Udaichand Mahatab vs Bhujanga Bhusan Banerjee

P.N. Mookerjee, J.—This appeal is by the Plaintiff and it arises out of a suit for rent. The Plaintiff is the landlord and the Defendants are the tenants. On account of arrears of rent of the years 1340 B.S. to 1343 B.S. and a part of 1344 B.S. there was an award by the Special Debt Settlement Board, Suri. The amount of the award was Rs. 629-4 annas and that was payable in four instalments, namely, the first instalment of Its. 150 by the end of Falgoon, 1349 B.S., the second instalment of Rs. 150 by the end of Falgoon, 1350 B.S., the third instalment of Rs. 150 by the end of Falgoon, 1351 B.S., and the fourth instalment of Rs. 179-4 annas by the end of Falgoon, 1352 B.S. This award is dated August 4, 1942. As there was default in the payment of the first instalment the landlord applied in Certificate Case No. 787 D.S.B. of 1943-44 of the court of the Certificate Officer of Birbhum for realisation of the same. In execution of the certificate made in that case the defaulting patni tenure was put up to sale and was purchased by the landlord. The Sale-proceeds after meeting the costs of sale, were, it appears, just sufficient for the satisfaction of the dues under the said certificate, namely, the first instalment payable under the award mentioned above. The sale was held on June 27, 1945, and it was confirmed on August 28, 1945. In the meantime, on April 17, 1945, the landlord had instituted the present suit for recovery of arrears of rent, etc., for the subsequent year 1348 B.S. amounting to Rs. 21-9-1 p. after deduction of payments made, and in that suit he had included also the outstanding balance payable under the award, namely, Rs. 471-8 annas (this being the net balance after deduction of the sum of Rs. 7-12-0 p., directed by the award to be remitted from the fourth installment, the total claim in the suit being laid at Rs. 493-1-1.

The material defence, inter alia, was that, so far as the amount of Rs. 471-8 annas, payable, under the award of the Debt Settlement Board, was concerned, that amount could not be included in this suit and the recovery of that amount was barred under Sections 28 and 29 of the Bengal Agricultural Debtors Act. There was also a defence that the suit was barred by reason of Section 168A of the Bengal Tenancy Act. This latter defence which was taken in the written statement seems not to have been pressed, probably because it was not a defence available at the stage of suit.

The learned munsif gave effect to the defence based on Sections 28 and 29 of the Bengal Agricultural Debtors Act and decreed the Plaintiff''s suit only to the extent of the rent, etc., of 1348 B.S. giving him a decree of Rs. 21-9-1 pie only. On appeal by the landlord, the decree of the learned munsif was confirmed, the learned District Judge also holding that Sections 28 and 29 of the Bengal Agricultural Debtors Act precluded the landlord from including in the suit the amount, outstanding under the award of the Debt Settlement, Board, and barred its recovery. Against this decision of the learned District Judge the present appeal has been filed by the Plaintiff landlord.

Mr. Mitter appearing on behalf of the Appellant, has contended that the courts below were wrong in holding that the Plaintiff could not include the amount outstanding under the award of the Debt Settlement Board in the present suit because of Sections 28 and 29 of the Bengal Agricultural Debtors Act. In my opinion, this contention ought to prevail.

u/s 26(a) of the Bengal Agricultural Debtors Act the landlord is entitled to include in a suit for the subsequent arrears of rent "the amount of arrears of rent" payable under an award. The "amount payable under an award" is defined in Section 2(2) of the Act. Under that definition, within the phrase "amount payable under an award" is included any part of the amount "which remains unpaid under such award."

It is not disputed in the present case that the sum of Rs. 471-8 annas remained unpaid under the award which had been passed by the Suri Special Debt Settlement Board as mentioned above. That sum would, therefore, be "amount "payable under the award" as defined in Section 2(2) of the Act and, being originally dues on account of arrears of rent, would be "amount of arrears of rent payable under the award" within the meaning of Section 26(a) of the Act. It is also well to remember in this connection that the fact that the amount of arrears of rent, payable under the award, had been the subject-matter of a decree or the fact that some part of the said amount had'' not, at the date of the present suit, become due under the terms of the award, would not stand in the way of the said amount being an "amount payable under the award" either u/s 2(2) of the Act or for the purposes of Section 26(a). This follows from the view expressed in Sashi Kanta Acharya v. Aftabuddin Bepari (1943) 47 C.W.N. 680 and Bibhuti Bhusan Das v. Bijoy Chandra, Saha (1947) 51 C.W.N. 931, and I respectfully agree with that view.

It is quite clear, therefore, that, u/s 26(a) of the Act, the landlord was entitled to include this amount in the present suit for the purpose of getting a decree therefore, unless there was some bar in law against such inclusion.

