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1976 DIGILAW 210 (KER)

SHEIKH MAITHEEN v. GEORGE

1976-10-05

CHANDRASEKHARA MENON, K.BASKARAN

body1976
Judgment :- 1. This appeal arises out of an order passed by the court below on an application filed by the appellants under S.4 and 7 of the Kerala Agriculturists' Debt Relief Act, Act XI of 1970, for short the 'Act'. The court below, though found that the appellants were agriculturists entitled to pay the debt in instalments as provided under S.4 of the Act, did not accept the method of calculation to arrive at the amount outstanding suggested by the appellants; hence this appeal. 2. The counsel for the appellants submits that the provisions of S.5 and 6 of the Act have not been correctly applied by the court below; it has not, in merely applying the aggregate amount paid towards interest, due on a calculation at 6% of the principal, and then applying the balance towards principal, given true and full effect to the provisions. He contends that between 1960 and 1967, the appellants had been paying interest at 12%, in terms of the contract, which would mean that the payment made every time was in excess of the interest that would have been due to the respondent if the provisions of S.5 6 were applicable even then. His argument, in other words, is that every such payment, at 12%, had, deemed in terms of S.5 and 6 of the Act, resulted in excess payment by 6%, and if appropriation of such excess payment is deemed to have been made towards principal, and the balance struck, as on the date of every payment, it would have diminished the principal gradually, the consequential reduction of the quantum of interest payable on the principal towards subsequent instalments also then accelerating the process of liquidation of the debt. S.5 and 6 of the Act relied on by the counsel read as follows: "5. Interest payable on debts (1) Notwithstanding anything contained in any law or contract or in any decree or order of court, for determining the amount of a debt (other than a debt due to a banking company) for the purpose of payment under this Act. (a) interest shall be calculated at the rate applicable to the debt under the law. Interest payable on debts (1) Notwithstanding anything contained in any law or contract or in any decree or order of court, for determining the amount of a debt (other than a debt due to a banking company) for the purpose of payment under this Act. (a) interest shall be calculated at the rate applicable to the debt under the law. custom or contract or the decree or order of court under which it arises or at six per cent per annum simple interest, whichever is less and credit shall be given for all sums paid or credited towards interest, and only such amount as is found outstanding, if any, as interest thus calculated shall be deemed payable together with the principal or such portion of it as is due: Provided that not more than one-half of the principal shall be deemed payable or to have been payable towards interest which accrued due till the commencement of this Act; (b) if the amount paid or credited towards interest exceeds the amount payable under clause (a), such excess shall be credited towards the principal and the balance, if any, and future interest alone shall be recoverable. (2) Notwithstanding anything contained in any law or contract or in any decree or order of court, for determining the amount due to a banking company for the purpose of payment under this Act, interest shall be calculated at the rate applicable to the debt under the law or contract or the decree or order of court under which it arises or at seven per cent per annum simple interest, whichever is less, with effect on and from the commencement of this Act, but nothing contained in this subsection shall be deemed to require a re-appropriation of interest already paid and credited before such commencement. (3) Nothing contained in this section shall be deemed to require the creditor to refund any sum which has been paid to or recovered by him. 6. Application of payment towards debt and limit of time for execution of decree. (1) When any amount has been paid or recovered towards any debt referred to in S.4, the Court shall apply it in the order of costs due under the decree (where the debt has ripened into a decree), then interest as recalculated under S.5 and next towards principal. (1) When any amount has been paid or recovered towards any debt referred to in S.4, the Court shall apply it in the order of costs due under the decree (where the debt has ripened into a decree), then interest as recalculated under S.5 and next towards principal. (2) An order passed in pursuance of the provisions of S.4 shall be deemed to be a subsequent order of court within the meaning of Art.136 of the Schedule to the Limitation Act. 1963." S. 6 lays down that when any amount has been paid or recovered towards any debt referred to in S.4, the Court shall apply it in the order mentioned therein. S.5 provides that interest shall be calculated at the rate applicable to the debt under the law, custom or contract or the decree or order of court under which it arises or at six per cent per annum simple interest, whichever is less, and credit shall be given for all sums paid or credited towards interest, and only such amount as is found outstanding, if any, as interest thus calculated shall be deemed payable together with the principal or such portion of it as is due. On a careful reading of clauses (a) and (b) of sub-section (1) of S.5 we find no basis for the argument that the legislature intended the application of interest, paid in excess of what is contemplated under S.S, at every stage of payment in partial discharge of the principal then and there. On the other hand, from the wording "credit shall he given for all sums paid or credited towards interest" we are inclined to hold that what the legislature meant was that when the court considers the question of fixing the instalment, where the liability has not ripened into a decree, it should determine the interest due in terms of S.5 of the Act, apply the payments made, first towards interest and thereafter apply the balance towards the principal. The legislature while conferring the benefit of concessional rate of interest, dees not appear to have thought it necessary that there should be a re-opening of the appropriation already made, in such a way as to have an adjustment on the basis of the low rate of interest, conferred subsequently by the legislation, at every stage when the payment was made under the contract. 3. 3. Reliance was placed by the counsel for the appellants on the decision of this Court in Sankara Kurup v. Joseph (1962 KLT. 309 F. B.). The Head Note to the decision reads as follows: "The principal remains the original sum lent notwithstanding the fact that a decree has been passed for recovery of the same. It follows that the decree can be re-opened to ascertain the principal for the purpose of payment under the Act or for recording satisfaction of the decree." It is true that the decree could be re-opened, particularly in view of the definition of the term "principal" contained in S.2(h) of the Agriculturists Debt Relief Act (Act 31 of 1958) and the provisions contained in S.7(1) of the said Act, which reads as follows: "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." The ruling given by the Full Bench does not in any way advance the case of the appellants. 4. Another decision cited by the counsel for the appellants is the one reported in Eapen Thomas v. Varkey Thomas (1965 KLT. 608). In that case there is an observation by Gopalan Nambiyar, J. who spoke for the Division Bench, which reads as follows: "Ameliorative legislation of the type of the Kerala Act 31 of 1958 must be construed liberally in favour of the beneficiaries." The facts and circumstances dealt with by the Division Bench in the above case are entirely different from the case set out by the appellants herein. True it is, the courts often lean towards the weaker section or in favour of the class for whose benefit the legislation is primarily intended, other things being equal, or, when two interpretations, on the plain and natural meaning of the words employed, are possible; not otherwise. We find that the observation of the Division Bench has no application to this case. 5. We find that the observation of the Division Bench has no application to this case. 5. In Mohamed v. Gheevarghese (1961 KLT 542) Velu Pillai, J. has made the following observation: "Reliance was placed on the provision in S.5 as amended by Act 2 of 1961, particularly on clause (i) of sub-section 1 (a), which enables a debtor to re-open payments which have already been made and appropriated towards interest in excess of the provisions of the Act as amended, in liquidation of the principal pro tanto. This is a new right which came into existence by reason of the amendment Act which was passed long after the dale of the decree. The theory of implied renunciation cannot extend to such rights which accrued later. It must follow that the petitioner has a right under the amended Act to contend, that the excess interest, if any, which he had paid previously, should be applied in reduction of the principal amount of the debt. The learned counsel for the respondent contended, that Act 2 of 1961 being deemed by virtue of S.1 sub-section (2) thereof, to have come into force on the ,14th July, 1968, the renunciation must be understood and defined with reference to the scope of the amended Act; I cannot agree. Renunciation is also a question of fact and cannot be decided as a pure proposition of law." The question considered by Velu Pillai J., as we understand it, was whether in cases where interest was paid by the debtor and appropriated by the creditor it would amount to renunciation of the right to have the interest calculated as per the provisions of the Act as amended, and all that seems to have been said by the learned judge was that there could not have been any renunciation with respect to the right conferred under law after the date of the decree. This, again, does not give any indication that every time the interest was paid under the contract, it should be deemed to have been paid partly towards interest, and partly towards the principal, if the interest then paid is ultimately, on the coming into force of the Act, found to be in excess of what is payable under the provisions thereof. In the light of the foregoing discussion we find no ground to interfere with the decision of the court below. In the light of the foregoing discussion we find no ground to interfere with the decision of the court below. The appeal fails, and is dismissed, however, in the circumstances of the case, without any order as to costs. Dismissed.