Decided on August 09,1963

CHACKO Appellant
Subramania Iyen Respondents


- (1.)The appellant's father had mortgaged landed properties to the late father of the respondent for Rs. 42,500/- and taken them back on a lease under the mortgagee. On the averment that the consideration for the mortgage represented old debts under promissory notes and hypothecations and that on proper account being taken of the actual advances and the returns by way of interest and towards the principal nothing remained due to the respondent, the appellant filed an application under S.8 of the Kerala Agriculturists Debt Relief Act, 1958 (hereinafter referred to as 'the Act') praying for a declaration that the debt between the parties had been discharged and, in case the court finds any amount remaining due, for leave to discharge the same in instalments under S.4 of the Act. The respondent raised a preliminary objection that such an application does not lie under S.8 of the Act. The court below has accepted that objection and dismissed the application as incompetent. In this appeal, the appellant canvasses the correctness of that order.
(2.)Sub-s.(1) to (3) and (5) of S.8 of the Act run thus:
"(1) Any debtor or creditor may apply to the Court for an order fixing the amount payable under S.4 and in that application he shall state what is the correct amount payable according to him.

(2) (a) If the debt is covered by a decree, the application shall be made to the Court which passed the decree or to the Court to which the decree has been sent for execution.

(b) If the debt is not covered by a decree, the application shall be made to the Court competent to pass a decree for the recovery of the debt.

(3) An application made by a debtor under sub-s.(1) shall be dismissed if the debtor fails to deposit with the Court, before which such application is pending, the amount of any instalment which on his admission is payable by him under the provisions of this Act and has accrued due and no second application for the same purpose shall be entertained:

Provided that the Court may extend the time for making the deposit for any just and sufficient cause.


(5) The Court shall by its order determine the amount which the debtor has to pay under the provisions of S.4 and the time within which such payment shall be made and any payment made in accordance with such order shall be deemed to be a valid payment for purposes of S.4."

Obviously, an application contemplated in the above provision is one to fix the amount of the debt to be paid under S.4 of the Act. Debt is defined in S.2(c) of the Act as 'any liability in cash or kind ......' Where there is no liability there is no debt as defined in the Act, and therefore no 'amount payable under S.4', which relates to payment of debts in instalments. The insistence on a statement, in an application by a debtor, of the correct amount payable according to him and on punctual deposits with the Court of all instalments payable by him under the Act, of such admitted amount also indicates that the application must relate to a subsisting debt. If the appellant owes no amount to the respondent, he cannot call the Court to fix the amount payable by him to the respondent. That will be a mockery in legal proceeding. Zero may be a positive infinitesimal in mathematics, but is non est in law. If zero can be the amount of debt, anybody can call another a debtor of his for that amount, which will be a mere farce in law. S.8 does not, in our opinion, concern with such notional debts, but only with debts that are real.

(3.)Counsel for the appellant relied on a Full Bench ruling of the erstwhile Travancore High Court in Gourikutty Amma v. Sankara Iyer (1947 TLR 348) construing an almost parallel section in the Travancore Debt Relief Act, 1116. There, Krishnaswami Aiyar C. J. held:
"Undoubtedly the Act requires an admission of the relationship of a debtor and creditor and if that is admitted any dispute or doubt relating to the amount of the debt could be resolved under S.15. A plea regarding the discharge of a debt is not a plea denying the existence of the debt ........ a doubt or dispute occasioned by a plea that a debt has been discharged ought not to be construed as amounting to a plea where the relationship of a debtor and a creditor is denied."

Krishna Pillay J. (as he then was) observed:

"A plea of discharge ...... is not a plea in negation of the debt";

and the third Judge, Sankaran J. (as he then was) agreed with the latter.

Where a debt is defined as a 'liability' it is very difficult to say that a liability, that has been fully discharged, continues a liability and keeps up the relationship of debtor creditor between the parties concerned. In our view, after discharge there can be no debt, and no debtor creditor relationship. By the expression of S.8 of the Act an application thereunder can only be by a debtor or creditor, that is to say, by either of the parties between whom there exists a liability to pay.


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