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Venkiteswara Iyer Harihara Iyer and ors. Vs. Skaria Joseph of Pulikunnel and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKerala High Court
Decided On
Case NumberA.S. Nos. 398 of 1961 and 375 and 502 of 1963
Judge
Reported inAIR1966Ker228
ActsDebt Law; Kerala Agriculturists Debt Relief Act, 1958 - Sections 4 and 5
AppellantVenkiteswara Iyer Harihara Iyer and ors.
RespondentSkaria Joseph of Pulikunnel and ors.
Appellant Advocate T.K. Kurien, Adv. in A.S. No. 398 of 1961,; Joseph Augustine, Adv. in A.S. No. 375 of 1968 and;
Respondent Advocate T.K. Narayana Pillai and D. Narayanan Potti in A.S. No. 398 of 1961 and; T.K. Kurien, Adv. in A.S. No
Excerpt:
- .....who has defaulted six consecutive instalments payable under section 4 of the kerala agriculturists debt relief act, 1988, is entitled to the benefit of section 5 of the act.2. the petitions that gave rise to these appeals were to amend the decrees concerned, under section 7 of the act, to accord with the provisions of the act. it is agreed at the bar that, even on sealing down under section 5, the debts would not be discharged and that the debtors have defaulted six consecutive instalments payable , under sub-sections (2) and (3) of section 4 of the act the contention of the debtors is that they are in spite of such default entitled to have the interests on the debts scaled down under section 5 of the act. the question therefore, really is whether section 5 effects an absolute reduction.....
Judgment:

1. The question, common in these appeals, is, as formulated by counsel on both sides, whether a debtor who has defaulted six consecutive instalments payable under Section 4 of the Kerala Agriculturists Debt Relief Act, 1988, is entitled to the benefit of Section 5 of the Act.

2. The petitions that gave rise to these appeals were to amend the decrees concerned, under Section 7 of the Act, to accord with the provisions of the Act. It is agreed at the bar that, even on sealing down under Section 5, the debts would not be discharged and that the debtors have defaulted six consecutive Instalments payable , under Sub-sections (2) and (3) of Section 4 of the Act The contention of the debtors is that they are in spite of such default entitled to have the interests on the debts scaled down under Section 5 of the Act. The question therefore, really is whether Section 5 effects an absolute reduction of the debt or gives relief only to debtors seeking to discharge the debt in regular instalments under the provisions of Section 4 of the Act.

3. Raman Nayar J., in 1963 Ker LT 390, Joseph J. in 1963 Ker LT 1044 and a Bench of Joseph J. and Raghavan J. in 1908 Ker LT 1047 have held that a default in payment of six consecutive instalments payable under Section 4 will not deprive the debtor of the bene-fits of Section 5 of the Act. Sub-section (6)of Section 4, which deals with the consequences of such a default, reads :--

'. . . .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 (8) 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.'

It does not say that the debtor will forfeit the benefit of the provisions of the Act; but specifies that he will forfeit 'the benefits of the provisions of Sub-sections (2) and (3)' of the same Section. Consistently therewith, the expression 'the whole debt' occurring in Sub-section (6) must denote the amount in a lump in contradistinction to the amounts in instalments mentioned in the preceding Sub-sections.

4. Shri Augustine pointed out another indication in Section 6 of the Act to support the view taken in the decisions cited above, that Section, enacts that any sum paid or recovered towards any debt of an agriculturist shall be applied towards discharge of the debt 'as recalculated under Section 5'. It does not refer to the instalments payable under Section 4 of the Act; but relates to any amount paid or recovered, without reference to the date of payment or recovery, towards a debt that comes within the ambit of Section 4 of the Act, that is to say, a debt of an agriculturist as defined in the Act. The specification of the debt as recalculated under Section 5, being not limited to any specified time, must be for all time to come. It must then follow that the provisions of Section 5 are absolute and not related to any period of limp or to any contingency.

5 We are therefore in respectful agreement with the view taken in 1963 Ker LT (pp. 390, 1044 and 1047) and decisions mentioned above and hold that a debtor who has defaulted six consecutive instalments payable under Section 4 of the Act will not lose the benefit of the scaling down of interest provided for in Section 5 of the Act.

6. It is agreed at the bar that the result of our decision above is to dismiss A. S. No. 398 of 1961, and to allow A. S. No. 375 of 1963 setting aside the order appealed against in the latter and remitting the case for determination of the amount remaining due to the decree-holder. A. S. No. 502 of 1963 is between the same parties and for the same reliefs as in A. S. No. 375 of 1968. Two motions for the same relief are not only unnecessary but unwarranted in law. The order of the court below dismissing the second application for identical relief is right. A. S. No. 302 of 1963 is therefore dismissed.

In the circumstances of these cases She parties shall bear their costs throughout.


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