KAMLABEN CHHOTABHAI JIVABHAI Vs. SHIVABHAI SOMABHAI PATEL
LAWS(GJH)-1983-11-22
HIGH COURT OF GUJARAT
Decided on November 24,1983

Kamlaben Chhotabhai Jivabhai Appellant
VERSUS
Shivabhai Somabhai Patel Respondents

JUDGEMENT

- (1.) It was contended on behalf of the creditor that the respondent was wrongly held to be "a marginal farmer" and thereby consequently given wrongly the benefit of the provisions of the Act. The term "debt" means any liability which is due from the debtor in cash or kind whether secured or unsecured, or whether payable under a decree or order of any Civil Court or otherwise and subsisting on and legally recoverable on or after the appointed day which was 15 -8 -1976 in the present case. So, it is to be firstly seen whether the original petitioner can be said to be a debtor of the type or not. In the case of Keshavlal Girdharlal Gandhi and others v. Patel Vithalbhai Shankarbhai and others, A.I.R. 1965 Guj. 275 (which was a case under Bombay Agricultural Debtors' Relief Act, 1947) it was held that heirs of a mortgagor or purchaser of equity of redemption in case of a unsufructory mortgage in which there is no clause of personal liability cannot make an application for adjustment of debts under Section 4 of the Bombay Act or the Saurashtra Act, and in para 8 of the said judgment it is specifically laid down that personal liability is a necessary ingredient under the Act and mere right to redeem is not sufficient to invoke the beneficient provisions of the Act.
(2.) The term "debt" in the Bombay Act also means any laibility in cash or kind, whether secured or unsecured, due from a debtor whether payable under a decree or order of any civil court or otherwise (and includes mortgage money the payment of which is secured by the usufructory mortgage of immovable property) but does not include arrears of wages payable in respect of agricututural or manual labour. It is to be noted with pertinence that the words "and includes mortgage money the payment of which is secured by the usufructory mortgage of immovable property" are conspicuously absent in the Act on hand. The term "debt" was elaborated to mean that a creditor -debtor relationship or concept of personal liability was implicit in the definition. It was specifically noted that the artificial inclusion of the mortgage dues was limited to the special cases which had been included in the definition.
(3.) The ratio of the judgment therefore, cleary is that if there is no personal liability, there will be no payability of the debt. In the cases on hand all the transactions are mortgage by conditional sale and they purported to give a right to take back the property on payment of money, but the so -called creditor had no right to call for the money against the offer of return of the property. So, the important ingredient of the definition "payability" is missing in all the four cases here. In the case of Manubhai Mahijibhai Patel v. Trikamlal Laxmidas, 60 BOM. L.R. 1092 Justice Miabhoy was dealing with Sections 4, 2(4) and 7 of the Bombay Agricultrual Debtors Relief Act. No doubt, the ratio of the judgment is that the transferee of equity of redemption cannot say that it was his debt within the meaning of Section 4 of the Act for which he could seek adjustment of and therefore, his application for adjustment did not lie.;


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