KIRATSINHJI ANADSINHJI JADEJA Vs. KANA VELA PATEL

JUDGEMENT

(1.) The petitioners application under sec. 4 of the S. A. D. R. Act was dismissed by the learned Assistant Judge at Morvi in appeal from the award on the ground that the debt sought to be adjusted was barred by limitation.

(2.) In revision this order is challenged and it is contended that the Limitation Act does not apply to proceedings under the S. A. D. R. Act that the Limitation Act merely applies to proceedings in a civil Court and even then it does not extinguish the debt but merely bars the remedy. This contention is no doubt correct but under the S. A. D. R. Act the Board has to adjust debts and the word debt is defined in sec. 2(5) of the S. A. D. R. Act as follows:-- ` 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 and includes mortgage money the payment of which is secured by the usufructuary mortgage or by anomalous mortgage in the nature of PURA-CHHOOT of immovable property but does not include arrears of wages payable in respect of agricultural or manual labour. There must be a liability in cash or kind before it can be adjusted by the Board under the S. A. D. R. Act. The word ` liability used in section 2(5) of the S. A. D. R. Act means a civil liability and a liability which will be enforced by a civil Court. The words due from a debtor are also used in sec. 2(5) of S. A. D. R. Act and these words mean that the debt must be due legally in a civil Court from the debtor and not merely morally due. Then only the amount will be considered to be a debt so that it can be adjusted by the Board. In this view of the matter although the Limitation Act as such does not apply to proceedings under the S. A. D. R Act the Board under the S. A. D. R. Act will have to look at the provisions of the Limitation Act to see whether there is a debt due from a debtor. The Limitation Act will have to be considered in order to decide one of the issues before the Board although the Board as such is not a civil Court and suits are not filed before the Board under the S. A. D. R Act. In this view of the matter the contention of the learned counsel for the applicant must be rejected because it is not contended by him that there is a civil liability for the payment of the amount in question. It is conceded by him that the liability to pay the amount has been barred if the amount is sought to be recovered in a civil Court.

(3.) The learned counsel for the applicant relies on Savitra Khandu v. Nagar A. S. & P. Co-op. Society Ltd. A.I.R. 1957 Bombay 178 which was a case under section 54 of the Bombay Co-operative Societies Act1925 which is as follows:-- (1)(a) If any dispute touching the constitution or business of society arises between members or past members of the society or persons claiming through a member or past member or between members or past members or persons so claiming and any officer agent or servant of the society past or present or between the society or its committee and any officer agent member or servant of the society past or present it shall be referred to the Registrar for decision by himself or his nominee. A dispute shall include claims by a society for debts or demand due to it from a member or past member or the heir or assets of a past member as well as claims by a member or past member of the heirs of a past member for any debts or demands due to him from the society whether such debts or demands be admitted or not. In the Bombay case it was observed as follows:-- The Indian Limitation Act primarily applies to suits appeals and applications and it has no direct application to arbitration proceedings. Section 3 of the Limitation Act provides that- Subject to the provisions contained in sections 4 to 25 (inclusive) every suit instituted appeal preferred and application made after the period of limitation prescribed therefore by the first schedule shall be dismissed although limitation has not been set up as a defence. Evidently a proceeding before an arbitrator is not a suit appeal or application and in terms sec. 3 can have no application. It is well settled that expiry of the period of limitation prescribed for a suit does not destroy the right it only bars the remedy for enforcement of a right in a Court of law. It cannot therefore be said that in terms the provisions of the Limitation Act prevent an arbitrator from entertaining a claim which if made in a Court of law may be barred by limitation.