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2003 Supreme(SC) 874
2003(7) Supreme 79
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
M.B. Shah & AR. Lakshmanan, JJ.
Bhavsingh (Dead) by LRs. -Appellant
versus
Keshar Singh & Ors. -Respondents
Civil Appeal Nos. 13382-83 of 1996
Decided on 10-9-2003
Counsel for the Parties :
For the Appellant : Sushil Kumar Jain, Ms. Ruchi Kohli, Ms. Anjali Doshi, A.P. Dhamija, Anil Vyas, H.D. Thanvi and Ms. Pratibha Jain, Advocates.
For the Respondent No. 1 : Vivek Gambhir, Advocate.
For the Respondent No. 2 : S.K. Gambhir, Sr. Advocate, M.P. Jha, Ram Ekbal Roy, Anil Kumar Chopra, Advocates.
For the Respondents 3-4 : Ms. Pragati Neekhra, S.K. Agnihotri, Advocates.
Headnote:(i) Madhya Pradesh Samaj Ke Kamjor Vargon Ke Krishi-Bhumi Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakaron Se Paritran Tatha Mukti Adhiniyam, 1976 (M.P. Act No. 3 of 1977)-Sections 5 and 7-Phrase "prohibited transaction of loan"-Transaction of outright sale would also be covered if there was a distinct oral understanding that rule shall not be acted upon if loan was repaid-If transaction of loan in substance was a prohibited transaction of loan, transaction was to be declared void-SDO had arrived a conclusion on evidence that there was a distinct oral understanding that sale shall not be acted upon if loan was repaid by appellant-Appellant was entitled to get benefit of the Act if transfer of his agricultural land was for the loan amount with distinct oral understanding. (Paras 9 to 12)
(ii) M.P. Act No. 3 of 1977-Sections 5 and 7-M.P. Anusuchit Jan Jati Rini Sahayata Adhiniyam, 1967 (Debt Relief Act)-Application by appellant that transfer of land by registered sale deed for Rs. 2500/- was a mortgage transaction as said transfer was for loan amount-SDO, competent authority under Act, 1977 arrived a finding that transfer of land was the loan amount with distinct oral understanding that if loan was repaid transfer was not to come into effect-High Court found that previous application filed by appellant under Debt Relief Act was decided against appellant holding that transaction was of sale and not of mortgage and it operated res-judicata and order of SDO upheld in appeal was liable to be set aside-Appeal-Whether findings in a petition under Debt Relief Act could operate res judicata in a proceedings under Act, 1977? No.
Held : The relief which is required to be granted under the provisions of the Act of 1977 is altogether different from the relief which is granted under the Debt Relief Act. One provides for declaring the sale transaction to be null and void while other provides only for scaling down the amount of the debt and the interest. Therefore, even in the previous proceedings if it is held that the transaction was not a mortgage but a sale, that would not mean that in the present proceedings, the appellant can not prove that the sale deed was executed for the loan amount with a specific understanding that on refund of the amount, property was to be redelivered to the transferor. In this view of the matter, even through in a previous proceeding there was a specific findings that the deed was not a mortgage deed (which is a fact), the present proceeding would not be barred by the principles of res-judicata. The cause of action and reliefs in the first and second proceedings are altogether different. This is also provided under Section 3 of the Act of 1977 by giving over-riding effect to the provisions of the Act. It inter alia provides that the provisions of the Act and the Rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. (Para 18)
JUDGMENT
Shah, J.-These appeals are filed against the judgment and order dated 11.9.1993 and order dated 21.3.1994 passed by the High Court of Madhya Pradesh, Jabalpur Bench at Indore, in M.P.No. 274 of 1987 and in review petition bearing MCC No. 550 of 1993.
2. By the impugned judgment and orders, the High Court allowed the writ petition filed by respondent No. 1 (deceased) and his son, respondent No. 2, namely, Narendra Kumar and set aside the order dated 11.2.1986 passed by the competent authority - SDO holding that the appellant was entitled for a declaration that the sale transaction in question was prohibited transaction of loan as contemplated under Section 2(f) of the Madhya Pradesh Samaj Ke Kamjor Vargon Ke Krishi-Bhumi Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (M.P. Act No. 3 of 1977) (hereinafter referred to as the Act of 1977 ) and was null and void under Section 7(2) of the Act. The order for handing over possession of the land in question admeasuring 9.71 acres situated in village Kanadia to the appellant Bhav Singh son of Bheraji was also set aside.
3. The aforesaid order was passed on an application filed by the appellant claiming relief under Section 5 of the Act of 1977 contending that the transfer of the land by registered sale deed dated 20.7.1960 for a sum of Rs. 2500/- was a mortgage transaction as said transfer was for the loan amount. It was his contention that at the time of said transaction, it was agreed upon by the parties that whenever the appellant re-pays the amount of Rs. 2500/-, possession of the land in the question would be redelivered to the appellant. It was his case that despite the fact that full amount had been repaid, the respondent has not restored the possession of the land mortgaged by him. That application was allowed by the S.D.O. by order dated 29th January, 1982.
4. Being aggrieved by the said order, respondents preferred appeal before the Collector, Indore, which was dismissed on 8th December, 1982. That order was challenged by filing Misc. Petition No. 724 of 1982 before the High Court of Madhya Pradesh at Indore. The High Court allowed the said petition and set aside the order of the SDO and remanded the matter directing that the case be disposed of on merits after holding fresh enquiry.
5. During the fresh enquiry, as stated in the order, witnesses were examined on behalf of the parties and written arguments were also submitted before the SDO. After considering the written submissions made by the parties and appreciating the evidence which was led before him, the SDO rejected the contention that the present proceedings were barred by the principles of res judicata on the ground that in the previous proceedings initiated by the appellant under the provisions of the M.P. Anusuchit Jan Jati Rini Sahayata Adhiniyam, 1967 (hereinafter referred to as Debt Relief Act ), it was held that the transfer deed was not a mortgage and was not covered by the Debt Relief Act. The contention that application was time barred was rejected taking into consideration relevant facts. No contention was raised that proper opportunity of leading evidence or cross-examining the witnesses was not given. SDO further held that there was a money lending transaction between the appellant and deceased respondent and that the aforesaid instrument was executed as a sale-deed but deceased - respondent No. 1 had assured the appellant that after the amount of loan is repaid, the land in question would be restored to him. He considered the evidence on record indicating that the appellant was to repay a sum of Rs. 2000/- on account of the debt incurred by him from the respondent but because there was emergent need, he further took a loan of Rs. 500/-. Thus, the appellant owned a total sum of Rs. 2500/-, upon which the respondent was charging interest @ 1.5% per month. He also arrived at the conclusion that the market value of the land at the relevant tim
