P L D 1952 Dacca 108 (PLP)

IBRAHIM, J.‑Sher Ali, the father of the defendants (appellants), was the younger brother of the plaintiff Hadi Bhuiya. On the 17th Poush, 1330 B. S., corresponding to the 2nd January 1924, Sher Ali executed a kabala in respect of the lands in suit in favour of the plaintiff for a consideration of Rs. 300 but the kabala was not registered on that date. On the 19th Poush, 1330 B. S. corresponding to the 4th January 1924, the plaintiff executed a deed of agreement agreeing to reconvey the land to Sher Ali if he paid back the consideration in any month of Poush between 1331 B. S. to 1338 B. S. Both these documents were, thereafter, registered on the 5th January 1924, and the possession of the land was delivered to the plaintiff. The finding of the Court below is that the stamp papers of the kabala were purchased on the date of the execution, that is, on the 2nd January 1924, and of the two stamp papers for the agreement, one was purchased on the 23rd December 1923, and the other was purchased on the 3rd January 1924. The defendants applied to the Maruka Debt Settlement Board for the settlement of the debt alleging that the transac tion was a kot kabala. The Board accepted this contention and passed Award to the effect that the debt had been satisfied. The plaintiff took an appeal to the Appellate Officer and the decision of the Board was set aside. The defendants, thereupon, filed a petition for revision before the learned District judge against the order of the Appel late Officer. The learned District judge agreed with the Debt Settlement Board that the transaction was kot kabala and reversed the decision of the Appellate Officer and restored the Award passed by the Board. The plaintiff, thereupon, instituted the suit for confirmation of his possession and permanent injunction restraining the defendants from entering into these lands. The trial Court on considera tion of the evidence adduced before him took the view that the transaction was an out and out sale subject to a sub sequent agreement for re‑purchase and not a mortgage by conditional sale and on that view held that the Board had no jurisdiction and the Award and the decision passed by the District judge were void. On appeal the learned Subordinate judge confirmed the decision of the trial Court. The defendants have now come up to this Court in the present second appeal. The only point for consideration in this appeal is whether the Civil Court has jurisdiction to entertain the suit in view of the Award passed by the Board. Under section 9 of the Civil Procedure Code, the Courts are vested with "Jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred". Section 33 of the Bengal Agricultural Debtors Act debars the Civil Courts from entertaining suits, applications or proceedings in respect of any debt included in an application under section 8 of the Bengal Agricultural Debtors Act. So, if there is a debt and if in respect of that debt an application has been made by a debtor under section 8 of the Bengal Agricultural Debtors Act the Civil Court cannot entertain a suit, in respect of the same debt against the debtor. As to the power to decide whether there is a debt or not, section 20 of the Act provides that if any question arises in connection with proceedings before a Board under this Act, whether a person is a debtor or not or whether a liability is a debt or not the Board shall decide the matter. The Board is the authority, therefore, to decide whether a person is a debtor or not, or whether a liability is a debt or not. It is obvious that if a Board decides that a certain liability is a debt the Civil Court cannot re‑open that matter. But it is said that though the Board has jurisdic tion to decide whether a liability is a debt or not it has no jurisdiction or in any case exclusive jurisdiction to decide whether a transaction creates a liability or not. If this contention is right then the present appeal must be dismissed unless on the merits it can be found that the kabala and the agreement created a mortgage by conditional sale. On the other hand, if it is held that the Board's jurisdiction to decide whether a liability is a debt or not includes the jurisdiction to decide whether there is a liability or not then this appeal must be allowed. In the case of Tasenuddin Sheikh v. Asiruddin Mallick 53 C W N 1 D R 15: 2 D L R 55, Akram C. J., observed in course of his judgment: "It appears to me that it is now well settled that the jurisdiction of the Civil Court as to the question whether a transaction is a liability or not is not barred under the provisions of the Bengal Agricultural Debtors Act." He, however, did not refer to any specific authority when he said that the proposition was well‑settled. In the case of Ha ii Rahimuddin Sheikh v. Nasimuddin Sheikh 53 C W N 1 D R 62, the same learned judge held that sections 18, 20 and 23 of the Bengal Agricultural Debtors Act did not operate as bar to adjudication by Civil Court of the question whether or not a transaction created a liability or debt in spite of a previous decision by the Debt Settlement Board. In the case of Madan Chandra Goldar v. Manindra Nath Goldar 53 C W N 1 D R 149 :1 D L R 23, the learned Chief Justice once more reiterated his view but observed that although a Civil Court had jurisdiction to decide whether