 of Order XXI or where such application had been made and disallowed 'the Court shall make an order confirming the sale, and thereupon the sale shall become absolute', (vide Rule 92 of Order XXI of the Code of Civil Procedure). There is no provision in the Act which arrests this process of confirmation which is obligatory as far as the Court is concerned. It is difficult, if not impossible to conceive of a dual duty on the part of the Court one opposed to the other; a duty to confirm the sale in accordance with Rule 92 of Order XXI of the Code of Civil Procedure and a duty to set aside the sale under Sub-section (8) of Section 20 of the Act These duties cannot co-exist. As I see it there are no such conflicting provisions. The provisions are reconcilable. A Court executing a decree is not obliged to wait till three consecutive instalments are defaulted to confirm the sale. In fact it is obligatory on its part to confirm the sale in accordance with Rule 92 of Order XXI of the Code of Civil Procedure. When the sale is confirmed the debt would cease to exist and there cannot be any further payments towards a debt or the discharge of a debt, which did not exist. Such confirmation can be stopped only if the sale is vacated. It is for that purpose that provision is made in Section 20 (8). But the Section insists on deposit of the 1st instalment. If a deposit is not made before 14-1-1971 in the absence of extension of time --there has been no extension of tone in this case -- there would be no deposit of the 1st instalment. Any payment/deposit after the relevant date will not be a deposit of the 1st instalment though the payment/deposit may go in discharge of the debt There is a specific date for the deposit of each instalment This is dear from Sub-section (3) of Section 4. When this provision is read with Sub-section (4) of Section 14, it becomes quite evident that a particular deposit towards a particular instalment must be within the time stipulated in Section 4 (3) or the extended time allowed by Court acting under Section 14 (4). And the words 'and on the deposit of the instalment thereof' in Section 20 (8) which read with Sections 4 (3) and 14(4) leave no doubt that the deposit must be as envisaged in these sections. Sub-section (5) of Section 4 does not enlarge the time for deposit When there has been no deposit of the 1st instalment the sale cannot be set aside if the wording of the section has to be given its natural grammatical meaning. If there has been a deposit of the first instalment the sale will be set aside. When the sale is set aside after such deposit no question of confirmation will arise. Not to insist on the deposit of the first instalment before the expiry of the due date, 14-1-1971, would be to ignore a part of the section. Judicial interpretation certainly cannot extend to wiping out of a part of the section. When the provisions of the section are very clear there is no scope for applying the rule in Eapen Thomas v. Varkey Thomas, (1965 Ker LT 608).

6. If by any chance a Court sale remained unconfirmed and the debt happened to be discharged under the provisions of the Act the question may arise whether the Court will have inherent power to set aside the sale as the debt got discharged in accordance with the provisions of Sections 4 and 5. In such cases the rule in Omana Amma v. Lakshmi, ((1962) 2 Ker LR 532) and others may apply and the inherent power of the Court may be Invoked But the question before us is whether a sale can fee set aside under Sub-section (8) of Section 20 of the Act when the deposit of the first instalment as required by the Act and insisted upon by the sub-section had not been complied with. This, I have no doubt, cannot be done.

7. I do not find any conflict between the decisions in Parameswaran Pillai v. Joseph, (1960 Ker LT 1073) and Philipose Kurian v. Barbara Mary Lopez, (1959 Ker LT 917). In Parameswaran Pillai v. Joseph, (1960 Ker LT 1073) it was decided that for maintaining an application under Section 7 or 8 or both of Act 31 of 1958 a deposit of the first Instalment was not necessary. The decision turned on the provisions considered and no such question arises in the case before us. Nor did the questions that arose in Parameswaran Pillai v. Joseph, (1960 Ker LT 1073) arise in Philipose Kurian v. Barbara Mary Lopez, (1959 Ker LT 917). In Philipose Kurian v. Barbara Mary Lopez, (1959 Ker LT 917) a Division Bench of this Court took the view that for setting aside the sale under Sub-section (3) of Section 22 of Act 31 of 1958 a deposit of the first instalment was essential. Sub-section (3) of Section 22 of Act 31 of 1958 was in these terms :

