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SUPREME COURT OF INDIA
21st February, 1963.
K. SUBBA RAO, RAGHUBAR DAYAL AND J.R. MUDHOLKAR, JJ.
Kamla Devi, Appellant
Versus
Takhatmal and another, Respondents.
Civil Appeal No. 72 of 1961.
Advocates appeared
Mr. G. C. Mathur, Advocate, for Appellant; Mr. H. N. Sanyal, Additional Solicitor General of India, (Mr. S. S. Shukla, Advocate, with him), for Respondent No. 1.
(2) Practice - filing of an appeal - does not operate as stay of proceedings - stay order should be obtained for this propose.
If a displaced person filed an application before a Tribunal described under section 5 of the Act, all proceedings pending in a civil Court at the date of the said application in respect of any debt to which the displaced debtor is subject shall be stayed. The statutory stay can be invoked only if two conditions are satisfied namely, (i) the Tribunal before which the application under section 5 is filed shall be one within the local limits of whose jurisdiction the displaced debtor actually and voluntarily resides or carries on business or personally works for gain, that is to say the Tribunal shall be one which has territorial jurisdiction to entertain the application and (ii) the proceedings shall be in respect of a debt owed by the said displaced person. From the earlier narration of facts it is manifest that the Dehra Dun Tribunal held that it had no territorial jurisdiction to entertain the petition and returned it to be represented to a proper Tribunal. The application so returned was not represented to the proper Tribunal. The appeal filed against the said order was dismissed. As there was no application pending before any Tribunal, the Court was well within its rights in not acting under section 15 of the Act. [Para 5]
Even if the appeal was filed but no stay order was obtained, the proceedings in other Courts did not stay automatically.
A stay order has to be taken for this purpose. AIR 1918 PC 151 relied on. 1951 JLJ 473 CONFIRMED on this point. [Para 6]
(3) Interpretation of documents - terms plain and not ambiguous – words of the document should be seen - surrounding circumstance to be seen only when the document is ambiguous.
(4) Evidence Act, l872 - Ss. 94 to 98 - interpretation of document - rules of.
Sections 94 to 98 of the Indian Evidence Act afford guidance in the construction of documents; they also indicate when and under what circumstances extrinsic evidence could be relied upon in construing the terms of a document. Section 94 of the Evidence Act lays down a rule of interpretation of the language of a document when it is plain and applies accurately to existing facts. It says that evidence may be given to show that it was not meant to apply to such facts. When a Court is asked to interpret a document, it looks at its language If the language is clear and unambiguous and applies accurately to existing facts, it shall accept the ordinary meaning, for the duty of the Court is not to delve deep into the intricacies of the human mind to ascertain one's undisclosed intention, but only to take the meaning of the words used by him, that is to say, his expressed intentions. Sometimes when it is said that a Court should look into all the circumstances to find an author's intention, it is only for the purpose of finding out whether the words apply accurately to existing facts. But if the words are clear in the context of the surrounding circumstances, the Court cannot rely on them to attribute to the author an intention contrary to the plain meaning of the words used in the document. The other sections in the said group of sections deal with ambiguities, peculiarities in expression and the inconsistencies between the written words and the existing facts AIR 1932 PC 131 referred to. [Para 8]
(5) Contract Act, 1872 - Ss. 133 to 139 - interpretation of surety bond - should be strict.
(6) Surety bond - construction of - surety made liable on failure of the debtor to produce the bills when required to do so - order requiring the production not passed - surety not liable - bond to be construed strictly.
In a suit for dissolution of partnership and accounts the Court issued a conditional order of attachment before judgment in respect of certain bills. The defendant furnished security. The Court accepted the surety bond and withdrew the order of attachment. The operative portion of the surety bond was to the defect that the surety bound herself to pay if the defendant failed to produce and place at the disposal of the Court, when required, the specified property or the value. The plaintiff after having obtained the final decree against the defendant filed an application for execution by enforcement of the surety bond. There was nothing to show that before calling upon the surety to pay, the judgment debtor was required to produce the property.