The sections which have been pointed out by the courts below and by, the learned advocate for the Respondent as barring the landlord''s suit are Sections 28 and 29 of the Bengal Agricultural Debtors Act. In particular, my attention has been drawn to Sub-section (4) of Section 28 and Sub-section (5) of Section 29.

These sections and the relevant sub-sections would be dealt with by me in their proper places and I shall also advert to three other sections of the Act, namely, Sections 22, 33 and 35, which may have some hearing on the question at issue. On a consideration, however, of all these sections and sub-sections and the facts and circumstances of the present case, I am clearly of the opinion that the landlord''s suit, including as it did, the amount which had remained unpaid under the award, was maintainable and did not suffer from any defect.

To my mind, the opening words of Section 26 of the Act and. the provisions of Sub-section (a) thereof constitute a clear and effective answer to all objections to the maintainability of the suit by reason of the inclusion therein of the amount which had admittedly remained unpaid under the award. The opening words of Section 26-which are also really the opening words of Section 26(A)-are "Notwithstanding anything contained in this or any "other Act" and Sub-section (a) is in the following terms:

if any rent due for any land; mentioned in the list referred to in Clause (a) of Sub-section (1) of Section 25 falls into arrears, the landlord may include in a ,suit for the recovery of such arrears the amount of arrears of rent payable under such award;

and u/s 25(1)(a) a list of the immovable properties of the debtor is included in this award. These statutory provisions clearly authorise the inclusion, in the suit for the subsequent arrears of rent, of the amount of arrears of rent payable under "the award" [which u/s 2(2) of the Act quoted above, means, inter alia, any part of the amount, shown as payable under the award, remaining unpaid] and such authorisation, upon the said opening words of Section 26 -or, for the matter of that, of Section 26(a) -overrides the bar, if any, created by any other statutory provision. In my opinion, therefore; Section 26(a) by its own force, whatever may be the other provisions of the Act, is sufficient to sustain the Plaintiff''s suit and that suit will he maintainable notwithstanding Sections 28 and 29 or any other provision of the Bengal Agricultural Debtors Act or any provision of any other Act. The decisions of the courts below cannot, therefore, stand.

At this stage I shall deal with one possible objection to the above view which may be founded upon certain observations in the Bench decision of this Court reported in Nalini Kanta Maity v. Brojo Mohan Patra (1941) 45 C.W.N. 466, (468). Those observations are as follows:

As the creditor omitted to avail himself of the certificate procedure,-the award qua-award ceased to exist, and what is substituted for it by fiction of law is a new debt altogether, which is deemed to have been incurred by the debtor after the date of the signing of the award. It can no longer, therefore, be deemed to be included in the award.... In my opinion it cannot come within the mischief of Section 33(2) of the Act, which applies only when the amount is still payable under the award.

These observations were made by Mukherjea J. while considering the effect of Section 33 of the Act in a case where the award fell clearly within the latter part of Section 28(1). It is to be noticed, however, that the effect of the said latter part of Section 28(2) is by its terms limited to "the purposes of Section 35(iii)" and, therefore, the correctness of the above observations in the broad form as noted above and in the context in which they Were made, that is, with reference to Section 33, may be open to some doubt but, sitting singly, I am bound by the said observations, upon which the above Bench decision appears to have been clearly based. I shall, therefore, proceed to examine the position on the footing that, if the case falls within the latter part of Section 28(1) the award qua-award ceases to exist in whole or in part, as the Case may be, for the purposes of Section 33 also, as held in the said case of Nalini Kanta v. Brojo Mohan (supra). On the authority of that decision, however, the utmost that can be said in favour of the present Respondent is that, if to any amount included in an award the latter part of Section 28(1) of the Act becomes applicable, the award qua-award would cease to exist so far as that amount is concerned, and that amount would no longer be deemed to be included in the award and that, therefore, that amount would not be "amount payable under the award" so as to be entitled to the benefit of Section 26(a).

In the first place, however, this argument, though plausible on the decision in Nalini Kanta''s. case (supra), is not, when closely analysed, really supported by that decision. It is clear from the above decision that Mukherjea J'', was, in the passage quoted above, emphasising that the amount in question was no longer payable under the award, that is, no longer recoverable through the special machinery provided by the Bengal Agricultural Debtors Act for enforcement of an award. This appears from his own expression when the amount is still payable under the "award" used in the latter part of the observations quoted above and this is well confirmed by the concurring judgment of Biswas J. when that learned Judge observes at p. 468 of the-Report that-

at the date the suit was brought, there was no debt for which any amount was still "payable under the award" within the meaning of Clause (6) of Section 33, that is to say payable in accordance with the provisions of the Act.

The portions in italics above do, in my opinion, put the matter beyond the range of controversy. They show, and show quite clearly, that by the use of the expression "payable under "the award" their Lordships were there meaning "payable under "the award in accordance with the Act, that is, recoverable by "the use of the special machinery provided in the Act."