'22(3) In respect of any sale of immovable property which has not been confirmed, the agriculturist judgment-debtor shall be entitled to pay the decree debt in accordance with the provisions of Sections 4 and 5, and on the deposit of the first instalment thereof, the sale shall be set aside. Where the judgment-debtor fails to deposit any of the subsequent instalments, the decree-holder shall be entitled to execute the decree and recover the defaulted instalment or instalments in accordance with the provisions of this Act.

And the Court observed in paragraph 5 as follows :--

'Then there is the other ground urged on behalf of the defendant who is the appellant in C. M. A. 32 of 1959 that he is an agriculturist and as such is entitled to have the Court sale set aside under Clause 3 of Section 22 of Act 31 of 195ft. Even assuming that he is one who could claim the benefit of this Act, he could get the sale avoided only if he has satisfied the essential condition of the deposit of the first instalment as provided for in Sections 4 and 5 of the Act, within the time prescribed. The last date for deposit of first instalment was 14-1-1959. Admittedly no deposit was made on or before that date. The deposit made several days later, cannot be accepted as a proper and. valid deposit. The defendant could get an extension of time for depositing the instalment amount, only if he had applied under Clause 4 of Section 12 of the Act. It is clear from that clause that the application for extension of time has to be filed before the expiry of the six months prescribed as the normal period for making the deposit. Within that period no application for extension of time was filed and hence the lower Court was right in refusing to grant an extension of tune. The deposit made beyond the prescribed time limit was also rightly held to be not a proper and valid deposit. On this ground alone the defendant's application under clause 3 of Section 22 of the Act had to be dismissed. In this view of the matter, the other points urged against the sustainability of the defendant's application under that section do not arise for consideration'.

8. The view taken in Philipose Kurian v. Barbara Mary Lopez, (1959 Ker LT 917) is in accordance with what I have stated in this judgment. This view, as I have already said, is the one that prevailed with this Court in the decision in Thankappan Nair v. Mathew, (1962 Ker LT 267) and I do not think that there is any reason to doubt the correctness of these pronouncements. Counsel contended that the decision in Philipose Kurian v. Barbara Mary Lopez, (1959 Ker LT 917) was rendered with reference to the provision in Section 4 of Act 31 of 1958 when the section contained only 3 subsections. Sub-section (5) was added by Act II of 1961 and the effect of this addition could not have been noticed in the ruling. This submission has no force. Sub-section (5) of Section 4 only saves the right under Section 4. This has no repercussion as far as the right under Section 22 (3) was concerned. And the very same words 'that the judgment-debtor shall be entitled to pay the decree debt in accordance with the provisions of Sections 4 and 5' on which so much reliance was placed before us occurred in Section 22 (3) of Act 31 of 1958 as well. With respect I would follow the decisions in Philipose Kurian v. Barbara Mary, (1959 Ker LT 917) and Thankappan Nair v. Mathew, (1962 Ker LT 267) and dismiss this revision petition.

Subramonian Poti, J.

9. We have had the advantage of perusing the judgment of the learned Chief Justice. With great respect, we regret we are unable to agree with the conclusion reached by the learned Chief Justice,

