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Khetai Molla Vs. Nityananda Sarkar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Reported inAIR1944Cal263
AppellantKhetai Molla
RespondentNityananda Sarkar and ors.
Excerpt:
- .....but was below the amount of rs. 25,000. on the date when this application was made before the debt settlement board, there was no limitation on the pecuniary jurisdiction of debt settlement boards. on 15th may 1939, the local government, however, made rules under section 55(2a), bengal agricultural debtors act. by that notification certain rules are framed of which rule 143 to 150 are relevant. those rules came into force on 15th june 1939, and they were made applicable to all applications made before the debt settlement board, except those in which the debt settlement board had already determined the debt under section 18 of the act, by 15th june 1939. rule 144 provides that the debt settlement board would deal with all applications for settlement of debts if the total indebtedness.....
Judgment:

R.C. Mitter, J.

1. Defendant 1 borrowed a sum of Rs. 5999 from one Gopiballav Sarkar, the predecessor-in-ihterest of the plaintiffs on 20th April 1921. There was a stipulation to pay interest at the rate of 12 per cent, per annum to be compounded at the end of every year. As security for the loan, defendant 1 executed a mortgage in favour of the said Gopiballav Sarkar. Thereafter defendant 1 made three part payments on the three occasions and endorsed these payments on the back of the mortgage instrument. The last part payment which was endorsed on the back of the mortgage by him, was made on 21st May 1927. This suit has been filed on 16th November 1939, which is beyond 12 years of the date of the last payment. The claim has been laid at Rs.5999 only, the mortgagees having given up practically whole of their claim for interest. A question was raised in the lower Court to the effect that the suit was barred by limitation. That question was raised by the defendant on two grounds; the first ground was that in fact defendant 1 did not make any part payment on 21st May 1927, and endorse the same under his signature. That point was negatived by the learned Subordinate Judge, who came to the finding that defendant 1 had made part payment on the said date and the endorsement, which is marked Ex. 6 (a), was in the handwriting of the said defendant and bore his signature. This part of the case has not been placed before us by the appellant, defendant 1.

2. For the purpose of saving the suit from limitation, the plaintiffs pleaded that they were entitled by reason of the provisions of sections 33 and 52, Bengal Agricultural Debtors Act, to add the time between 25th April 1939, and 16th November 1939, when they actually presented their claim in the civil Court. This plea taken by the plaintiffs has been given effect to by the learned Subordinate Judge and the correctness of this part of his judgment has been challenged by Mr. Sen, appearing for the appellant.

3. The facts bearing upon the last mentioned question are as follows: the plaintiffs filed an application under section 8, Bengal Agricultural Debtors Act, against defendant 1 on 25th April 1939. The total debt of the said defendant exceeded the sum of Rs. 5000, but was below the amount of Rs. 25,000. On the date when this application was made before the Debt Settlement Board, there was no limitation on the pecuniary jurisdiction of Debt Settlement Boards. On 15th May 1939, the Local Government, however, made rules under section 55(2a), Bengal Agricultural Debtors Act. By that Notification certain rules are framed of which Rule 143 to 150 are relevant. Those rules came into force on 15th June 1939, and they were made applicable to all applications made before the Debt Settlement Board, except those in which the Debt Settlement Board had already determined the debt under section 18 of the Act, by 15th June 1939. Rule 144 provides that the Debt Settlement Board would deal with all applications for settlement of debts if the total indebtedness of the debtors did not exceed Rs. 5000. If, however, the total indebtedness exceeded Rs. 5000, but did not exceed Rs. 25,000, the Debt Settlement Board could deal with such application provided the sanction in writing of the Collector had been obtained. Rule 146 provides:

If the sum total, of all debts mentioned by the debtor in his application under section 8 or statement of debt under Sub-section (1) of section 13 exceeds Rs. 5000 but does not exceed Rs. 25,000, the Board shall forward the application to the Collector for sanction under the proviso to Rule 144 before passing any Order upon it under Sub-section (2) of section 13 or under section 18.

In this case the Board forwarded the application, which the plaintiffs had presented before the Debt Settlement Board on 25th April 1939, to the Collector for sanction in accordance with the provision of Rule 146, on 25th September 1939. The Collector, however, refused his sanction on 4th October 1939. On these facts the question is as to whether the application, which the plaintiffs had filed before the Debt Settlement Board on 25th April 1939, would be taken to be pending before the Debt Settlement Board till 4th October 1939, when the Collector refused the sanction prayed for. If it could be held to be pending, the plaintiffs would be entitled to add the period from 25th April 1939, to 4th October 1939, in computing the period of limitation. If the plaintiffs are entitled to that period, it is admitted that the suit would be in time, because in that case limitation would expire during the Pujah Vacation, and the plaint was presented, on the reopening day after the vacation, that is to say on 16th November 1939.

4. In our judgment the application before the Debt Settlement Board, which the plaintiffs had filed, must be taken to be pending within the meaning of section 52, Bengal Agricultural Debtors Act. We have quoted the relevant rules in extenso Rule 146 enacts that the Board is to send the application to the Collector for sanction. The Rule is not that the Board is to return the application, if the total indebtedness exceeded Rs. 5000 but did not exceed Rs. 25,000, to the person presenting the application, in Order that the latter may him self apply to the Collector. In the absence of such a Rule requiring the return of the application to the person presenting it by the Board, we must hold that the proceedings before the Board would be regarded as pending within the meaning of section 52 from the time when Rule 144 to 150 came into, force till the time the Collector refused sanction under Rule 144. The only effect would be that the powers of the Board to settle the debts would remain suspended during that period. If the Collector had given the sanction, the proceedings which had already been instituted would have continued. If he had refused sanction, then and then only the proceedings before the Board would come to a termination. In this view of the matter we hold that the said suit has been filed in time, inasmuch as the plaintiffs are entitled to add the period from 25th April 1939 to 4th October 1939, in computing the period of limitation. The result is that this appeal fails. It is accordingly dismissed.

5. An application has been made before us under the Bengal Money-lenders Act praying for instalments. In view of the provision of section 34 of the said Act, we have to grant instalments. After taking into consideration all the facts of the case including the fact that very little payments have been made by the debtor in the course of 21 years and that the creditors have been very considerate in the matter of interest, we think that the ends of justice would be met, if we grant five annual instalments. Our Order is that each of the first four instalments would be for a sum of Rs. 1500 and the balance would be the last instalment. Each of these instalments will have to be paid within the month of Chaitra, each year, the first instalment being made payable within the month of Chaitra of the current Bengali year. In default of payment of any one of these instalments, the plaintiffs would be entitled to apply for a final decree in the terms of the Bengal Money-lenders Act. As the transaction was before the Bengal Money-lenders Act had come into force, the decretal amount will not bear interest. As the case is a case of first impression, we direct that the parties will bear their respective costs of this appeal in this Court.

Biswas, J.

6. I agree.


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