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Nalini Kanta Maity Vs. Brojo Mohan Patra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1941Cal361
AppellantNalini Kanta Maity
RespondentBrojo Mohan Patra
Excerpt:
- .....officer declaring the amount to be irrecoverable. all the same, it is clear that at the date the suit was brought, there was no debt for which any amount was still 'payable under the award' within the meaning of clause (b) of section 33, that is to say, payable in accordance with the provisions of the act.6. section 25, sub-section (8) provides that from the date of the signing of an award, the award shall, in supersession of all previous decisions of a civil court in respect of the debts mentioned in it, be binding on the debtor and his creditors and the successors-in-interest of such debtor and creditors. this means that the amount declared to be payable under the award in respect of a debt becomes final and binding between the parties, and any cause of action which might.....
Judgment:

B.K. Mukherjea, J.

1. This rule was obtained by the plaintiff-petitioner on an application under Section 25, Provincial Small Cause Court Act, and it is directed against an order of dismissal made by the Munsif, second Court, Contai, (exercising Small Cause Court powers) in small cause court suit No. 21 of 1940. The facts necessary for our present purposes may be shortly stated as follows: The defendant-opposite party borrowed a sum of Rs. 200 from the plaintiff on a promissory note, dated 18th September 1935. In April 1938, the defendant presented an application before the Debt Settlement Board at Karanji for settlement of his debt. The debt due on this promissory note was settled at Rs. 125, and on that basis an award was made which made the money payable within Jaistha 1346 B.S. The defendant did not pay the money in accordance with the award, and the plaintiff also failed to file an application before the certificate officer within the time allowed by the rules for recovery of this amount as a public demand. As the certificate procedure is no longer open to him, he has instituted the present suit for recovery of the amount settled by the Debt Settlement Board together with interest at 25 per cent. per annum. The Munsif, who heard the suit, dismissed it on the ground that the suit was not maintainable under Section 33, Bengal Agricultural Debtors Act. It is the propriety of this decision that has been challenged in this rule.

2. On hearing the learned advocates on both sides, we are of opinion that the view taken by the Court below is not right and cannot be supported. Section 28 (1), Bengal Agricultural Debtors Act, provides that if the debtor fails to pay any amount payable under an award by the date fixed, such amount is recoverable as a public demand on application made within the prescribed period by a creditor to whom the amount is due. Rule 63 of the rules laid down by Government under Section 55, Bengal Agricultural Debtors Act, provides that such application is to be made within 60 days of the date when the amount was payable under the award, or within 30 days of the date on which the certificate officer rejected the debtor's prayer for extension of time under Section 28 (2) of the Act; or, if the prayer for extension is granted, within 60 days of the extended date. If the creditor does not make an application within the period mentioned above, he cannot realize the award money any further by the certificate procedure, and para. 2 of Sub-section (1) of Section 28, Bengal Agricultural Debtors Act, lays down that in such circumstances the amount payable under the award shall be deemed to be a debt incurred by the debtor after the date of the signing of the award. This means that the creditor would not lose his rights altogether, and the amount would be recoverable only after all other amounts payable under the award had been paid or had been certified by the certificate officer to be irrecoverable under the provisions of Section 29 (5), Bengal Agricultural Debtors Act. As the certificate procedure is no longer open to the creditor, the debt, in my opinion, can be realized through the instrumentality of the civil Court, subject to the restrictions contained in Section 35 (3), Bengal Agricultural Debtors Act, and this can be done only by filing a suit in the ordinary way and obtaining a decree upon that, for the award, even if it is supposed to exist could not be enforced as a civil Court decree.

3. The Court below seemed to be of opinion that the suit was barred under Section 33 (2), Bengal Agricultural Debtors Act, which prohibits a civil or revenue Court from entertaining a suit or proceeding in respect of any debt for which any amount is payable under an award except in accordance with the provisions of Sub-section (5) of Section 29 of the Act. We do not think that the bar created by the section is at all attracted to the facts of the present case. As the creditor omitted to avail himself of the certificate procedure, the award qua award ceased to exist, and what is substituted for it by fiction of law is a new debt altogether, which is deemed to have been incurred by the debtor after the date of the signing of the award. It can no longer therefore be deemed to be included in the award or in the application for settlement of the debt under Ss.8 and 13, Bengal Agricultural Debtors Act. In my opinion, it cannot come within the mischief of Section 33 (2) of the Act which applies only when the amount is still payable under the award, hold therefore that the creditor is at liberty to pursue his remedy in the civil Court in respect of the substituted debt, subject only to the provisions of Section 35 (3) of the Act which do not bar a suit but only impose certain restrictions with regard to the way in which a decree has to be executed. The result therefore is that the rule is made absolute, the order passed by the Munsif is set aside and the case is sent back in order that if; may be reheard and disposed of in accordance with law. The petitioner is entitled to his costs and we assess the hearing fee at two gold mohurs.