10. The Kerala Agriculturists' Debt Relief Act, 1970 (Act 11 of 1970) (hereinafter referred to as the Act) came into force on 14-7-1970. Section 20 (8) of that Act enabled a judgment-debtor to move for setting aside a Court sale of immoveable property, which had not been confirmed, provided he was an agriculturist He was entitled to pay the decree debt in accordance with the provisions of Sections 4 and 5 and on the deposit of the first instalment thereof the sale was to be set aside. In the case before us the sale of the judgment-debtor's property had taken place prior to the commencement of the Act and it had not been confirmed on the day the Act came into force. Before confirmation the judgment-debtor filed E. A. 537 of 1971 under Section 20 (8) of the Act to set aside the sale. This application was objected to by the decree-holder on the ground that the first instalment to be deposited under the provisions of Section 4 of the Act had not been deposited by the judgment-debtor before the expiry of six months from the date of commencement of the Act and for that reason the deposit would not enable the judgment-debtor to seek an order setting aside the sale. This objection was not accepted by the execution Court. The application was allowed and the sale was set aside. The matter was taken up in appeal by the decree-holder and the learned Sub Judge who heard the appeal took a different view. According to the learned Judge, in order to avail of the benefit of having the sale set aside under Section 20 (8) of the Act the first instalment was to be deposited by the judgment-debtor within the period specified in Sub-section (3) of Section 4 of the Act, namely, before the expiry of a period of six months from the commencement of the Act. Reliance was placed by the learned Judge on the decision of a single Judge of this Court in Thankappan Nair v. Mathew, 1962 Ker LT 267.

11. A Division Bench of this Court before which this Revision Petition came up earlier adverted to the conflict of views expressed by two Division Benches of this Court, one in Parameswaran Pillai v. Joseph, 1960 Ker LT 1073 and the other in Philipose Kurian v. Barbara Mary Lopez, 1959 Ker LT 917. The decision of the learned single Judge in Thankappan Nair v. Mathew, 1962 Ker LT 267 was also adverted to by the Division Bench. In view of the conflict of views noticed by the Division Bench the case was referred to a Full Bench.

12. Section 20 (1) (2) and (3) of the Act deals with cases where the sales have been confirmed. Those Sub-sections are of no application to this case. Sub-section (8) of Section 20 deals with setting aside sales in cases where sales have not been confirmed. That Sub-section runs :

'(8) In respect of any sale of immovable property which has not been confirmed, the judgment-debtor if he is an agriculturist shall be entitled to pay the decree debt in accordance with the provisions of Sections 4 and 5 and on the deposit of the first instalment thereof, the sale shall be set aside'.

The benefit provided under this Section is that, notwithstanding the sale having taken place, the debtor is entitled to discharge the debt under the provisions of Sections 4 and 5 of the Act which enabled him to deposit the decree debt as calculated under Section 5 in instalments as provided under Section 4 and further, when the first instalment is so deposited, to have an order setting aside the sale. The question necessarily arises as to when the first instalment has to be deposited and the controversy before us is whether the deposit has to be made necessarily within the expiry of six months from the commencement of the Act or within the period beyond which the benefit under the Act would not be alive as contemplated under the proviso to Sub-section (5) of Section 4 of the Act. Section 4 of the Act runs :

'4. Payment of debt in instalments :

(1) Notwithstanding anything contained in any law or contract or in any decree or order of Court, but subject to the provisions of Sub-section (5), an agriculturist may discharge his debts in the manner specified in Sub-sections (2) and (3).

(2) If any debt is repaid in seventeen equal half-yearly instalments together with interest at the rate specified in Section 5 on the principal outstanding at the time of each payment, the whole debt shall be deemed to be discharged :

Provided that-

(a) In the case of debts due to a banking company, the number of instalments in which the debt shall be repaid shall be twelve where the debt does not exceed three thousand rupees and eight where it exceeds three thousand rupees;

(b) In the case of arrears of rent or michavaram accrued due on or after the 1st day of May, 1968 and before the commencement of this Act, the number of instalments in which such arrears shall be repaid shall be five.

(3) The first instalment of any debt payable under Sub-section (2) shall be paid before the expiry of a period of six months from the commencement of this Act, and each of the remaining instalments shall be paid on or before the expiry of a period of six months from the last day on which the previous instalment was due.

(4) Notwithstanding anything contained in Sub-section (2) except in the case of the last instalment, the amount paid at each instalment shall not be less than five rupees.

