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1951 DIGILAW 143 (KER)

Raghavan v. Mathew

1951-11-27

GANGADHARA MENON, GOVINDA PILLAI

body1951
Judgment :- 1. This is a matter arising out of a proceeding under S.16 of the Travancore Debt Relief Act (Acts II and III of 1116). The 7th counter petitioner the appellant before us is an unsecured creditor. The respondent is a secured creditor who has obtained a decree in O.S. 1360 of 1110. The court below by its order dated 3.4.1950 fixed the amount due to the respondent at Rs. 4135-7-0. The appeal is directed against this order. 2. The learned Advocate for the respondent raised a preliminary objection that no appeal lies. Act II of 1116 does not provide for any appeal from orders of this nature. Therefore there is considerable force in the objection taken by the learned Counsel. The learned Advocate for the appellant however prays that the appeal may be treated as a revision petition. We think that this prayer may be granted. The appeal is therefore treated as a revision petition. 3. The main point urged by the appellant is that the court below overlooked the provisions of S.12 of the Debt Relief Act in fixing the amount due to the 1st counter-petitioner. But it is contended for the respondent that the appellant is precluded from raising the point in appeal as he is concluded by the admission made by him in the lower court. The learned Advocate for the appellant argues that the observation in the order of the learned judge that the amount claimed by the 1st counter petitioner is not objected to by the other parties is not correct. It appears from the records that all that the learned Advocates for counter-petitioners 2, 5, 6, 7 and 11 stated in writing was that they had no objection to the amount due to the 1st counter-petitioner being paid to him. They did not say what that amount was. Nor did they give up the right to have that amount determined in due course of law. No admission as to the amount due to the 1st counter-petitioner can therefore be drawn from the statement in question. Hence the lower court was wrong in having fixed the amount without determining the same through proper investigation as if the claim put forward by the first respondent was not objected to by the other parties. 4. No admission as to the amount due to the 1st counter-petitioner can therefore be drawn from the statement in question. Hence the lower court was wrong in having fixed the amount without determining the same through proper investigation as if the claim put forward by the first respondent was not objected to by the other parties. 4. The question then arises whether the court below was bound to apply the provisions of S.12 in determining the amount under S.18 of the Act. The point does not appear to have come up for consideration before in any decision of this Court. The decree debt in O.S. 1360 of 1110 is admittedly a liability arising out of sale of immovable property in respect of the balance of purchase money for which the vendor has a lien on the property sold as provided under S.4(1) of the Debt Relief Act. S.4 enacts that nothing in the Act shall affect debts and liabilities falling under the several heads mentioned therein. It is therefore contended that the decree-debt in question is one of the classes of debts excluded from the purview of the Act and that the provisions of S.12 the operation of which is restricted to debts to which the Act applies cannot be invoked in determining the amount under S.18 of the Act. The learned Advocate for the appellant however contends that by virtue of S.3(2) of the Act the provisions of Ss. 18, 19, 20, 21 and 23 of the Act applies to all classes of debts whether incurred before on or after the 23rd Dhanu 1112 notwithstanding anything contained in S.3(1) or Ss. 4 to 6 and that the provisions of the Act have therefore to be applied without the limitation imposed by S.4 in determining the amount under S.18. Hence he argues that the provisions of S.12 become applicable when the amount of a debt payable is determined under S.18 of the Act. 5. The Act evidently is intended to afford relief, to the debtors in respect of certain classes of debts. One of the ways by which the aim is to be achieved is by allowing the debt to be discharged by payment in instalments in the manner and to the extent provided under Ss. 8 and 9 of the Act. 5. The Act evidently is intended to afford relief, to the debtors in respect of certain classes of debts. One of the ways by which the aim is to be achieved is by allowing the debt to be discharged by payment in instalments in the manner and to the extent provided under Ss. 8 and 9 of the Act. S.3(1) however restricts the application of the above sections to debts incurred before 23rd day of Dhanu 1112 and subsisting on the commencement of the