S V SAMINATHA NAIDU Vs. L MUTHUSWAMY CHETTIAR

JUDGEMENT

(1.) THE appellant filed the suit for recovery of Rs.4037.32 P. under peculiar circumstances. He was the owner of the suit property. He executed a usufructary mortgage in favour of Alii Rani on 23.2.75 for a sum of Rs.11,000. THE mortgage was assigned by the mortgages to the defendants on 14.7.75 for a consideration of Rs.11,000. THE plaintiff entered into an agreement with the defendants on 10.3.78 for selling the property to them for a total consideration of Rs.22,000. A sum of Rs.3,000 was paid in advance on the date of the agreement. It was agreed that a sum of Rs.11,000 should be adjusted by the defendants towards the discharge of the usufructuary mortgage, which they got by assignment from Alii Rani. THE balance of Rs.8,000 was agreed to be paid on or before 13.6.78. Actually, the time for completion of the transaction was extended upto 13.9.78 and a sale deed was executed by the plaintiff in favour of the defendants, which is marked as ExA.l. THE plaintiff filed the present suit claiming that he was, on the date of the sale deed, entitled to the benefits of the Tamil Nadu Deb Relief Act (Act 40 of 1979) and that the amount due under the mortgage would have been only Rs.7,520.18 p. If scaled down. It is claimed by the plaintiff that a sum of Rs3,479.82 P. was thus paid in excess towards the mortgage when in the sale deed it was agreed that a sum of Rs.11,000 was to be adjustec by the defendants in discharge of the mortgage. THE plaintiff, therefore, alleged in the plaint that the defendants were aware of the benefits to which the plaintiff was entitled to and by fraud they had mtten false recitals in the sale deed with regard to the consideration. THE plaintiff claimed that he was entitled to get a refund of the said sum of Rs.3,479.82 P. with subsequent interest thereon and filed the present suit. THE plaintiff, also claimed a sum of Rs.557.50 P. by way of refund of stamp duty paid by him on the usufructuary mortgage.

(2.) BOTH the courts below held that the plaintiff was not entitled to claim any amount from the defendants as having been paid in excess of the amount due under the mortgage. The lower appellate Court took the view that the matter was governed by section 8(3) of the Tamil Nadu Act 40 of 1979 and the plaintiff was, therefore, not entitled to claim back the amount. As regards the refund of stamp duty, learned counsel for the plaintiff conceded at the time of arguments before the lower appellate Court that he was not pressing the said claim. That concession has been recorded by the lower appellate Court in its judgment. That resulted in the confirmation of the dismissal of the suit by the trial Court.

(3.) AT the outset, it should be pointed out that there is no provision in the Act which prohibits a debtor from voluntarily paying the amount due under the contract to the creditor. Nor a creditor is prevented from accepting the full amount due to him as per the contract and give a discharge to the debtor. Though the Act applied to both agriculturists and non-agriculturists it does not apply to all debtors. The definition of 'debtor' in section 3(3) of the Act excludes from its purview Certain categories of persons. Similarly certain kinds of debts and liabilities are not affected by the Act (Vide Section 4). Whether a debtor is entitled to the benefits of the Act and whether the debt in question is covered by the Act are matters to be decided on the facts of each case.