Biswas, J.

4. I agree, and should like to add a few words. There can be no question that the subject-matter of the present suit is a claim of a civil nature, and therefore the right of suit in respect thereof must remain unless the defendant can show that it has been expressly or impliedly taken away. It is the defendants' case that the right has been taken away by virtue of certain provisions of the Bengal Agricultural Debtors Act, and the section on which he mainly relies is Section 33. Section 33 lays down that except as provided in the Act, no civil or revenue Court shall entertain a suit quoting only the relevant portion,

in respect of any debt for which any amount is payable under an award, except in accordance with the provisions of Sub-section (5) of Section 29.

5. It is argued that the debt in respect of which the present suit has been instituted is not a debt for which the amount has ceased to be payable under Sub-section (5) of Section 29, and that the suit is accordingly barred. The argument is plausible, but in my opinion has no substance in it. It is true that the award cannot be said to have ceased to subsist under the provisions of the said Sub-section (5), as in this case the creditor had made no application for recovery of the amount as a public demand under Sub-section (1) of Section 28, and there was no question therefore of the certificate officer declaring the amount to be irrecoverable. All the same, it is clear that at the date the suit was brought, there was no debt for which any amount was still 'payable under the award' within the meaning of Clause (b) of Section 33, that is to say, payable in accordance with the provisions of the Act.

6. Section 25, Sub-section (8) provides that from the date of the signing of an award, the award shall, in supersession of all previous decisions of a civil Court in respect of the debts mentioned in it, be binding on the debtor and his creditors and the successors-in-interest of such debtor and creditors. This means that the amount declared to be payable under the award in respect of a debt becomes final and binding between the parties, and any cause of action which might have existed in respect of the original debt ceases to be enforceable, but it does not mean that the award itself, subject to the provisions of the Act, may not itself found a new cause of action. The Act no doubt lays down a certain procedure for the enforcement of an award, but it does not in my opinion exhaust all the remedies which a creditor may have for recovery of his dues as settled by the award. The procedure which is laid down by the Act is contained in Sub-section (1) of Section 28, which makes the amount payable under an award recoverable as a public demand, and it requires an application to be made by the creditor for such purpose within a prescribed period. Paragraph 2 of the same sub-section however expressly contemplates the contingency of a creditor failing to avail himself of this summary remedy. It says that if the creditor does not so apply, such amount shall, for the purposes of Clause (iii) of Section 35, be deemed to be a debt incurred by the debtor after the date of the signing of the award. This to my mind is clear recognition of the fact that where the creditor does not apply for recovery of the amount as a public demand, the amount as determined by the award will be still recoverable by him otherwise as an ordinary debt. I do not think that the failure of the creditor to apply under Sub-section (1) of Section 28 does or can extinguish the liability of the debtor wholly. It follows therefore that the right of suit to enforce such liability must remain, unless of course there is any bar, express or implied, in any other provisions of the Act. As I have endeavoured to show, Section 33 does not present such a bar.

7. Reference was made on behalf of the opposite party to the provisions of Section 35, Clause (iii), but this clause not only does not lend any support to his contention, but goes directly against it. Clause (iii) of Section 35 merely lays down that no decree shall be executed for the recovery of a debt incurred by a debtor after the date of an application under Section 8, until all the amounts payable under the award in respect of the debts included in such application have been paid, which means, paid in accordance with the provisions of the Act, or until such award has ceased to subsist under Sub-section (5) of Section 29. It pre-supposes therefore the existence of such a decree, and ex hypothesi this implies the right to bring a suit in which such a decree can be passed. Beading para. 2, of Sub-section (1) of Section 28 with el. (iii) of Section 35, there can, in my opinion, be thus no doubt that in circumstances such as have arisen in this ease, the amount which may have been declared payable by an award under the Act must still be deemed to be a debt which is due to the creditor, notwithstanding that by reason of his failure to apply within time he may have lost the right of enforcing it summarily by the certificate procedure, and notwithstanding also that he may be debarred from executing any decree which he may recover in a suit for such debt until after a certain time, that is to say, until all amounts payable by the debtor under the award have been paid or the award has ceased to be enforceable under the Act. Merely because certain restrictions are imposed by Section 35, Clause (iii) as regards the time for enforcing the claim after decree, it does not follow that there is any restriction of the right to obtain a decree for what is expressly recognized as a debt. It is hardly necessary to point out that the words 'a debt incurred by a debtor after the date of an application under Section 8' in Clause (iii) of Section 35 will include 'a debt incurred by the debtor after the signing of the award,' referred to in para. 2 of Sub-section (1) of Section 28.


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