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H.V. Low and Co. Ltd. Vs. Kumar Pashupati Nath Maliah and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal69
AppellantH.V. Low and Co. Ltd.
RespondentKumar Pashupati Nath Maliah and anr.
Excerpt:
- .....year during the said seven years' the defendants have claimed that if after 1st june 1941, they paid one year's interest on the decretal amount each year then they satisfied the provisions of that sub-section and no execution could be levied upon them. on 27th july 1942, the defendants paid one year's interest on the decretal amount, namely, rs. 27,000 to the plaintiffs which the plaintiffs accepted without prejudice to their rights to execute the decree. no other sum has been paid by the defendants in respect of the said decretal amount. the plaintiffs say that the defendants have not satisfied the provisions of section 10c (1), i have just referred to, by the payment of one year's interest and they claim in these proceedings that they are entitled to levy execution for their debt......
Judgment:

Derbyshire, C.J.

1. This is an appeal from a decision of Das J. given on 9th December 1942. The plaintiffs, H. V. Low & Co. Ltd., applied for an order that the Receiver appointed by an order of this Court made in the present suit might be directed to take possession forthwith of the properties charged under a consent order made by this Court on 22nd July 1936, that the Court of Wards should be directed to afford all facilities to the Receiver for that purpose, and that the Receiver should sell the properties in execution of the order, and there was an application for other incidental reliefs. Das J. refused that application. Prom his refusal this appeal is brought. This suit was begun in 1924. The plaintiffs were at that time the managing agents of some collieries which belonged to Raja Pramatha Nath Maliah, the collieries I understand being situated on the land of the Raja. The plaintiffs lent to the Raja a sum of four lacs of rupees for the purpose of working or developing the collieries. That money has not been repaid. This suit was brought in 1924 to recover the money and was compromised and a consent decree passed whereby the Raja submitted to a decree for rupees four lacs with interest at 101/2 per cent. per annum. The defendant failed to make payments under the decree and on 15th December 1928, a Receiver was appointed of one of the collieries belonging to the defendant with liberty to sell the same. The Receiver was unable to sell the colliery and ultimately gave up possession of the same. The debt remained unsatisfied. In 1935 the plaintiffs applied for leave to execute the decree for the sum then owing namely Its. 5,01,860. That application was dismissed by Panckridge J. on 13th February 1936. The plaintiffs appealed against that order and the appeal was settled by a consent order made on 22nd July. 1936. The terms of the consent decree are numerous, but the first which is most important is as follows:

That the amount due to the petitioner on the said date (22nd July 1936) is fixed at Rs. 4,50,000 including costs of the appeal, and the said amount is to carry interest at 6 per cent. per annum until payment.

2. Paragraph 2 of the terms was:

The payment of the decretal amount was guaranteed by the defendant's two sons Kumar Pashupati Nath Maliah and Kumar Kshitipati Nath Maliah.

3. There was a provision that certain properties specified in the schedule should be charged for the payment of this decree and para. 10 in terms provides:

That Mr. Provash Chandra Roy is appointed Receiver of the charged properties at a remuneration of 5 per cent. on the amount realised by him and on the personal security of Rs. 50,000 to be furnished by R. B. Sukhlal Karnani. The said Receiver will however not take possession of the properties charged until after one year from the date hereof and then too if the sum of Rs. 3,50,000 at least has not been paid by the defendant and his sons.

4. There was another term, which provides that the defendant and/or his sons will have liberty to pay the decretal amount by instalments, but that if within one year Rs. 3,50,000 was paid then that sum would be accepted in full settlement of the decree. The Receiver was not to take possession for one year. However, the defendant took steps to have himself declared a disqualified proprietor of these lands and was declared by the Government of Bengal to be a disqualified proprietor so that on 1st June 1937, the Court of Wards took possession of the estate of the defendant. That was of course before the Receiver could take possession. No part of the decretal amount, namely, Rs. 4,50,000 has been paid, nor until 1942 was any interest paid on the decretal amount. The annual amount of interest payable on the decretal amount is Rs. 27,000. The Raja has died and has been succeeded in inheritance by his two sons who have been referred to as the Kumars. The estate is managed on behalf of the Court of Wards by the elder of the two sons together with a pleader who was appointed by the Court of Wards. The defendants have sheltered themselves behind the provisions of Section 10C, Court of Wards Act. This is a comparatively new section amending its predecessor and dating from 1936. It reads as follows:

(1) Where any property is in charge of the Court of Wards no civil Court shall execute any decree or order against the person or property of the ward within four years from the date of the commencement of the Bengal Court of Wards (Amendment) Act, 1935, or from the date of the assumption of charge of the property by the Court of Wards, whichever is later, and for seven years thereafter if the interest due under such decree or order be paid in full every year during the said seven years.

In calculating the period of limitation applicable to an application for the execution of a decree or order, the time during which the execution of such decree or order is barred under this sub-section shall be excluded.

5. The defendants claim that they are not bound to pay anything under Section 10C for a period of four years from 1st June 1937. About that there is no contest. It is as if execution proceedings were stayed during that time. But with regard to the words which followed, namely 'and for seven years thereafter if the interest due under such decree or order be paid in full every year during the said seven years' the defendants have claimed that if after 1st June 1941, they paid one year's interest on the decretal amount each year then they satisfied the provisions of that sub-section and no execution could be levied upon them. On 27th July 1942, the defendants paid one year's interest on the decretal amount, namely, Rs. 27,000 to the plaintiffs which the plaintiffs accepted without prejudice to their rights to execute the decree. No other sum has been paid by the defendants in respect of the said decretal amount. The plaintiffs say that the defendants have not satisfied the provisions of Section 10C (1), I have just referred to, by the payment of one year's interest and they claim in these proceedings that they are entitled to levy execution for their debt. Whether the plaintiffs or the defendants are correct depends upon the meaning that is to be given to the words I have referred to in Section 10C, namely, 'for seven years thereafter if the interest due under such decree or order be paid in full every year during the said seven years.' Das J. was of the opinion that if one year's interest on the decretal amount was paid in each of the years fifth to eleventh after the Court of Wards took over the estate then that is enough. He arrived at that conclusion on a consideration of the purposes and what he thought was the intention of the Court of Wards Act. I am unable to agree with the conclusion to which he came. The Court of Wards Act was originally intended to protect the land revenue in this province. Whether that is its main purpose to-day is another matter. Whatever the purpose of the Act, its meaning must be gathered from the words of the Act, and where words are plain and the sentence construction is straightforward then words must be given their ordinary meaning and sentences their natural construction. What is the interest due under the decree or order to be paid in full every year In my opinion it means the interest which in fact is due in each year. How much interest was due at the end of five years, that is, on 30th May 1942? Clearly five years' interest was due. That was the amount which the decree said was due. There is nothing in the Court of Wards Act, certainly nothing in Section 100 which cuts down the amount of interest due. Therefore the amount of interest due on 30th May 1942, was five years' interest, that is five times Rs. 27,000. If that was paid by the end of that day then the plaintiffs were not entitled to execute their decree. If that amount was not paid then they were entitled to execute their decree. Actually a sum of Rs. 27,000 only was paid in April 1942, so that there was due and owing to the plaintiffs on 30th, May 1942, at the end of five years, four years' arrears of interest. That was the amount' that under Section 10C the defendants must pay if they were to avoid having the decree executed against them. In my opinion the defendants not having paid that amount, were liable to have the decree executed against them. As 1 have said I am unable to agree with Das J. and in my view the plaintiffs are entitled to succeed in this appeal.

6. The plaintiffs have been standing out of their money for nearly 20 years. The sum lent originally for the purpose of developing the collieries was rupees four lacs. There were provisions for payment of interest at the rate of 101/2 per cent. per annum at the time. That time did not last long because there was a rearrangement and the decretal amount was fixed in 1936 at Rs. 4,50,000. The defendants have, I understand, started a suit against the plaintiffs claiming relief under the Bengal Money Lenders Act. They may get relief in respect of excessive rates of interest and excessive amounts if they prove that they are entitled to it. It is clear, however, that they owe the plaintiffs in this suit rupees four lacs plus interest over a long period. Whatever the rate of interest may be the total sum owing will be somewhere between Rs. 4,00,000 and RS. 4,50,000 and that is what is owing at least to-day. Meanwhile the decree of 1936 stands. As the decretal amount has not been paid and as the interest due under the decree has not been paid since the Court of Wards took over the plaintiffs are entitled to have the execution they ask for. They ask that the Receiver Mr. Provas Chandra Roy who was appointed in 1936 in respect of the scheduled properties be directed to take possession of the same and that the Court of Wards be directed to withdraw. In my opinion that order would be made. The Receiver, however, must not sell the properties without obtaining the orders of the Court.

7. This case illustrates what I have noticed in certain other cases that have come before this Court and it is that from time to time the Court of Wards, which was intended to protect the land revenue is used to protect debtors who ought to be paying their debts. Here the defendants' father whose estate and rights the defendants have succeeded to borrowed rupees four lacs 20 years ago and have paid nothing but Rs. 27,000 as interest since then. They consented to a decree in 1936 and to prevent that decree being executed they became wards of the Court of Wards. It is not the first instance that has come before me of the abuse of this Act. This appeal will be allowed with costs and the Receiver, Mr. Provas Chandra Roy, is directed to take possession forthwith of the properties charged set out at page 16 of the paper-book and the Court of Wards is directed to afford all facilities to the Receiver for the purpose. The Court of Wards is further directed to make over possession of the property to the Receiver. Certified for two counsel.

Lodge, J.

8. I agree.


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