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Jadeja Kiratsinhji Anandsinhji Vs. Patel Kana Vela - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 1196 of 1960
Judge
Reported inAIR1964Guj122; (1964)0GLR515
ActsLimitation Act, 1908 - Sections 1 and 3 - Schedule - Articles 110 and 120; Debt Laws; Saurashtra Agricultural Debtors Relief Act, 1954 - Sections 2(5), 3, 29, 30(2) and 31; Saurashtra Land Reforms Act, 1951 - Sections 13-B and 62; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantJadeja Kiratsinhji Anandsinhji
RespondentPatel Kana Vela
Appellant Advocate U.P. Jadeja, Adv.
Respondent Advocate D.D. Vyas, Adv.
DispositionRevision Dismissed
Cases ReferredBoard of Trade v. Cayzer
Excerpt:
.....mamlatdar only in case amount of rent within period of limitation - amount barred by limitation - petitioner not entitled to an award in respect of rent from s.a.d.r. court - acknowledgment not admissible in evidence - acknowledgment not proved to be that of debtor and even that is not in respect of debt sought to adjusted. - - a dispute shall include claims by a society for debts or demands due to it from a member or past member or the heirs or assets of a past member as well as claims by a member or past member or the heirs of a past member for any debts or demands due to him from the society, whether such debts or demands be admitted or not: it is well settled that expiry of the period of limitation prescribed for a suit does not destroy the right it only bars the remedy for..........the s. a. d. r. act. the word 'liability' used in section 2 (5) of the s: a. d. r. act means a civil liability and a liability which will be enforced by a civil court, the words 'due from a debtor' are also used in section 2 (5) of the s. a. d. r. act and these words mean that the debt must be due legally in a civil court from the debtor and not merely morally due. then only the amount will be considered to be a debt, so that it can be adjusted by the board. in this view of the matter, although the limitation act as such does not apply to proceedings under the s. a. d. r. act, the board under the s. a. d. r. act will have to look at the provisions of the limitation act to see whether there is a debt duo from a debtor. the limitation act will have to be considered in order to decide.....
Judgment:

V.B. Raju, J.

1. The petitioner's application under Section 4 of the S. A. D. R. Act was dismissed by the learned Assistant Judge, at Morvi, in appeal from the award on the ground that thedebt sought to be adjusted was barred by limitation.

2. In revision, this order is challenged, and it is contended that the Limitation Act does not apply to proceedings under the S. A. D. R. Act, that the Limitation Act merely applies to proceedings in a Civil Court, and even then it does notextinguish the debt but merely bars the remedy. This contention is, no doubt, correct, but under the S. A. D. R. Act the Board has to adjust debts, and the word 'debt' is defined in Section a (5) of the S. A. D. R. Act as follows:-

' 'Debt' means any liability in cash or kind, whether secured or unsecured, due from a debtor,whether payable under a decree or order of any Civil Court or otherwise, and includes mortgage money the payment of which is secured by the usufructuary mortgage or by anomalous mortgage in the nature of Pura-Chhoot of immovable property, but does not include arrears of wages payable in respect of agricultural or manual labour.' There must be a liability in cash or kind before it can be adjusted by the Board under the S. A. D. R. Act. The word 'liability' used in Section 2 (5) of the S: A. D. R. Act means a civil liability and a liability which will be enforced by a Civil Court, The words 'due from a debtor' are also used in Section 2 (5) of the S. A. D. R. Act and these words mean that the debt must be due legally in a Civil Court from the debtor and not merely morally due. Then only the amount will be considered to be a debt, so that it can be adjusted by the Board. In this view of the matter, although the Limitation Act as such does not apply to proceedings under the S. A. D. R. Act, the Board under the S. A. D. R. Act will have to look at the provisions of the Limitation Act to see whether there is a debt duo from a debtor. The Limitation Act will have to be considered in order to decide one of the issues before the Board, although the Board as such is not a Civil Court and suits are not filed before the Board under the S. A. D. R. Act. In this view of the matter the contention of the learned counsel for the applicant must be rejected, because it is not contended by himthat there is a civil liability for the payment ofthe amount in question. It is conceded by him that the liability to pay the amount has been barred if the amount is sought to be recovered in a Civil Court.

3. The learned counsel for the applicant relies on Savitra Khandu v. Nagar Agricultural Sale and Purchase Co-operative Society Ltd. : AIR1957Bom178 , which was a case under Section 54 of the Bombay Co-operative Societies Act, 1925, which is as follows: -

'(1) (a) If any dispute touching the constitution or business of society arises between members or past members of the society or persons claiming through a member or past member or between members or past members or persons so claiming and any officer, agent or servant of the society past or present or between the society or its committee, and any officer, agent, member or servant of the society past or present, it shall be referred to the Registrar for decision by himself or his nominee.

