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1943 Supreme(Cal) 233
CALCUTTA HIGH COURT
Mati Lal Parak - Appellant
Versus
Pashupati Misra - Respondent
Civil Rev. Case No. 684 of 1943
Decided On : 24-08-1943
The main legal point established in the judgment is that the notice referred to in the Bengal Agricultural Debtors Act includes both the special notice and the general notice, and the legislature could not have intended to deprive creditors of their legal rights.
Headnote:
Bengal Agricultural Debtors Act - Notice Requirement - The court held that the notice referred to in sub-section (2) includes both the special notice and the general notice, and there is no reason to limit it to the former only. The legislature could not have intended to deprive creditors of their legal rights, and a remedy is provided by the proviso to sub-section (3). The Rule was made absolute, and the suit was remanded for the determination of whether the Board was empowered under sec. 7 and whether the Board actually made an order.
Fact of the Case:
The Plaintiff obtained a Rule under the Bengal Agricultural Debtors Act to recover money due on a hatchita. The Defendant applied to a Debt Settlement Board for settlement of his debts, and the Plaintiff did not put in a claim. The defence that the Court was prohibited from decreeing the suit under sec. 13 (2) was accepted by the learned Small Cause Court Judge.
Finding of the Court:
The court accepted the defence that the Court was prohibited from decreeing the suit under sec. 13 (2) but found that the notice referred to in sub-section (2) includes both the special notice and the general notice. The Rule was made absolute, and the suit was remanded for further determination.
Issues: The issues raised were (1) whether the notice referred to in sub-sec. (2) is the special notice and does not include the general notice, and (2) the judgment is defective because there is no finding (a) that the Board was empowered under sec. 7, (b) that an order was actually passed.
Ratio Decidendi: The court held that the notice referred to in sub-section (2) includes both the special notice and the general notice, and there is no reason to limit it to the former only. The legislature could not have intended to deprive creditors of their legal rights, and a remedy is provided by the proviso to sub-section (3).
Final Decision: The Rule was made absolute, the decree of the Court below was set aside, and the suit was remanded for the Judge to determine whether the Board was empowered under sec. 7 and whether the Board actually made an order. Both sides were given liberty to adduce evidence, and costs in this Rule were to be costs in the suit with a hearing fee of one gold mohur.
JUDGMENT
Henderson, J. - This Rule has been obtained by the Plaintiff and raises a question under the Bengal Agricultural Debtors Act. The suit is to recover money due on a hatchita. The Defendant applied to a Debt Settlement Board for settlement of his debts. The Plaintiff did not put in a claim. The defence that the Court was prohibited from decreeing the suit under sec. 13 (2) has been accepted by the learned Small Cause Court Judge. This decision is now attacked on two grounds: (1) that the notice referred to in sub-sec. (2) is the special notice and does not include the general notice, (2) that the judgment is defective because there is no finding (a) that the Board was empowered under sec. 7, (b) that an order was actually passed.
2. It is conceded that the second ground succeeds and it is only necessary for me to consider the first.
3. Sub-sec. (1) provides that the Board shall serve a notice on every creditor whose name and address are given in the application and also publish a general notice requiring all creditors to submit a statement of the debts due to them. There is nothing in the wording of sub-sec. (2) to suggest that the notice referred to means the former only. Prima facie, there is no reason to suppose that the legislature intended to limit it in this way. In view of the provisions made by Rules for the service of the general notice it is quite probable that many creditors may know nothing about the proceedings before the Board. I should be quite prepared to hold that the legislature could not have intended to deprive such persons of their legal rights. A remedy is however provided by the proviso to sub-sec. (3). In these circumstances there is no reason why the word "notice" in sub-sec. (2) should be given an artificial limitation. This contention must therefore be overruled.
4. The Rule is made absolute. The decree of the Court below is set aside and the suit is remanded for the Judge to determine (1) whether the Board was empowered under sec. 7; (2) whether the Board actually made an order.
5. Both sides will be at liberty to adduce evidence. Costs in this Rule will be costs in the suit, hearing-fee, one gold mohur.
