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2002 DIGILAW 426 (GAU)

Ranjit Kumar Banik v. State of Tripura and others

2002-10-01

B.B.DEB, P.P.NAOLEKAR

body2002
Judgement NAOLEKAR, C. J. :- The petitioner-appellant has purchased a plot of land measuring 80 decimals situated at Khowai under Khatian No. 854, Khowai Town, Mouza bearing Dag No. 1575 and 1576 from the Respondent No. 4 Srish Chandra Deb, whose legal representatives have been brought on record as Respondent Nos. 4 to 16, for consideration of Rs. 900/- by registered sale deed dated 28-4-70. On the same day i.e. on 28-4-70, the petitioner-appellant Ranjit Kumar Bank had entered into a separate agreement with the deceased respondent No. 4 Srish Chandra Deb for retransferring the property within a period of three years for consideration of an amount of Rs. 900/-. When the property was not reconveyed the Respondent No. 4 Srish Chandra Deb (since deceased) approached the Civil Court and filed a suit for enforcement of the agreement and reconveyance of the property by the appellant as per the agreement dated 28-4-70. The trial Court decreed the suit. Aggrieved by the said judgment and decree passed by the trial Court, the appellant preferred an appeal before the Appellate Court. The appellate Court by its judgment and order dated 21-7-77 allowed the appeal and set aside the judgment and decree granted by the trial Court as a result thereof, the suit filed by the respondent No. 4 Srish Chandra Deb (since deceased) for enforcement of the agreement stood dismissed. 2. Later on Srish Ch Deb approached the Tribunal under the Tripura Agricultural Indebtedness Relief Act, 1979 (for short the Act, 1979) for redelivery of the property treating it to be a mortgage which was the subject matter of the transaction dated 28-4-70. The Tribunal by its order dated 17-6-89 held that the transaction entered into between and by the parties dated 28-4-70 was a transaction of mortgage. The Tribunal further held that the Respondent No. 4 (since deceased) to be a marginal farmer and consequently held the said transaction to be a debt within the meaning of the Act, 1979 and it being a mortgage, directed the appellant to release the property and deliver its possession to the Respondent No. 4 Srish Ch Deb (since deceased on or before 20th June, 1989. It was further directed that the appellant herein to produce the mortgage deed and other documents for endorsement for redemption. Aggrieved by the said order, an appeal was preferred by the appellant before the Appellate Tribunal. It was further directed that the appellant herein to produce the mortgage deed and other documents for endorsement for redemption. Aggrieved by the said order, an appeal was preferred by the appellant before the Appellate Tribunal. The Appellate Tribunal dismissed the appeal by its order dated 11-1-1990 and the said order was the subject-matter of the writ petition filed before this Court, which was dismissed by the learned Single Judge by order dated 7-7-97. Being aggrieved by the judgment and order of the learned Single Judge the present appeal is filed by the appellant. 3. It is submitted by the learned counsel for the appellant that once the Civil Court adjudicated upon the agreement dated 28-4-1970 and dismissed the suit filed by the respondent No. 4 for re-transfer of the suit property the Tribunal had no jurisdiction to reconsider the transaction and held it to be a mortgage and direct redemption of the mortgage and redelivery of the possession. It is further submitted that the Act having come into force on 31st March, 1979 the transaction entered into between the parties prior to that date, i.e., 28-4-70, the Tribunal could not have exercised its jurisdiction over the transactions, which has been entered into prior to the Act coming into force. 4. On the other hand, the learned counsel for the respondents submits that the Act has an application on any debt payable by the marginal farmer and it has retrospective operation. Once the transaction falls within the definition of debt the Act shall apply with full force, and the order passed by the Civil Court dismissing the suit will not have the overriding effect over the provisions of the Act, therefore, the Tribunal has jurisdiction to decide disputes which fall within the ambit of the Act. 5. To better understand and appreciate the submissions of the learned counsel for the respective parties, it would be appropriate to reproduce certain relevant provisions of the Act 1979. 5. To better understand and appreciate the submissions of the learned counsel for the respective parties, it would be appropriate to reproduce certain relevant provisions of the Act 1979. "2(d) "Debt" means any liability in cash or in kind secured or unsecured due from a debtor whether payable under a decree or order of any Civil Court or otherwise and includes mortgage money the payment of which is secured by the usufructuary mortgage of immovable property......." "2(h) "Marginal farmer" in relation of a person not belonging to Scheduled Tribe means a farmer who owns or cultivates as share cropper land measuring not more than one hectare of nal or lunga or two hectares of other agricultural land and in relation of a person belonging to a Scheduled Tribe means a farmer who owns or cultivates as share cropper and measuring not more than two hectares of nal or lunga or four hectares of other agricultural land." "3. Notwithstanding anything contained in any other law for the time being in force or any contract or other instrument having force by virtue of any such law, and save as otherwise expressly provided in this Act, the consequences as hereinafter set forth shall, with effect from the date of commencement of this Act, ensue, namely :- (a) every debt advanced before the commencement of this Act including the amount of interest, if any, payable by a debtor to a creditor, shall be deemed to be wholly discharged; (b) no such debt due from the debtor shall be recoverable from him or from any movable or immovable property belonging to him, nor shall any such property be liable to be attached and sold or proceeded against in any manner in the execution of any decree or order relating to such debt against him; (g) every mortgage executed by such debtor in favour of the creditor shall stand redeemed and the mortgaged property shall be released by the creditor in favour of such debtor. Explanation I - Nothing in this section shall be construed to entitle any debtor to a refund of any part of a debt already repaid or recovered from him before the commencement of this Act. Explanation II - For the purpose of this Act mortgage includes a transfer under an agreement express or implied for retransfer within a specified period on repayment of the consideration money." 