NAGARMAL SURAJMAL Vs. GOTULAL LAXMINARAYAN

JUDGEMENT

(1.) THIS is an appeal from an order of Mr. Justice Coyajee dismissing a summons for judgment taken out by the plaintiffs on the ground that this Court had no jurisdiction to try the suit. The defendant against whom the summons was taken out contended that he was a resident of Chalisgaon, that he was: a debtor within the meaning of Act XXVIII of 1947, and, therefore, this Court had no jurisdiction to try this suit.

(2.) MR. Desai on behalf of the plaintiffs has argued before us that in view of the fact that Act XXVIII of 1947 is not applicable to the City of Bombay, and this suit having been filed on the Original Side of the High Court, this Court had jurisdiction to try the suit notwithstanding the fact that the defendant might be a debtor within the meaning of the Bombay Agricultural Debtors' Relief Act. Turning to the scheme of the Act, it is clear that the Act was enacted for the purpose of giving relief to agricultural debtors in the Province of Bombay, and one exception that was made by Section 1 (2) was that although the Act was made applicable to the whole of the Province of Bombay it did not apply to the City of Bombay. Under Section 19 of the Act, All suits, appeals, applications for execution and proceedings other than revisional in respect of any debt pending in any civil or revenue Court shall, if they involve the questions whether the person from whom such debt is due is a debtor and whether the total amount of debts due from him on the date of the application exceeds Rs. 15,000, be transferred to the Court. And the Court to which these suits, appeals and application are to be transferred is defined in the Act itself, and the Court is, for the purposes of this Act, the Court of the Civil Judge, Senior Division, having ordinary jurisdiction in the area where the debtor ordinarily resides, and if there is no such Civil Judge, the Court of the Civil Judge, Junior Division, having such jurisdiction. Therefore, the Court set up for the purposes of this Act, as far as this particular defendant is concerned, would be the Court of the Civil Judge, Junior Division, at Chalisgaon, and this Court has to try certain preliminary issues as laid down in Section 17 of the Act, and these preliminary issues are: (a) Whether the person for the adjustment of whose debts the application has been made is a debtor? (b) Whether the total amount of debts due from such person on the date of the application exceeds Rs. 15,000 ? Now, there is no warrant for suggesting that the civil or revenue Courts referred to in Section 19 do not include the Original Side of the High Court. Section 19 is general in its terms and it precludes any civil or revenue Court from continuing with any proceeding pending before it, if such a proceeding involves the question whether the person from whom a debt is due is a debtor and also the question as to what the total amount of debt is. The object of the Legislature was that both these questions should not be determined by the ordinary civil and revenue Courts in the Province, but by the Special Courts set up under this Act, and as far as the defendant is concerned, as I pointed out earlier, that Special Court is the Court within whose jurisdiction he ordinarily resides, and he residing ordinarily at Chalisgaon, that Court would be the Court of the Civil Judge, Junior Division, at Chalisgaon.

(3.) WE would, therefore, set aside the order made by the learned Judge and order that there will be no order on the summons except that the suit be transferred to the Civil Judge, Junior Division, at Chalisgaon. Costs of the summons, costs of the suit, and costs of the appeal to be costs in the" cause.