(5) Where any instalment of a debt is not paid on the due date, the creditor shall be entitled to recover the same as provided in Section 10, but the debtor shall not forfeit the benefits conferred by the section :

Provided that if default is made in payment of three consecutive instalments, the debtor shall not be entitled to the benefits of the provisions of Sub-sections (2) and (3), and the whole debt together with such interest as may have accrued thereon less any amount which has already been paid shall be payable forthwith. (6) The provisions of this section shall not apply to mortgages to which Section 11 applies, except as provided in Subsection (8) of that section. Sub-section (1), it is evident, provides for the right of the agriculturist to discharge his debts in the manner specified in Subsections (2) and (3) subject to Sub-section (5). Therefore the manner of discharge is governed by Sub-sections (2), (3) and (5), the former two Sub-sections being subject to Sub-section (5). Sub-section (2) requires repayment of the debt in 17 half-yearly instalments together with interest at the rates specified in Section 5, the debt being discharged on such payment. The manner of payment in 17 half-yearly instalments is not specified in this Sub-section. But it is dealt with in Subsection (3) and that is the Sub-section with which we are concerned. The question before us is as to the time within which the first instalment has to be paid. Evidently the provision in Sub-section (3) is that the first of the 17 instalments has to be paid before the expiry of a period of 6 months from the commencement of the Act and each of the subsequent instalments on or before the expiry of a period of six months from the last day on which the previous instalment was due. The Sub-section specifies not only the date for the first payment but all the 17 payments and there is no distinction between the first payment or any other payment envisaged in Sub-section (3). In other words, all the instalments including the first stand on the same footing. Had Subsection (3) stood by itself possibly it would have been obligatory upon the judgment-debtor to pay all the instalments including the first on the dates specified in Sub-section (3) of Section 4 of the Act. But the provision in Sub-section (3) is subject to Sub-section (5) and therefore has to be read along with the latter Sub-section. The consequence of non-payment of any instalment of the debt is specified in Sub-section (5) to be that the creditor shall be entitled to recover such defaulted instalments as provided in Section 10 of the Act. Equally important is the provision in Sub-section (5) that the debtor shall not forfeit the benefits conferred by Section 4. That would mean that the default in payment of any instalment, whether it be the first or any other, shall not result in the forfeiture of the benefits conferred by Section 4 and the only consequence of such default would be the exercise of the right by the creditor to recover that instalment under Section 10. This is by reading Sub-section (5) without the proviso. The proviso specifies further consequences. The right to claim the benefit of Section 4 notwithstanding the default is limited or restricted by the terms of the proviso. If default happens to be of three consecutive instalments, notwithstanding the provision in the earlier part of Sub-section (5) the debtor forfeits the benefit of Sub-sections (2) and (3) of the Act, namely to discharge the debt in 17 half-yearly instalments and the consequence is that the balance of the debt becomes due forthwith.

13. While Sub-section (3) requires the instalments to be paid on specified dates Sub-section (5) enables the debtor to claim the benefits of Section 4 of the Act notwithstanding default in such payment subject to the condition that he shall not be so entitled to the benefits of Subsections (2) and (3) of Section 4 in case default is made in payment of three consecutive instalments. Here again, as we see it, the first instalment is treated just like any other instalment and there is no consequence following merely from the non-payment of the first instalment on the due date except that such instalment could be recovered under Section 10. If a debtor could, without the risk of forfeiting the benefits of discharge under Section 4 of the Act, afford to make a default provided there is no default in payment of 3 consecutive instalments that should bold good even with regard to the first instalment. Sub-section (3) does not stand independent of Sub-section (5) and in view of the indications in Sub-section (1) of Section 4 that the manner of discharge provided in Sub-sections (2) and (3) is subject to the provisions of Subsection (5) the provision in Sub-section (3) as to the dates of payment of the instalments has to be read alone with the provision in Sub-section (5). That would mean that the benefit of discharge under Sub-sections (2) and (3) of the Act would be available even to any debtor, who does not deposit the first instalment before the expiry of a period of 6 months from the date of the commencement of the Act but later but who does not default in payment of the 3 consecutive instalments.

