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Paramanand Lokumal and ors. Vs. Khudabadi Bhaibund Co-operative Credit Bank Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 525 of 1963
Judge
Reported inAIR1971Cal261,75CWN428
ActsDebt Law; ;Displaced Persons (Debts Adjustment) Act, 1951 - Section 22
AppellantParamanand Lokumal and ors.
RespondentKhudabadi Bhaibund Co-operative Credit Bank Ltd. and ors.
Appellant AdvocateApurbadhan Mukherjee and ;Provash Chandra Basu, Advs.
Respondent AdvocateC.C. Ganguly and ;Amiya Kumar Chatterjee, Advs. for Respondent No. 1
Excerpt:
- .....section, namely, section 5. in this application, the appellants claimed to be in the position of joint debtors along with respondents nos. 2-4 with liability to the extent of 1/4th of the above amount, as there were4 joint debtors according to the appellants, and prayed for apportionment and adjustment on that footing under the above statutory provision. the application was opposed by the contesting creditor respondent no. 1, who took objection that the above application was not maintainable at the instance of the appellants, they not being joint debtors under the relevant provision of section 22 of the above act. this objection succeeded before the learned trial judge, who rejected the appellants' prayer for apportionment, as made by them, and held, that the appellants, as sureties,.....
Judgment:

P.N. Mookerjee, J.

1. The predecessor of the applicants before us was a surety in respect of the debt of the predecessor in interest of respondents Nos. 3 and 4, on which the creditor respondent No. 1 obtained an award from the Arbitrator under the Bombay Cooperative Registration Act for Rupees 49410-12-9 P., comprising Rs. 46500/- on account of principal, Rs. 2888-2-9P on account of interest and Rs. 22-10-0P, on account of cost. The said amount of Rs. 49410-12-9P was thus due from the predecessor of respondents Nos. 3 and 4 as principal debtors to the respondent No. 1 on 17th October, 1946, and from the appellants as surety. In respect of this claim, the said appellants applied for adjustment according to the provisions of Act 70 of 1951 (Displaced Persons (Debts Adjustment) Act of 1951) under its relevant section, namely, Section 5. In this application, the appellants claimed to be in the position of joint debtors along with respondents Nos. 2-4 with liability to the extent of 1/4th of the above amount, as there were4 joint debtors according to the appellants, and prayed for apportionment and adjustment on that footing under the above statutory provision. The application was opposed by the contesting creditor respondent No. 1, who took objection that the above application was not maintainable at the instance of the appellants, they not being joint debtors under the relevant provision of Section 22 of the above Act. This objection succeeded before the learned trial Judge, who rejected the appellants' prayer for apportionment, as made by them, and held, that the appellants, as sureties, as aforesaid, were liable to pay the entire outstanding amount under the above award together with interest, payable under the above Act, amounting to a total of Rs. 42250-12-9P. The learned trial Judge, however, acceded to the appellants' prayer for instalments for payment of the above amount to this extent that he gave them liberty to pay the above amount by annual instalments of Rs. 12,000/- subject to the proviso that in default of payment of a single instalment, the entire amount would fall due at a time and the creditor respondent No. 1, would be entitled to realise the entire amount, then due, or, the outstanding amount, from the assets of the appellants in India and also from the amount, which may be awarded as compensation to them. Against this order, the present appeal has been filed by the appellants, whose contention is that their prayer for apportionment on the footing of their liability being 1/4th ought to have been granted. The creditor respondent No. 1 has filed a cross-objection claiming that the learned trial Judge was not justified in deducting from the amount, due to the said respondent No. 1, the payment of Rs. 10500/- on account of interest and, secondly, that the learned trial Judge was in error in his calculation of interest, as awarded by him, namely, at the rate of 6 per cent, per annum from 15th June, 1947, till 28 December, 1952, and at the rate of 1 per cent, per annum thereafter. In view of the above contentions, we have to consider whether the appellants are entitled to be treated as joint debtors along with the other surety and the principal debtors under Section 22 of the above Act, whether the pre-Act Payment of Rs. 10500/- as interest was liable to be ignored under Section 49 of the above Act for purposes of determining the rights and liabilities of the parties in question and whether the learned trial Judge made any clerical or arithmatical error in the matter of calculation of interest, as claimed by the cross objector respondent No. 1. So far as the appellants' plea of being entitled to apportionment as joint debtors under Section 22 of the above Act is concerned, it is clear that, in view of Clause (g) of the said section, the appellants as sureties, were placed in a different position under the above statute from debtors and they could not claim to be classified as debtors along with the principal debtors and the other surety and should not be treated as joint debtors for the purpose. Indeed, the very purpose of above Clause (g) appears to us to distinguish and differentiate the case of the sureties from the case of debtors.

2. We, would, accordingly, hold that the learned trial Judge was right in his interpretation of the above statutory provision in coming to his ultimate conclusion against the appellants on the question of their eligibility to be treated as joint debtors so as to be entitled to apportionment of the debt, as claimed by them. The appeal, therefore, would fail and it will be dismissed.

3. As to the cross-objection it appears to us that, so far as the first objection, raised therein, is concerned, namely, that the pre-Act payment of interest could not be taken into account in view of Section 49 of the above Act in determining the dues and liabilities under the above Act, it cannot be accepted. Indeed, the position is made clear by Sub-section (2) of the above section and, in view of the same, whatever intepretation is put on Sub-section (1), this objection, taken by the respondent No. 1 cross-objector, would fail.

4. We would, accordingly, reject this part of the cross-objector's claim.

5. On the question of calculation of interest, however, it appears to us that the learned trial Judge was, obviously, in error. Indeed, the matter being checked up by the learned Advocate on both sides, they agreed that, on account of miscalculation by the learned trial Judge, the amount of interest has been wrongly reduced by Rs. 1000/-, and, accordingly, the respondent No. 1 cross objector would be entitled to a further amount of Rs. 1000/- on account of interest over and above the amount, allowed to him by the learned trial Judge; in other words, the total amount, payable to the respondent No. 1 by the appellants, would be Rs. 43,250-12-9P. in place of Rs. 42,250-12-9P., as determined by the learned trial Judge.

6. On the question of instalments, also, a point was taken in the cross-objection. The matter, however, does not seem to be open to challenge or argument by the cross objector. To the same, no objection appears to have been taken before the learned trial Judge and, as a matter of fact, the learned trial Judge has recorded, in his order under appeal, that, to the instalments,granted by him, no objection was raised on behalf of the creditor respondent No. 1. We would, therefore, disallow this objection, raised by the respondent No. 1 before us.

7. In the result, the appeal will fail and it will be dismissed and the cross-objection will be allowed only to this extent that the respondent No. 1, will be entitled to a further amount of Rs. 1000/- on account of interest over and above the amount of Rs. 42,250-12-9P, allowed to him by the learned trial Judge, or, in other words, his dues from the appellants will be raised to Rupees 43,250-12-9P and the same will be payable, as ordered by the learned trial Judge, subject to this that the amount, if any, still outstanding, may be allowed to be paid within 6 months from this date, in default, the same will be recoverable by due process of law.

8. The appeal and the cross objection will be disposed of as above and the decision of the learned trial Judge will be modified, as indicated hereinbefore.

9. There will be no order for costs, either in the appeal or in the cross objection.

Amiya Kumar Mookerji, J.

10. I agree.


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