TUKA KRISHNA KHOT Vs. DHANU KRISHNA KHOT

JUDGEMENT

(1.) This is a reference made by the Civil Judge, Junior Division, Islampur, through the District Judge at Satara, referring certain questions of law which arise under the Bombay Agricultural Debtors Relief Act, 1939, as amended. The plaintiff has filed a suit for accounts under Section 15D of the Dekkhan Agriculturists Relief Act, 1879. The transaction in suit purports to be a sale and is evidenced by a deed executed in 1939. It is the plaintiffs case that this transaction is in the nature of a mortgage and as such he has sued for accounts under Section 15D. The defendant contends that the transaction is a sale out and out, and resists the plaintiff's claim for accounts. Pending the suit in July 1946 the plaintiff applied to the learned Judge that the suit should be transferred to the Debt Adjustment Board at Shirala under Section 37 of the Bombay Agricultural Debtors Relief Act. The defendant resisted this request on the ground that the present suit is not for the recovery of a debt and does not, therefore, fall under Section 37 (1) of the said Act. The learned Judge felt that the questions of law arising on this application are of considerable importance, and since he entertains a reasonable doubt as to the answers to the said questions, he has made the present reference; accordingly he has drawn up a statement of facts of the case and has set out two points on which doubt is entertained. It is clear that the decree which the learned Judge may pass in this suit is not subject to an appeal and the reference is thus competent under O. XLVI, Rule 1. The two questions submitted to us are: (1) Whether a sale mortgage suit ought to be transferred to the Board under Section 37 of the Bombay Agricultural Debtors Relief Act, 1939, as amended by Bombay Act No. 8 of 1945, before the Court has found the transaction to be really in the nature of a mortgage ? (2) Whether a mere account suit under Section 15D of the Dekkhan Agriculturists Relief Act, 1879, is a suit for the recovery of a debt, which can be transferred to the Board under Section 37 of the Bombay Agricultural Debtors Relief Act, 1939, as amended by Bombay Act No. 8 of 1945, before it is properly converted into a suit for redemption ?