certain transactions created a liability or not, the question must be decided with reference to materials available to the Debt Settlement Board, which is not, in view of section 45 of the Bengal Agricultural Debtors Act, fettered by the provisions of the Indian Evidence Act and the Civil Procedure Code. It is obvious from section 45 of the Bengal Agricultural Debtors Act that the Board can travel into wider field for investigation than is open to the Civil Court. It is difficult to understand how the Civil Court, can, fettered as it is by the Indian Evidence Act and the Civil Procedure Code, act on the same evidence as may be placed before the Board. In case of Abinash Chandra Biswas v. Mangal Biswas 53 C W N 1 D R 20 : 2 D L R 60, Ormond J., has taken the view, that where a Debt Settlement Board has come to the decision that a transaction is not. a lease but a loan and has made its award, it is not open to the Civil Court to consider further the matter or to question or vary the decision of the Board. His Lordship has further held that the Board in such a case acts within its statutory powers in deciding whether the transaction was in truth a loan or not. In the case of Abdul Majid v. Satish Chandra Karmakar 53 C W N 1 D R 41, a Division Bench of this Court consisting of Ellis and Amin Ahmad JJ., has held that when a person approaches a Debt Settlement Board for settlement of debt under the Bengal Agricultural Debtors Act, the Board has jurisdiction to decide whether in view of the transactions between the parties there is a liability and whether that liability is a debt within the meaning of the General Agricultural Debtors Act. In the case of Bazlar Rahman Khondkar v. Amiruddin 48 C W N 699, Biswas J., delivering the judgment of the Bench observed : Secondly, we think the learned judge placed too narrow an interpretation on the terms of section

20. It seems to us that the powers to decide whether a liability is 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. There is thus a number of decisions of this Court and a decision of the Calcutta High Court in favour of the wider interpreta tion. As against this there are three decisions of Akram C. J., referred to above. Mr. Khondkar appearing for the respon dents has pointed out that the decision in the case of Bazlar Rahman Khondkar v. Amiruddin (supra) was questioned in the case of Surendra Nath Chakravarty v. Haran Chandra Chakravarty 49 C W N 592, but all that was said in that case is that the interpretation laid down might require further consideration. He has also referred to the unreported case of Haji Maharam Ali v. Mansur Ali P L R 1 Dacca 121, Letters Patent Appeal No. 11 of 1945 decided by Shahabuddin C. J., and Amir‑ud‑Din Ahmed, J. on the 22nd June, 1950. It does not appear to me that their Lordships wanted to say that the power of the Board under section 20 does not include the power to decide whether a transaction is a liability or not. On the other hand their Lordships observed to this effect : 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 fail to see what there is for the Board to decide." This language makes it quite clear that their Lordships were not laying down that under section 20 the Board had no power to decide whether there was liability or not. It seems to me that the Award passed by a Debt Settle ment Board cannot be re‑opened before the Civil Court on the ground that the Board had no jurisdiction to consider whether the transaction created a liability or not. In my opinion, the liability under section 20 means the liability` alleged by the applicant and it is within the exclusive juris diction of the Board to decide whether the liability alleged is real or fictitious or exists or does not exist, for, without determining that question the Board cannot decide whether it has jurisdiction to entertain the application. If in deciding the question whether the liability alleged by the debtor exists or not, it becomes necessary to consider whether the transac tion upon which the liability is asserted creates a debt or not the Board alone is competent to decide that. Section 2 clause 10 of the Bengal Agricultural Debtors Act provides in clear terms that "loan includes any transaction which is in the opinion of a Board in substance a loan." It should be absolutely clear from these plain words that if any question arises' in' a proceeding before the Board as to whether a transaction is a loan or not the Board has exclusive jurisdic tion to decide it. If, therefore, a Debt Settlement Board comes to a finding on the application for settlement of debt that the liability alleged is a debt then that decision cannot be challenged in a Civil Court on the ground that the Board acted without jurisdiction because it had no power to decide whether the transaction created a liability or not. Mention may in this connection be made also to section 18 where it is provided in unequivocal terms that if there is any doubt or dispute as to the existence or amount of any debt, the Board shall decide whether the debt exists and determine its amount. My conclusion, therefore, is that the suit out of which this appeal has come up was not maintainable. The appeal is accordingly allowed with costs, judgment and decrees passed by the Courts below are set aside and the suit is dismissed. A. H. Appeal allowed.