14. Section 20 (8) of the Act enables the judgment-debtor, who is an agriculturist, to nay the decree debt in accordance with the provisions of Sections 4 and 5 in spite of the fact that for realising the decree debt immoveable property has been sold, but provided the sale is not confirmed. The provision for discharge of the decree debt may not be sufficient to meet the situation when sale has taken place. Possibly the Court may be able to exercise its inherent powers to set aside a sale which is not confirmed when once the decree debt is discharged as permitted by the Act. But the legislature has chosen to make a specific provision in that behalf and that enables the sale to be set aside not on payment of the entire debt in accordance with the provisions of Section 4 but on payment of the first instalment. It is possible that the debtor may default to pay the subsequent instalments. The sale having been set aside on the deposit of the first instalment the decree-holder must have some other remedy and that again is provided for in Sub-section (9) of Section 20 and that is the recognition of a right to recover such defaulted instalments. It is difficult to read Sub-section (8) as conferring two independent rights, one to discharge the debt under Sections 4 and 5 and second, the right to have a sale set aside on payment of file first instalment The right is to have the decree debt discharged under Sections 4 and 5 and when once the judgment-debtor invokes such right he is entitled to have the sale set aside on payment of the first instalment. It is significant that Sub-section (8) of Section 20 does not refer to the deposit of the first instalment within a specified period nor does it refer to the deposit of the first instalment within the period specified in Sub-section (3) of Section 4. That period, just as the period specified for the subsequent instalment, is not one which carries with it the consequence of forfeiture of the benefit of Section 4 of the Act when default is made. The judgment-debtor can afford to default on that day and still claim the benefit of the section and the day is specified evidently only for the limited purpose of enabling the decree-holder to execute the decree to the extent of that instalment when once default is made. It naturally follows that the first instalment could be deposited at any time before the right to avail of the benefits of Sub-sections (2) and (3) is lost by reason of the operation of the proviso to Sub-section (5). Such a deposit would not only be valid but it would be a deposit of the 'first instalment' within the meaning of the Act. If, notwithstanding the failure to deposit before the expiry of a period of six months from the commencement of the Act, it could nevertheless be a first instalment in law, payment of which enables the debtor to claim the benefit of Section 4, we see no reason to treat it as one not satisfying the definition of first instalment within the meaning of Sub-section (8) of Section 20. It is a deposit of the first instalment as contemplated under Section 4 of the Act If that is so that satisfies the provision in Section 20 (8) of the Act and the judgment-debtor will be entitled to the benefit of the sale being set aside. There is no warrant in the language of Sub-section (8) of Section 20 to limit or restrict the deposit of the first instalment as one to be made within the period of 6 months of the expiry of the date of commencement of the Act when, under the provisions of Section 4, no consequence of forfeiture follows by reason of default of first instalment and as an instalment it can be deposited at any time before the right to the benefit under Section 4 is forfeited Therefore on a plain construction of the section we see no warrant for the requirement that the first instalment should be paid before the expiry of six months of the commencement of the Act if the sale is to be set aside. There is no case that three consecutive defaults have been made in this case and that the first instalment was deposited after such default Necessarily therefore on the making of such deposit the sale had to be set aside.

15. We may also state here that we do not understand the case of the revision petitioner to be that a person who has not deposited the first instalment is nevertheless entitled to move that the sale be set aside. That would be plainly against the terms of the section. The contention, as we understand it, is that the deposit of the first instalment even beyond the period of 6 months of the commencement of the Act but before the benefit of Section 4 of the Act is forfeited could nevertheless be the deposit of the first instalment, on which deposit being made the sale will be set aside.

