THOMAS EAPEN Vs. OOMMEN GEORGE KATHANAR
LAWS(KER)-1955-6-11
HIGH COURT OF KERALA
Decided on June 06,1955

THOMAS EAPEN Appellant
VERSUS
OOMMEN GEORGE KATHANAR Respondents

JUDGEMENT

- (1.) The appeal arises out of C.M.P. 5243, dated 9.8.1119, on the file of the Mavelikara District Court, filed by the 4th defendant in O.S. 108 of 1109 of the Kottayam District Court. The decree passed in that suit was under execution before the Mavelikara District Court. The application was one made under the Debt Relief Act (S.15) for ascertainment of the balance debt due and for the issue of a chalan to pay up the same in a lump. There was an earlier application by him, C.M.P. 1971 dated 22.7.1116, signifying his intention to avail of the provisions of the Debt Relief Act and to discharge the debt by instalment payments. Payments were accordingly made from time to time. Obviously, by filing C.M.P. 5243 the judgment debtor sought to obtain discharge of the debt by payment of 75% thereof as provided in S.9(2)(a). The last date for so liquidating the debt was 31.1.1122. For reasons which we need not go into here an order pursuant to C.M.P. 5243 fixing the amount happened to be made only on 13.8.1953 by the order now under appeal. It may, however, be stated that in C.M.A. No. 78 of 1121 on the file of the High Court of Travancore, a Division Bench composed of Krishna Pillai and Govinda Pillai, JJ., had in vacating an order dismissing C.M.P. 5243 ordered as follows: Under Clause.5 of S.15 of the Debt Relief Act, the court has to determine the amount when there is a dispute. This has never been done in this case. The lower court will, therefore, restore the petition to file and determine the amount due to be paid in accordance with the directions given in S.8, 9, 11 and 15 of the Debt Relief Act. This was on 29.12.1123 (August 1944). It is pursuant to this order that the order under appeal has been made. Even after filing C.M.P. 5243 the debtor was making payments towards the debt. The lower courts order shows that such payments were made into court on not less than five occasions. In the order under appeal the court found that on the date the Debt Relief Act came into force the amount due as per the decree (O.S. 108 of 1109) was Rs. 3,417-12-6 and that the balance due on the date of the order was Rs. 130-7-0. The operative portion of the order reads: I, therefore, determine that Rs. 130/7/- is the balance amount that is still due to the decree holder from the decree debtors. The debtor will pay this amount (if not already deposited) within two weeks from this date. This petition is ordered accordingly. Feeling aggrieved by the order the decree holder has preferred the appeal. Even in the argument before us counsel were not agreed as to whether the balance as per the order has been paid or not.
(2.) Be that as it may, the only point pressed before us by the appellants counsel was that in as much as even by 31.1.1125 full discharge of the debt had not been made, the debtor was not entitled to the benefits of the Debt Relief Act at all. That is, not only was he not entitled to have the debt discharged by payment of 75%, but that even the right to obtain discharge by payment of 80% had been forfeited. When the case was heard we were first inclined to agree that the court had no jurisdiction to record satisfaction of the decree on payment of the debt as reduced by S.9 unless the required payments were all made within two, six or nine years as the case may be. However, when his argument was concluding the respondents learned Counsel invited our attention to a Full Bench decision of the Travancore High Court reported in 1945 TLR 956, where a similar question arose with reference to the discharge sought to be made by payment of 70% of the debt and the decision went the same way as the lower courts order under appeal enabling the debtor to have the debt discharged by payment beyond the time fixed by S.9 when the last payment was made pursuant to an order made by the court under S.15(5).
(3.) In that case the debtor after filing a petition under the Debt Relief Act made certain payments of the requisite percentage of the admitted amount of the debt. On enquiry under S.15, the court fixed the amount due on the date of the Act and that being in excess of the admitted amount, the debtor was given a months time to make good the deficiency in the instalments already deposited. The order was passed on 2.5.1119 and the payment as per the courts direction was made on 2.6.1119. The previous payments and the payment made on that date together covered 70% of the debt as required by S.9(2)(b). The court therefore entered satisfaction of the decree. The decree holder took the matter in appeal contending that to enable the debtor to get a complete discharge by payment of 70% of the debt, the payments should all have been made within two years from the date of the Act, that is, by 30.1.1118. Under S.15(5) the court had to determine the amount of the debt which the debtor had to pay under the provisions of S.9 and the time within which such payment should be made. That Section contained the further provision that any payment made in accordance with such an order shall be deemed to be a valid payment for purposes of S.9. Before the Full Bench the respondent contended that the lower court having fixed the amount due and payable to the creditor and also fixed 2.6.1119 as the date within which the excess payable should be deposited, the deposit on 2.6.1119 must be deemed under said sub clause to be valid payment for the purposes of S.9. The appellants contention was identically the same as was advanced before us by the appellant here viz., that S.15(5) must be read subject to the provisions of S.9 and that the lower court had no jurisdiction to extend the period fixed by S.9, whether that period be two years or six years or nine years. Apparently an unreported decision in A.S. 289 of 1118 by Sankarasubba Iyer and Nokes, JJ., gave support to the appellants contention. In repelling it Krishnaswami Aiyar, C.J., observed that while the Act made S.9 subject to S.15(5) the judgment in A.S. 289 of 1118 sought to make S.15 take effect subject to the provisions in S.9. This, the learned Chief Justice thought to be reversing the true position and he further said that where an application had been made under S.15 on account of a doubt or dispute, the court was definitely empowered by the statute to ascertain the amount due and to fix a time within which the excess amount if at all is to be paid. The learned Chief Justice then went on to say as follows: ............... The Statute further declares that the payment made in accordance with the order passed under S.15 shall be deemed to be a valid payment for purposes of S.8 and 9. Therefore, a payment made beyond two years or other period fixed by S.9 will amount to a valid payment for the purpose of that section (S.9) as per the provisions of S.15, Clause.5. Where the enquiry under S.15 is not concluded within the period of 2 years as in this case, there is no provision that the proceedings under S.15 will abate. There is nothing to indicate that S.9 is more imperative than S.15, Clause.5. The language of S.15, Clause.5 does not warrant the construction that the order fixing the date of payment under S.15, Clause.5 should necessarily fix that time within the period allowable under S.9. If the time fixed for payment under S.15, Clause.5 could only be as provided for in S.9 and not otherwise, there would have been no need for a provision that such a payment should be deemed to be a valid payment for purposes of S.9. The words of S.15, Clause.5 imply that the payment made in accordance with the order may not be in fact in accordance with the provisions of S.9, but notwithstanding this circumstance the payment is to be deemed as valid, if it be made in accordance with the order of the court. Sankarasubba Iyer, J., was one of the Judges who took part in the decision of the case and that learned Judge thought that the decision in A.S. 289 of 1118 did not strictly apply to the case. The learned Judge agreed with the Chief Justices conclusion to dismiss the appeal but he put his decision on the maxim that no suitor can be allowed to suffer by an act of the court. In as much as the debtor in that case had applied under S.15 within the period of two years to fix the amount and the court had not done that before the period expired, the learned Judge took the view that the courts delay should not prejudice the debtor. Abraham, J., who was the third member of the Full Bench, said that he fully agreed with the judgment of the learned Chief Justice that the matter was covered by S.15(5) of the Debt Relief Act. The learned Judge added that the court had to fix the time within which the payment had to be made under S.9 and that if the court took time for concluding the proceedings under S.15, the debtor should not be prejudiced.;


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