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Sundarambal Achi Vs. the Appellate Authority and - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberW.P. No. 8087 of 1981
Judge
Reported inAIR1983Mad278; (1983)1MLJ346
ActsTamil Nadu Debt Relief Act, 1980 - Sections 4, 5 and 6; ;Code of Civil Procedure (CPC), 1908 - Sections 9
AppellantSundarambal Achi
RespondentThe Appellate Authority and ;sub. Collector, Kumbakonam and ;anr.
Appellant AdvocateV. Santhanam, Adv.
Respondent AdvocateS. Jagadeesan, Adv. for ;Govt. Pleader and ;K. Parabhakaran, Adv.
Excerpt:
.....act (xiii of 1980), section 3 (4) (vi) (vii) and 4--pronote debt --whether the tahsildar or the appellate authority coul give a certificate of discharge to the debtor or the civil court will have to decide the relief under that act--held civil court could grant the relief.;a debtor filed an application for a certificate of discharge of the pronote debt before the special tahisildar (debt relief, under the tamil nadu debt relief act xiii of 1980. the special tahsildar passed an order refusing to grant a certificate of discharge holding that the debtor owns immovable properties worth more than rs. 35,000. on appeal by the debtor, the appellate authority held that the debtor is entitled to the benefits of the act. the creditor filed a writ petition in the high court to quash the orders..........lands to the value of rs,38,000. on appeal by the bet or the second respondent therein the appellate authority held that the second respondent is entitled to the benefits of that act as he has not been shown to posses immovable property worth more than rupees 25,000 and that the certificate given by the tahisldar, thiruvidaimarudur, stating that the certificate given by the tahsildar. thiruvandaimarudur stating that the debtor owns properties worth about rs. 38,000 cannot be accepted on the ground that he is not the competent authority and that even otherwise the certificate gives only an approximate value and not the actual market value.2. in this writ petition the petitioner questions the validity of the order of the first respondent the appellate authority on the ground that.....
Judgment:
1. The petitioner herein is a creditor and the second respondent herein is a debtor who has borrowed a sum of Rs.1,200 from the former on a pro note. After the coming into force of the Tamil Nadu Debt Relief Act (13 of 1980) the second respondent filed an application before the Special Tahisildar (Debt Relief) Kumbakonam for a certificate of discharge of the said loan on the ground that the second respondent was not a debtor as defined in the Act as he was holding immovable property other than cultivable lands to the value of Rs,38,000. On appeal by the bet or the second respondent therein the appellate authority held that the second respondent is entitled to the benefits of that Act as he has not been shown to posses immovable property worth more than Rupees 25,000 and that the certificate given by the Tahisldar, Thiruvidaimarudur, stating that the certificate given by the Tahsildar. Thiruvandaimarudur stating that the debtor owns properties worth about Rs. 38,000 cannot be accepted on the ground that he is not the competent authority and that even otherwise the certificate gives only an approximate value and not the actual market value.

2. In this writ petition the petitioner questions the validity of the order of the first respondent the appellate authority on the ground that the certificate given by the Tahsildar. Thiruvidamarudur should have been accepted as he is a competent authority prescribed for the purpose in G.O.M.S. 2614. Revenue dt 24-11-1980. The reason why the first respondent has ignored the certificate given by the Tahsildar, Thiruvidaimarudur is that he is not a competent authority to vie the certificate as to the ever, the appellate authority has overlooked the Government Order Ms. No. 2614 Revenue dated 24-11-1980 under which the Tahsildars or Deputy Tahsildars have been appointed as prescribed authority for determining the value of the properties under the Explanation to S. 3 (d) (vi) and (vii). The appellate authority therefore is not right in stating that the Thasildar Thiruvidaimarudur was not the competent authority to give the certificate of valuation.

3. The next ground is that the certificate given by the Tahsildar Thiruvidaimarudur gives only an approximate value and not the actual market value. It is no doubt true that the Tahssildar, Thiruvidamarudur has stated that the immovable property of the debtor is worth about Rs.38,000. Even though the Tahsildar has stated that market value of the property would be about Rs.38,000 even taking it as an approximate value it is definitely far above Rs. 25,000. Therefore, the appellate authority should have accepted the certificate given by the Tahsildar. Thiruvidaimarudur showing the worth of the immovable property owned by the debtor as more than Rs,25,000 and held that he is not entitled to the benefits of the Act.

4. Though on this ground the order of the appellate authority has to be set aside, we have to set aside both the orders of the initial authority and the appellate authority as they have no jurisdiction to pass the orders in question. As already stated, the debt in respect of which the debtor claims benefits under the Act is a promissory note debt and in respect of such debts neither S. 5 nor S 6 of the Act applies and only Sec 4 will stand attracted Under S 4 the Tahisildar is not empowered to give a certificate of discharge and it is only civil court wherein the money claim is sought to be enforced by the creditor the debtor can put forward his defence that he is entitled to the benefit of the Act and the civil court will have to naturally consider the question as to whether the debtor is entitled to the benefits for the act. We have held in a series of cases that in respect of mere money claims by the creditors the Tahsildar is not empowered to give a certificate of discharge and in those cases the question whether the debtor is entitled to the benefits of the Act has to be agitated before and adjudicated upon by the civil court in which the money claim is sought to be enforced by the creditor. In this case the petitioner is said to have files a suit and obtained a decree. If that is the factual position, then it is only at the stage of execution the debtor can file an application claiming the benefits of the Act and in that event the civil court will have go into the question as to whether the debtor is entitled to the benefits of the Act and give relief if he is so entitled. Even if the suit is pending the debtor can seek an adjudication on the question as to whether he is entitled to the benefits of the provisions of the Act and if he proves entitlement the civil court will have to give relief as provided in the Act.

5. Subject to the observations made above the order of the first respondent is set aside and the writ petition is allowed. There will be no order as to costs.

6. Petition allowed.


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