6. Explanation II - For the purpose of this Act mortgage includes a transfer under an agreement express or implied for retransfer within a specified period on repayment of the consideration money." 6. The Tripura Agricultural indebtedness Relief Act, 1979 (hereinafter shall be referred to as the "Act") was enacted to provide relief from indebtedness to agricultural labourers, rural artisans and small farmers in the State of Tripura and for matters connected therewith. It received the assent of the President on the 18th June, 1980. Section 2(d) of the Act defines "debt" to mean any liability in cash or kind secured or unsecured due from a debtor whether payable under a decree or order of any Civil Court or otherwise and includes mortgage money the payment of which is secured by the usufructuary mortgage or immovable property (underline supplied) Section 3, which begins with non-obstante clause read with sub-clause (a) says that notwithstanding anything contained in any other law for the time being in force or any contract of other instrument having force by virtue of any such law, and unless otherwise expressly provided, every debt advanced before the commencement of the Act including the amount of interest, if any, payable by a debtor to a creditor, shall be deemed to be wholly discharged (underline supplied). From the definition of "debt" read with sub-clause (a) it is apparent that the debt which is due from a debtor on the date of the commencement of the Act and advanced before the commencement of the Act including the amount of interest shall be covered under the purview of the provisions of the Act. As per the definition of the "debt", debt shall be liability in cash or in kind which is due from the debtor. Sub-clause (a) of Section 3 makes it abundantly clear that at any rate every debt advanced before the commencement of the Act by a debtor to a creditor shall stand discharged in regard to marginal farmer. From the definition of "debt" with the consequences provided under Sec. 3 of the Act it is apparent that the debt due on the date of the commencement of the Act falls within the purview of the Act and the submission made by the learned counsel that since the debt was advanced prior to the commencement of the Act, the Act shall not apply, is without any force. 7. 7. The definition of debt includes the mortgage money the payment of which is secured by the usufructuary mortgage of immovable property. By virtue of Section 3, sub-clause (g) every mortgage executed by such debtor in favour of the creditor shall stand redeemed and the mortgaged property shall be released by the creditor in favour of such debtor. Explanation II to Section 3 states that mortgage includes a transfer under an agreement express or implied for retransfer within a specified period on repayment of the consideration money. By virtue of the Explanation II any agreement express or impliedly provides for retransfer of the property within a specified period on repayment of the consideration money would be a mortgage. The agreement which fulfills the three conditions, namely, (i) that there is a transfer agreement of a property, (ii) that the agreement contains term expressly or impliedly for retransfer of property within a specified period and (iii) that such retransfer is on repayment of the consideration money would be a mortgage by virtue of Explanation II to Section 3 of the Act. Once it is found that a deed of mortgage executed by a debtor in favour of the creditor was in existence on the date the Act came into force, sub-clause (g) of Sec. 3 will come into operation and by virtue of that the mortgaged property shall be released by the creditor in favour of the debtor. In the present case there was an agreement entered between the parties on 28-4-70 whereunder it was agreed to retransfer the property within the period of three years on payment of money. Thus the agreement entered between the parties on 28-4-70 would be a mortgage in existence when the Act came into force and will be covered under the provisions of the Act. The agreement dated 28-4-70 is "debt" being a mortgage as provided under sub-clause (d) of Sec. 2 of the Act, advanced to the marginal farmer by the creditor. On the commencement of the Act the mortgaged property shall be deemed to have been redeemed and the mortgaged property shall be released by the creditor in favour of such debtor. The agreement dated 28-4-70 being the mortgage the Appellate Tribunal has rightly exercised jurisdiction and directed the appellant to return the property. 8. For the aforesaid reason the appeal is dismissed. There will be no order as to costs. The agreement dated 28-4-70 being the mortgage the Appellate Tribunal has rightly exercised jurisdiction and directed the appellant to return the property. 8. For the aforesaid reason the appeal is dismissed. There will be no order as to costs. However, as per submission of the learned counsel for the appellant the suit property was in his possession and sown crops are standing over that field and therefore the decree for the delivery of the possession of the property may take effect after the standing crops are reaped. Taking into consideration that the property in suit was in possession of the appellant at the time he has sown the crops, we direct that the order of the Tribunal shall not be executed till 31st of March, 2003. Appeal dismissed.