Kunjammalu vs Sekhara Menon Raman Menon

Subramania Iyer, J.—This appeal is against the order passed by the learned Dist. Munsiff of Parur in C. M. P. 801 of 1125 dated 20th Thulam 1125. The order runs as follows:

Heard both sides. The debt sought to be discharged is a decree debt. Six per cent, of the debt as it stood on 31-1-1116 was paid as 1st instalment. All the other instalment payments are less than 6% of the debt. The deft, is not, therefore, entitled to any reduction of the debt as per provisions of the Debt Relief Act. This petn. is, therefore, dismissed.

This short order does not reveal either tha facts of the case or the real dispute between the parties. The facts are these: The resp. obtained a decree in O. S. No. 219 of 1114 on the file of the Dist. Munsiff, Parur, against the deft. Konnan, since deceased, for recovery of a principal amount of Rs. 700, interest & costs by sale of certain items of immovable properties secured, therefore, as also from the Defendant personally. Tha decree is dated 14th Menom 1114. Execution having been applied for the judgment-debtor applied by C. M. P. No. 7330 of 1115 for stay thereof on the ground that he had applied to the Debt Conciliation Board. The Ct. allowed stay of execution pending conciliation. The order of the Board which is in the file, shows that it could not deal with the matter because the total amount of the debts far exceeded tha Board''s jurisdiction, the debt due to one creditor being about Rs. 10,000 and there were aa many as 15 creditors in all. The order is dated 9th Ani 1115. Soon after that Travancore Debt Relief Act (Act II [2] of 1116) was passed on 31st ohingom 1116. On 6th Kumbhom 1116, the judgment-debtor applied by C. M. P. 1696 of 1116 starting that he proposed to avail himself of the provisions of Sections 8 & 9 of that Act & that execution may, therefore, be stayed for six months to enable him to pay the first instalment of the debt. No objection was raised to this patn. which was accordingly allowed on27th vrischigom 1116. The first instalment was deposited in Ct. on 26th Vriachigom 1116. The amount deposited was 80 Br. Rg. It was admitted that this would ba 6 per cent, of the Debt as on the commencement of the Aot. Thereafter, the judgment-debtor &, after his death, his legal representatives, who are impleaded as judgment-debtors 2 to 8 (2 of whom are the applts., in this appeal), made payment either into the hands of the decree-holder outside Ct. or by deposit in Ct. on 14 occasions. The amount paid on eaoh occasion was Rs. 70 & the last payment thus made was on 29th Kumbhom 1124. Memos are seen to have been filed by the decree-holder in Ct. accepting the aforesaid payments as payments made under the provisions of the Debt Relief Act & as for specific instalments contemplated by the said Act. There is no indication in any of these anywhere either that the amount paid on each instalment was short of the amount payable, or that on account of any default of payment the debtor forfeited his rights to the concession given to him by the Act & that the whole decree debt had become payable.

After the last of these payments, the decree-holder filed the execution petn. dated 15th Edavom 1124 stating that though the Ct. passed an order permitting discharge of the decree by payment in instalments under Sections 8 & 9, Debt Relief Act &, though pursuant to that order the first instalment was deposited in Ct., there was no further payment of 6% of the total debt for any subsequent instalment, that there have been defaults for 3 consecutive instalments & that consequently the whole debt became due & realisable. The decree-holder in that execution patn. gave credit to the various sums paid as aforesaid & claimed the balance. On 15th chingom 1125 one of the legal representative of the judgment-debtor who was dead by that time, viz., the applt. 1 deposited in Ct. Rs. 375 9-0 & on 18th chingom 1125 made the appln. 0. M. P. No. 801 of 1125 for recording satisfaction of the decree alleging that with the last payment by deposit in Ct. on 15th chingom 1125 the entire decree stands satisfied under the provisions of the Debt Relief Act. The decree-holder filed objection petn. dated 3rd Kanni 1125 reiterating hia claim for the entire amount of the decree on the grounds alleged by him in his execution patn. In reply to this, the petn., in C. M. P. No. 801 filed a supplementary petnr. dated 10-10-1949 corresponding to 24th Kanni 1125, stating inter alia that the decree-holer has agreed by his conduct to the adequacy of the amount of the instalments, that having aocepted the various amounts for the several instalments as amounts properly paid under the Debt Relief Act, it is not competent to the decree-holder now to turn round & contend that payments were either irregular or inadequate. The petnr. further prayed that this dispute having arisen between the parties, the Court may be pleased to adjudicate the matter fixing the amount payable & granting time to pay in more amounts as may be found due.

It is admitted on behalf of the decree-holder that the 1st instalment was properly paid & that.80 per oent. of the debt subsisting at the commencement of the Act, with future interest accruing thereon, has been paid within 9 years as provided for in Clause (l) Section 9, Debt Relief Act. It is, however, contended on his behalf that the subsequent intermediate payments made were not in conformity with proviso O to that clause which enjoins payment of 6 peroent. at each subsequent instalment It is also contended that there had been default in payment of 3 consecutive instalment & that consequently the whole debt became payable under Sub-clause (B) of Clause (3) Section 9.

