Tarachand Agarwalla v. Messrs Walford Transport Limited
1980-10-01
A.K.SEN, B.C.CHAKRABARTI
body1980
DigiLaw.ai
JUDGMENT Anil K. Sen J: This is a revisional application at the instance of the decree holder and is directed against an order dated February 26, 1980, passed by the learned Subordinate Judge, Jalpaiguri, thereby staying all further proceedings of O. C. Execution Case No. 8 of 1979 under S. 6 of the West Bengal Relief Undertakings (Special Provisions) Act, 1972 thereinafter referred to as the said Act. 2. It is not in dispute that the decree holder/petitioner obtained a decree for eviction, arrears of rent and mesne profits against the opposite party Messrs. Walford Transport Limited on determination of a tenancy in favour of the said opposite party which tenancy was governed by the provisions of the West Bengal Premises Tenancy Act. The said decree was put into execution in the aforesaid O. C. Execution Case No. 8 of 1979. Pending the said execution on September 24, 1970, the State Government by a Notification declared the opposite party to be a relief undertaking in terms of the provisions of S. 3 of the said Act. It is also not in dispute that by such Notification the State Government suspended the operation of all or any of the contracts, assurances of property, agreements, settlements, awards, Standing Orders or other instruments in force to which the opposite party was a party or which had its application to the opposite party immediately before the date of such declaration. In view of such a declaration the judgment debtor opposite party filed an application claiming stay of further proceedings in the execution case aforesaid so long the decree holder’s rights as aforesaid remain suspended. This application was contested by the decree holder/petitioner before us. It was contested principally on the ground that the liability which is being enforced in the execution case does not arise out of any contract, assurance of property agreement, settlement, award, standing order or any other instrument of like nature, and as such, the declaration does not lead to suspension of any such liability. Such objection being overruled the learned Subordinate Judge has allowed the application for stay on the view “that the present proceeding being execution case which clearly arises out of the contractual liability of the defendant to pay rent and be liable to be evicted from the premises in suit which he occupies by virtue of the contractual relation with the plaintiff/landlord”.
is to be stayed in view of the Notification issued under S. 4 of the said Act, in the light of the provision of S. 6 thereof. This is the decision which is being challenged now before us in the present revisional application. 3. Mr. Mukherjee appearing in support of this revisional application has first contended that the learned Subordinate Judge went wrong in thinking that the liability of the judgment debtor under the decree is a contractual liability and as such was suspended on issue of a declaration made in terms of section 4(b) of the said Act. According to Mr. Mukherjee here the original contract being one of tenancy which is governed by the provisions of the West Bengal Premises Tenancy Act, the contract itself stood overridden by the provisions of the stature so that the decree that was obtained was a decree not on the determination of the tenancy in terms of the contract but the decree was so obtained in terms of the provisions of the statute namely, the West Bengal Premises Tenancy Act. According to Mr. Mukherjee as the tenant incurred the liability of being evicted in terms of S. 13(1) of the Act the decree holder landlord. It was has further been contended by Mr. Mukherjee that in any event whatever the position prior to the decree once the tenancy is duly determined by a valid notice to quit and a decree for possession is obtained the contractual relationship comes to an end when such a decree is being executed it is being so executed for enforcement of a liability under the decree and not under the contract. This aspect according to Mr. Mukherjee having been totally overlooked by the learned Subordinate Judge he acted entirely without jurisdiction in staying further proceeding of the execution case under the provision of S. 6 of the said Act. Secondly it has been contended by Mr. Mukherjee that though by the declaration the State Government had suspended all the liabilities of the judgment debtor/opposite party contemplated by S. 4(b) of the said Act, the liability under the decree now under execution not being a liability covered by the said provision there can be no stay of further proceedings of such an execution case. 4. Mr. Amiya Narayan Mukherjee appearing on behalf of the judgment debtor/opposite party has contested both the points raised by Mr. Mukherjee.
