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1938 DIGILAW 264 (CAL)

Munshi Amiruddin Ahmad v. Abdul Rahman

1938-11-07

body1938
JUDGMENT Biswas, J. - This Rule is directed against an order of the Munsif of Chikandi in the District of Faridpur by which he has refused to stay a suit pending in his Court, notwithstanding the receipt of a notice under sec. 34 of the Bengal Agricultural Debtors Act, 1936. The reason which led the learned Munsif to refuse the stay is this: that the debt in question, although mentioned by the debtor in his application before the Debt Settlement Board, was still denied by him. The view which the learned Munsif was apparently inclined to take was that under sec. 8 of the Act an application lies only for an " admitted " debt, and that a suit in respect of an alleged debt, not admitted by the debtor or proved before the Civil Court, cannot be the subject-matter of a stay under sec. 34. The learned Munsif is clearly wrong. Drastic as are the provisions of this Act, Courts of law have nothing to do with the policy of this legislation but are bound to construe the Act as it stands. Reading sec. 34, it is clear,-- and the point hardly requires labouring at this day,--that the stay provisions contained therein are peremptory in nature, and that what the section contemplates is that the stay of proceedings in Civil Courts should follow almost automatically upon the filing of an application before the Deb; Settlement Board and the consequent issue of a notice by the Board. Whether the application is a proper application or not, whether the person who makes the application is competent to make it or not, whether the debts included in the application are debts within the meaning of the Act or not, or whether the debts mentioned in the application exist or not, these and other questions are matters which, if raised, may have to be determined; but it is not intended that there should be a prior determination of such questions by the Board before it can issue a notice under sec. 34. To take any other view of the provisions of the Act would be to defeat those provisions. 2. So far as the particular point raised by the learned Munsif is concerned, it seems to me that the Act nowhere requires that the debt must be an " admitted " liability before a notice under sec. 34 can issue in respect thereof. 2. So far as the particular point raised by the learned Munsif is concerned, it seems to me that the Act nowhere requires that the debt must be an " admitted " liability before a notice under sec. 34 can issue in respect thereof. Sec. 34 merely requires that the debt must be included in the application under sec. 8 or statement under sub-sec. (1) of sec. 13. We are concerned here only with an application under sec. 8. New what an application under sec. 8 is to contain is set out in sees. 10 and 11. Sub-sec. (1) of sec. 11 expressly provides, inter alia, in cl. (b) that the application should contain the names and addresses of the creditors, the total amount claimed by each creditor to be owing to him in respect of each debt, so far as is known to the debtor, and a note whether each such claim is admitted by the debtor. This clearly contemplates that the application might well include a claim against the debtor in respect of which the liability is not admitted by him. Although the liability may not be admitted, the item is still to be regarded as a debt included in the application under sec. 8, and if that be so, notice under sec. 34 would be a proper notice to issue in respect of such debt. If any other view were taken, it would mean that a debtor against whom a false claim is made by a creditor should per force be driven to a Civil Court to escape his liability,; and be shut out from the speedy relief which this Act is designed to afford him for the purpose of settling his debts. Settlement of debts within the meaning of the Act in my opinion includes settlement of claims in respect of which liability is denied as well as of claims in respect of which liability is admitted, and it would be wrong to limit the jurisdiction of the Debt Settlement Board only to the settlement of debts admitted by the debtor. Reference may be made in this connection to sec. Reference may be made in this connection to sec. 18 of the Act which expressly provides that 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. This shows that subject to a prior decision by a Civil Court, the Board is the authority constituted by the Act for the purpose of determining whether or not any particular claim is a real subsisting claim against the debtor. In this view of the matter, I do not think that the order of the learned Munsif can be supported, and it must be set aside. The Rule must accordingly be made absolute. The Petitioner is entitled to his costs. The hearing-fee is assessed at one gold mohur. The suit will be stayed pending the disposal of the application before the Debt Settlement Board.