Papai Khan Alias Kumardip Khan vs Mir Darbesh Ali & Ors.

Sabyasachi Bhattacharyya, J.

The present application under Article 227 of the Constitution of India has been filed by defendant No. 15 in a suit, inter alia, praying for

cancellation/setting aside Certificate Case No. 4 of 2012-2013 under the provisions of Bengal Public Demands Recovery Act, 1913. By virtue of the

impugned order, an application taken out by the present petitioner under Order VII Rule 11 of the Code of Civil Procedure, for rejection of the plaint,

was dismissed on contest. The petitioner urges that the present suit could only be filed under Section 36 of the said Act of 1913. However, since the

only ground on which such a suit could be filed was non-service of notice under Section 7 of the said Act, and service of notice was admitted by the

plaintiffs/opposite party Nos. 1 to 10 in the plaint, the suit was not maintainable. As such, the plaint ought to have been rejected, according to the

petitioner. Various paragraphs, including paragraph Nos. 19(f), 21 and 30(15), of the plaint were placed by learned Senior Advocate appearing for the

petitioner in support of such contention.

It was further submitted that the plaintiffs/opposite parties could very well have taken recourse to a challenge under Section 22 or Section 23 of the

said Act and, having failed to do so, were debarred from directly filing a suit under Section 36 of the said Act. The petitioner further argues that the

plaint is a product of clever drafting, that the same has been filed mala fide and does not disclose a proper cause of action. As such, the suit ought to

be nipped in the bud.

On the other hand, it was argued on behalf of opposite party nos. 1 to 10 that service of notice was categorically denied in paragraph No. 21 of the

plaint. It was further argued that the non-service of notice, as contemplated in Section 36 of the said Act, does not refer to a notice under Section 7 of

the said Act but a notice of sale. Such sale notice having been denied by the plaintiffs/opposite parties, the suit is very much maintainable under

Section 36 of the said Act.

The other ground canvassed on behalf of the plaintiffs/opposite parties is that, despite a petition denying liability, as envisaged under Section 9 of the

said Act, having been filed by the plaintiffs, as stated in paragraph 22 of the plaint, such petition was never adjudicated upon by the Court, vitiating the

certificate proceeding and entitling the plaintiffs to institute the present suit. The petitioner relied on an English decision of the Queen’s Bench

Division, re Ex Parte Portingell [1 Q.B., Page-15] (1891).

It was held in such judgment that where a notice was required to be served, personal service was not a sine qua non, unless specifically required by

the statute. In the said case, it was held that where a notice was left with a servant on the licensed premise and came to the hands of the holder of the

licence in due time, there had been sufficient service of such notice. Learned Senior Advocate appearing for the petitioner next relies on the definition

of the term “causeâ€​, as given in Black’s Law Dictionary (10th Edition).

Such definition is as follows:

“Something that produces an effect or resultâ€​.

In this context, the petitioner relies on the language used in Section 7 of the said Act of 1913, which is as follows:

“7. Service of notice and copy of certificate on certificate-debtor. â€" When a certificate has been filed in the office of a Certificate Officer under

section 4 or section 6, he shall cause to be served upon certificate-debtor, in the prescribed manner, a notice in the prescribed form and a copy of the

certificate.â€​

Upon hearing both sides and going through the materials on record, it is clear that the plaintiffs, in their plaint, particularly in paragraph Nos. 8 to 10 of

the plaint, have based their case on the alleged defalcation and non repayment of the loan amount to the certificate holder-Bank by one Susanta Jana,

an exSecretary of the certificate debtor-Society, who is opposite party No. 8 herein, to justify such non repayment of loan. No effective defence, apart

from such allegation of defalcation against an employee of the Society itself, was made out in the plaint. Hence, it could very well be said that the

premise of the plaint was mala fide and ought to be nipped in the bud.

Moreover, the suit has been filed by the plaintiffs/opposite party Nos. 1 to 10 in their individual capacity, claiming to be certain “interested

members†of the certificate debtor-Society. As such, the locus standi of the plaintiffs to file the suit in the present form may also be in serious doubt.

The suit has not been claimed to be in the nature of a derivative action or clause action and there is no averment within the four corners of the plaint

that the suit has been filed in representative capacity. As such, the underlying tenor of the arguments advanced on behalf of the petitioner, that the suit

is a product of clever drafting, cannot be ruled out.

It is also evident from the averments made in paragraph Nos. 19(f), 21 and 30(15) of the plaint, that the Manager of the certificate holder-Bank had

supplied the plaintiff No. 2 a notice under Section 7 of the Public Demands Recovery Act, 1913, along with a copy of certificate case No. 4 of 2012-

2013, signed by the Assistant Registrar, on July 26, 2013. This happened when the present Secretary of the certificate debtorâ€"Society approached

the Bank, along with other plaintiffs, for information as to such case.

A perusal of the language of Section 7 of the 1913 Act reveals that the service contemplated therein affords a very fluid connotation and wide import.

The term used therein is “shall cause to be served upon the certificate-debtorâ€. Since the notice in question has been described in the plaint to be

one under Section 7 of the said Act, it has to be deemed that the same was in the prescribed manner and form. Since the Bank itself handed over

such notice, such handing over has to be deemed to be good service within the contemplation of Section 7 of the said Act.

