Abdurahuman Meeya Pillai vs Vava Mohammad Thambi Haji

Gangadhara Menon, J.—The decree-holder in O.S. 330 of the Attingal District Munsiff''s Court is the Appellant. In C.M.P. 1936 of 1125 the 1st Defendant pleaded that an amount of Fs. 294-2 Chs. had been deposited by him in Court in excess of what is really due from to the decree-holder as per the provisions of Sections 8 and 9, Debt Relief Act and prayed that satisfaction of the decree may therefore be entered and the excess amount deposited may be refunded to him. The decree-holder contended that the account stated by the 1st Defendant is not correct, that the 1st Defendant has forfeited his rights to the benefits under the Act since he had made three consecutive defaults in the due payment of the instalment and that even if the 1st Defendant is held to be entitled to have the debt discharged under the provisions of the Act, a further sum of 655 Fs. and odd has to be deposited before satisfaction could be entered. The lower Court allowed the application of the first Defendant. The decree-holder has therefore come in appeal

It is not disputed that the 1st Defendant has by 30-7-1120 made three consecutive defaults in the payment of the instalment amount which on his admission is payable by him under the provisions of the Debt Relief Act. Therefore normally u/s 9(3)(b) of the Act, the 1st Defendant is not entitled to claim the benefits under the Act. This impediment is sought to be got over by the pleas of estoppel and waiver. The learned Munsiff thinks that because the decree-holder has in his statement of accounts attached to his objections to the 1st Defendant''s application credited the amounts paid later on towards the defaulted instalment amounts he is estopped from contending that there is any default at all. We have no doubt that the view taken by the learned Munsiff is clearly wrong. Had the learned Munsiff carefully read the objection petition of the decree-holder to which the statement relied on by him is attached he would not have fallen into the error. In his objection petition in para. 4 the decree-holder has pleaded that the 1st Defendant has forfeited his rights to the benefits under the Act as he has committed default in the due payments of the instalment amounts. Then in para 6 of the objection petition the decree-holder has taken an alternative contention that even if the 1st Defendant is entitled to the benefits under the Act he has not deposited all the amount due as per the provisions of the Act and that a balance amount would still be due to him as indicated in the statement appended to the objection petition. One fails to see how a statement appended to objection petition in this context for the purpose of elucidation of the alternative contention raised by the decree-holder could ever be taken as fact constituting estoppel against the plea raised in para 4 of the objection petition.

Next the plea of waiver raised by the 1st Defendant has to be considered. This contention is based on the fact that the decree-holder has drawn from Court the amount deposited by the 1st Defendant even after the default for three consecutive instalments. As was held in - ''Yohannan John v. Verghese'' AIR 1952 Trav-C 29 (A) :

It is a question to be inferred from the facts and circumstances of a particular case as to whether a decree-holder has by accepting an overdue instalment waived his right to enforce the penal provisions enacted for his benefit by the D.R. Act.

In this case the various applications for payment of the amounts in deposit in court, filed by the decree-holder show that the amounts were applied for and paid towards the decree amounts. There is nothing to indicate the money was applied for or paid in lieu of any particular instalment or instalments. In these circumstances it is not possible to say that the decree-holder accepted the payments towards any particular instalments so as to constitute waiver of his rights to enforce payment of the entire decree amount consequent on the default in payment for three consecutive instalments. Our attention has been drawn to the decision reported in - ''Kunjammalu v. Sekhara Menon'' AIR 1951 KERLR 127 (B). We do not think that the decision relied on go counter to the view that we have taken. We think that in the facts and circumstances of this case the plea of waiver raised by the 1st Defendant cannot also stand.

It is further argued that the order of the 1st Defendant''s application u/s 15 of the Act was passed only after the three consecutive defaults relied on by the decree-holder and that in so far as the order fixing the amount payable under the Act also allowed time to make up the deficiency, if any, in the instalment amount, it is not open for the decree-holder to contend there after that there was a default prior to the date of the order. This argument overlooks the fact that the question whether the 1st Defendant forfeited his rights to the benefit under the Act by default in the payment of the admitted instalment amount for three consecutive instalments was not before the court and it was not considered at all by the court at the time of the order on the debt relief application. The order: "Petitioner is given one month''s time to make up the deficiency if any in the instalment" does not to our mind mean that the court was granting time for payment of the amount under the three consecutive instalments that were defaulted. Of course if the fact of default in payment of the admitted amount for three consecutive instalments was, brought to the notice of the court, it should have dismissed the application then and there for that reason. But we do not think, that the failure to bring the fact to the notice of the court at the time would bar the decree-holder to take that ground at a later stage and on that basis enforce rights for the recovery of the entire amount due under the decree.

It follows that the order of the lower court cannot stand. Therefore in reversal of the order appealed against we allow this appeal with costs in both the courts and dismiss C.M.P. 1936 of 1125 filed by the 1st Defendant.