Parameswaran Pillai v. Joseph — 1960 DIGILAW 396 (KER)

Judgment :- 1. This appeal has been referred to a Division Bench by our learned brother, Vaidialingam, J., as the question involved is not free from difficulty. The question, as stated by our learned brother, is whether an application by a debtor under S.7 or 8 or both of Act 31 of 1958 has to be filed within six months of the commencement of the Act. Putting it differently, if the debtor fails to make the deposit of the first instalment within six months of the commencement of the Act, whether he is precluded from claiming the benefits under the Act. 2. In the present case the decree was passed on 29th September, 1954 and after the decree, on 12th October, 1054, Rs. 900/- was paid. According to the debtor the balance that remained to be paid under the Act, which came into force on 14th July, 1958, was only Rs. 975/-, of which Rs. 250/- was deposited on 18th March, 1960 and another sum of Rs. 643.05 was deposited on 13th June, 1960. So that, if the debtor is entitled to the benefits of the Act, the balance yet remaining to be paid is only less than Rs. 100/-. The contention of the decree-holder, on the other hand, is that, since no deposit was made within six months of the commencement of the Act as contemplated by S.4 (2) thereof, the debtor is not entitled to any benefit of scaling down under the Act and therefore is liable to pay the entire decree amount. The learned District Judge has accepted this contention of the decree-holder and the judgment-debtor has questioned the correctness of the order in this Appeal. The learned District Judge has accepted this contention of the decree-holder and the judgment-debtor has questioned the correctness of the order in this Appeal. S. 4 (2) of the Act lays down the manner of discharge of any debt and it reads: "If any debt is repaid in seventeen equal half-yearly instalments together with interest, accrued due on the principal debt outstanding at the commencement of this Act till the date of payment of each instalment at the rate of 5 per cent per annum or the contract rate whichever is less, the first instalment being payable before the expiry of a period of six months from the date of the commencement of this Act and the remaining instalments being payable on or before the date of expiry of a period of six months from the last day on which the previous instalment was due, the whole debt shall be deemed to be discharged." Another provision which we have to note in this connection in S.7 (1), which is in these terms: 7. Amendment of certain decrees:- (1) Where, before the commencement of this Act, a Court has passed a decree for repayment of a debt, it shall, on the application of any judgment-debtor, who is an agriculturist or on the application of the decree-holder apply the provisions of this Act to such decree and shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, amend the decree accordingly or enter satisfaction, as the case may be." We would also extract some of the other provisions of the Act, which are relevant to the present enquiry. They are: S. 8: "Power of Court to decide doubts and disputes regarding amount payable under S.4: [1] Any debtor or creditor may apply to the Court for an order fixing the amount payable under S.4 and in that application the shall state what is he correct amount payable according to him. They are: S. 8: "Power of Court to decide doubts and disputes regarding amount payable under S.4: [1] Any debtor or creditor may apply to the Court for an order fixing the amount payable under S.4 and in that application the shall state what is he correct amount payable according to him. XX X X [3] An application made by a debtor under sub-section [1] shall be dismissed if the debtor fails to deposit with the Court, before which such application is pending, the amount of any instalment which on his admission, is payable by him under the provisions of this Act and has accrued due and no second application for the same purpose shall be entertained: Provided that the Court may extend the time for making the deposit for any just and sufficient cause. XX X X [5] The Court shall by its order determine the amount which the debtor has to pay under the provisions of S.4 and the time within which such payment shall be made and any payment made in accordance with such order shall be deemed to be a valid payment for purposes of S.4." Sec. 10: "Suits against debtor: [1] Where in respect of a decree for debt passed before the commencement of this Act, a debtor fails to make any one of the payments specified in sub-section [2] of S.4 or in the order on the application made under S.8, the decree-holder shall be entitled to execute the decree in respect of the instalment which is in arrear (2) In any suit filed after the commencement of this Act, for recovery of a debt, the Court in decreeing the suit shall provide for the immediate payment of such instalment or instalments as would have become due under the provisions of sub-section (2) of S.4 and the balance in further instalments as specified therein." XX XX S.12 [4]: "Any agriculturist entitled to make such deposits may, before the date on which any instalment is due, apply to the Court having jurisdiction under sub-section [1] for an extension of the time for making the deposit of the whole or any portion of such instalment and the Court may, after notice to the creditor, extend the time for payment of such instalment or part thereof for such period as it thinks fit." 4. We have to consider the provisions extracted above to unravel the intention of the legislature regarding the question that has arisen in this case. S.4 (2) indicates the manner of discharge of any debt and it lays down that the; debt is payable in seventeen equal half-yearly instalments, the first instalment becoming payable before the expiry of a period of six months from the date of commencement of the Act. This provision has to be read in conjunction with S.10 (1), which gives the decree-holder the right to execute the decree only in respect of the instalment which is in arrear, if the debtor fails to make any of the payment specified in S.4 (2). If the intention of the legislature is to deny the benefits of the Act to a judgment-debtor, who fails to make the deposit of the first instalment within six months of the commencement of the Act, then S.10 (1), which allows the deeree-holder to execute the decree only in respect of the instalment which is in arrear, becomes meaningless. Further, the word 'instalment' in S.10(1) can only mean an instalment contemplated under the other provisions of the Act like S.4 (2), S.8 (3) and S.12(4). Mr. Mathew, the learned advocate of the respondent decree-holder, seeks to make a distinction between 'instalment' in S.10(1) and 'instalment' occurring in the other provisions of the Act. He argues that, if the debtor fails to make the deposit Within six months of the commencement of the Act, the debtor loses the benefit of scaling down under the Act, but only retains the benefit of paying the entire debt, without scaling down, in seventeen equal half-yearly instalments. According to Mr. Mathew, if the debtor deposits the first instalment within six months of the commencement of the Act, then the debtor is entitled to a scaling down of the debt and he further entitled is to pay the debt so scaled down in seventeen equal half-yearly instalments. Thus the learned counsel seeks to make a distinction between the instalment contemplated under S.10 (1), which according to him, is one-seventeenth of the entire decree-debt, without any scaling down, and the instalment under the other provisions of the Act, which is only one seventeenth of the debt as scaled down under the provisions of the Act. The argument is certainly attractive but, we are afraid, is not acceptable. 5. The argument is certainly attractive but, we are afraid, is not acceptable. 5. S.4 (2) does not contemplate any application to the Court, whereas Ss.7&8 are the provisions under which applications are prescribed for amendment of decrees or for fixing the amount payable under S.4. These two latter sections, we mean S.7 & 8 do not lay down any time limit, within which such applications have to be made Therefore the contention, that the first instalment has to be deposited within six months of the commencement of the Act, failing which the applications under S.7 and 8 are not competent, cannot have any warrant. A look at S.10 (2) will make this position clearer. If the intention of the legislature is to deny the benefits of the Act to the debtor (not only judgment-debtor but any debtor), if he fails to deposit' the instalment within six months of the commencement of the Act, then S.10 (2) also becomes otiose. S.10 (2) lays down that in a case, where the suit is filed after the commencement of the Act for recovery of a debt, the Court, in decreeing the suit, shall provide for the immediate payment of such instalment or instalments as would have become due under the provisions of S, 4(2) and the balance in further instal-merits as specified therein. If the interpretation, that the debtor, who fails to make the" payment of the first instalment within six months of the commencement of the Act, is not entitled to the benefits of the Act, is to be accepted, then the court need not and cannot under S.10 (2) pa.is a decree for the immediate payment of only the instalments which have fallen due, as contemplated under S.4 (2), at the time of passing the decree and provide for the payment of the balance in further instalments as contemplated under the same sub-section. Therefore, it is clear that the intention of the legislature in enacting S.4 (2) is only to lay down or specify the several dates on which the seventeen in-stalments contemplated under that sub-section become payable, after which dates alone the creditor or decree holder is entitled to take proceedings for the recovery of such instalment or instalments. Therefore, it is clear that the intention of the legislature in enacting S.4 (2) is only to lay down or specify the several dates on which the seventeen in-stalments contemplated under that sub-section become payable, after which dates alone the creditor or decree holder is entitled to take proceedings for the recovery of such instalment or instalments. And the intention of the legislature does not appear to be to make the payment of the first instalment within six months of the commencement of the Act a condition precedent, as it Were, for the debtor to claim reliefs under the Act. 5. S.8 (3) of the Act only supports the above interpretation. This subsection lays down as to when the application under S.8 (1) shall be dismissed by the Court and that can be done only when the debtor fails to deposit the amount of any instalment payable by him under the provisions of the Act and which has accrued due. Therefore, such a dismissal of the application is contemplated only when the debtor fails to deposit the amount of the instalment accrued dun at the time of the application and the application under S.8 (1) cannot be dismissed for the reason that the debtor failed to deposit the first instalment within six months of the commencement of the Act. We would also observe in this connection that, if any provision of a statute is capable of two interpretations, the one, which is more in consonance with the preamble of the statute, must be accepted in preference to the other, 6. Our attention has been invited by the learned advocate of the respondent to two Division Bench decisions of this Court. The first is Kurian v. Bar-hary Mary Lopez, 1959 KLT. 917=1959 KLJ 994. In that case a deposit of the first instalment was made after six months of the commencement of the Act with an application for extension of time for such deposit. The learned Chief Justice, who delivered the judgment of the Bench, observed that. under S.12 (4) such an application for extension of time after the instalment had fallen due was not competent. The other case is Gopalakrishna Panicker v. Govinda Menon.1960 KLT.1069, to which one of us was a party There also the same learned Chief Justice observed that, after the date on which any instalment became due an application for extention of time was incompetent. The other case is Gopalakrishna Panicker v. Govinda Menon.1960 KLT.1069, to which one of us was a party There also the same learned Chief Justice observed that, after the date on which any instalment became due an application for extention of time was incompetent. We would observe that in both these decisions the question was only whether an application for extension of time for the deposit of an instalment could be filed after the instalment concerned had fallen due. Evidently it could not be done, because S 12(4) clearly lays down that such an application had to be filed before the date on which the instalment fell due. The question before us in this case is different and therefore the aforesaid decisions have no application to the present case. As a result of the foregoing discussion we come to the conclusion that the order of the learned District judge is not sustainable. Therefore, we allow the appeal, but without costs. The lower court will proceed with the application before it and dispose of the same in the light of this judgment. The sale will be stayed pending the said application in the lower court. Allowed.