Such view of the matter is also bolstered by the definition of “cause†as provided in Black’s Law Dictionary, and the Queen’s Bench

Judgment of Portingell, both cited by the petitioner. Since such service of notice was admitted, no suit under Section 36 of the said Act could be said to

be maintainable. Section 36, on the face of it, envisages a suit to recover possession of the disputed property or to set aside the sale only on the ground

that such notice has not been served. In view of such service itself having been admitted in the plaint, the suit cannot be said to be maintainable under

Section 36 of the said Act. The language of Section 36 is as follows:

“36. Suit to recover possession of, or to set aside sale of, immovable property, where notice of certificate not served. â€" Notwithstanding anything

hereinbefore contained, a sale of immovable property in execution of a certificate shall not be held to be void on the ground that the notice required by

section 7 has not been served; but a suit may be brought in a Civil Court to recover possession of such property or to set aside such sale on the ground

that such notice has not been served, and that the plaintiff has sustained substantial injury by reason of irregularity: Provided that no such suit shall be

entertained â€

(a) Â If instituted more than one year from the date on which possession of the property was delivered to the purchaser, or

(b) If the certificate-debtor has made appearance in the certificate proceeding, or has applied to the Certificate Officer under section 22 or section 23

to set aside the sale.â€​

In this context, it would also be relevant to consider the provisions of Section 37 of the Act of 1913, which are as follows:

“37. General bar to jurisdiction of Civil Courts, save where fraud alleged.- Except as otherwise expressly provided in this Act, every question

arising between the certificate-holder and the certificate-debtor, or their representatives, relating to the making, execution, discharge or satisfaction of

a certificate duly filed under this Act, or relating to the confirmation or setting aside by an order under this Act of a sale held in execution of such

certificate, shall be determined, not by suit, but by order of the Certificate Officer before whom such question arises, or of such other Certificate

Officer as he may determine: Provided that a suit may be brought in a Civil Court in respect of any such question upon the ground of fraud. “

The argument of the plaintiffs/opposite parties that the non-service of notice referred to in Section 7 referred to a notice of sale, is an interpretation

alien to the language of Section 36 itself. The earlier part of the sentence, which contains the phrase “on the ground that such notice has not been

servedâ€, refers to a notice under Section 7. Therefore, it cannot but be held that the term ‘such’ connects the term ‘notice’ to Section 7

of the said Act.

The other ground, as to the petition denying liability filed by the plaintiffs under Section 9 of the said Act being not adjudicated upon, is belied by the

statement made in paragraph 22 of the plaint itself. The said statement elaborates that “the interested existing members of the Society†made an

objection for staying the proceeding of the certificate case. Such an objection cannot, by any stretch of imagination, be deemed to be a denial under

Section 9 of the said Act and as such there arose no question of the certificate Officer adjudicating upon such an objection.

Hence, in view of the palpably admitted claim in the certificate proceeding and in the absence of a proper challenge under Section 36 of the said Act

of 1913, the suit of the plaintiffs/opposite party Nos. 1 to 10 cannot be said to be maintainable on the face of the plaint and, as such, the plaint ought to

be rejected. Not rejecting the plaint would give a premium to the plaintiffs to draw the petitioner and other defendants into a long-drawn litigation

unnecessarily with the aid of clever drafting. Such an attempt has to be nipped in the bud.

Of course, having regard to the other objection of the petitioner, that non filing of a challenge under either Section 22 or Section 23 of the said Act

invalidates a suit under Section 36, the same has no legs to stand upon. The exhaustion of the remedies provided under Section 22 and/or Section 23 of

the said Act is not a pre-condition under the Act for preferring a challenge under Section 36 of the said Act. As such, the said objection of the

petitioner has to be turned down. As a last-ditch attempt, the plaintiffs/opposite party Nos. 1 to 10 seek umbrage under a purported denial of service of

notice under Section 7 of the said Act, mentioned in paragraph No. 21 of the plaint. However, such a feeble and bald denial pales into insignificance in

the teeth of admissions galore as to effective service of such notice throughout the rest of the plaint.

Not only the suit has been admitted by the learned counsel for the plaintiffs/opposite party Nos. 1 to 10 to be one under Section 36 of the said Act, the

entire frame of the suit makes it clear that the suit was indeed filed under the said provision. No trappings of a suit under Section 34, read with Section

35, of the said Act is indicated in the plaint, since such other challenge could only be on the ground of the certificate amount being paid or discharged

or on the ground that portion of the alleged debt was not due or that the certificate debtor had not received credit for any paid portion.

Therefore, in the light of the discussions above, the plaint in Other Suit No. 131 of 2017 pending in the First Court of Civil Judge (Junior Division) at

Paschim Medinipur has to be rejected on the ground that the same was not maintainable, being barred by the provisions of Section 36, read with

Section 37, of the Bengal Public Demands Recovery Act, 1913. As such, the Court below refused to exercise jurisdiction vested in it by law in

refusing to reject the plaint of the said suit. Hence, the impugned order dismissing the application of the petitioner for rejection of plaint has to be set

aside.

Accordingly, C.O. No. 1104 of 2018 is allowed on contest, thereby setting aside the order impugned herein and rejecting the plaint filed by the

plaintiffs/opposite party Nos. 1 to 10 herein in Other Suit No. 131 of 2017, pending in the First Court of Civil Judge (Junior Division) at Paschim

Medinipur. The petitioner is permitted to communicate this order to the Court below and to take consequential steps accordingly.There will be no order

as to costs.