BHAGWANI ENTERPRISES Vs. TARACHAND THAROOMAL

JUDGEMENT

(1.) This revision arise out an order passed by the learned Judge of the Small Causes Court at Bombay in Summary Suit No. 2115/2510 of 1978 pending in his Court on September 14, 1981 by which he dismissed the application of the original defendant to refer the issue to the officer under the Maharashtra Debt Relief Act. The facts giving rise to this revisions, are, the plaintiff respondent filed a summary suit on the basis of a Hundi executed by the defendant. This suit was filed under Order 37 of the Civil Procedure Code. The defendant filed his written statement to which I will refer later. The suit procedure for trial and it appears that a conditional leave was granted to the defendant to defend the suit and an amount of Rs. 2,000/- was also deposited accordingly. During the pendency of the suit on July 14, 1981 the suit was proceeded ex parte and the plaintiffs evidence was recorded. It appears that on July 15, 1981 the defendant filed an application in this suit praying that an issue arises in this case which requires to be decided by the officer under the Maharashtra Debt Relief Act of 1975 and, therefore, he prayed in his application that it should be sent to that authority and proceeding of the suit should be stayed. This application was opposed and an affidavit in reply was filed to this application by the plaintiff on July 16, 1981. There is another affidavit on record made by the defendant on August 10, 1981, about which there is some controversy. It is stated that this affidavit was filed during the course of arguments and the learned Judge had refused to take it on record. The Counsel for the petitioner has informed at the Bar that the affidavit was filed in this paper-book and it may be taken on record. After going through these replies the learned Judge passed an order rejecting the application on his finding that the defendants claim for protection under the Maharashtra Debt Relief Act is not sustainable. This order was made on September 14, 1981. Then the defendant has challenged this order in revision before this Court. Mr. Jaisinghani, the learned Advocate for the petitioner has stated before me that his client is carrying out a trade which he has chosen to call as calling of distribution of pictures. According to Mr. Jaisinghani his client is a worker as defined in Maharashtra Debt Relief Act, under section 2 Clause (e) of the Maharashtra Debt Relief Act, 1975. The said definition about the "worker" is as follows:-

(2.) Now this application was filed on July 15, 1981 and if the defendant was very serious, it passes comprehension why this application could not contain sufficient details and necessary particulars with regard to the source of income and other necessary circumstances to show that he has no property or the existing property is below the existing limit provided by the Act. On this technical defect alone this application is liable to be rejected. But as the Advocate for the petitioner has relied on the written statement which is quoted above, I purpose to deal with argument. In fact it would have been accepted that this application dated July 15, 1981 should have at least stated that the roznama filed earlier is filed for the purpose of claiming reference to an issue to be decided by the officer under the Maharashtra Debt Relief Act. This is a case and an attitude of an uncertain character. It does not furnish particulars before the Court to find the claim of protection under the Maharashtra Debt Relief Act. Apart from that, if we look to para 4 which is quoted above and as was rightly pointed out by the learned Advocate, Mr. Nari H. Gursahani for the respondent, para 4 of the written statement is bad in respect of necessary particulars. What is stated is that the proprietor has suffered a loss of Rs. 1,64,150/- during the year 1974. There is a further mention of loss of Rs. 3,53,673.18 paise. In the absence of turnover of the business it is difficult to appreciate these fabulous figures of losses. At the outset one may be impressed that these figures only are sufficient to dis-entitle any person claiming protection under the Act calling himself to be a worker. A worker who suffers a loss of Rs. 1,64,150/- and of Rs. 3,53673.18 according to my view cannot claim the protection under the provisions of the Maharashtra Debt Relief Act. Apart from this there is a statement in para 4 that the concern of the defendant is a sole-proprietory concern. There is a reference to Income-tax assessment but no returns are filed as to what extent the income of the defendant was. It would have been ways to find out from Income-tax returns as to what income is assessed. There is a further reference that two sons of the defendants are earning. It is not shown as to what extent they are earning, whether the family is a joint or divided, whether the earnings are separate earnings. A sentence is added that the defendant has no immoveable property, and the debt stands discharged. If this be the contention of the allegations in regard to he particulars supplied, I fail to understand how a Court can decide whether an issue arises in this case and which requires to be settled and decided by the authorised officer under the Maharashtra Debt Relief Act. It is true, that the provisions of this Act are meant to relieve the unfortunate debtors and marginal farmers and it is with a view to provide protection against this class of debtors when this enactment was made by the State Government. Legislative intended to spare under he particular class by name i.e. "worker", "Marginal Farmer", "member of a family", "rural labourer" or "rural artisan". These labels cannot be adopted by using these words and an application cannot be made to the Civil Court just to frame the issue or to set the Court to decide on jurisdiction and send the issue to the officer concerned. In the very judgment which was relied on by the learned Advocate for the petitioner reported in Maharashtra Law Journal 1981 page 216 para 26 in the case of (Bhagwan Motiram Mali (Mahajan) v. Jayant Shridhar Khare and another) it has been observed as under:-

(3.) The affidavit in reply, which was filed on July 16, 1981 by the plaintiff opposing to the claim for reference of suit clearly sets out in para 5 that the defendent has got office in Bombay and Pune and his own immoveable property and number of telephones. They have huge turnover and big business. They employ more then a dozen people. In para 9 it is stated that the defendants have not given any details of their assets and liabilities. It is true that this is merely an affidavit on record. But then according to the section 106 of the Evidence Act, the particulars regarding the income and the status of the defendant are within the knowledge of the defendant himself and the plaintiff could not help except denying the fact. It was obligatory on the part of defendant if he was really claiming himself to be a bona fide worker and he should have set out all details or particulars about his income. The necessary returns which he filed during the relevant years i.e. 1974-75 and the actual income and the loss which is suffered. In the absence of such particulars given by him, I have no reason to discard the affidavit filed by the plaintiff.