Keeping in view what has been said above I shall now turn matter beyond the range of controversy. They show, and show "award" as contained in Section 2(2) of the Act and examine the language of Section 33(b). The definition runs as follows:

Section 2(2) : "amount payable under an award" means an amount included under Clause (d) of Sub-section (1) of Section 25 in an award as payable by a debtor in respect of any debt, or any part of such amount which remains unpaid, together with any interest on such amount or part thereof which is due under the award.

and the relevant language of Section 33(b) is : "any debt for which any "amount is payable under an award". The essence of the definition is "included in an award as payable" and the essence of Section 33(6) is "is payable under an award." The difference is manifest and it demonstrates that, though the inclusion of an amount in an award as payable by the debtor brings such amount or any part thereof remaining unpaid within the phrase "amount payable under the award" under the Bengal Agricultural Debtors Act, yet such amount, or the relevant part thereof, is not necessarily "payable under the award" in the sense that it is recoverable by the use of the special provisions contained in the Act for enforcement of an award.

As a result of the above discussion, the position emerges that although an amount included in an award may fall within the latter part of Section 28(2), it will still remain an "amount payable "under the award" for the purposes of Section 26(a) of ,the Act and, consequently, no part of the Plaintiff''s claim in the present suit would fall outside the said Section 26(a). The suit would, accordingly, be maintainable and cannot be defeated in limine for any part of the claim.

In the second place, even assuming that the above interpretation of the decision in Nalini Kanta v. Brojo Mohan (supra) is not correct, and that on the authority of that decision the award in the present case ceased to exist qua-award with the result that the amount of the Plaintiff''s claim included therein ceased to be amount payable under the "award" and thus fell outside Section 26(a), the position would not be materially altered. This amount would still be recoverable by suit, as held in the said decision and, therefore, the Plaintiff''s suit would be maintainable.

It may be pointed out in this connection that, strictly speaking, only the second instalment under the award would fall within the latter part of Section 28(2). This seems to be the position as the present suit having been instituted on April 17, 1945, when the fourth instalment had not admittedly fallen due, and the period of limitation, namely, sixty (ninety after amendment in 1943) days, as prescribed in Rule 63 under the B.A.D. Act, had not expired from the due date of the third instalment, the landlord cannot be said to have failed or omitted u/s 28(1) of the Act to apply for recovery of the said two instalments within the prescribed period as mentioned therein. It is clear, however, that the fact that all or some or none of the instalments may fall within the latter part of Section 28(1) would make no material difference, as the Only result would be that the amount under the award to which the latter part of Section 28(2) would not be attracted would be eligible for inclusion in the suit u/s 26(a) of the Act, while the remaining amount if any, would be eligible for such inclusion under the general law (vide 45 C.W.N. 466).

In the above view of the matter, the objections, if any, under Sections 28 and 29 of the B.A.D. Act or any other statutory provision, to the maintainability of the suit, in the present instance, must fail in limine. Having regard, however, to the importance of the matter, I have examined also the merits of the said objections in the light of the facts of the present case and I shall now proceed to give below the result of such examination.

On referring to Sections 28 and 29 of the Act I do not find anything therein which disentitles the landlord from including the arrears of rent remaining unpaid under an award in a suit brought for subsequent arrears of rent. There is nothing in Sub-section (4) of Section 28, to which my particular attention has been drawn, which stands in the way of the landlord. What Sub-section (4) of Section 28 of the Bengal Agricultural Debtors Act contemplates is that when the Certificate Officer has failed "to recover the full "amount" under the certificate from "the moveable or "agricultural produce of the debtor, he shall sell such portion of "the immoveable property of the debtor as will be sufficient to "pay all amounts payable whether under the award Or under Sub-section 1 of Section 29 or under any decree which has, to the "knowledge of the Certificate Officer, been passed by a civil "court in respect of a debt of which details are included in the "award under Clause (c) of Sub-section 1 of Section 25". This sub-section does not deal with a case where the properties of the debtor have been sold and, yet, there, remains an outstanding amount payable under the award. In other words, this sub-section does not deal with cases where the proceeds of the sale of the debtor''s properties would be insufficient for meeting his liabilities under the award. Sub-section (4) of Section 28 will, therefore, have no application to the present case where, from the debtor''s properties, only a part of the award could be satisfied. Looking at the other parts of Section 28 [including Sub-section (1) which has already been considered] I am unable to discover therein any bar to the maintainability of the Plaintiff''s suit or any part of his claim.