A dispute shall include claims by a society for debts or demands due to it from a member or past member or the heirs or assets of a past member as well as claims by a member or past member or the heirs of a past member for any debts or demands due to him from the society, whether such debts or demands be admitted or not:'

In the Bombay case it was observed as follows:-

'The Indian Limitation Act primarily applies to suits, appeals and applications and it has no direct application to arbitration proceedings. Section 3 of the Limitation Act provides that

'Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence.' Evidently a proceeding before an arbitrator is not a suit, appeal or application, and in terms Section 3 can have no application. It is well settled that expiry of the period of limitation prescribed for a suit does not destroy the right it only bars the remedy for enforcement of a right in a Court of law. It cannot, therefore, be said that in terms the provisions of the Limitation Act prevent an arbitrator from entertaining a claim which, if made in a Court of law, may be barred by limitation.'

It was also observed that' an arbitration proceeding under Section 54 of the Bombay Co-operative Societies Act is a statutory arbitration and that having regard to Sections 46 and 37 of the Indian Arbitration Act, 1940, the Board of Arbitrators appointed to resolve the disputes under Section 54 of the Co-operative Societies Act are not required to apply the law of limitation to the claim made before it. It was also observed that the principle in Ramdutt Ramkissen v. E. D. Sassoon and Co. AIR 1929 PC 103 : 31 Bom LR 741 and the principle that an arbitrator acting under an ordinary submission to arbitration is bound to give effect to all legal defences including a defence under the Limitation Act expressed in Board of Trade v. Cayzer, Irvine and Co., (1927) AC 610, and enunciated by the House of Lords in NaamloozeVennootschap Handels-en-Transport Maatschappij 'Vulcaan' v. A/s. J. Ludwig Mowinckels Rederi, 1938-2 All ER 152, did not apply to a statutory arbitration such as that referred to in Section 54 of the Bombay Co-operative Societies Act. The contention that the provisions of the Indian Limitation Act should have been applied by analogy by the Co-operative Tribunal even in a statutory arbitration under Section 54 of the Bombay Cooperative Societies Act was rejected.

4. Reliance is placed by the learned counsel for the applicant on the above observations of the learned Judges of the Bombay High Court. But, with great respect to the learned Judges of the Bombay High Court they have not considered the second paragraph of Sub-section (1) (a) of Section 54 of the Bombay Co-operative Societies Act, which reads thus:-

'A dispute shall include claims by a society for debts or demands due to it from a member of past member etc.' It is only such a dispute in the case of debts or demands due to the Society from a member etc., that can be referred to the Registrar for decision by himself or his nominee under Section 54 of the Bombay Co-operative Societies Act. The debts or demands must be due to the Society from a member. The word 'due' means 'legally due' and not 'morally due'. The word 'due' means due under the civil law, in a Civil Court. A debt, which is barred by limitation is not legally due and will not be held due in a Civil Court. A dispute regarding such a debt cannot be referred to the Registrar for decision by himself or his nominee under Section 54 of the Bombay Co-operative Societies Act.

5. To the same effect is the consequence of the definition of 'debt' in Section 2 (5) of the S. A. D. R. Act. Before there is a debt under the S. A. D. R. Act, there must be a liability in cash or kind due from a debtor. The liability must be a legal liability and not a moral liability. Therefore, if the debt is barred by the statute of limitation, it cannot be adjusted by the Board under the S. A. D. R. Act.

6. It is next contended that the debt in this case is what is called 'Sakar' or a lump sum payable by a tenant to the landlord, and, as such, it is contended that Article 120 of Schedule I to the Limitation Act is applicable and the period of limitation is, therefore, six years. It is contended that 'Sakar' or lump sum payable by the tenant to the landlord is not a debt but is rent. If 'Sakar' is rent, then the limitation would be three years under Article no of Schedule I to the Limitation. Act. Even then Article 120 would not be applicable. 'Sakar' would be rent in view of the definition of 'rent' in Section 105 of the Transfer of Property Act and the definition of 'rent' relied on by the learned counsel for the applicant in Section 2 (1) of the Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands Ordinance, 1949 (Ordinance No. XLI of 1949), which reads as follows : -

' 'rent' means any consideration in money or kind paid or payable by a tenant on account of the use or occupation of the land held by him, but shall not include the rendering of any personal service or labour.'

7. It is also contended that if the amount isrent and not debt, the rent cannot be adjusted in view of the provisions of Section 3 (h) of the S. A. D. R. Act. Section 3 (h) of the said Act reads as follows:-

'Save as otherwise expressly provided, nothing in this Act shall affect the debts and liabilities of a debtor falling under the following heads, namely :- (h) Any sum recoverable by a Girasdar or a Barkhalidar or any person claiming through such Girasdar or Barkhalidar on account of rent or tagavi.'

