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Gostha Behari Dutt Vs. (Dead) Palaram Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Case NumberCivil Revn. Nos. 1747 and 1913 of 1946
Judge
Reported inAIR1950Cal102
ActsBengal Agricultural Debtors Act, 1936 - Sections 8, 18, 33 and 39; ;Debt Law; ; Bengal Agricultural Debtors Rules - Rules 145, 146, 147 and 148
AppellantGostha Behari Dutt
Respondent(Dead) Palaram Pal and ors.
Appellant AdvocateAtul Chandra Gupta and ;Purushottam Chatterjee, Advs. in Civil Revn. No. 1747 of 1946 and ;Naresh Chandra Gupta and ;Urukramdas Chakravartti, Advs. in Civil Revn. No. 1913 of 1946
Respondent AdvocateNaresh Chandra Gupta and ;Urukramdas Chakravartti, Advs. in Civil Revn. No. 1747 of 1946 and ;Atul Chandra Gupta and ;Purushottam Chatterjee, Advs. in Civil Revn. No. 1913 of 1946
Excerpt:
- .....in a mortgage suit, purporting to act under section 33(a). bengal agricultural debtors act. the learned judge has held that the award pleaded by the mortgagor as a bar to the suit was without jurisdiction and void. but he has also held that if the award was void, the proceedings before the board were in the eye of law still pending and consequently the mortgage suit was liable to be stayed under the provisions of section 33.2. rule 1747 of 1946 was taken out by the mortgagee and his complaint is that the decision of the learned subordinate judge that the suit must be stayed is erroneous.3. rule 1916 of 1946 was taken out by the mortgagor and he challenges the decision of the learned judge that the award was without jurisdiction and void.4. in order to appreciate the respective.....
Judgment:

Chakravartti, J.

1. These are two Rules directed against the same order passed by the learned Subordinate Judge, Bankura, on 23rd August 1946, whereby he stayed further proceedings in a mortgage suit, purporting to act under Section 33(a). Bengal Agricultural Debtors Act. The learned Judge has held that the award pleaded by the mortgagor as a bar to the suit was without jurisdiction and void. But he has also held that if the award was void, the proceedings before the Board were in the eye of law still pending and consequently the mortgage suit was liable to be stayed under the provisions of Section 33.

2. Rule 1747 of 1946 was taken out by the mortgagee and his complaint is that the decision of the learned Subordinate Judge that the suit must be stayed is erroneous.

3. Rule 1916 of 1946 was taken out by the mortgagor and he challenges the decision of the learned Judge that the award was without jurisdiction and void.

4. In order to appreciate the respective contentions of the parties, it is necessary to refer to the facts in some detail. It appears that the transactions between the parties were numerous and of a complicated character. The first transaction was on 6th August 1920, when the mortgagor took a loan of Rs. 4999 from the mortgagee upon an earlier mortgage. On 14th April 1980, the mortgagor executed a simple money bond for a sum of Rs. 5182-10-6 pies which is said to have represented the resultant liability arising out of a number of previous loans. On 12th June 1933, the mortgagor executed an instalment mortgage bond for a sum of Rs. 19,700. This sum is said to have represented the amount due upon two previous bonds, as also a certain further amount as future interest. The bond provided that the amount would be payable in a number of instalments, but in case of default in the payment of any one of the instalments, interest at a certain rate would have to be paid and if there were three successive defaults, the whole amount would become due. On 19th December 1939, the mortgagor made an application under Section 8, Bengal Agricultural Debtors Act to the special Debt Settlement Board at Bankura. In columns 6 of that application, he mentioned only two debts owing to the present mortgagee. One was the debt of Rs. 4,999 which was the consideration for the first mortgage and the other was a debt of Rs. 1,999 which was one of the debts taken into consideration in arriving at the amount of the second bond. The bond of 1933 was not mentioned in column 6. What the mortgagor in fact did was that he inserted a long and somewhat rambling statement in Schedule B of the application wherein he stated that the mortgage bond for Rs. 19,700 was taken from him by undue influence and fraud and that as a matter of fact no such amount was due from him to the mortgagee. There appears to have been some controversy before the Special Debt Settlement Board as to what the amount of the debt was and the Board ultimately came to an informal decision that the amount was Rs. 7,329-1-0, Upon that finding the Board asked for the sanction of the Collector which in due course was granted.