Held: The provisions of the surety bond which are penal in nature must be strictly construed. The demand in respect of the property by the Court and a default by the defendant were necessary conditions for the enforcement of the bond. Since the defendant was not called upon to produce the property in the Court the obligation of the surety did not arise the expression "when required" means when required by the Court. 1957 JLJ 473 REVERSED on this point. [Para 9]
Judgment
SUBBA RAO, J. : This appeal by Special leave raises, inter alia, the question of construction of the terms of a surety bond.
2. The material facts are as follows: On August 26, 1947, Seth Takhatmal, respondent 1, filed Civil Suit No. 9-A of 1947 in the Court of the First Additional District Judge, Jabalpur, against Mulkraj Malhotra, the second respondent, for dissolution of their partnership and rendition of accounts. On August 27, 1947, the first respondent applied for attachment before judgment of all the bills payable to "M. R. Malhotra and Company", as per description given in Schedule A attached thereto and for the issue of an order to C. M. A. S. C., Poona, prohibiting them from issuing any cheques due to M. R. Malhotra and Company, and on the same day the Court issued notice of the said application. On August 28, 1947, the Court issued a conditional order of attachment before judgment in respect of the said bills. On September 9, 1947, the second respondent applied for vacating the order of attachment. On September 11, 1947, the second respondent offered to give security if time was granted to him. On October 17, 1947, five surety bonds were executed by the appellant and 4 others for different amounts and presented to the Court. The Court accepted the bonds and withdrew the order of attachment. The appellant s surety bond to the Court was for a sum of Rs. 12,000/-. Under that bond she agreed, if the second respondent made a default in producing and placing at the disposal of the Court when required the properties specified in the Schedule attached thereto or the value of the same or such portion of the same as may be sufficient to satisfy the decree, to pay to the Court a sum not exceeding Rs. 12,000/-. On October 13, 1948, a preliminary decree was made in the said suit. On August 1, 1951, the second respondent was adjudged as an insolvent by the High Court at Calcutta. On September 20, 1951, a final decree was passed in the said suit against the second respondent for a sum of Rs. 1,74,906/4/0 plus Rs. 7,868/10/0 as costs. On October 19, 1951, the first respondent filed an application for execution of the decree by enforcement of the surety bonds under S. 145 of the Code of Civil Procedure. On December 7, 1951, the appellant filed objections raising various pleas inter alia, contending that the decree was passed without jurisdiction and that the surety bond was void. On May 28, 1952, the second respondent filed an application under S. 5 of the Displaced Person (Debts Adjustment) Act, 1951 (LXX of 1951), hereinafter called the Act, before the Tribunal at Dehra Dun for adjustment of his debts under the provisions of the Act. On July 9, 1952, the adjudication of the second respondent as an insolvent was annulled. On August 2, 1952, the appellant filed an application before the District Court under S. 15 of the Act for stay of the execution proceedings and for the transfer of all the records to the Tribunal at Dehar Dun. On August 20, 1956, the Tribunal at Dehra Dun, holding that it had no territorial jurisdiction to entertain the application filed by the second respondent under the Act, returned it for presentation to a proper tribunal. On August 22, 1952, the executing Court rejected all the contentions of the appellant. On August 29, 1956, the second respondent preferred an appeal against the order of the Tribunal at Dehra Dun returning his application filed under S. 5 of the Act. It is represented to us by the learned counsel for the respondent on instructions that the said appeal was dismissed. The appellant preferred Miscellaneous First Appeal No. 44 of 1952 against the order of the executing Court rejecting her objections to the High Court of Judicature at Nagpur. That Court, by its order dated October 1, 1956, dismissed the appeal. The Letters Patent Appeal No. 212 of 1956 preferred by the appellant against the order of the single Judge of the High Court was also dismissed by a division Bench of that Court on
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