CHAMPAKLAL CHHABILRAI BHATT Vs. COMMONWEALTH ASSURANCE CO LTD

JUDGEMENT

(1.) This revision application has been referred to a division bench by Weston J. as it involves a somewhat difficult question of the interpretation of Section 19, Bombay Agricultural Debtors' Belief Act of 1947 as to under what conditions a pending suit must be transferred from the ordinary civil Court to a special Court. The suit out of which the present revision application arises was filed on a promissory note executed by defendant 2, personally and on behalf of Messrs Dave & Company, Ahmedabad, who are defendant 1 and by defendant 8. Defendant 2, admitted the execution of the note, but contended that the promissory note was taken from him by undue influence, fraud and misrepresentation. The suit was filed in the Court of the Civil Judge, Senior Division, Poona. After the written statement was filed, defendant 2, made an application asking that the suit be transfer, red to the Debt Adjustment Board at Ahmedabad where this defendant was said to reside claiming that he was a 'debtor' within the meaning of the Bombay Agricultural Debtors' Relief Act, and that his debts did not exceed Rs. 15,000. The learned trial Judge declined to order the transfer under Section 19 of the Act being of the opinion that as defendant 2 denied the very existence of the debt, he could not properly claim to be a debtor until the suit debt was proved against him. The learned Judge remarked that on this being done, the transfer of the suit would have to be considered. He accordingly filed the application and made no order as to costs. It is against this order that this application has been filed in revision.

(2.) A Debt Adjustment Board was created at Ahmedabad under Bombay Act XXVIII [28] of 1939 on 11t February 1947. This Act was repealed by Bombay Act XXVIII [28] of 1947 which came into force on 27th May 1947. Under Section 4 (1), Bombay Agricultural Debtors' Belief Act--Act XXVIII [28] of 1947,

(3.) Section 19 (1) of the Act requires that all suits, appeals, applications for execution and proceedings, including revision applications under the Dekkhan Agriculturists' Relief Act, 1879, 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,1 total amount of debts due from him on the date of the application exceeds Ea. 15,000, be transferred to Page 3 of 9 Champaklal Chhabilrai Bhatt vs. Commonwealth Assurance Co. Ltd. (04.02.1949 - B... the Court, which has, taken the place of the Board by reason of the new Bombay Agricultural Debtors' Belief Act of 1947. This section does not in terms require that before the transfer can be ordered there must be in existence an application before the Court. Indeed, it would seem from the wording of the section itself that it is within the power of the Civil or Revenue Court suo motu to transfer all suits, appeals, applications for execution, etc., then in respect of any debt pending before it to the special 'Court', if they involve the question whether the person from whom a debt is due is a debtor and whether the total amount of debts due from him exceeds Rs. 15,000. Ordinarily, therefore, if the Court were to act suo moto, the Civil or Revenue Court would not be in a position to know whether any application is pending before the Court, and if that is the proper construction of Section 19(l), it would appear that the existence or otherwise of an application under Section 4 before a special "Court" is immaterial, so far as the question of transfer of the pending suits to that Court is concerned. Weston J. in deciding Parsappa Channappa's case, civil Appeal No.-1222 of 1947, dated 29-6-1948, was largely impressed by the word's "on the date of the application" occurring in Sub-section. (1) of Section 19 as it stood before its amendment by Act LXX [70] of 1948, and he considered that the existence of these words meant that there must be an application under Section 4 pending before the special 'Court.' He thought that the question of a transfer in a suit, appeal or an application can arise only when there has been an application under Section 4. But these words, which induced the learned Judge to take the view that an application under Section 4 must be pending before the special 'Court' before a transfer could be ordered under Sub-section. (1) of Section 19, have been deleted, and if the learned Judge had to decide that application under the amended Act, he would probably have taken a different view, for he realised that in the view that he took Section 19 (3) of the Act becomes meaningless. Under Sub-section (3) of Section 19