M.V.M. Mahalingam Chettiar vs The Appellate Authority (Sub-Collector) and Others

Ramanujam, J.—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 Original Suit No. 426 of 1980 on the file of the District Munsif, Vulangaiman to enforce the claims under this

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, Original Suit 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 then Rs. 4,800, he is entitled to the benefits of the Act. The said

Order had been confirmed on appeal by the Sub-Collector, Kumbakonam.

But 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. Kuppanna I.L.R (1982) Mad. 112. to herein the learned Judge has held that the

jurisdiction of the Tahsildar to grant a certificate of discharge u/s 5 or 6 cannot be invoked in respect of a debt due under a promissory note.

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 other 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 in pending for deciding the position as to whether he is entitled to the benefits of

the Act or not. There will be no Order as to costs.