The question for consideration is whether notwithstanding the fact that 80 per cent, of the debt as on the date of the coming into force of the Debt Relief Aot, has been paid within 9 years as contemplated by 9. 9 (l), irregularities in the payment of instalments, complained of by the decree- holder are such aa to make the payments made inoperative to give relief to the debtor & to enable the decree-holder to recover the balance of the decree debt.

The conduct of the parties has been consistent with & consistent only with the supposition that the instalments were properly paid & that till & inclusive of the time when the last instalment was paid i. e., in Kanni 1124. the debtor never forfeited his right to relief under ,the Act. A Division Bench of the Travancore H. C. decided as early as in the year 1117 that the 6 per cent., contemplated in clause 6 of the proviso to Section 9, Clause (l), is 6 per cent, of the total amount due as on the date of the coming into force of the Act & not 6 per cent of the reduced amount ipayable under Clause (1) of Section 9 or Sub-clause (a) & (b) of Cl (2) of Section 9. The decree-holder may therefore be taken to have been aware of his right to get 6 per cent of the total at each instalment. Indeed there is no case set up by the decree-holder of not being aware of his rights in this jmatter. When he. nevertheless, receives payment of an amount which is short of tho amount payable & accepts that smallar amount as for particular instalments under the Debt Relief Act, the inevitable inference arises that he waived Ithe right to claim a larger amount at any of the instalments. The same remark applies with regard to the complaint of the decree-holder that there had been defaults for 3 consecutive instalments & that the debtor forfeited his rights for relief under the Act under the provisions of Section 9 Clause (3) sub cl (a) The consequence of default for 3 consecutive instalments is to make the entire decree-debt due and payable 1951 Tra. Co./17 & 18 in a lump, Thereafter there is no question of any instalment being due. If after 3 consecutive defaults the decree-holder receives payment as for particular instalments under the Debt Relief Act, the inevitable inference arises that he waived his rights arising on that account, condoned the defaults and permitted the debtor to pay as though there had been no such defaults:

Whenever a party having a right to Insist upon something or other being done, does not insist upon that being done, & with a knowledge that it has not been done, goes on dealing in the matter, just as though everything had been duly done, the natural inference from his conduct is that he has waived ot dispensed with the doing of it; in which case of course he cannot afterwards raise the objeotion that it was not done. (S Irkar on Evidence, 8th Edn., p. 967 quoting Cababe, p. 105).

So here, the resp. relied upon Ouseph Ghacko v. Chandi Mathai 32 T. L. J. 874 & contended that the right of the decree-holder being a question of law no estoppel can operate against him. That was a case where withdrawal of certain amount deposited in Ct. was urged in bar of an appeal against an order passed by the Ct. in which the amount withdrawn was deposited. It transpired, however, that the deposit was not one made pursuant to the order appealed against & that therefore the withdrawal could not operate to bar the appeal, That decision has no appln. to the facts of this case. It may be observed that a particular private right ia matter of fact though depending upon rules of law.

There appears to be good ground why the decree-holder should have intentionally agreed to the payment as aforesaid. The property secured is seen valued by the decree-holder himself in connection with an attempted sale at Rs. 1075. It also appears from the records that there was no one to bid the properties even for that amount not to speak of anything higher. The personal relief of the debtor was worthless. It was, therefore, not possible to realise the entire decree amount & even for realising the decree amount in part the decree-holder would have had to purchase the property. This was the state of things prior to the coming into force of the Debt Relief Act. The records also show that the decree-holder was in need of cash. See the affidavit dated 14th Thulam 1117 filed with the appln. for payment made by the decree-holder on even date. The decree-holder has not gone into the box to explain the admissions contained in the various papera filed by him in Ct. They and the inferences arising therefrom can, therefore, be legitimately taken as revealing the real state of affairs.

We are, for the foregoing reasons, of opinion that the decree-holder agreed to accept the payments made at eaoh of the various instalments as sufficient payments, to regard the debtor as not in default, on account of any intermediate non-payment, &, to accept payments throughout as proper payments in instalments under the Debt Relief Act. The amount deposited on 15-1-1125 has also been drawn from Ot, by the decree-holder. The deposit was made as in full discharge of the decree. The depositer does not appear to have agreed io the amount being paid over to the decree-holder otherwise than as in full discharge of the decree, though the Ot. appears to have passed an order for payment to the decree-holder without prejudice to his contentions in the Debt Relief proceedings.

The petn. filed by the debtor for fixation of the amount and for time for payment of any balance that might be found to be due has not been dealt with by the lower Ct. and awaits disposal. We are of opinion that in view of the fact that 80 per cent. of the decree-debt & interest thereon according to law has been admittedly made good by payment through & outside Ct. to the decree-holder, no further orders upon that appln., which has to be & is treated as a part of C. M. P. 801 of 1125, is necessary & that under the circumstances the order passed by us in this appeal may be taken as one passed on that appln. as well.

We, therefore, allow the appeal & direct that the decree in O. S. No. 219 of 1114 be recorded as satisfied. The decree-holder will deposit In Ct. the documents of title relating to the mtged. properties for delivery to the representatives of the debtor.

Kanhi Raman, C.J.

I concur.