BHIL UKEDIA UMEDIA Vs. BAI GAJARABAI BHULABHAI

JUDGEMENT

(1.) This appeal raises a question of construction of secs. 11 and 15 of the Bombay Agricultural Debtors Relief Act 1947 and the question arises in the following manner:-

(2.) Mr. Barots contention is that the respondents are not entitled to the benefit of section 52 of the Act because when they filed their application under section 4 they were well aware that the debt due to them was more than Rs. 15 0 and therefore their application claiming an amount of more than Rs. 15 0 not one which could be entertained by the B. A. D. R. Court. He also argued that though that application was in fact disposed of by that Court under section 17(2) of the Act and though that application was dismissed the application was one which could have been dealt with under section 11 and therefore it was an application which the respondents could not have filed as it was one which was not entertainable by reason of section 11 He also contended that under sub-section (2) of sec. 15 such a debt was not liable to be extinguished on the ground that no application for adjustment was made by the respondents as the creditors of the appellant and that being so the respondents were not entitled to exclude the time spent by them in the B. A. D. R. proceeding from the period of limitation and take the benefit of section 52 of the Act. He argued therefore that the order passed by the learned Assistant Judge was erroneous and should be set aside. Mr. M. I. Patel for the respondents on the other hand submitted that on a proper construction of section 11 as also sections 15 and 17 the respondents were entitled to exclude the time spent by them in their proceedings under the B. A. D. R. Act and that therefore their suit was not time barred and the learned Assistant Judge was right in the view that he took of the suit.

(3.) In order to appreciate the rival contentions it would be necessary to glance at certain provisions of the Act. Under sec. 2(4) a debt means any liability 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. The definition of the word debt is thus irrespective of the quantum and therefore a debt does not necessarily mean a debt which is not in excess of Rs. 15 0 Under clause (5) of sec. 2 a debtor means an individual who is indebted and who holds lands used for agricultural purposes or has held such land at any time not more than 30 years before the 30th January 1940 and who has been cultivating land personally for the cultivating seasons in the two years immediately preceding the date of the coming into operation of the Act and whose annual income from sources other than agriculture and manual labour does not exceed 33 per cent of his total annual income or does not exceed Rs 500/whichever is greater. Thus the definition of the word debtor is again irrespective of the quantum of debt due and payable by him. In other words it is not as if a person whose debt exceeds Rs. 15 0 is not a debtor within the meaning of this definition. Sec. 4 lays down that a debtor ordinarily residing in any local area for which a Board was established under sec. 4 of the repealed Act on or after the Ist of February 1947 or his creditor may make an application before the Ist of August 1947 to the Court for the adjustment of his debts. Under sec. 15(1) every debt due from a debtor in respect of which no application has been made under sec. 4 within the period specified in that section shall be extinguished. Sub-sec. (2) of sec. 15 however inter alia provides that nothing in sec. 15 shall apply to any debt due from any person.....if in respect of such debt no application ......can be entertained in respect of any debt owed by such person to such creditor by reason of the provisions of sec. 11. It would thus appear that though under sub-sec. (1) of sec. 15 A debt due from a debtor in respect of which the creditor has not filed an application under sec. 4 within the prescribed period is liable to become extinguished such debt would not get extinguished if an application under sec. 4 cannot be entertained in respect of that debt by reason of the provisions of sec. 11. If one turns to sec. 11 he will find that under that section no application under sec. 4 or sec. 8 can be entertained by the B. A. D. R. Court either on behalf of the debtor or in respect of the debtor unless the total amount of debts due from him on the date of the application is not more than Rs. 15 0 Under sec. 17 it is incumbent upon the B. A. D. R. Court to raise on the date fixed for the hearing of the application under sec. 4 two preliminary issues.