5. An application was thereafter made to the Sub-Divisional Officer by the mortgagor for the transfer of the case from the Bankura Special Debt Settlement Board to the ordinary Board at Midnapore in Bankura. It is not disputed that neither of the parties resided within the jurisdiction of that Board, but the application was made on the ground that the President of the Board which had territorial jurisdiction is the case was related to the mortgagee and, therefore, the case could not properly be transferred to that Board. The application succeeded and the Sub-Divisional Officer made the necessary order, transferring the case to the ordinary Board at Midnapore. The Board at Midnapore eventually entered upon an adjudication of the liabilities of the mortgagor and eventually decided that the amount due from him to the present mortgagee was Rs. 3,000. An award embodying that decision of the Board followed in due course.

6. The mortgagee preferred an appeal from the decision of the Board to the appellate officer, but the appeal was rejected as barred by limitation. An application in revision to the District Judge also failed and a further application to this Court met with the same result. So far as this Court was concerned, it was only stated is the judgment that the learned Judges saw no reason to interfere in revision with the decision of the authorities below.

7. The present suit was thereafter brought by the mortgagee, claiming to recover a sum of Rs. 23,476-0-6 pies upon an instalment mortgage bond of 12th June 1933. In the plaint he made a reference to the proceedings before the Debt Settlement Board and stated that the mortgagor had deliberately and fraudulently omitted to mention the debt of 1933 in his application to the Board and thereby contrived to procure an adjudication under the Bengal Agricultural Debtors Act. The plaint was subsequently amended and an allegation that the Board at Midnapore had no territorial jurisdiction to deal with the case at all was added.

8. The mortgagee put forward three grounds as to why the so-called award under the Bengal Agricultural Debtors Act could not affect his suit. It was contended in the first place that inasmuch as the mortgagor had not mentioned the debt of 1933 at all, the award did not purport to deal with that debt and consequently the existence of the award was no bar to the suit being dealt with by the civil Court. It was con-tended in the second place that inasmuch as the mortgagor had denied all liability to his creditors, the application to the Board was not maintainable at all. It was contended lastly that, in any event the total amount of the debts owing by the mortgagor having been in excess of Rs. 25,000 no Debt Settlement Board could deal with his debts and that, in particular, the Board at Midnapore had no territorial jurisdiction.

9. The learned Subordinate Judge held that the debt of 1933 had, in fact been mentioned in the mortgagor's application to the Board, inasmuch as he had mentioned the earlier debts, the dues upon which really formed the consideration for the bond of 1933. The award, in the view of the learned Judge, did purport to deal with the debt of 1933 as well. The learned Judge held farther that the mortgagor bad not denied any liability to any creditor but had admitted some of his debts. Consequently, the learned Judge proceeded to observe the application before the Board was not an application by a debtor who did not admit any liability to any creditor and, therefore, it was in order. The learned Judge, however, gave effect to the third objection of the mortgagee which, as already stated, was to the effect that the Board at Midnapore had no territorial jurisdiction to deal with the case. In the opinion of the learned Judge, the power of transfer conferred by Section 39 of the Act was, subject to the rules made in that behalf and under the section, read with the rules the Collector could only transfer a case to a Board having territorial jurisdiction. Inasmuch as the Midnapore Board had admittedly no territorial jurisdiction, the learned Judge concluded that the award made by it was without jurisdiction and void.

10. Having so held, however, the learned Judge proceeded to hold that his finding that the award was without jurisdiction and void would not avoid the mortgagor's objection to his proceeding with the suit, inasmuch as the award being out of the way, the proceeding before the Debt Settlement Board must be held to be still pending. In that view he held that although Clause (b) of Section 33 had no application to the facts of the case before him, Clause (a) had, and by reason of the provisions of that clause he felt himself bound to direct stay of the suit. It is against that decision that the present rules were obtained.

