P L D 1952 Dacca 102 (PLP)

SHAHABUDDIN, C. J.‑This is an appeal filed in ‑the Calcutta High Court under the Letters Patent from the Judgment and Decree, dated the 28th June, 1945, of Mr. Justice Henderson. By virtue of clause (3) of paragraph 13 of the High Courts (Bengal) Order, 1947, the appeal stands trans ferred to this High Court. The suit under appeal was filed by the appellant for a declaration that the order passed by the Raishree Debt Settle ment Board on an application made to it by the respondent, as well as the order passed by the District Judge in revision confirming the said order of the Board, are ultra vires and without jurisdiction. He also prayed for a declaration of his title and khas possession. His case in the main, so far as it is relevant to this appeal, was as follows : The respondent -defendant sold the suit lands to him with a subsequent agree ment of re‑purchase, but applied to the Debt Settlement Board in respect of this transaction stating that it was a mortgage by conditional sale and that the mortgage debt was wiped out by the receipt of the usufruct by the creditor. The Board decided that the transaction was a mortgage, and that the debt was wiped out. This, the Board had no jurisdiction to decide, and, therefore, its decision as well as the order of the District judge in revision confirming that decision are null and void. The defence was that the kabala and the agreement taken together constituted a mortgage by conditional sale and not a sale out and out that, therefore, the Board had jurisdiction to decide the matter, and that the suit did not lie. The trial Court dismissed the suit without going into the merits. It took the view that under the Bengal Agricultural Debtors Act the Board alone had exclusive jurisdiction to deal with the question whether the transaction in this case was a mortgage or a sale, and if a mortgage, whether the debt was subsisting or had become extinguished. On appeal the Sub ordinate judge disagreeing with the trial Court held that the Civil Court had jurisdiction. He, therefore, set aside the order of dismissal and remanded the suit for disposal on merits. The defendant‑respondent went up in second appeal and Henderson, J., though personally inclined to hold that the first appellate Court's decision was correct, felt himself bound by the decision of the Division Bench in Bazler Rahman Khonda kar v. Amiruddin and other 48 C W N 699 in preference to his own in Sachirani Biwas v. Nagenara Nath Nath 46 C W N 951 delivered by him sitting singly. In Bazlur Rahman's case it was held that under section 20 of the Bengal Agricultural Debtors Act the Board has jurisdiction not only to decide if a liability is a debt within the meaning of the Act, but also to decide if there is a liability at all. Henderson J., therefore, allowed the appeal, restored the decision of the Court of first instance and gave leave to appeal under the Letters Patent. In Sachirani's case the Civil Court refused to stay the suit on receipt of a notice under section 34 of the Act. The suit was one for declaration of the plaintiff's title and for recovery of possession; the title claimed being based upon an alleged sale by the defendant. The defence was that the transaction was really a mortgage. Henderson J. discharged the rule observing : " The present suit has nothing whatever to do with any debt. The plaintiff's case is that he is the owner of certain property and he admits that the petitioner does not owe him anything. A notice issued by the Board under section 34 will, therefore, not prevent the Court from trying this suit. * * * * * * * * * * * * * * * * * * * * * * * * * * * Section 20, as amended, does not carry the matter any further. There is no question in the present suit whether any liability is a debt or not " The above observation clearly implies that the view of the learned Judge was that the Board had no jurisdiction to con sider the matter, and, therefore, the notice issued by it under section 34 could be ignored. In Bazler Rahman's case the facts were more or less similar to those of the present case, except for this that in that case the matter came up before the High Court in revision against the order of the District Judge under sec tion 40A of the Bengal Agricultural Debtors Act, whereas in the present case the question has arisen with reference to the maintainability of a suit filed for a declaration that the order of the Board is ultra wires. In that case also the applicant debtor had in his application stated that the debt had been fully satisfied, and the creditor's case was that the transaction was a sale and not a mortgage by conditional sale as alleged by the debtor. The question for decision was whether the Board had jurisdiction to deal with an application of that kind ? The judges who decided that case held that the Board had such jurisdiction. Biswas J., who delivered the judgment of the Bench observed that the definition of "loan" in section 2 (10) of the Act which is expressly stated to include any transaction which is, in the opinion of the Board, in substance a loan, shows that where there is any question as to whether a transac tion is a loan or not, it is for the Board to come to a conclusion in the matter upon consideration of all the attendant facts and circumstances, and that the question before the learned judge .was really of that kind. He also observed thus :‑ "Secondly, we think the learned judge placed too narrow an interpretation on the terms of section

20. It seems to us that the power to decide whether a liability is a debt or not, must necessarily include the power to decide whether or not there is a liability. The learned judge may be right in thinking that the two questions are not quite the same, but the first involves the second, and where, therefore, there is any doubt or dispute as to the existence of a liability, this must be first determined before and as a preliminary to the determination of the further question as to the nature of the liability. To give effect to the view of the learned judge would in fact be to render the provisions of the whole Act nugatory, for, if he is right, it should be possible in every case to defeat an application by merely asserting that there is no liability, and thereby ousting the jurisdiction of the Board. We do not think there is anything in the language of section 20 which compels us to adopt a construction which involves such a result. "Apart from this, we do not see why a question as to the existence of a liability cannot be held to come within the terms of section 18, which expressly empowers a Board to decide whether a debt exists or not. Every liability may not be a debt, but every debt is a liability, and jurisdiction to decide that there is a debt implies jurisdiction to decide that there is a liability." It is argued by the learned Advocate