4. Mr. Amiya Narayan Mukherjee appearing on behalf of the judgment debtor/opposite party has contested both the points raised by Mr. Mukherjee. According to him the liability now under enforcement coming well within the provision of S. 4(b) of the said Act, the order of stay as passed by executing court is fully justified. 5. We have carefully considered both the points raised by Mr. Mukherjee in support of this revisional application. In our view there is some substance in the first point raised by him. It is not necessary for us to go into the question whether in view of the provisions of the West Bengal Premises Tenancy Act the contract of tenancy stood wholly superseded by the statute or not. We, however, feel no hesitation in agreeing with Mr. Mukherjee that whatever be the legal position prior to the decree once the landlord obtains a decree for eviction what he enforces in execution of such a decree is not his contractual right but his rights acquired under the decree. The learned Subordinate Judge, therefore, was not correct in his conclusion that the execution case arises out of a contractual liability which liability stood suspended on issue of a Notification in terms of S. 4(b) of the said Act. In our view, however, though the learned Subordinate Judge may have proceeded on an erroneous premises his ultimate conclusion is otherwise supportable in law. This takes us to consider the second point raised by Mr. Mukherjee. Section 4 of the said Act provides as follows: “4.
In our view, however, though the learned Subordinate Judge may have proceeded on an erroneous premises his ultimate conclusion is otherwise supportable in law. This takes us to consider the second point raised by Mr. Mukherjee. Section 4 of the said Act provides as follows: “4. The State Government, if it is satisfied that it is necessary or expedient so to do for the purposes specified in S. 3, direct, by notification.- (a) that in relation to any relief undertaking all or any of the enactments specified in the Schedule to this Act shall not apply or shall apply with such adaptations, whether by way of modification, addition or omission (which does not, however, affect the policy of the said enactments), as may be specified in such notification; or (b) that the operation of all or any of the contracts, assurances of property, agreements, settlements, awards, standing orders or other instruments in force (to which ay relief undertaking is a party or which may be applicable to any relief undertaking) immediately before the date on which the State industrial undertaking is declared to be a relief undertaking, shall remain suspended or that all or any of the rights, privileges, obligations and liabilities accruing or arising thereunder before the said date, shall remain suspended or shall be enforceable with such modifications and in such manner as may be specified in such modification.” 6. There being no dispute that on that on the declaration issued under S. 3 the State Government had issued a direction directing suspension of all liabilities of the judgment debtor in terms of S. 4(b) as above. On our findings made hereinbefore the liability now under enforcement is not a liability under a contract. But S. 4(b) contemplates wide range of cases where liabilities may accrue otherwise than under a contract and consequentially the directions issued in terms thereof are wide enough to cover the liabilities other than the liabilities under a contract. The whole question therefore, that arises for consideration is as to whether the decree now under execution would come within the term other instrument stood suspended in terms of the directions issued by the State Government. Such a question arises because the decree would come under S. 4(b) only under the term ‘other instruments’ if all all. 7. The term ‘instrument’ has not been defined by the statute.
Such a question arises because the decree would come under S. 4(b) only under the term ‘other instruments’ if all all. 7. The term ‘instrument’ has not been defined by the statute. This term has both a narrow and a wider connotation. Normally the term goes by its narrow connotation to mean a document executed as between the parties to it. In the order connotation, however, it is variedly interpreted to include ‘a formal legal document in writing’. So interpreted it signifies not only a deed inter parties but also any charter or record or other writing of formal nature. The term ‘instrument’ as used in S. 4(b) interpreted on its wider connotation would in our view include a decree of a court and the question is whether the term as used in the said provision should be so construed or not. 8. In the case of Bishnupratap Sugar Works. v. Chief Inspector of Stamps AIR 1968 SC 102 the Supreme Court laid down that though ordinarily a statute is not an instrument. It had further been observed by the Supreme Court in the case of Parusottam v. V. B. Poddar AIR 1966 SC 856 that the term ‘instrument’ when used in a statute must be interpreted with reference to the context and the object of the statute when the term had not been defined by the statute itself. So interpreted we feel no hesitation in holding that the term ‘instrument’ as used in S. 4(b) of the said Act was so used on its wider connotation to include not only a document inter parties but the decree of a court fixing the liability on the relief undertaking. The said Act is an Act as the preamble shows to make special provisions for a limited period in respect of industrial relations, financial obligations and other like matters in relation to industrial undertakings, the running of which is considered essential as a measure of preventing or of providing relief against unemployment. If the Act was enacted to give temporary relief to sick industries it would not be consistent with the object of the statute to exclude such an industry form the temporary relief in respect of liabilities accruing under decrees. Any interpretation, in our view, of the term ‘instrument’ in this provision to exclude a decree may result in substantial failure of the object behind the statute. 9. Mr.
