MANHARLAL GHIMANLAL BANDARIA Vs. THE SURAT PEOPLES CO-OP. BANK LTD

JUDGEMENT

(1.) Relying upon the second proviso Mr. Sanjanwala urged that this newly added second proviso provided a line of distinction between two types of valuations contemplated by that proviso. In the first part of the proviso, it has been specifically stated that in the sale proclamation it was not necessary for the court to enter into proclamation of sale, On its own estimate of the value of the property tout in the juxtaposition it has been also mentioned that the proclamation shall include the estimate, if any, given by either or both of the parties. Heavily relying upon two types of estimates referred to in this second proviso, Mr. Sanjanwala urged that this was a mandatory requirement in the interest of justice which is keen to deal with both the sides even handedly and the legislative policy decision is involved in the proviso and, therefore, this particular proviso should be interpreted to mean an indispensable requirement of law.

(2.) I would say that the argument advanced by Mr. Sanjanwala is not such as could be summarily rejected. At the same time the exposition of law on this point -made, by the Supreme Court in the case of Dhirendra Nath Gorai v. SudhirChandra Ghosh and Others, AIR, 1964 SG 1300, is there to be considered. No doubt the second prpviso which is newly inserted in the year 1976 was not on the statute book at the time the Supreme Gourt dealt with an analogous situation. Section 35 of the Bengal Moneylenders Act was a sort of a mandatory provision' ancillary to the provisions of C.P.C. The said Section 35 provided that:

(3.) Obviously, such a provision was inserted with a view to safeguard the inrerest of the hard pressed judgment debtors and it was a legislative provision intended for dispensing with even justice to both the sides, more lenient towards a comparatively weaker section, namely, the judgment debtors. Even inspite of such a provision, the Supreme Court by tracing the history of law and after good deal of elaboration ultimately observed that the provision like the one before the Supreme Court in the form of. Section 35 of the Bengal Money-lenders Act also was a provision directory in , character in the sense that this provision intended for the benefit of the judgment-debtor could be waived, and if anything which is intended for the benefit of a party is there, even though couched in a mandatory form by using auxiliary verb "shall" is to be interpreted as directory, capable of being waived. The Supreme Gourt ultimately in para 7 of the reported judgment, lays down as under: