Jt. Family of Mukund Das Raja Bhagwan
Dass &Sons Vs. State Bank of Hyderabad [1970] Insc 183 (10 September 1970)
10/09/1970 GROVER, A.N.
GROVER, A.N.
SHAH, J.C.
HEGDE, K.S.
CITATION: 1971 AIR 449 1971 SCR (2) 136 1970
SCC (2) 766
CITATOR INFO :
R 1972 SC1053 (4)
ACT:
Hyderabad Jagirdar Settlement Act, 1952, ss.
11 and 25-Suit filed after notified date with respect to post notified date
debt-Jurisdiction of Debt Settlement Board.
HEADNOTE:
Section 11 of the Hyderabad Jagirdar
Settlement Act, 1952, enables a creditor or a Jagirdar (debtor) to move the
Board under the Act for settlement of debts due by the Jagirdar.
Such application should be made on or before
June 30, 1953, the date notified under the section and if no such application
was made the debt stood extinguished. Under s.
25, if a suit or appeal or execution
proceeding was pending in relation to such debt in any court it had to be
transferred to the Board.
The respondent-bank filed a suit in July 1956
against the appellants for recovery of Rs. 40,000/and odd due in July 1954, on
account of a cash and credit account opened by the appellants with the
respondent. The suit was decreed. In December 1959, the bank filed an execution
petition for executing the decree.
On the question whether the execution
petition should be transferred to the Jagirdar Debt Settlement Board under s. 25(1)
of the Act.
HELD : There are two conditions for the
applicability of s. 25. (a) The expression 'pending' in s. 25(1) must relate to
proceedings which were pending on the notified date and could not take in any
proceedings which came to be instituted after such date; and (b) The suit and
other proceedings must be in respect of a debt with regard to which a Jagirdar
or the creditor could make an application to the Board on or before the
notified date. Thus, only those-debts which were due on or before the notified
date from a debtor or in respect of which any proceedings were pending in any
court or before the Board could be the subject-matter of the settlement by the
Board. [142 E-H] Since both the conditions for the applicability of s. 25 of
the Act were not satisfied in the present case the proceedings were not liable
to be transferred. [143 B-C] Babibai thakuji v. Fazludin Usmanbai, I.L.R.
[1954] Bom 535, approved.
Since the liability of the principal debtor
and the surety is a joint and several liability, a direction that the bank
should proceed first against the principal debtor and only afterwards for any
balance which could not be realised, against the surety, could not be granted.
[144 A-B]
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 113 to 1140 of 1966.
137 Appeals by special leave from the
judgments and decrees dated February 8, 1963 of the Andhra Pradesh High Court
in Civil Revision Petition No. 572 of 1960 and C.C.C. Appeals Nos. 63 and 66 of
1969.
M.C. Chagla and K. R. Chaudhuri, for the
appellants (in C.As. Nos. 1138 of 1966) and the respondents (in C.As. No. 1140
of 1966).
B.V. Subramanyam and A. V. Rangam, for the
respondent (in C.A. No. 1138 of 1966) respondent No. 1 (in C.A. No. 1 L 139 of
1966) and the appellant (in C.A. No. 1140 of 1966).
The Judgment of the Court was delivered byGrover,
J. These appeals arise out of two different litigations although some of the
parties are the same. Civil Appeal No. 1138 of 1966 is directed against the
judgment of the Andhra Pradesh High Court dated February 8, 1963 in a revision
petition. The other two cross appeals i.e. 1139 of 1966 and 1140 of 1966 arise
out of the judgment dated February 1, 1963 passed by the same High Court in a
suit which had been filed by the State Bank of Hyderabad on the basis of a
promissory note dated November 27, 1953 for recovery of Rs. 70,000. We shall
dispose of Civil Appeal No. 1138 of 1966 first. The Hyderabad State Bank had
filed a suit in July 1956 against the joint family business known as Mukund Das
Raja Bhagwandas & Sons and the four sons of Raja Bhagwan Das who had died,
the sons having been impleaded as defendants 2 to 5. There was a sixth
defendant also Srikishen Sookhdev Malani. According to the claim of the Bank
defendants 2 to 5 were members of a joint undivided family, defendant No. 2
being the Head Karta and Manager.
On February 2, 1951 defendant No. 2 in his
above capacity requested the Bank to grant what is called a "clean cash
credit" limit of Rs. 1,00,000 against the guarantee of defendant No. 6.
Defendant No. 2 was allowed to withdraw a sum of Rs. 99,500 by three cheques
from February 8, 1951 to February 12, 1951. After the confirmation of the cash
credit limit by the Committee of the Board of Directors of the Bank on February
22, 1951, defendant No. 2 executed a promote in favour of defendant No. 6 for
the sanctioned limit of Rs. 1,00,000. This pronote was endorsed in favour of
the Bank and thereafter the sum of Rs,99,500 which had been withdrawn pending
the sanction of the Committee was debited to the cash credit account opened in
the name of defendant No. 1 and credited to the personal account of defendant
No. 2. It was averred that defendant No. 2-Karta, Head and Manager-was drawing
monies from time to time in the cash credit account of defendant No. 1. The
drawing limit was, L235Sup.CI/71 138 reduced subsequently to Rs. 50,000. On
September 3, 1952 defendant No. 2 as Karta and Manager of joint family business
of defendant No. 1 executed a fresh pronote for the reduced limit of Rs. 50,000
in favour of defendant No. 6 which was endorsed by him in favour of the Bank.
Defendant No. 6 also executed a fresh letter of guarantee. On December 28, 1953
there was a balance of Rs. 36,201-9-8 in the cash credit account of defendant,
No. 1 and as collateral security for the same defendant No. 2 executed a fresh
pronote in favour of defendant No. 1 the guarantor for Rs. 35,000 which was
endorsed in favour of the Bank.
Defendant No. 6 further executed a fresh
letter of guarantee in favour of the Bank. Defendant No. 2 had confirmed the
amount due under the cash credit account in his letter dated July 7, 1954. On
account of this cash credit account a sum of Rs. 40,869-1-10 was due from defendants
1 to 5 as principal debtors and defendant No. 6 as guarantor together with
interest. Defendant No. 2 filed a written statement taking up various pleas
contesting the claim of the Bank but no objection was raised on the basis of
the provisions of the Hyderabad Jagirdar Settlement Act 1952 which was
published in the Official Gazette on March 18, 1952, hereinafter ,called the
"Act". Defendants 3 to 5 and defendant No. 6 also filed their written
statements contesting the claim but no plea was ,raised on the basis of the
provisions of the Act. As many as 10 issues were framed by the learned Fourth
Additional Judge, City Civil Court, Hyderabad.
The suit was decreed by the trial court
personally against the 2nd and the 6th defendant and against joint family
assets of defendants 2 to 5. In view of the fact that the 6th defendant did not
raise any serious contest to the claim it was directed that the plaintiff could
proceed in the first instance against the joint family assets of defendants 2
to 5 and person of the second defendant .and if the entire sum was not realized
then it could levy execution against the sixth defendant. Future interest was
awarded at the rate of 5 1/2 per annum. No appeal was filed against the
aforesaid decree. In December 1959 the Bank filed an execution petition in the
court of the Fourth Additional Judge. On March 10, 1960 the learned judge
passed an order transferring the execution petition to the Jagirdar Debt
Settlement Board under S. 25(1) of the Act. The Bank challenged the order of
transfer before the High Court on the revisional side. The learned single
judge, who heard the revision petition, referred three questions of law for
consideration by a larger bench. The questions referred were as follows:"1,
Whether on a true construction of s. 25(1) of the Act, it has application to
suits, appeals and applications for execution and proceedings other than
revisional in respect of debts not existing on or 139 before the notified date
under section II of the Act, pending in any civil or revenue court involving
the questions as set out in that section ?
2. 'Whether in execution proceedings relating
to decrees obtained in suits filed after the notified date, the Court could go
behind the decrees passed and trace the history of the transactions which
resulted in the liability under the decree?
3. If the answer to question (1) is in the
affirmative, whether section 2 5 ( 1 ) of the Act has to be struck down as
violating Articles 14 and 1, 9 (1 ) (f) of the Constitution ?" The first
question was answered by the Full Bench in the negative. The second question
has also similarly answered and it was held that the executing court was not
competent to reopen the case by tracing the history of the transaction which
resulted in the liability under the decree. Question No. 3 was not answered. In
accordance with the opinion of the Full Bench and on a further consideration of
the facts the learned single judge disposed of the revision petition holding
that s. 25(1) of the Act was not applicable and the order of transfer was
liable to be set aside. The executing court was directed to proceed and deal
with the execution application in accordance with law.
It is necessary to notice the historical
background and the relevant provisions of the Act in order to decide the
questions which fall for determination. By the Hyderabad (Abolition of Jagirs)
Regulation passed on August 15, 1949 the jagirs were abolished. The jagirdars
were declared entitled to a share in the jagir net income which was inalienable
except with the previous sanction of the Government. On January 25, 1950,
another Regulation called the Hyderabad Jagir (Commutation) Regulation 1359F
was enacted. It provided, inter alia, for the method of calculating the
commutation in respect of jagirs. As pointed out by the High Court the
enactment of the Regulation affected the jagirdars in a large measure. Their
former resources were not available to them to pay their debts. The creditors
were also faced with a difficult situation which affected their prospects of
recovering the loans fully. It was in this background that the Act was passed.
