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Narayanaswami Chettiar and ors. Vs. Nambikkai Mary Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 5819 of 1981
Judge
Reported inAIR1983Mad79
ActsTamil Nadu Debt Relief Act, 1980 - Sections 4 and 12
AppellantNarayanaswami Chettiar and ors.
RespondentNambikkai Mary Ammal and ors.
Appellant AdvocateK. Ramachandran, Adv.
Respondent AdvocateK. Sarvabhauman, Adv. and ;S. Jagadeesan, Govt. Pleader
Cases Referred(J. Ramu Chettiar v. The Special Tahsildar
Excerpt:
- .....of rs. 14,000 in respect of the petitioners' property. the amount advanced by the creditor to the debtors pending the execution of the mortgage deed by the debtors cannot be said to be the price of the property purchased by the creditors from the debtors. therefore, obviously both the authorities below are in error taking the view that the debt will come under s. 12 (i) of the act and that, therefore the petitioners cannot seek the benefit of the provisions of the act.2. though on this ground the orders of the authorities below, have to be set aside and the petitioners' application for relief under s. 4 of tamil nadu act 13 of 1980 has to be considered on merits, we have to set aside the order of both the authorities below on the ground of lack of jurisdiction giving liberty to the.....
Judgment:

Ramanujam, J.

1. The petitioners herein wanted to mortgage their property for getting a loan of Rs. 14,000/-. They obtained an initial payment of Rs. 4,000/- from the first respondent. However, the mortgage transaction did not come through. The first respondent filed the suit in O. S. No. 699 of 1979 on the file of the District Munsif, Tiruchy, for the recovery of the said Rs. 4,000 treating it as advance towards the mortgage loan which did not fructify. At that stage, the petitioners claimed the benefit under Act 13 of 1980, by filing an application before the Tahsildar for a certificate of discharge of the debt. The first respondent decree-holder stated that the debt sued upon in the suit is one of debts exempted under S. 12 of the Act and, therefore, the petitioners cannot claim the benefit under the Act. This contention was accepted by the Tahsildar who held that the debtors are not entitled to the benefits of the Act.

The matter was taken in appeal by the petitioners and the appellate authority has also agreed with the view of the Tahsildar. In this writ petition, the petitioners seek to quash the order of the appellate authority confirming the order of the initial authority holding that the petitioners are not entitled to claim the benefits of the Act in respect of this debt. According to the petitioners the debt is not one which will come under S. 12 (i) of the Act, for, it does not represent the price of property purchased by the debtors or any amount due under hire purchase agreement and that the amount of Rs. 4000 was received as advance pending execution of a mortgage for a sum of Rs. 14,000 in respect of the petitioners' property. The amount advanced by the creditor to the debtors pending the execution of the mortgage deed by the debtors cannot be said to be the price of the property purchased by the creditors from the debtors. Therefore, obviously both the authorities below are in error taking the view that the debt will come under S. 12 (i) of the Act and that, therefore the petitioners cannot seek the benefit of the provisions of the Act.

2. Though on this ground the orders of the authorities below, have to be set aside and the petitioners' application for relief under S. 4 of Tamil Nadu Act 13 of 1980 has to be considered on merits, we have to set aside the order of both the Authorities below on the ground of lack of jurisdiction giving liberty to the petitioners to agitate this matter before the Civil Court, where the execution of the decree is pending. The writ petition in effect has to be dismissed, in view of the fact that in respect of money claims, under S. 4 the Tahsildar or the Appellate Authority have no jurisdiction to grant a certificate of discharge, and the question of discharge has to be agitated only before the Civil Court. This view we have taken in W. P. No. 5333 of 1981: : AIR1983Mad77 (J. Ramu Chettiar v. The Special Tahsildar) (Debt Reliefs) disposed of just now. The orders of the authorities below are set aside; but the writ petition is in form dismissed. The petitioners are however given the liberty to agitate the matter before the Civil Court in the Execution Petition filed by the creditor which is said to be pending. There will be no order as to costs.

3. Petition dismissed.


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