11. I may observe here that if the learned Judge was right in his view that Section 33 (a), Bengal Agricultural Debtors Act applied to the case, the proper course for him would have been not to stay the suit, as he did, but either to dismiss it or to return the plaint. That, however, is another matter.

12. In support of the rule taken out by the mortgagee, it was contended by Mr. Gupta that the award did not affect the suit at all, inasmuch as the mortgagor tad not included the mortgage debt of 1933 in his application and consequently there was no award with respect to that debt. He contended in the alternative that assuming that the award covered that debt as well, it must follow that the mortgagor's application included the debt and if it did, the total amount of debts owing by the mortgagor would clearly exceed Rs. 25,000 and consequently the case would be one beyond the jurisdiction of any Debt Settlement Board. Mr. Gupta further contended that the conclusion of the learned Judge that the Midnapore Board had no territorial jurisdiction to deal with the case was well founded, but he complained that the learned Judge should have held that in spite of the award being invalid, the suit was liable to be stayed, in the view that the proceedings before the Debt Settlement Board must be deemed to be pending.

13. Dr. Sen Gupta, appearing on behalf of the mortgagor, contended that the power of transfer given by Section 39 of the Act was absolute in so far as such power had not been specifically restricted by Rules. He pointed out that them was no Rule which prevented the Collector from transferring a case to a Board having no territorial jurisdiction over the properties and accordingly contended that the decision of the learned Judge on this part of the case was erroneous.

14. Dr. Sen Gupta contended in the second place that the Board had pecuniary jurisdiction in the present case inasmuch as the Board had found informally, as it was entitled to do, that the amount of the mortgagor's debt was below Rs. 25,000 under the proviso to Rule 145. Dr. Sen Gupta contended further that there had been no suppression of the debt of 1938, reference to which had been clearly made in the history of the debt. His argument was that inasmuch as the mortgagor had referred to the basic debts and inasmuch as the consideration for the bond of 1933 was nothing else than the amount due upon those earlier debts the debt of 1933 had been mentioned, both in substance and in fact.

15. In my opinion, the contention urged on behalf of the mortgagee is clearly right. It cannot be pretended that the relevant columns in the mortgagee's application before the Debt Settlement Board contain any entry as regards the debt of 1933. On the other hand, the statement made by him in the column reserved for the history of debts, makes it perfectly clear that he did not wish the debt of 1933 to be taken into account at all, inasmuch as in his view the bond did not represent any real liability and had been obtained by undue influence and duress. The object of framing the application in that form is, to my mind, perfectly clear. If the debt of Rs. 19,700 had been included in a straightforward manner in column 6 of the application where it ought to have been included, the total amount of the mortgagor's debts would obviously exceed Rs. 25,000 and the mortgagor could not possibly get what perhaps he expected, viz., a friendly adjudication by the Debt Settlement Board. The device he adopted was to make no reference to that debt in the body of the petition at all but to make an indirect reference to it in the column reserved for the history of the debt. I am of opinion that since the mortgagor deliberately omitted to ask for an adjudication on this debt and relegated whatever reference he made to it to Schedule B, he is not entitled to say that his application included this debt, or that the debt is covered by the award which came subsequently to be made. If that be so, the debt was not included in his application made under Section 8 of the Act, nor was any amount payable with regard to it under the award and it must follow that neither of the two clauses of Section 38 applies.

