T.T. Verghese vs Binny

Bellie, J.—The suit has been filed for recovery of a debt during the period when a suit is barred under S. 4 of the Tamil Nadu Indebted

Persons (Temporary Relief) Act 18 of 1976. The trial court decreed the suit but the first appellate Court holding that since the suit has been filed

during the period when the suit is barred under S.4 of the Act, the suit is not maintainable, and therefore dismissed the suit. Hence the second

appeal by the plaintiff. S.4 of the Act is:-

Bar or suits and applications: No suit for the recovery of a debt shall be instituted, and no application for execution of a decree for payment of

money passed in a suit for the recovery of a debt shall be made, against any indebted person in any civil or revenue court on and from the date of

the commencement of this Act and before the expiry of one year from the said date.

It is not in dispute that the defendant is an indebted person within the meaning of the Act and the suit has been filed during the period when any suit

for recovery of a debt is barred under S.4. It is therefore obvious that the suit has been filed contravening and overriding the provisions of S.4. This

being the position what naturally follows, to my mind, is to dismiss the suit. This is what the first appellate court has done.

But however, to my surprise, as if I may say so, a judgment of Ratnam, J. in Sri Haribabu Naidu v. Alamelu Ammal 1980-1-MLJ 115=93

L.W. 217 was brought to my notice wherein the learned Judge has held that if a suit has been filed contravening S.3 of the Tamil Nadu

Agriculturists (Temporary Relief) Act: (IV of 1976) just for that reason the suit should not be dismissed, but only during the period of bar of filing

of the suit, it cannot be disposed of, and once that time is over, the Court can get on with the suit, that is, according to the learned Judge, after the

time for filing of the suit is over and if there is no impediment, a decree can be passed. The learned Judge has further stated that only filing of the

suit is barred and the jurisdiction of the Court to entertain the suit has not been affected. The learned Judge proceeded to consider the scope and

object of the Act. With great respect, I am unable to agree with the learned Judge. When there is a clear bar of filing of suit for a certain period the

suit filed contravening that provision of law is certainly liable to be dismissed in limine. I do not think that there can be any scope for doubt as to

this.

In a subsequent judgment in M.K. Srimathi v. Chellammal and others 1981 TLNJ 227 = 95 L.W. 982 = 1982-1 M.L.J. 315, dealing with a

similar suit filed contravening S.3 of the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act 1976 (15 of 1976), Balasubrahmanyam, J.

concurred with the above view taken by Ratnam, J. In an earlier decision by Rajagopalan, J. in Ramanathan Chettiar v. Munusami and another

1957-2-M.L.J. 267 = 70 L.W. 733, the learned Judge dealt with a case filed contravening S.3 of the Madras Indebted Agriculturists Temporary

Relief Act (V of 1954). In that case the learned Judge took the view that a suit filed during the period when filing of a suit is barred has to be

dismissed. This judgment of Rajagopalan, J. has been brought to the notice of Ratnam, J. during the arguments of the said case dealt by him but the

learned Judge however took the view that the judgment of Rajagopalan, J. was rendered on consideration of the provisions of a different Act and

therefore, he (Ratnam, J.) is not bound by that decision. Balasubrahmanyam, J. in his judgment also agreed with the view of Ratnam, J. But

Ratnam, J. himself has stated that S.3 of the Madras Indebted Agriculturists Temporary Relief Act (V of 1954) dealt with by Rajagopalan, J. is in

pari materia with S.3 of the Act 15 of 1976. Therefore in usual course the principle laid down by Rajagopalan, J. is quite applicable to the principle

that was to be decided in the case dealt with by Ratnam, J. In this position I am of the view that it is necessary that the matter be referred to a

Division Bench for an authoritative decision. The matter will be placed before my Lord the Chief Justice for appropriate orders.

(Pursuant to the above Order of Reference, this appeal coming on for hearing before Venkataswmi and Srinivasan, JJ. the Court delivered the

following Judgment)

Venkataswmi and Srinivasan, JJ.

The matter has been referred to a Bench by Bellic, J. as he has not been able to agree with the view taken by Ratnam, J. in Sri Haribabu Naidu v.

Alamelu Ammal 1980-1-MLJ 115=93 L.W. 217. He has also referred to the judgment of Balasubramanvan, J. in Srimati Ammal v. Chellammal

and another 1981 TLNJ 227 = 95 L.W. 982 = 1982-1 M.L.J. 315 taking the same view as Ratnam, J. Unfortunately, it was not brought to the

notice of Bellie, J. that the very same question was referred to a Division Bench because of the conflict of views in the case of Kuttiah Chettiar and

others v. Surendranathchary and others 95 L.W. 492:1982-2-M.L.J. 443. In the said case (1982-1-MLJ 443 = 95 L.W. 492) the Division

Bench answered the question by holding that the suit must be dismissed having been filed during the period of moratorium. The Division Bench held

that the view taken by Ratnam, J. and Balasubrahmanyam, J. was not correct. We do not find any reason to differ from the view taken by the

Division Bench. Following the said judgment, we hold that the judgment and decree of the appellate Court dismissing the suit as not sustainable are

correct. Hence, the second appeal fails and is dismissed. There will be no order as to costs.