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Dahyalal Jethalal Vs. Patel Manilal Jiwanbhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1960)1GLR186
AppellantDahyalal Jethalal
RespondentPatel Manilal Jiwanbhai
Excerpt:
.....under sub-section (1) for in the last two sentences in clear words the proviso says such debtor or creditor shall be entitled to make an application under sub-section (1) which makes it abundantly clear that the proviso is engrafted mainly to sub-section (1) and if it is engrafted to sub-section (1) it is also to my mind capable of a reasonable interpretation which is this that under sub-section (1) of section 57 the date-line is extended for making an application under section 4 and there is a proviso that so far as the merged areas are concerned the legislature says that if applications under section 4 are to be made affecting merged territories then we shall entertain the applications provided there is some property of the debtor in the merged area which can be available for..........agricultural debtors relief (amendment) act, 1950.(2) nothing in sub-section (1) shall entitle any debtor or creditor to make an application if prior to the date of the coming into operation of the said bombay agricultural debtors relief (amendment) act 1950 he could have made an application under section 4 of this act:provided that if the debtor had in such territory on the date on which such territory merged with the state of bombay any property against which the creditor could have enforced his remedy for the recovery of the debts due to him from such debtor under any law in force in such territory immediately before the said date such debtor or his creditor shall be entitled to make an application under sub-section (1).9. now, it is contended by mr. shastri that under the provisions.....
Judgment:

R.B. Mehta, J.

1. This is a second appeal from the appellate judgment of the learned Second Extra Assistant Judge Ahmedabad who in turn confirmed the order and decree passed by the learned Civil Judge Junior Division Modasa. The appellant here is original plaintiff and the respondent is the original defendant. The plaintiffs suit was on a Khata for an amount of Rs. 1,200/- inclusive of interest. There were two substantial defenses. One was that the debt was extinguished under the provisions of the Bombay Agricultural Debtors Relief Act and the second was that the Khata was taken by undue influence. On the point of undue influence the learned Trial Judge came to the conclusion that there was no undue influence but on the point whether the debt was extinguished under the B.A.D.R. Act the learned trial Judge held that the debt in question was so extinguished. On appeal the learned Assistant Judge confirmed the order of the Trial Judge also coming to the conclusion that the debt was extinguished under the B.A.D.R. Act.

2. In this Court Mr. Shastri the learned Advocate for the appellant has taken up the only point that the debt in question is not extinguished under the provisions of the B.A.D.R. Act. Now for the purpose of this appeal, it is necessary to state that it is an admitted fact that the defendant-respondent is a debtor under the B.A.D.R. Act and his debts did not exceed Rs. 15,000/- The debtor is a resident of the village of Antiadeva part of Modasa Taluka in the former British India and the plaintiff creditor is a resident of the village Bayad a part of the former Idar State. The Khata in question on which the suit is based is dated 6th October 1950. To appreciate the point raised in this appeal viz., that the debt is extinguished under the provisions of the B.A.D.R. Act it is necessary to refer to the legislation on this point. The Bombay Agricultural Debtors Relief Act, 1947, by its Sub-section (1) of Section 4 provides as follows:

Any debtor ordinarily residing in any local area for which a Board was established under Section 4 of the repealed Act on or after the 1st February 1947, or his creditor may make an application before the 1st August 1947 to the Court for the adjustment of his debts.

4. Under the Act which was repealed Boards were set up for adjustment of debts and under this Act i.e. the Bombay Agricultural Debtors Relief Act 1947 an application by the debtor or the creditor as the case may be under Section 4 has to be made to a Court before 1st August 1947. On this provisions there is no controversy. Now in this context it is necessary to refer to Section 15 of the Act which provides as follows:

Every debt due from a debtor in respect of which no application has been made under Section 4 within the period specified in the said Section 4 or in respect of which no application for recording a settlement is made under Section 8 within the period specified in the said Section 8 or in respect of which an application made to the Court is withdrawn under Section 12 and no fresh application is made under Section 4 and every debt due from such debtor in respect of which a statement is not submitted to the Court by the creditor in compliance with the provisions of Section 14 shall be extinguished.