16. We -believe that the construction of Section 20 (8) in the manner we have attempted to construe here is not only the plain construction of the section but is also one which advances the purport or object of the Act The preamble to the Act indicates that it is intended to provide for the relief of indebted agriculturists in the State of Kerala. Apart from the right to pay off amounts due by way of debts provision has been made to deem debts which have been satisfied by execution of decrees by Court sales as debts still due and liable to be discharged under the Act. Section 20 is a provision which enables such discharge and Section 20 (8) deals with cases where sales held prior to the commencement of the Act remain to be confirmed. If the benefit of Section 4 to discharge the debt in instalments could be available to a debtor who has failed to make the first deposit before the expiry of 6 months from the commencement of the Act, we see no reason why in the case of a judgment-debtor, whose property has been sold and to whom the benefit of the section has been extended by Section 20 (8) should forfeit the right to have the sale set aside as provided In the Sub-section notwithstanding the fact that he is entitled to discharge the debt under Sections 4 and 5. Keeping In view the purpose of the Act the construction which we have sought to put on Section 20 (8) appears to be the one which would promote the object of the legislature in enacting the Kerala Agriculturists' Debt Relief Act, 1970 as indicated by the preamble to and the background of the statute.

17. We are persuaded to place the construction on the section, as indicated here for another reason too. It appears to us that otherwise anomalous results would follow. Section 20 (8) applies only to cases where there have been Court sales of immoveable property and the sales have not been confirmed. In such cases if the judgment-debtor is an agriculturist the Sub-section provides--(1) that the judgment-debtor shall be entitled to pay the decree debt in accordance with the provisions of Sections 4 and 5 and (2) on the deposit of the first instalment the sale shall be set aside. A person, is entitled to discharge the debt under Sections 4 and 5 even if the first instalment is not deposited within the period of 6 months of the commencement of the Act If he does not forfeit the benefit of the Act by reason of the proviso to Sub-section (5) of Section 4 of the Act he is entitled to discharge the debt under Section 4 Default in the payment of the first instalment on the due date would stand on the same footing as the default in payment of any other instalment so far as discharge under the section is concerned. Therefore the benefit of Section 4 would be available under Section 20 (8) even if the first instalment is not deposited within 6 months of the commencement of the Act If we assume that all the same the sale will not stand set aside under that subsection because the first instalment has not been deposited within 6 months of the commencement of the Act it would mean that while the judgment-debtor is entitled to discharge the debt in accordance with the Act and may therefore discharge the debt the sale will not, nevertheless, be set aside. Normally the sale would have been confirmed, for, confirmation would not be postponed automatically until the debt is discharged. The result would be that while the Act confers a right on the judgment-debtor to discharge the debt the sale may happen to be confirmed and will continue to remain confirmed. According to us this anomalous result could be avoided by what appears to us to be the plain construction of the section. The right to have the debt discharged under Sections 4 and 5 and the right to have a sale set aside on the deposit of the first instalment are not to be read as independent rights.

18. A Division Bench of this Court took a similar view as the one we have expressed here in the decision in Parameswaran Pillai v. Joseph, 1960 Ker LT 1073. Before reference is made to that decision it is necessary to notice that the case arose under the Kerala Agriculturists' Debt Relief Act 31 of 1958 which contained materially similar provisions as in Act 11 of 1970. Act 31 of 1958, as it originally stood, underwent substantial amendment by Act 2 of 1961 and the decisions to which reference may have to be made in this judgment were decisions which had occasion to apply the provisions of Act 31 of 1958 prior to its amendment by Act 2 of 1961.

19. Section 20 (3) of the Kerala Agriculturists' Debt Relief Act 31 of 1958 corresponded materially to Section 20 (8) of Act 11 of 1970. Section 4 of Act 31 of 1958, as it originally stood, was as follows:

'(1) Subject to the provisions of Subsection (3), notwithstanding anything contained in any law or contract or in any decree or order of Court, any debt may be discharged in the manner specified in Sub-section (2).