But at the same time there is a provision in respect of sums recovered by a Girasdar or Barkhalidar or any person claiming through such Girasdar or Barkhalidar on account of rent or Tagavi in Section 30 of the S. A. D. R. Act which deals with award. Sub-section (2) of this section provides among other things that the award shall be drawn lip and in fixing the priority in which debts shall be paid a particular order should be followed, and in that order at item 'i' it is mentioned as under:

'Any sum recoverable by a Girasdar or a Barkhalidar or any person claiming through such Girasdar or Bakhalidar on account of rent or tagavi.'

Section 3 of the S. A. D. R. Act provides that nothing in the Act shall affect the debts and liabilities of a debtor falling under the heads specified therein. The section also provides that nothing in the Act shall affect save as otherwise expressly provided. Section 4 (3) of the S. A. D. R. Act provides as under:-

'Notwithstanding anything contained in Section 3, an application made under this section shall contain the amounts and particulars of all debts specified in that section.'

It is therefore, clear from these provisions that any sum falling under Section 3 (h) and falling under item 'i' of Sub-section (2) of Section 30 of the S. A. D. R. Act could be the subject-matter of an award by the S. A. D. R. Court and would not have to be seated down because there is nothing in Section 29 referring to such debts. There fore such a debt cannot be scaled down under Section 29 of the S. A. D. R. Act and has to be included in full in the award of the S. A. D. R. Court. But the debt coming within the scope of Sub-section (h) of Section 3 of the S. A. D. R Act is subject to the law of limitation if it is to satisfy the definition of 'debt' contained in Section 2 (5) of the S. A. D. R. Act. If this definition is to be satisfied, there must be a legal liability and not merely a moral liability to pay the amount. Whether there is or whether there is not a legal liability would depend on the type of debt. In this case for the reasons already given by the appellate Court, the debt is barred by limitation.

8. It is true that Section 62 of the Saurashtra Land Reforms Act reads as follows:-

'(1) No civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar, the Collector or tribunal, or by the Government in exercise of their powers of control.

(2) No order of the Mamlatdar, the Collector or the Tribunal made under this Act shall be questioned in any civil or criminal Court.

Explanation:- For the purposes of this section a civil Court shall include a Mamlatdar's Court constituted under the Saurashtra Mamlatdar's Courts Ordinance, 1948.' Section 13-8 of the Saurashtra Land Reforms Act provides as follows:- 'Notwithstanding anything contained in Section 86 of the Code, the Girasdar shall, upon written application to the Mamlatdar, be entitled to assistance, by the use of precautionary and other measures, except that contained in Section 137 of the Code, and in the same manner as prescribed in Chapter XI of the Code, for the recovery of rent payable to him by the tenant.

Provided that no such application shall be entertained for the recovery of rent a suit for which has become barred under the Indian Limitation Act, 1908, at the date of such application.'

It is, therefore, clear that in respect of liability to pay rent the landlord has to go not to a civil Court but to a mamlatdar as provided in Section 13-B of the Saurashtra Land Reforms Act and the proviso to the section itself provides that the Indian Limitation Act would be applicable.

9. It is, however, contended that under the proviso to Section 31 of the Saurashtra Land Reforms Act, although where an occupancy certificate is issued by the Mamlatdar to a tenant, the Girasdar shall cease to have any right to collect or receive any rent from the occupant or exercise any other right in respect of the holding, and although the liability to pay land revenue in respect of the holding shall cease, nothing contained in the Clause (f) shall apply to any arrears of rent that may be due to the Girasdar from the tenant on the date of the commencement of this Act. This proviso only provides that notwithstanding the issue of an occupancy certificate the Girasdar shall be entitled to recover the rent due from the tenant on the commencement of this Act. But in regard to such rents Section 136 and Section 62 of the Saurashtra Land Reforms Act would apply, and for the recovery of such rent the Girasdar wilt have to go to the Mamlatdar and not to the civil Court. But as provided in the proviso to Section 13-B of the Saurashtra Land Reforms Act, he can approach the Mamlatdar only if the amount of rent is within the period of limitation. As already stated, in the instant case, the amount in question is barred by limitation. Therefore, the petitioner is not entitled to an award in respect of the rent from the S. A. D. R. Court.

10. It is next contended that there is an acknowledgment in this case, which saves limitation. But it has been held by the trial Court that the acknowledgment is not admissible in evidence, that it is not proved to be that of the debtor and that even it is not in respect of the debt sought to be adjusted. On this ground, the learned appellate Court Judge rejected the contention regarding the acknowledgment. Such a finding cannot be interfered with in revision.

11. I, therefore, reject all the contentions of the learned counsel for the applicant and dismiss this revision application. No order as to costs.


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