MUSA HASAFJI USMAN BHAMARDA Vs. KESHAVLAL CHUNILAL

JUDGEMENT

(1.) This application in revision arises out of a suit on a mortgage filed by the five plaintiffs against seven defendants. The present applicant was original defendant No. 1 and he claimed that he was an agriculturist and was held to be such on August 31, 1944. Thereafter the amended Bombay Agricultural Debtors Relief Act was applied to the Godhra Taluka on May 1, 1945, and thereupon the present applicant, defendant No. 1, prayed that the proceedings may be transferred to the Debt Adjustment Board. The learned Judge thought that as the applicant was the only agriculturist-defendant and as the Act did not provide for transfers in cases where only one of the defendants was an agriculturist, the suit could not be transferred to the Board. He therefore rejected the application for transfer, and against that order defendant No. 1 has come in revision.

(2.) The amended Section 37 of the Bombay Agricultural Debtors Relief Act is different in terms from the old Section 37. Under the old section the question whether a defendant is a debtor or not had to be decided by the Court and only after it came to a decision that the defendant was a debtor could the suit or other proceedings be transferred to the Debt Adjustment Board. But Sub-section (1) of new Section 37 is in the following terms: All suits, applications for execution and proceedings for the recovery of any debt against a person pending in any local area for which a Board is established under Section 4, shall, if they involve a question whether such a person is a debtor under this Act and whether the total amount of debt due from him on the relevant date does not exceed Rs. 15,000 be transfrered to the Board, to which an application for adjustment of the debts of such a person lies. It has been contended by Mr. Dhruva for the opponents-plaintiffs that this section applies only where all the defendants claim to be debtors and not where only one of the defendants claims that status. But it seems to me that a plain reading of the section clearly indicates that a suit for the recovery of a debt against a person has to be transferred to the Board, if the question whether such person is a debtor or not under the Act and whether his total debts do not exceed Rs. 15,000 or not falls to be decided. It is not the Court before which the suit is pending that has to decide that question, but as soon as the question is raised by any one of the defendants that he is a debtor and that his debts do not exceed Rs. 15,000, then the matter must go before the Board which decides that question. If the Board decides that he is not a debtor or that his debts exceed Rs. 15,000, then under Sub-clause (4) of Section 37 the suit has to be re-transferred to the original Court. But where the Board does decide that he is a debtor and that his debts do not exceed Rs. 15,000, then the suit has to be decided by the Board even if the other persons are not entitled to claim the benefit of the Bombay Agricultural Debtors Relief Act. This reading of Section 37, in my opinion, gains support from Section 20 of the Act. Under that section :-- If the payment of a debt due by a debtor is guaranteed by a surety or if a debtor is otherwise jointly and severally liable for any debt along with any other person and if the surety or such other person is not a debtor, the debtor may make an application under Sub-section (1) of Section 17 for relief in respect of such debt and the Board may after consideration of the facts and circumstances of the case proceed with the adjustment of debts under this Act so far as such applicant is concerned. This section clearly contemplates an application made by one of the co-debtors who claims to be a " debtor technically so called under the Act when his other co- debtors are not entitled to the benefit of that Act. Even in such a case the Board appears to have jurisdiction to decide the matter and to adjust the debts so far as the "debtor" is concerned. With respect to the others there can be no such adjustment and presumably the decree will be passed against them on that footing. It thus appears that Section 20 and Section 37 are complementary- Section 37 contemplates a suit by a creditor against persons one of whom may claim the benefit of the Act, and Section 20 contemplates an application made by a debtor who claims to be entitled to the benefit of the Act while other persons jointly liable with him for the payment of the debt are not entitled to such a benefit. In either case, the matter has to be decided by the Board. In the present case therefore the applicant was a person against whom a suit was filed for the recovery of a debt. The suit did involve the question whether such a person was a debtor and whether the total amount of debts due by him did or did not exceed Rs. 15.000, and therefore under the amended Section 37 the Court was bound to transfer the suit to the Board to which an application could have been made by defendant No. 1, i.e. the present applicant. In my opinion therefore the learned trial Judge was wrong in rejecting the application.

(3.) The rule will therefore be made absolute with costs both in this Court and in the lower Court.