16. I am also of opinion that the alternative argument of Mr. Gupta is equally sound. Assuming as the learned Judge found and as Dr. Sen Gupta contended, that the award does cover the debt of 1933, it must follow that the application included that debt. If it did, I am of opinion that the total amount of the debts owing by the mortgagor for the purposes of the jurisdiction of the Board would be clearly on the face of his own application, above Rs. 25,000 and the Board in dealing with the mortgagor's application acted without jurisdiction. It was contended by Dr. Sen Gupta that what is material for the purposes of jurisdiction was not the claim by the creditor, but the decision of the Board, although it might be an informal decision as to the amount of the debt. The learned Judge below has followed the same line of reasoning more or less, because be observes at more places than one in his judgment that the debt informally determined by the Bankura Special Debt Settlement Board fell below Rs. 25,000 and that accordingly no question of pecuniary jurisdiction would arise. In my opinion, this view of the rules is clearly wrong. Dr. Sen Gupta referred to the terms of Rules 144 and 145 and contended that the latter of them made it perfectly clear that the Board had jurisdiction to decide by way of a preliminary point the amount of the debt due, on the principles of Section 18 and that, in a case of doubt or dispute, it was its duty to do so. It was the result of this informal determination which, according to Dr. Sen Gupta, would determine the jurisdiction of the Board. In my opinion, what Rule 145 contemplates is not a determination of the debt actually due but a decision on a contest as regards what the amount of a claim actually is. The matter, in my view, is placed beyond doubt by the form which has been prescribed for applications under Section 8. Column 8 of that form is headed 'Total claim by the creditor.' Column 9 is headed 'Amount, if any, admitted by the debtor.' There is no other column. It is perfectly clear that when an application is made and the Board has to decide whether it has jurisdiction or not, having regard to the amount of the debt, the only amount which can furnish the necessary test is the amount claimed by the creditor. It is quite true that the Board may ultimately find the actual amount due to be much lower, but that decision it would arrive at in the course of the settlement and I fail to understand how a decision on that matter can be undertaken for the purpose of deciding whether the Board has or has not jurisdiction. It is elementary that the jurisdiction of the Tribunal is determined by the allegations contained in the plaint, or in other words by the claim made. If that very matter is decided in advance for the purpose of ascertaining whether the Tribunal has jurisdiction or not, the position Would be that the Tribunal concerned assumes jurisdiction after deciding the main question on the merits.

17. Referring to the Rules, the relevant Rules in the present case are in my view, Rules 146 and 147. Rule 146 provides that if the sum total of all debts mentioned by the debtor in his application exceeds Rs. 5000 but does not exceed Rs. 25,000 the Board shall forward the application to the Collector for his sanction. It would be noticed that what the Rule contemplates is debts 'mentioned' by the debtor. Sub-rule (2) of the Rule provides that if the amount so mentioned by the debtor exceeds Rs. 25,000 the Board shall not entertain the application. Again what the Sub-rule contemplates is the amount 'mentioned' by the debtor. In neither case is it the amount admitted by the debtor or the amount found by the Board as due, whether formally or informally. Rule 147 provides for cases other than those mentioned in Rule 146, that is to say, cases where the amount mentioned by the debtor exceeds Rs. 5000 but does not exceed Rs. 25,000. There is another Rule which seems to exclude altogether the view put forward by Dr. Sen Gupta. That Rule is Rule 148 which provides that if, in the case where the sum total of all the debts exceeds Rs. 5000 but does not exceed Rs. 25,000 the Collector grants sanction, the Board shall, subject to Rule 139, record the order of determination with regard to each debt under Sub-section (2) of Section 18 and shall then proceed to dispose of the application according to law. This Rule makes it perfectly clear that determination under Section 18 must take place after the Collector has granted sanction and cannot precede it. I am of opinion that both the form prescribed for an application under Section 8 land the Rules framed under the Act make it perfectly clear that the amount which must furnish the test as to whether the Board has pecuniary jurisdiction or not is the amount of the claim of the creditor and not the amount admitted by the debtor, or determined by the Board, at least in a case where the amounts mentioned by the debtor themselves make up a total in excess of RS. 25,000.

18. If then the application in the present case included the debt of Rs. 19,700, there can be no doubt that the total amount of the debts exceeded Rs. 25,000 and it must follow that the Board had no jurisdiction whatever to deal with the mortgagor's application. If the award is not invalid for the reason that the Board had no territorial jurisdiction, it is certainly invalid for the reason that the debt exceeded the pecuniary jurisdiction of the Board. The award, therefore, has no legal existence and cannot be a bar to the entertainment of the suit by the learned Judge.