for the appellant that this decision is not correct. and it is pointed out that in Surendra Nath Chakravarty v. Haran Chandra Chakravarty and another 49 C W N 592 it was observed that the view taken in Bazler Rahman's case might require further consi deration. We have considered the decision in Bazler Rahman's case and we find ourselves unable to agree with the view expressed in it. It may be that the power to decide whether a liability is a debt or not includes the power to decide whether or not there is a liability ; but where according to both sides, there is no liability in existence, we failed to see what there is for the Board to decide. In our opinion, in Bazler Rahman's case the fact that according to both sides there was no liability in existence was not given the fullest consideration which it seems to us to deserve. In the present case also the respon dent, who applied to the Board said that what he regarded as a debt had been wiped out, and the appellant who was the opposite party contended that there never was a debt. As for section 18 of the Act, the Board has no doubt power to decide about the existence of debt ; but for that section to apply there must be a doubt or dispute about the existence of a debt ; whereas in the present case there is neither a doubt nor a dispute. According to both sides there was no debt on the date of the application. As stated already, there never was, as far as the present appellant is concerned ; and with regard to the respondent there was a debt once, but it was wiped out. Therefore, in effect what was asked for by the applicant before the Board was a declaration that the tran saction was a mortgage by conditional sale and not a sale out B and out. We have not been shown any provision of the Act under which the Board can give such a declaration which does not involve the settlement of a debt. It may be that if the applicant had admitted the subsistence of the debt treat ing the transaction as a mortgage and the creditor had come forward with the case that it was a sale out and out, the Board in settling the debt could have dealt with the question whether the transaction was a mortgage or a sale. But as far as the transaction in question is concerned, we think the Board had no power to give a declaration of title ; for, the existence of a debt is sine qua non for the assumption of jurisdiction by the Board. The learned Advocate for the appellant has drawn our attention to Srikanta Kamar v. Atul Krishna Biswas 49 C W N 143 and Rahim Bux Talukdar and another v. Kanaklata Choudhurani 51 C W N 1.51, where the debtor applicant before the Board, while alleging a debt had stated that it was nil and it was held that the Board had no jurisdiction over such applications. The learned judge in Sribanta's case observed thus "If he denies the existence of a debt altogether, no petition for settlement of debts could, in our opinion, possibly be made ; and if his grievance is that he is being harassed by another person for a debt which does not exist‑either in fact or in law‑his remedy lies elsewhere, and not by an application for settlement of debts under section 8 of the Bengal Agricultural Debtors Act." The learned Advocate for the respondent points out that those two decisions related to applications wherein there was only a single debt, that there is difference between such applications and the one before us where are as many a, five debts and only two of them have been alleged to have been wiped out, anti that, therefore, the above two decisions do not apply. Our attention is drawn to the observations made in those cases, which are to the effect that it is only when there is a single debt and that debt is denied that the Board has no jurisdiction ; and that if there are several debts and the debtor applicant admits even any one of them the Board has jurisdiction over all of them. But those observa tions, having regard to the fact that the applications before the learned Judges who decided those cases related to only single debt, were obviously obiter. As far as we can see, no distinction on principle can be made between the two kinds of applications. It is not disputed that where there are more than one debt in an application, the Board has to decide in respect of each one of them separately. That being so, if a denial or liability for the sole debt makes an application not maintainable before the Board, it appears to us to follow that where the denial is in respect of one of several debts, the Board does not get jurisdiction in respect of the debt denied. In Rahim Bux Talukdar's case (supra) reference is made to an earlier decision‑--Biraja Mohan Bhattacheriee v. Abaninath Pandit 45 C W N 817, where Henderson J. sitting singly observed "It is impossible for a debtor to file an application stating that one of his debts is nil." Along with this decision reference is also made in Rahim Bux Talukdar'e case (supra) to the decision in Srikanta Kaman's case (supra) but the latter decision is preferred on the ground that the form prescribed for making the application containing a column which indicates that the debtor with regard to the amount due can say "nil". But if the form is to be the criterion, it appears to us that even in the case of a single debt a similar entry can be made in this column, and yet the applica tion would be in form. But that is not the decision of the learned judge. In Golapjan Bibi and others v. Sk. Sarif Ahmad and others 52 C W N 1603 which has been cited on behalf of the respondent, it was no doubt held that where the debtor is the applicant who denies his liability on the ground that it was a debt on a usufructuary mortgage and that it has been satisfied, the Board has jurisdiction over the application. But it is not clear from the report of this decision as to whether there, like in the present case, the creditor also denied the liability. This decision, which is that of a learned single judge, runs counter to the Bench decision in Srikanta Kamar's case which has been distinguished as applying to a case of a decree debt ; but the observations in the decision to which we have made reference are not confined only to decree debts. In our opinion as long as there is dispute with regard to the existence of a debt, the Board has jurisdiction. But, as already stated, in this case there is no such controversy and this case is purely for a declaration of title and for possession. We, therefore, consider that the decision of the first appellate Court was correct. We, therefore, allow the appeal, set aside the judgment and decree passed by Henderson J., and restore the decision of the learned Subordinate Judge remanding the suit for disposal on merits. As this is a suit filed in 1943. it will be taken up and disposed of expeditiously. Costs of this appeal will abide the result of the suit. AHMAD, J.‑I agree. Appeal allowed.