Any interpretation, in our view, of the term ‘instrument’ in this provision to exclude a decree may result in substantial failure of the object behind the statute. 9. Mr. Mukherjee, however, strongly relied upon the observations of the Supreme Court in the aforesaid case of Purasottam v. V. B. Poddar at paragraph 11 of the judgment in contending that when in the statute now under consideration the term ‘instrument’ is qualified for the term ‘other’ it should be interpreted to mean instruments like contract or agreement between the parties, that is a document inter parties and not a decree creating a liability. No doubt, the Supreme Court in the context of the statute thereunder consideration, namely, S. 2(vi)(d) of the Payment of Wages Act (Maharashtra Amendment) held that the term instrument used in the said provision would include an award as the term had not been qualified as ‘contract or other instruments’. In our view, however, the true import of the observation relied on by Mr. Mukherjee is that where the term instrument is qualified as ‘other instruments’, it should be interpreted ejusdem generis. In the provision thereunder consideration, the term instrument being an alternative to contract and not being qualified as other instruments, the Supreme Court made the aforesaid observation though the term was interpreted in its wider connotation to include an award. But even so, in the provision now under consideration because of the qualified expression ‘other instruments in force’ if we are to interpret it ejusdem generis even that would not help Mr. Mukherjee because the preceding expressions are not confined to contracts and agreements but includes settlements, awards standing orders, That apart reading the provision as a whole it is quite explicit that the legislature intended to use the term in its wide connotation when it spoke of other instruments in force to which any relief undertaking is a party or which may be applicable to any relief undertaking. It is clear, therefore, that the instrument need not necessarily be one inter parties but may include one that would have its application to the relief undertaking. 10. Incidentally referring to S. 5 of the said Act, it was contended by Mr.
It is clear, therefore, that the instrument need not necessarily be one inter parties but may include one that would have its application to the relief undertaking. 10. Incidentally referring to S. 5 of the said Act, it was contended by Mr. Mukherjee that when in the said provision the legislature had used the term decree or order of court in contra-distinction to the term instrument it must be held that in S. 4(b) the legislature never intended to connote the decree or order of a court by the term instrument. We are, however, unable to accept such a contention of Mr. Mukherjee. Section 5 was enacted specifically to override all law, agreement or instrument or any decree or order of a court, tribunal, officer or other authority. The term decree or order might have been independently specified in S. 5 to make the intention clear beyond doubt but that does not lead to the necessary implication as contended for by Mr. Mukherjee. In any event, in our view on the text of S. 4(b) the term ‘other instrument’ used therein cannot but be interpreted to have the wider connotation mare so when such a connotation alone is consistent with the object of the statute. In this view, we hold that on a direction being issued in terms of S. 4(b) the liability of the judgment debtor/opposite party under the decree being suspenned, the learned Subordinate Judge was right in staying further proceedings of the execution case for execution of such a decree pending such suspension in terms of S. 6 of the said Act. 11. In the result, this revisional application fails. The ultimate conclusion of the learned Subordinate Judge being upheld, the judgment debtor’s application for stay is held to be rightly allowed by the learned Subordinate Judge. B. C. Chakraborti, J. I agree. Application rejected.