Jurisdiction of Tahsildar to issue certificate in respect of money claims.

The petitioner herein is a creditor who has lent a total sum of Rs. 3,115 to the third respondent on four occasions on promissory notes. He filed a suit in O.S. No. 426 of 1980 on the file of the District Munsif, Valangaiman to enforce the claims under the promissory notes. While the said suit is pending, the third respondent, defendant in the suit, filed an application before the Special Tahsildar, Kumbakonam, seeking a certificate of discharge of the debt which is the subject-matter of the said suit, O.S. No. 426 of 1980. The said application was resisted by the petitioner on the ground that the third respondent is not entitled to the benefits of the Act. The Tahsildar, however held, that the gross annual household income of the third respondent being less than Rs. 4,800, he is entitled to the benefits of the Act. The said order has been confirmed on appeal by the Sub-Collector, Kumbakonam.

2. Both the orders of the Tahsildar and the Sub-Collector have been challenged in this writ petition by the creditor on the ground that the authorities below have no jurisdiction to grant a certificate of discharge in respect of mere money claims, when the power to grant a certificate of discharge by the authorities constituted under the Act extends only to the case of pledge or mortgage and not in respect of mere money claims. Learned counsel for the petitioner relies on the decision of Ratnam, J., in Perumal v. Chinna Kuppanna Goundar1, wherein the learned Judge has held: that the jurisdiction of the Tahsildar to grant a certificate of discharge under section 5 or 6 cannot be invoked in respect of a debt due under a promissory note.

3. On the facts of this case we are inclined to agree with the submission of the learned counsel for the petitioner. In this case, the debt arises under promissory notes and the promissory notes have been sued upon before a civil Court. The Tahsildar cannot grant a certificate of discharge especially when there is no specific provision like section 5 or

6 enabling the Tahsildar to grant a certificate of discharge in respect of money claims. No doubt, section 4 imposes a bar on the civil Court not to entertain a suit or other proceedings against a debtor for the recovery of such a debt. It also provides for abatement of the suits pending at the commencement of the Act. But, for considering the question as to the maintainability of the suit or for considering the question of abatement of the suit, the question whether the defendant is a debtor as defined in the Act has to be gone into as a jurisdictional issue. Therefore, once the claim has been made before the civil Court, it is the civil Court which has to decide as to whether the party sued upon is a debtor as defined in the Act. Therefore, we are of the view that once the matter has gone before the civil Court, it is the civil Court which has to decide the question as to whether the defendant in the suit is a debtor entitled to the benefits of the Act before disposing of the suit. In this view of the matter, we have to set aside the orders of both the authorities below on the ground that they have no jurisdiction. The writ petition is therefore allowed and the orders of both the authorities are quashed. Liberty is however given to the third respondent to file an application before the Court in which the suit is pending for deciding the question as to whether he is entitled to the benefits of the Act or not. There will be no order as to costs.