Its provisions were mainly borrowed from the Bombay Agricultural Debtors Relief
Act 1947. Debt was defined by s. 2(e) to mean any liability in cash or kind
whether secured or unsecured due from a jagirdar whether payable under a decree
or order of a civil court or otherwise.
Section 3 provided exceptions in cases of
five categories of debts which were not liable to be scaled down. One of those
was the debt due to a scheduled bank.
140 Chapter It containing ss. 4 to 10 dealt
with the constitution and powers of the Board for the settlement of debts.
'Section 1 1 provided that any jagirdar or his creditor could make an
application to the Board on or before such date as the Government might notify
for settlement of debts due by a jagirdar. Under s. 12 notwithstanding the fact
that no application had been filed under S. 1 1 every creditor on being
required to do so by any of his debtors had to file a correct statement before the
Board of his claims against such a debtor and similarly every debtor on being
so required by any of his creditors had to file a correct statement. According
to s. 15 if any debtor and any or all of his creditors arrived at a settlement
in respect of any debt due by the debtor to the creditor the debtor or any of
the creditors could make an application and the Board could proceed to record
that settlement in accordance with the procedure prescribed by the section.
Under s. 22 all debts in respect of which no application for adjustment or
settlement was made in accordance with the provisions of the Act were to stand
extinguished. Under s. 24 on the date fixed for a hearing of an application
made under S. 1 1 the Board was to decide as preliminary issues whether a
person for the settlement of whose debt an application had been made was a
debtor and whether the total amount of debts due from such person on the date
of the application exceeded the sum of Rs. 5,000. If the Board found that such
a person was not a debtor or that the amount was less than Rs. 5,000 the
application was to be dismissed. Section 25 provided for transfer of pending
suits, appeals, applications and proceedings to the Board. This section may be
reproduced in extension :S.25 "(1) All suits, appeals, applications for
execution and proceedings other than revisional in respect of any debt pending
in any civil or revenue court shall, if they involve the questions whether the
person from whom such debt is due is a debtor and whether the total amount of
debts from him on the date of the application is less than Rs. 5,000 be
transferred to the Board.
(2) When an application for adjustment of
debts made to a Board under section 1 1 or a statement submitted to a Board
under section 21 includes a debt in respect of which a suit, appeal,
application for execution or proceeding other than revisional is pending before
a civil or revenue court, the Board shall give notice thereof to such other
court.
On receipt of such notice, such other court
shall transfer the suit, appeal,, application or proceeding, as the case may
be, to the Board.
(3) When any suit, appeal, application or
proceeding is transferred to the Board under sub-s. (1) or sub-s. (2), the
Board shall proceed as if an application under section 11 had been made to it.
(4) If the Board, to which any suit, appeal,
application or proceeding is transferred under sub-s. (1) or subsection (2),
decides the preliminary issues mentioned in clause (a) of sub-section (1) of
section 24 in the negative or mentioned in clause (b) of the said subsection
(1) in the negative, it shall retransfer the suit, appeal, application or
proceeding to the court from which it had been transferred to itself after the
disposal and subject to the result of the appeal where an appeal is filed, and
after the expiry of the period prescribed for an appeal where no appeal is
filed.
(5) When any suit, appeal, application or
proceeding is retransferred to the court under subsection (4) the said court
shall proceed with the same." .lm0 141 Section 28 dealt with the mode of
taking accounts and s. 35 provided for the scaling down of the debts payable by
debtors in accordance with their paying capacity in the manner indicated
therein. An award was to be made according to s. 36 and further scaling down of
debts could be done under s. 37. In terms of s. 11 the Government notified June
30, 1953 as the last day for settlement of debts due by jagirdars. The Full
Bench of the High Court quite rightly observed that s. 11 was the basic provision
enabling the creditor or the debtor to move the Board under the Act for
settlement of debts. The Act also recognised other modes which would be
tantamount to the making of such an application to the Board so as to confer
jurisdiction on it to settle debts in accordance with the procedure prescribed
by the Act. Section 25 embodied one of these modes. If a suit or appeal or
execution proceeding etc. was pending in relation to such debt in any court it
had to be transferred to the Board. The Board would proceed to deal with it as
though an application under s. 11 had been made. The suit or other proceedings
had to relate to a debt in respect of which an application under s. 11 could
have been made to the Board. It was also necessary that 142 the proceedings
should be pending in the court on the date notified. This Would follow from the
provisions of s. 11. There could be no difficulty about proceedings which were
taken in a court subsequent to an application made to the Board under s. 11
That proceeding had necessarily to be transferred on the notice given by the
Board. The point which was canvassed before the Full Bench of the High Court
was that the expression "pending" occurring in s. 25 was of wider
amplitude and covered all cases of debts whether incurred before or subsequent
to the notified date.
