NUR MIA Vs. NOAKHALI NATH BANK LTD

JUDGEMENT

(1.) The questions for decision arise out of a reference under 0rder 46, Rule 1, Civil P.C., and a civil revision case started on a petition. In both cases the Court had received notice for stay of proceedings under Section 34, Bengal Agricultural Debtors Act of 1935. In both cases, the common question is whether the Court on receipt of such notice has jurisdiction to go into the question whether the debt in respect of which a proceeding is pending is a debt as denned in the Bengal Agricultural Debtors Act and, if the Court finds that the debt does not come within the definition, whether in that case the Court can disobey the notice for stay under Section 34. In both cases the creditors are the Naokhali Nath Bank Limited, but the judgment-debtors are different. In the reference case, the creditors instituted the suit on 3 March 1938. Thereafter, a notice under Section 34, Bengal Agricultural Debtors Act, was received and in pursuance thereof proceedings were stayed. The plaintiff then filed an application for vacating the stay order. It appears that by an order of the Government of India dated 9 December 1937 which was published in the Gazette on 11 December 1937, the Noakhali Nath Bank Limited, was included in Schedule 2 to the Reserve Bank of India Act. So, the contention is that the debt in this case comes within the exception mentioned in Sub-Clause (vi), Clause (8) of Section 2 of the Act. The learned Munsif who has made the reference has formulated the question thus: If the debt in question is a protected one being a liability to a Bank included in the Reserve Bank Act Schedule the question is whether any Debt Settlement Board has any jurisdiction to entertain any application regarding it. And the further question is whether when a Debt Settlement Board takes cognizance of a debtor's liability to a Bank of the requisite description, the Civil Court is competent to ignore it altogether on the ground that the notice issued by the Debt Settlement Board is perfectly ultra vires.

(2.) The learned Munsif in his letter of reference has taken the trouble to give a useful summary of the relevant cases already decided by this Court. He himself is of opinion that the Court cannot refuse to stay the proceeding after receipt of the notice under Section 34 and that the creditors must take their objection to the Debt Settlement Board. In some of the reported cases, this Court has pointed out that the Act has set up its own tribunal and has laid down the principle that where the Act has expressly provided that certain matters are to be decided by that tribunal, the Civil Court must refrain from going into those matters, but where there is no express provision in respect of the tribunal under the Act the ordinary Court must act in the exercise of its powers. Following this principle it has been pointed out in cases under Section 34 of the Act that it is for the Court to decide whether there is a proceeding pending before it and whether that proceeding is in respect of a debt which is the subject-matter of an application under Section 8 or a statement under Sub-section (1) of Section 13, as intimated in the notice : see Form 15 prescribed by Rule 73. Thus it has been held that if an execution sale has already taken place the debt is wiped out from the proceeding and the notice under Section 34 cannot operate, for there is nothing to stay. The Act defines what is a "debt" under the Act and what is a "debtor." It does not include all kinds of debt but there are certain exceptions as mentioned in Clause (8) of Section 2. The definition of debtor is narrower because even though there may be a debt as defined in Clause (8), the person who is liable for that debt may not be a debtor within the meaning of Clause (9) of Section 2. Who is to decide the question whether there is a debt and whether the person who is liable for that debt is a debtor within the meaning of the Act. This is provided for in Secs.18 and 2 0rder It will be seen that the relevant terms of the two Secs.are somewhat different. Section 18 (1) runs thus: If there is any doubt or dispute as to the existence or amount of any debt, the Board shall decide whether the debt exists and determine its amount: Provided that a decree of a Civil Court relating to a debt shall be conclusive evidence as to the existence and amount of the debt as between the parties to the decree.

(3.) Section 20 runs thus: If any question arises in connexion with proceedings before a Board under this Act, whether a person is a debtor or not, the Board shall decide the matter.