(2) If any debt is repaid in seventeen equal half-yearly instalments together with interest, accrued due on the principal debt outstanding at the commencement of the Act till the date of payment of each instalment at the rate of 5 per cent per annum or the contract rate, whichever is less, the first instalment being payable before the expiry of a period of six months from the date of commencement of this Act and the remaining instalments being payable on or before the date of expiry of a period of six months from the last day on which the previous instalment was due, the whole debt shall be deemed to be discharged.

(3) The provisions of this section shall not apply to mortgages to which Section 11 applies except as provided in Sub-section (6) of that section'. It was amended to read as follows :

'(1) Subject to the provisions of Subsection (5), notwithstanding anything contained in any law or contract, or in any decree or order of Court, any debt may be discharged in the manner specified in Sub-sections (2) and (3).

(2) If any debt is repaid in seventeen equal half-yearly instalments together with interest at the rate specified in Subsection (1) of Section 5 on the principal debt outstanding at the time of each payment, the whole debt shall be deemed to be discharged :

Provided that in the case of debts due to a Banking Company as defined in the Banking Companies Act, 1949, the number of instalments in which the debt shall be repaid shall be twelve where the debt does not exceed one thousand and five hundred rupees and eight where it exceeds one thousand and five hundred rupees. (3) The first instalment of any debt payable under Sub-section (2) shall be paid before the expiry of a period of six months from the date of the commencement of this Act and each of the remaining instalment shall be paid on or before the date of expiry of a period of six months from the last day on which the previous instalment was due.

(4) Notwithstanding anything contained in Sub-section (2), except in the case of the last instalment, the amount paid at each instalment shall not be less than five rupees.

(5) Where any instalment of any debt is not paid on the due date the creditor shall be entitled to recover the same as provided in Section 10 but the debtor shall not forfeit the benefits conferred by this section:

Provided that if default is made in payment of six consecutive instalments the debtor shall not be entitled to the benefits of the provisions of Sub-section (2) and Sub-section (3) and the whole debt together with such interest as may have accrued thereon less any amount that have already been paid shall be forthwith payable. (6) The provisions of this section shall not apply to mortgages to which Section 11 applies except as provided in Sub-section (6) of that section'.

It is evident from a comparison of the sections as they stood before and after amendment that there was no provision similar to Sub-section (5) in the section as it stood prior to its amendment. Even so, construing the section as it stood before amendment, with the requirement that the first instalment of the debt shall be paid before the expiry of a period of 6 months from the date of commencement of the Act and the remaining instalments should be paid on or before the expiry of a period of 6 months from the last day on which the previous instalment was due the Division Bench in Parameswaran Pillai v. Joseph, 1960 Ker LT 1073 said thus:

'If the interpretation, that the debtor, who fails to make the payment of the first instalment within six months of the commencement of the Act, is not entitled to the benefits of the Act, is to be accepted, then the Court need not and cannot under Section 10 (2) pass a decree for the immediate payment of only the instalments which have fallen due, as contemplated under Section 4 (2), at the time of passing the decree and provide for the payment of the balance in further instalments as contemplated under the same Sub-section. Therefore, it is clear that the intention of the legislature in enacting Section 4 (2) is only to lay down or specify the several dates on which the seventeen instalments contemplated under that Sub-section become payable, after which dates alone the creditor or decree-holder is entitled to take proceedings for the recovery of such instalment or instalments. And the intention of the legislature does not appear to be to make the payment of the first instalment within six months of the commencement of the Act a condition precedent, as it were, for the debtor to claim reliefs under the Act.'