The High Court, after an exhaustive
discussion of the various provisions of the Act, came to the conclusion that
there were clear indications in them that the debts to be determined and scaled
down by the Board were only such debts as were existing on the date of the
application provided for by s. 11. This is what was finally observed:
"Thus the entire scheme of the Act makes
it abundantly clear that matters concerned with the debts prior to the date of
application alone (which date of course cannot extend beyond the notified date
under section 11) are within the cognisance and competence of the Board. It
follows that only cases relating to such debts and no other debts are liable to
be transferred to it under s. 25(1)." In our judgment the High Court came
to the correct conclusion that the expression "pending" in s. 25(1)
must relate to proceedings which were pending on the notified date and could
not take in any proceedings which came to be instituted after such date. The,
other condition for the applicability of s. 25 was that the suit or other
proceedings must be in respect of a debt with regard to which a jagirdar or the
creditor could make an application to the Board on or before the date which the
Government had notified for settlement of debts due by the jagirdar. A close
examination of s. 22 puts the matter beyond controversy. If no application had
been made under s. 11 within the period specified therein or for recording a
settlement made under s. 15 every debt due by the debtor was to stand
extinguished. In a case of the present kind a debt would have stood
extinguished if no application had been made under s. 11 within the specified
period. Thus the material date would be the one notified by the Government
under s. 11 and only those debts which were due on or before that data from a
debtor or in respect of which any proceedings were pending in a court or before
the Board could be, the subject matter of settlement by the Board. It may be
mentioned that in Babibai Thakurji v. Fazludin Usmanbal(1) a similar provision
of (1) I.L.R. [1954] Bom. 535.
143 the Bombay Agricultural Debtors' Relief
Act on which the provisions of the Act were modelled came up for consideration
and it was said with reference to s. 19(1) of that Act that only those suits
were liable to be transferred which were pending on the date when an
application for adjustment of debts could have been made under s. 4 (which
corresponded to s. 1 1 of the Act). In other words, if a suit was filed after
the time to make an application for adjustment of debts had expired such a suit
was not liable to be transferred. Since both the conditions for the
applicability of s. 25 of the Act were not satisfied in the present case the
decision. of the High Court must be upheld and the appeal (C. A. 1138/66)
dismissed.) In order to avoid further proceedings which will entail needless
expense learned counsel for the parties have agreed that the judgment-debtots
will pay the decretal amount in four equal annual installments. The first installment
which will represent 1/4th of the decretal amount shall be deposited in the
executing court on or before the first January 1971.
The subsequent installments each year shall
be similarly deposited on or before first January. In case of failure on the
part of the judgment-debtors to make the deposit of any one of the installments
in time the entire amount due shall become recoverable at once. As and when the
said deposit is made the decree-holder will be entitled to withdraw the same.
An order is directed to be made in terms of this settlement between the
parties.
Civil Appeals Nos. 1139 & 1140/66 arise
out of the decree in C.C.C.A. Nos. 63 & 66 of 1959 dated February 1, 1963
in O.S.
No. 37 of 1958, So far as the appeal against
the Bank is concerned there is no merit in it because it has been proved and
that finding could not be successfully assailed before us that the debt in
question was a post notification debt.
In other words it came into existence after
June 30, 1953 which was the date notified by the Government as the last date
for settlement of debts due by jagirdars by an application made under s. 11 of
the Act. In view of our decision in the connected appeal (C.A. 1138/66) s.
25(1) of the Act was, not applicable to the suit filed for the recovery of such
a debt. Civil Appeal No. 1139 of 1966, therefore, has no merit and is hereby
dismissed.
Civil Appeal No. 1140 of 1966 which has been
preferred by the Bank involves a very short point. According to the decree of
the High Court the plaintiff, namely, the Bank was to proceed and execute the
decree against the second defendant in the first instance and was to proceed
against the first defendant only afterwards for such balance amount which could
not be realized from the second defendant. It is not disputed that the
liability of the first and the.
second defendant was joint and several and
the decree of the High Court, proceeded on the basis of some equitable relief
144 which was sought for and granted to the first defendant. We are unable to
hold and no such principle or statutory provision has been pointed out to us
that any such equitable relief could be granted in a suit of the nature filed
by the Bank against the two defendants. We would, accordingly, allow this
appeal to the extent of deleting clause (2) of the decree and adding in clause
(1) the following words:
Both the defendants shall be jointly and
severally liable for the payment of the decretal amount.
In view of the entire circumstances the
parties in all the appeals are left to bear their own costs in this Court.
V.P.S.
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