Act subject to the provisions of S.4 to 7. Further relief in the matter of discharge of such debts is afforded by S.11 which directs that in determining the amount of a decree debt for purposes of payment under Ss. 8 and 9 interest payable shall be as provided in S.11 notwithstanding anything contained in S. 31 of the Civil Procedure Code or any other law contract, decree, or order of court to the contrary and also by S.12 which enjoins that future interest from the date of commencement of the Act on any debt to which the Act applies shall be limited to four per cent only. 6. Still another way of affording relief to debtors is that embodied in S.16 to 21 of the Act. Any individual who is unable to pay his debts in instalments as provided under Ss. 8 and 9 of the Act may invoke the jurisdiction of the Court under S.16 of the Act for a full settlement of his debts. No doubt the section imposes certain restrictions; one such restriction being that at least one of the debts must be such as would have been capable of being discharged under Ss. 8 and 9 as was held in 1947 T.L.R. 563. But when once the jurisdiction of the court is invoked under S.16 and the petition is found to be maintainable under that section the court has to settle all the debts of the petitioner by applying Ss. 18 and 19 of the Act. In thus applying S.18 and 19 there is no restriction imposed on account of the provisions of S. 3(1) or 4 to 6. This is so by virtue of the provisions of S.3(2) which provides: "Notwithstanding anything contained in sub-s. (1) or S.4, 5 and 6 the provisions of Ss. 18 and 19 of the Act. In thus applying S.18 and 19 there is no restriction imposed on account of the provisions of S. 3(1) or 4 to 6. This is so by virtue of the provisions of S.3(2) which provides: "Notwithstanding anything contained in sub-s. (1) or S.4, 5 and 6 the provisions of Ss. 18, 19, 20, 21 and 23 shall subject to the provisions of S. 7 apply to all classes of debts whether incurred before, on or after the 23rd Dhanu 1112". Therefore the classes of debts mentioned in S. 4 become debts to which the Act applies when the court determines the amount of each debt under S.18 of the Act. 7. S.12 of the Act provides: "No future interest exceeding simple interest calculated at four per cent per annum in the case of money debts and six per cent per annum in the case of paddy debts shall be chargeable from the date of the commencement of the Act on any debt to which this Act applies." Hence when the court applies the provisions of the Act embodied in S.18 and determines the amount of each claim, the provisions of S.18 are attracted and it has to determine the amount in accordance with the provisions of that section. 8. It is contended that S.4 excludes the classes of debts mentioned therein from the purview of the Act, in as much as it expressly provides that nothing in the Act shall affect debts and liabilities falling under the heads mentioned therein and that therefore S.4 of the Act over-rides the provisions of S.3(2) which are incompatible with the intention expressed in S. 4. S. 4 expresses the general intention. S.3(2) however expresses a particular intention in the application of Ss. 18, 19, 20 and 23 of the Act namely that those sections shall apply notwithstanding anything contained in S.3(1) or S.4 to 6 of the Act. It is an established rule that when in an Act you find general provisions and also special provisions of this sort the general provisions are not to control or repeal the special provisions. (Vide Taylor v. Corporation of Oldham - (1876) 4 Ch. D. 395). It is an established rule that when in an Act you find general provisions and also special provisions of this sort the general provisions are not to control or repeal the special provisions. (Vide Taylor v. Corporation of Oldham - (1876) 4 Ch. D. 395). Where in a Statue "a general intention is expressed and also a particular intention which is incompatible with the general one the particular intention is considered an exception to the general one." (Vide Maxwell on the Interpretation of Statutes, 9th Edition, page 176). Therefore even if the intention expressed in S.3(2) is considered incompatible with that expressed in S. 4, the former has to prevail. 9. We are therefore of the view that on an application under S.16 when the court determines the amount of each claim under S.18, the provisions of S.12 of the Act are also attracted and that it has to determine the amount in accordance with the provisions of S.12 also. 10. The order under appeal cannot therefore stand. We set it aside and direct the lower court to fix the amount due to the 1st counter-petitioner in accordance with law and in the light of the observations made above. The appeal which is treated by us as a revision petition is allowed as indicated above with costs.