20. An earlier decision in Philipose Kurian v. Barbara Mary Lopez, 1959 Ker LT 917 had taken a different view. In that case the deposit of the first instalment was made after six months of the commencement of the Act with an application for extension of time for such deposit. The Court observed that under Section 12 (4) of Act 31 of 1958 such an application for extension of time after the instalment had fallen due was not competent. A similar view had been taken in Gopalakrishna Panicker v. Govinda Menon, 1960 Ker LT 1069. These two cases were distinguished by the Division Bench in Parameswaran Pillai v. Joseph, 1960 Ker LT 1073 on the ground that the question which arose there was only whether the application for extension of time could be filed after the instalment concerned had fallen due. That was different from the question as to the consequence of non-payment of the first instalment within the period of 6 months from the date of commencement of the Act. We also notice this distinction. But with great respect to the learned Judges of the Division Bench in 1960 Ker LT 1073 we notice that the decision in Philipose Kurian v. Barbara Mary Lopez, 1959 Ker LT 917 considers not only the question whether the application for extension ought to be made within the time for payment of the instalment but also whether the first instalment has to be paid within the period of 6 months. But here again it has to be noticed that the learned Judges were construing the section as it stood prior to the amendment in 1961 which amendment incorporated Sub-section (5). Therefore whatever may be the views expressed on the scope of the section as it stood prior to its amendment, the question of construction of the section as it stood amended was not considered by the Division Bench in 1959 Ker LT 917 or 1960 Ker LT 1069.

21. We have noticed the decision of the learned Judge, Late Justice T. K. Joseph in Thankappan Nair v. Mathew, 1962 Ker LT 267. After quoting the sections the learned Judge, in paragraph 3 of the report, said-

'It is argued that notwithstanding the imperative provision in Sub-section (3) that the first instalment of any debt payable under Sub-section (2) shall be paid before the expiry of a period of six months, the effect of Sub-section (5) is that this need not be done and that the decree holder's remedy is only to execute and recover the first instalment just like any other instalment. It is unnecessary to consider the correctness of this proposition as this is a case falling under Section 22 (3) which provides for setting aside the sale only on deposit of the first instalment. Although the debtor is enabled to pay the debt as provided in Sections 4 and 5, in a case covered by Section 22 (3), the latter section contemplates an order setting aside the sale; and this order is to be passed only on deposit of the first instalment which according to Section 4 (3) must be paid within six months of commencement of the Act, i. e. 14-1-1959. The argument, if accepted, would mean that all Court sales within the scope of Section 22 (3) which have not been confirmed will automatically stand set aside by reason of the amendment of Section 4. If such were the intention of the Legislature, Section 22 (3) also should have been suitably amended. The retention of Section 4 (3) and (12) even after amendment is also significant. In my opinion Section 22 (3) read with Section 4 (3) leads to the conclusion that an order setting aside the sale can be passed only on deposit of the first instalment. That not having been done, the order of the Court below does not call for interference.'

With great respect to the learned Judge the decision is based on the assumption that the first instalment must be paid within six months of the commencement of the Act, that is on 14-1-1959. That again was a case where Sub-section (5) did not apply as the case arose before the amendment though decided later. But the assumption that the-

'............... argument, if accepted, would mean that all Court sales within the scope of Section 22 (3) which have not been confirmed will automatically stand set aside by reason of the amendment of Section 4'

does not seem to be logical. There is no requirement by reason of the amended Section 4 that a sale should be set aside in every case where it has not been confirmed. Therefore with great respect to the learned Judge we have to dissent from the view taken in Thankappan Nair v. Mathew, 1962 Ker LT 267.

22. It follows from the above discussion that the judgment-debtor having deposited the first instalment before the right to discharge the debt under Sections 4 and 5 has been forfeited the sale has to be set aside. We therefore, allow the Revision Petition, restore the order of the execution Court and hold that the sale will stand set aside under Section 20 (8) of the Act. There will be no order as to costs.

BY COURT

23. In accordance with the majority view this revision petition is allowed, the order of the execution Court is restored and the sale is set aside under Section 20 (8) of the Act, There will be no order as to costs.


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