I shall now refer to Sub-section (5) of Section 29, to which also my attention has been specially drawn. That sub-section provides for cases where "the (Certificate Officer fails to recover as a public "demand Or under the provisions of Sub-section (4) of Section 20 any "amount payable under the award" and, in such cases, under the provisions of that sub-section, read with its proviso, the Certificate Officer may-I am using the word "may" because the word "shall" in the sub-section is to be read subject to the proviso,-certify the amount, not recovered, as irrecoverable with the consequence that the award ceases to subsist and any amount payable thereunder becomes recoverable within three years on the footing as if a decree for the same had been passed by the civil court on that date. The Certificate Officer is also given the option under the proviso to Sub-section (5) of Section 29 to make a report to the Board instead of at once certifying that the amount is irrecoverable and, therefore, the Board has powers to declare the debtor insolvent so that Sub-section (5) of Section 22 at once becomes applicable.

In the present case, there is nothing to show that any amount included in the award was certified as irrecoverable by the Certificate Officer or that there was any report by him to the Board or that the Board declared the debtor insolvent. It is clear, therefore, that neither Section 29(5) nor Section 22(5) of the Act will have airy application in the present case.

Two other sub-sections, namely, Sub-section (1) and Sub-section (2) of Section 29 deserve attention in this connection. Section 29 deals with distribution of the sale-proceeds. Sub-section (1) thereof refers to payment or satisfaction of the dues on account of arrears of rent under an award or otherwise and Government dues. Sub-section (2) deals with other debts. In Sub-section (2) the legislature has laid down a rule of rateable distribution in cases of insufficiency of sale-proceeds. In Sub-section (1) there is no such provision. A reading of the said two sub-sections makes it clear that the legislature gave priority to the items mentioned in Sub-section (1) comprising, inter alia, arrears of rent included in an award. The anxiety of the legislature is manifest to treat arrears of rent on a privileged footing and that explains the special provisions of Sections 23, 26(a), 29(1), etc., of the Act. Even in the case of insolvent debtors, claims for rent have been placed on a special footing [vide Section 23 and the second proviso to Section 22(4)]. It is also worth noticing that not only in Section 29(1), dealing with arrears of rent, etc., as noted above, but also in Section 29(2), dealing with other debts, there is no provision for abatement or extinction of any unrealised portion and this is only consistent with Section 29(5) which shows that, except to the extent that Section 22(5) may be attracted to a particular case, the unrealised debts or parts thereof remain recoverable (see in this connection Nalini Kanta v. Brojo Mohan (supra). It cannot be argued, therefore, that where arrears of rent included in an award are not recovered through Sections 28 and 29 of the Act, they necessarily become irrecoverable. It has already been seen that Section 22(5) is inapplicable to the present case. There is, therefore, nothing in Section 29 also to bar the allowance of the landlord''s claim in the present suit.

I shall now briefly discuss Sections 22, 33 and 35 of the B.A.D. Act in relation to the present case. Admittedly, the debtor has not been declared insolvent by the Board and, therefore, Section 22 has no application. Section 35, even taking the most favourable view in favour of the Respondent would, in the view which I have expressed above, only postpone the recovery of the amount of the second instalment (Rs. 150) of the award till all amounts payable under the award have been paid. This, however, is of no consequence in the present case, as, in the award, the only amount included was the sum of Rs. 629-4-0 awarded to the landlord for arrears of rent, part of which (Rs. 150) has already been realised and the outstanding balance (Rs. 471-8), that is, the net balance after allowance of the remission as directed in the award, as noted above, is included, in the present suit. There is no other amount mentioned in the award and, therefore, no question of postponement really arises. As to Section 33, it is enough to say that the opening words of the said section, namely, "except as provided in this Act" read with the opening words of Section 26(a), namely, "notwithstanding anything contained in this "Act" make the said Section 33 inapplicable to the present case so far as it is covered by Section 26(a) of the Act. To the extent, however, if any, that the Plaintiff''s claim is not covered by Section 26(a), it is maintainable under the general law in spite of Section 33 of the B.A.D. Act vide Nalini Kanta v. Brojo Mohan (supra). None of the above sections, therefore, creates any bar to the maintainability of the present suit either in whole or in part.

My conclusion, therefore, is that the Plaintiff''s suit is not barred by any provision of the Bengal Agricultural Debtors Act.

As to the defence u/s 168A of the Bengal Tenancy Act, I must make it clear that, in my opinion, that defence is not available to the Defendants at this stage and, therefore, the question as to whether, in the recovery of any part of his claim, the Plaintiff would be hit by Section 168A of the Bengal Tenancy Act will be left open in the present suit for agitation at the proper stage. I am expressing no Opinion on the merits of the said question.

In the above view of the matter, this appeal must be allowed and the Plaintiff''s suit must be decreed in full.

Having regard, however, to the circumstances of this case, I direct that the parties. will bear their own costs throughout.

Leave under Clause 15 of the Letters Patent is asked for and is granted.