5. Now, we are concerned in this case only with an application under Section 4. So, if the necessary application under Section 4 is not made either by a debtor or by his creditor then in such a case, the debt shall be extinguished.

6. Now, so far as the present case is concerned, it is common ground that the Khata, which is the basis of the cause of action itself came into being on the 5th October 1950. Therefore it is obvious that in respect of the suit claim no application could possibly have been made under Section 4 of the B.A.D.R. Act 1947. Therefore came the Act No. IV of 1950, which was known as the Bombay Merged States (Laws) Act, 1950. It was made applicable to Idar State. By that Act Section 4(1) of the Parent Act was amended as follows:

Any debtor ordinarily residing in any local area or his creditor may make an application on or before the 15th June 1949 to the Court for the adjustment of his debts.

7. The effect of this amendment is that the time-limit or the date-line for making an application under Section 4 of the Parent Act was extended from 1st August 1947 to 15th June 1947 but it is significant to note that this Act itself came into force on 30th March 1950. Therefore, it is also evident that the extension of date-line from 1st August 1947 to 15th June 1947 made by an Act, which came into force on 30th March 1950 had no practical utility whatsoever. It was contended by Mr. Shah that under Act No. IV of 1950 an application under Section 4 should have been made before 15th June 1949. I do not think that this argument is tenable. In the first place the Khata itself came into existence on 6th October 1950 but Mr. Shah says that the Khata in suit was a renewal of a previous Khata. In other words Mr. Shah stated that the debt was there on 15th June 1949. The answer to this argument is as I have indicated earlier that it was not possible to take advantage of the Act which came into force on 30th March, 1950 for making an application prior to 15th June 1949.

8. Coming to further legislation on this point there was an amendment by Act No. XXXVII of 1950 of B.A.D.R. Act of 1947. By this amendment Section 57 has been introduced for the first time. As the decision of this case depends on the construction of Section 57, it is convenient if Section 57 is reproduced here:

57 (1) Notwithstanding anything contained in Section 4 of this Act as amended by the provisions of the Bombay Merged State (Laws) Act 1950 in its application to the merged territories:

(a) if any debtor was owing debts to a creditor in a merged territory on the date on which such territory merged with the State of Bombay and if the place in which such debtor was ordinarily residing on the said date was outside such territory such debtor or

(b) his creditor may, make an application to the Court under Section 4 within six months from the date of the coming into operation of the Bombay Agricultural Debtors Relief (Amendment) Act, 1950.

(2) Nothing in Sub-section (1) shall entitle any debtor or creditor to make an application if prior to the date of the coming into operation of the said Bombay Agricultural Debtors Relief (Amendment) Act 1950 he could have made an application under Section 4 of this Act:

Provided that if the debtor had in such territory on the date on which such territory merged with the State of Bombay any property against which the creditor could have enforced his remedy for the recovery of the debts due to him from such debtor under any law in force in such territory immediately before the said date such debtor or his creditor shall be entitled to make an application under Sub-section (1).

9. Now, it is contended by Mr. Shastri that under the provisions of Section 57, on application could be made and therefore the debt was not extinguished under the provisions of Section 15. It is contended by Mr. Shah the learned Advocate for the respondent that under the provisions of Section 57, an application could have been made under Section 4 of the Act and such an application has not been made under the provisions of Section 15 of the Act the debt is extinguished. On a plain reading of Section 57, is seems to me that in this case an application under Section 4 not have been made under the provisions of Section 57. Therefore the debts is not extinguished under Section 15. Now under Section 57, the time-limit has been extended up to six months from the date of the coming into operation of the Bombay Agriculture Debtors Relief Act of 1950, i.e. the dateline is extended to the 8th May 1951 as the date on which the Act came into force was 8th November 1950. Sec 57, therefore, extends the time limit for making an application under Section 4 of the Parent Act. What it says is that if a debtor was owing debt to a creditor in a merged territory as in this case on the date on which such territory merged with the State of Bombay on which point there is no controversy that the debt existed on the date of the merger and if the place in which such debtor was ordinarily residing on the said date was outside such territory i.e. outside the merged territory which is also the case here because the debtor is outside the merged area then such a debtor could make an application. Secondly a creditor of such a debtor could make an application and thirdly such application could be made upon 8th May, 1951 that being the date-line as mentioned above. So if the matter rested here then an application could have been made by the debtor or the creditor in this case under Section 4 but the matter did not rest there. Of course it may be mentioned that the provisions of Sub-section (1) of Section 57, apply only to those cases where an application under Section 4 could not have been made earlier by the debtor or the creditor. Now comes an important proviso to this section which says in effect that under Sub-section (1) of Section 57, an application can be made only if the debtor had some property in the merged area. It is necessary again to advert to the very words of the proviso which is this way:

Provided that if the debtor had in such territory on the date on which such territory merged with the State of Bombay any property against which the creditor could have enforced his remedy for the recovery of the debts due to him from such debtor under any law in force in such territory immediately before the said date such debtor or his creditor shall be entitled to make an application under Sub-section (1).

10. To my mind the proviso is really qualifying Sub-section (1) of Section 57 for in terms it says that an application under Section 57(1) can only be made provided the debtor had any property in the merged area itself on the date of the merger with the State of Bombay which was available for the recovery of the debts due from him under law in force at that time. In order words if the debtor has no property in the merged area on the date of the merger available for satisfaction of his debts then and in such a case no application can be made under Section 57 Sub-section (1). Therefore such being the position in this case and it being an admitted fact that the debtor had no property in the merged area on the date of the merger no application under Section 4 can be made under the provisions of Section 57(1). The result therefore would be that if no such application could be made under Section 4 of the B.A.D.R. Act read with the new Section 57 then in that case the provisions of Section 15 of the Act would not come into operation. In other words the debt is not extinguished.

11. Mr. Shah the learned Advocate for the defendant-respondent said that I should not read the proviso as qualifying Sub-section (1) of Section 57 but that I should read the proviso only as qualifying Sub-section (2) and no further. What Mr. Shah says now appealed both to the learned Trial Judge and the learned Judge of the lower Appellate Court, but to my mind, with respect, that submission is not tenable on the plain and clear language of the statute itself. To read the proviso as qualifying Sub-section (2) only is, to my mind impossible for I do not find any connection between the proviso and Sub-section (2) only. Sub-section (2) only says that under Sub-section (1) you are not entitled to make an application if you could have made an application under Section 4 prior to the coming into force of the Bombay Act No. XXXVII of 1950. The proviso if it is engrafted to Sub-section (2) only, to my mind does not give any sensible meaning. The proviso on the other hand clearly postulates an application under Sub-section (1) for in the last two sentences in clear words the proviso says Such debtor or creditor shall be entitled to make an application under Sub-section (1) which makes it abundantly clear that the proviso is engrafted mainly to Sub-section (1) and if it is engrafted to Sub-section (1) it is also to my mind capable of a reasonable interpretation which is this that under Sub-section (1) of Section 57 the date-line is extended for making an application under Section 4 and there is a proviso that so far as the merged areas are concerned the legislature says that if applications under Section 4 are to be made affecting merged territories then we shall entertain the applications provided there is some property of the debtor in the merged area which can be available for satisfaction of the debts of the debtor. That seems to me to be the idea of the proviso. But that what it may be the language of the proviso is quit clear and to my mind it qualifies Sub-section (1) of Section 57. Admittedly therefore 8 there was no property of the debtor in the merged area in this case no application could be made under Section 4 read with Section 57 of the B.A.D.R. Act 1947 In the result the debt is not extinguished under the provisions of Section 15 of the Act. Therefore the debt is alive. The defence of undue influence is not taken in this Court by the debtor as it depends on a finding of fact.

12. The result will therefore be that there shall be a decree in favour of the plaintiff-appellant for Rs. 1 200 with interest from the date of the suit till payment on the principal amount of Rs. 982-8-0 at 4% per annum. In regard to costs the order of costs made by the lower Appellate Court is vacated. The respondent to pay the court-fees paid by the appellant in the Trial Court as well as in the first Appellate Court and so far as this Court is concerned the respondent to pay full costs of the appellant.


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