19. As regards the territorial jurisdiction, Dr. Sen Gupta contended that there were no limitations on the powers of the Collector to transfer a case save those prescribed by the Rules and he pointed out that the Rules did not prevent the Collector from transferring a case to a Board which had no territorial jurisdiction over the parties. In my view, this construction of Section 39 is not correct. The section reads as follows:

The Provincial Government may authorise the Collector subject to rules made under this Act, to transfer from one Board to another, for disposal, applications made under Section 8.'

20. It will be noticed that the Act by itself does not give the Collector any power of transfer. It leaves it to the Provincial Government to authorise the Collector and such authorisation must be subject to rules made under this Act. It is not the power of transfer which is so restricted, but the power of authorisation given to the Provincial Government. This section, read with the Rules, seems to me to make it perfectly clear that the limits of the Collector's power to make an order of transfer must be found within the Rules framed by the Provincial Government. In other words, the Collector will have power to make an order of transfer only in those cases where he has been authorised by the Rules to do so ; that is to say only if there is any specific Rule authorising the Collector to make a transfer to a Board which has no territorial jurisdiction over the parties, the Collector has such power. In my opinion, the view taken by the learned Judge as to the absence of territorial jurisdiction in the Midnapore Board is perfectly correct and the award is void for that reason as well.

21. The learned Judge, however, was not right in holding that if the award was without jurisdiction and void, the proceedings before the Debt Settlement Board must be deemed to be still pending. He seems to me to have overlooked the fact that he was not sitting either as an appellate officer or as a District Judge in revision but only as a civil Court. Whatever his view as to the validity of the award might be, the award would remain as the final decision in the proceedings under the Bengal Agricultural Debtors Act till it was set aside by an appropriate authority. The learned Judge, sitting as a civil Court could not set aside the award, nor could any declaration made by him extinguish it. For example, neither of the parties could, on the authority of the view taken by the learned Judge, approach the officer now discharging the functions of the Board and ask him to resume the proceedings under the Bengal Agricultural Debtors Act on the footing that they are still pending. If the matter had come up to a District Judge under, Section 40A of the Act, or come up to this Court in revision and it was held that the award was void, the effect would certainly be to restore the case to the stage at which it was before the award was made and the proceeding would have to be completed in due course by a final decision. But the question having arisen before the civil Court in a different chain altogether, the civil Court might disregard an award if it found that it was without jurisdiction, but it could mould its own procedure in the view that its decision would have an actual effect on the proceedings before the Board and revive a proceeding which had already terminated in an award. The learned Judge, in my view, was bound to take the proceeding under the Board as it was and he was not right in law in holding that in view of his decision as to the validity of the award, the proceeding before the Debt Settlement Board must be deemed to be pending.

22. The position, therefore, is that the award pleaded by the mortgagor is an invalid award both because the Board had no territorial or pecuniary jurisdiction to deal with the case and also, as we hold, because the debt which is the subject-matter of the mortgage suit was not included in the mortgagor's application and was not in fact dealt with by the award. The result, therefore, is that neither of the clauses of Section 33 has any application and there is no bar to the learned Judge proceeding with the suit.

23. We desire to make it clear that the effect of the view we take of the award is that the debt concerned is not covered by any valid award under the Bengal Agricultural Debtors Act and therefore there will be no bar to the learned Judge exercising his powers under the Bengal Money-lenders Act, should that Act be otherwise applicable.

24. In the result, civil Rule No. 1747 of 1946 is made absolute. The order of the learned Judge and so much of his judgment as is not upheld by this judgment are set aside and he is directed to proceed with the suit.

25. Civil Rule No. 1913 of 1946 is discharged.

26. The petitioner in Rule 1747 of 1946 will get his costs from the opposite party--the hearing fee being assessed at three gold mohurs. There will be no order as to costs in Rule 1918 of 1946.


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