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1954 DIGILAW 165 (KER)

Chacko v. Kottayam Bank Ltd.

1954-09-27

KUMARA PILLAI, VITHAYATHIL

body1954
Judgment :- 1. The petitioners in D.R.P. No. 506 of 1116 on the file of the District Munsiff's Court of Kottayam are the revision petitioners. The D.R.P. was filed by them under Ss. 8, 9 and 15 of the Travancore Debt Relief Act for determining the amount of the debt payable by them to the respondent-bank which is a public limited bank. The debt was one payable under the promissory note executed by the petitioners in favour of the bank. The court fixed the amount of the debt as Rs. 1075-14-0. There was deficiency in the deposits made by the petitioners for the first and second instalments. The court allowed them to make up the deficiency on or before 16.11.1117. The deficiency was made up within that time. Subsequently, the petitioners applied to the court on 24.1.1118 for ascertaining the amount payable for the last instalment due on 30.1.1118 and for the issue of a chalan. The amount was ascertained by the court and a chalan was issued for that amount. The petitioners deposited the amount for which the chalan was issued. On the ground that the whole debt was not discharged within the period of two years as provided in the Debt Relief Act, the respondent-bank filed a suit as O.S. No. 509 of 1121 for the balance amount due to it. The petitioners contended that the whole debt has been discharged under the provisions of the Debt Relief Act. This contention was repelled and the suit was decreed by the court. In appeal filed by the petitioners the High Court confirmed the decree of the trial court but observed that the appellants were at liberty to raise in the Debt Relief Proceedings the question whether they were entitled to concessional payment under the Deft Relief Act. 2. Under S.6(2) of the Debt Relief Act read with S. 9 in the case of a transaction with a bank, if the interest charged exceeds 9% per annum, the debtor will be entitled to the benefit of concessional payment only if 80% of the debt is repaid within two years from the date of the commencement of the Act. The petitioners had deposited only 70% of the debt, and the chalan issued by the court was only for that amount. The petitioners had deposited only 70% of the debt, and the chalan issued by the court was only for that amount. On 19.3.1123 the petitioner applied in the Munsiff's Court for the issue of a chalan for payment of the balance of the 80% of the debt. Accordingly a chalan was issued for Rs. 154-1-0 and the amount was deposited by the petitioners. Thereafter the petitioners applied on 11.10.1950 for a declaration that the debt has been fully discharged and for an order striking off the Debt Relief Petition. That petition was dismissed by the Munsiff's Court. The appeal filed from the order of the Munsiff's Court was dismissed by the District Court. Hence this revision petition. 3. The ground urged in the revision petition is that it was on account of the mistake of the court in issuing chalan for a smaller amount that the petitioners failed to deposit within time the whole amount payable by them and that they are therefore entitled to have the delay condoned. 4. So far as this petition is concerned it is not necessary to go into the question whether the short deposit of amount was due to the mistake of the court and not that of the petitioners. The court had already passed an order on the application filed by the petitioners under S.15 of the Debt Relief Act fixing the amount of the debt and allowing them to make up the deficiency in the deposit of the instalments that fell due before the date of the order. After the passing of such an order there was nothing further to be done by the court. In order to get the benefit under the Act it was the duty of the petitioners to have paid the debt as fixed by the court and according to the provisions of the Act. Under S. 9 of the Act the debtor will be entitled to concessional payment only if the debt is paid according to the provisions of the Act. In the case of a debt due to a bank coming within the purview of the Act the debtor is entitled to concessional payment only if 80 per cent of the debt is repaid within two years from the date of the commencement of the Act. In the case of a debt due to a bank coming within the purview of the Act the debtor is entitled to concessional payment only if 80 per cent of the debt is repaid within two years from the date of the commencement of the Act. The petitioners were therefore bound to pay the bank 80 per cent of the debt as fixed by the court in the Debt Relief Proceedings within two years from the date of the commencement of the Act, viz. 31.1.1118. Admittedly, this amount was not deposited in full by the petitioners within that time. Since the amount of the debt was already fixed by the court there was no scope for a further petition under S.15. In fact, no such petition was put in by the petitioners. They only applied for ascertainment of the amount payable for the last instalment and for the issue of a chalan for that amount. As stated already it was not the function of the court to help the debtor in ascertaining the instalment amount payable by him. It is only if the creditor refuses to accept any payment made in accordance with the provisions of S.9 that the debtor can apply to the court under sub-s. (5) of the section to have such amount deposited for payment to the creditor. The petitioners have no case that they offered the last instalment amount to the bank within time and that the bank refused to accept it. In fact, no petition was filed by them under sub-s. (5) of S. 9. The deposit itself was made without notice to the bank. Even in the case of a petition under sub-s. (5) of S.9 the debtor has to deposit the full amount payable by him under the provisions of the Act. The petitioners were bound to pay the bank the balance amount payable by them under the provisions of the Act within the time provided for in the Act. The mere fact that they applied to the court to ascertain the amount and deposited in court the amount as per the chalan issued by the court cannot amount to payment to the bank of the amount payable by them under the provisions of the Act. The mere fact that they applied to the court to ascertain the amount and deposited in court the amount as per the chalan issued by the court cannot amount to payment to the bank of the amount payable by them under the provisions of the Act. The mistake committed by the court in calculating the amount payable by the petitioners cannot affect the liability of the petitioners to comply with the provisions of the Act. The petition filed in the court for ascertaining the amount was ill-conceived and the court acted without jurisdiction in ascertaining the amount and issuing a chalan for the same. 5. It has also to be noted that the balance amount payable by the petitioners was deposited by them only on 19.3.1123. The fact that the amount already deposited by them was not sufficient under the provisions of the Debt Relief Act must have been brought to their notice when the bank instituted the suit in 1121. Instead of depositing the balance amount immediately, they contested the suit and it was only after the suit was decreed that the balance amount was deposited by them. Even if the short deposit was due to the mistake of the court there is no excuse for not making up the deficiency as soon as the mistake was known to the petitioners. 6. We, therefore, hold that the petitioners have not satisfied the conditions laid down in S. 9 of the Act read within S. 6(2) for entitling them to the benefit under the Act. The orders of the courts below are confirmed and the revision petition is dismissed with costs. Dismissed.