(2.) Before dealing with the points referred to us in this reference it would be convenient if the broad features of the Bombay Agricultural Debtors Relief Act are examined. It is obvious that the Act has been passed for the relief of agriculturist debtors in the Province of Bombay, and for reasons which it may not be easy to appreciate Legislature has taken the view that the best way of affording such relief to the agriculturist debtors in this Province would be to leave the disputes arising between them and their creditors to be determined by Boards set up under this Act. It may be that Legislature was apprehensive that if these disputes are left to be determined by the civil Courts, the remedies of appeals and revisional applications which are ordinarily available to parties aggrieved by decisions of such civil Courts may unduly protract the proceedings and may not result in speedy relief to the debtors in question. However that may be, there is no doubt that Legislature intended that it is the Boards set up under this Act that should determine all material questions relating to the claims against agriculturist debtors falling within the purview of the Act. Under Section 17(1) within eighteen months from the date on which a Board is established in any area, any debtor may make an- application to the Board for the adjustment of his debts. Such an application has to set out the particulars mentioned in Section 21(1). If the debtor (does not make such an application, it is competent to the creditor to apply under Section 17(2), and the details which a creditor has to set out in his application are mentioned in Section 22(2). An application made under Section 17 either by a debtor or his creditor would not be entertained by the Board unless the total amount of debts claimed as being due from him on a certain date is not more than Rs. 15,000 (s. 26). It is provided that if more applications than one are made to the same or different Boards by or in respect of the same debtor or one or more of the joint debtors, such applications shall be dealt with by any one of such Boards as may be specified by the respective Judges mentioned in Section 17(4) (b). Section 28 also permits the consolidation of such applications. Section 19 requires every creditor and debtor to file a true and correct statement before the Board, notwithstanding the fact that any application has not been filed under Section 17. It is permissible under the said section either for the creditor or the debtor to issue a notice to the other party calling upon him to file a statement before the Board. Secs.23 and 24 deal with settlement of disputes between the creditors and their debtors, and Section 27 provides that an application for adjustment under Section 17 or one for recording a statement under Section 23 shall not be withdrawn without the leave of the Board. Section 32 is in the nature of a penalty, since it provides that if in respect of any debts to which the Act applies no application for adjustment or settlement is made as required by this Act, the said debt shall be deemed to have been duly discharged. Section 35 sets out the two issues which the Boards shall decide as preliminary issues, namely: (a) Whether the person for the adjustment of whose debts the application has been made is a debtor; (6) Whether the total amount of debts claimed as being due from such person on 1 January 1939 does not exceed Rs. 15,000. In determining the first question the Boards may often have to consider whether transactions which purport to be sales are in fact such sales or are mere mortgages, and under Section 45 power is conferred upon the Boards to declare the real character of such transactions after considering the circumstances connected with them. Section 38 provides for the manner in which the accounts are to be taken. Under Section 47 the Boards have to ascertain the extent of the property of the debtor and that of his liabilities to co-operative societies. The value of the debtor's property is to be ascertained under Section 50, and the paying capacity of the debtor is to be determined under Section 51. Section 52 provides for the scaling down of the debts payable by the debtors and Section 54 deals with awards which the Boards have eventually to make. Such awards when registered are executable as decrees of a Court under Section 63. Any alienations made by the debtor shall not be valid except with the consent of the Provincial Government. Against the awards made under Section 54 one appeal is provided for under Section 10, and Section 12 lays down the grounds on which alone the appellate Court can modify or set aside the awards. Under Section 73 it is provided that no civil Court shall entertain or proceed with any suit or proceeding in respect of any matter pending before the Board or the Court under this Act, or the validity of any procedure or the legality of any award, order or decision of the Boad or of the Court, or the recovery of any debt made payable under the award. Under Section 85, as from the date on which a Board is established for any local area the Dekkhan Agriculturists Belief Act shall cease to have force in such area or in respect of such class of debtors in such local area, as the case may be. Section 1 of the Act enumerates the sections which come into force at once and those which may come into operation after notifications in the Official Gazette are issued in that behalf. It would thus appear that the scheme of the Act is self-contained and the object of Legislature is obviously to bring all agriculturist debtors in this Province within the jurisdiction of the Boards established under this Act with a view to determine their liability once and for all, and to provide for the satisfaction of their debts in a speedy and a systematic manner after scaling down the debts as mentioned in the Act.

(3.) Legislature was obviously aware of the fact that several suits may be pending between agriculturist debtors and their creditors in Courts of law in which same or similar questions may be raised for the decision of the civil Courts. Section 37 of the Act deals with such suits. The said section consists of five sub-sections. Sub-section (1) deals with suits, applications for execution and proceedings for the recovery of any debt against a person pending at any time in any civil or revenue Court, and it provides that if such suits, applications and proceedings involve the question whether such person is a debtor under this Act and whether the total amout of debts due from him on the relevant date does not exceed Rs. 15,000, they shall be transferred to the Board to which an application for adjustment of the debts of such person under Section 17 lies. This sub-section, as set out, is the result of an amendment made in 1945. The original Section 37 related to suits and applications for execution in which the question involved was the recovery of any debt from a person who is a debtor and all proceedings arising in or out of such suits or applications. It may be noticed that the words "for the recovery of any debt" have been added by the amendment. Sub-section (2) deals with cases where an application for adjustment of debts has been made under Section 17 or a statement submitted under Section 31. It provides that in the case of such debts the Board shall give notice to the Courts where suits or other proceedings in reference to them may be pending and on receipt of such notice Courts shall transfer the said suits or proceedings to the Board. Under Sub-section (3) it is provided that if any suit or proceeding is transferred to the Board either under Sub-section (1) or Sub-section (2), the Board shall proceed as if an application had been made to it under Section 17. In dealing with the matters pending before them if the Boards find against the debtor on the two preliminary issues, they would have under Sub-section (4) to retains fer the suits or proceedings to the Courts from which they had been transferred to the Boards, and when such matters are retransferred to the Courts, it is provided under Sub-section (5) that the Courts shall proceed with them and the Boards will have no further jurisdiction in respect thereof.