P L D 1 Dacca 555 (PLP)

This definition of the word "debt" has been quoted with approval in the case of Rawley v. Rawley ((1876) 1 Q B, D 460). In the case of Doraisami Padayachi v. Vaithilinga Padayachi (I L R 40 Mad. 31) a Full Bench of the Madras High Court was called upon to construe the meaning of the word "debt" with regard to a particular document. The Full Bench, in giving its opinion, observed: "We think that the word `debt' used in this context must be taken to have been used in its ordinary meaning of a sum payable in respect of a money demand recoverable by action." In Burrows' "Words and Phrases Judicially Defined" Volume 2, page 32, a Canadian decision in the case of Diewold v. Diewold (1941 S C R 35) is quoted, wherein the word "debt" was construed thus: " The word `debt' is defined in Stroud's Judicial Dictionary as 'a sum payable in respect of a liquidated money demand, recoverable by action'." It is important to remember the provisions of section 2 of the Ordinance which reads thus: "The provisions of this Ordinance shall be in addition to, and not, save as hereinafter expressly provided in derogation of, the Companies Act, 1913 (VII of 1913), and any other law for the time being in force." It must necessarily follow that, in accordance with the express terms of the Ordinance as quoted above, it 'must be held that a "debtor" is a person whose liability in respect of a debt is enforce able under the law apart from the provision of the Ordinance which has been expressly stated to be subject to "any other law for the time being in force." Thus, a person is not a "debtor" within the meaning of section 63 in respect of any debt which had become barred under any other law of the country. If the scheme of the enactment is considered, it would be apparent that the intention of the Legislature was not to revolutionise the legal concept of an enforcable debt but to provide for a speedier and easier mode of realising debts. Section 63 of the Ordinance, furnishes a short‑cut and summary method of enabling a banking company to enforce a debt which would have been otherwise enforceable by a somewhat cumbrous and dilatory procedure. Mr. Asrarul Hussain has contended that the law of limitation does not extinguish the debt but merely bars the remedy. This is so and one need not quarrel with a well‑settled proposition. See, for instance, Sultan Muhammad v. Ladha Singh (A I R 1926 Lah. 633). But, such an enquiry is irrelevant under the present context. If the remedy is barred, the debt becomes unenforceable as a debt. We have seen that under section 63 of the Ordinance there is ‑no "debtor" in respect of an unenforceable debt. Our attention was invited to the provisions of subsection (1) of section 73 of the Ordinance, which runs thus: "

73. Special period of limitation.‑(1) Notwithstanding anything contained in the Limitation Act, 1908 (IX of 1908), or in any other law for the time being in force in computing the period of limitation prescribed for a suit or application by a banking company which is being wound up, the period commencing from the date of the presentation of the petition for the winding- up of the banking company shall be excluded." It is obvious that the concession given in section 73 (1) of the Ordinance is in respect of a suit or an application filed by a banking company. The section is attracted only when the said banking company is being wound up by a petition specifically and expressly directed towards its winding up and that it does not come into operation when the indirect result of some other kind of scheme is to effect a winding‑up of the said company. Mr. Asrarul Hussain has argued that an arrangement or scheme under section 153 of the Companies Act may effect a winding‑up of a banking company and that, in such a sense,‑ section 153 can be treated as an alternative mode of winding‑up. It may be that an arrangement under the said section 153 may result in such winding‑up and it may be permissible to say, in such a limited sense, that a company can be wound up under the provisions of section

153. But, this is not the kind of winding‑up contemplated by section 73 of the Ordinance which speaks of presentation of a petition to that effect, namely, specifically for such purpose. An application under section 153 of the Companies Act is not presentation of a petition for winding‑up of a banking company although it may lead to such a result. Section 73 (1) of the Ordinance is couched in the following terms: " ... . the period commencing from the date of the presentation of the petition for the winding ‑up of the banking company shall be excluded." This presupposes that the winding‑up is in consequence of a petition for such an express purpose. We are, therefore, clear in our minds that a banking company which has not presented a petition for winding‑up cannot pray in aid the provisions of section 73 merely because it is working under an arrangement sanctioned under section 153 of the Companies Act. This disposes of the contention raised on behalf of the respondent Bank on this point. In the present case there has been no petition presented for the winding‑up of the Comrade Bank Limited. In settling a list of debtors there is no warrant for allowing debts which have already become barred. With this preface the contention of the appellant, in Appeal No. 6 of 1963, is, that the sole debt which is claimed against him appertains to a debt in respect of which a suit was brought and dismissed for non‑prosecution. The appellant has assailed the inclusion of his name in the aforesaid list of debtors on two scores: In the first place, he has contended that even if the aforesaid suit in respect of such a debt is ignored and one proceeds on the footing that no suit has been brought, the claim became barred, beyond any dispute, at the time when the application was made under section 63 of the Ordinance. On behalf of the respondent Bank it has been faintly urged that under section 73 of the Ordinance the debt would be still enforceable. It is difficult to follow the logic of this conten tion. We have already seen that section 63 does not purport to revive a time‑barred debt. Moreover, an application under section 153 of the Companies Act simplicited does not amount to presentation of petition for winding‑up. Therefore, the respondent Bank cannot pray in aid section 73 of the Ordinance in making an application under section 63 thereof. M. Mustafa Kamal has further contended on behalf of the appellants that principles of estoppel analogous to those of res judicata would also bar any suit for enforcement of the aforesaid debt having regard to the fact that a prior suit was, in fact dismissed for non‑prosecution. He has submitted that a person, cannot be allowed to re‑agitate an issue which he has specifically raised in a suit but did not allow an adjudication upon it. The gist of his argument is that when one has raised a fight he is not allowed to run away from it and fight the battle again. Having regard to the finding we have already recorded above, we are not called upon to give a decision on this point. We now turn to the next appeal, that is, Appeal No. 7 of 1963: In this case, appellant has urged, as it will be seen from what has been stated above, that the debts claimed against him are in respect of two items with regard to which the above‑mentioned suits were brought and the said decrees were obtained. The decrees were put into execution and the execution cases were dismissed for non‑prosecution. That being so, it is clear that under the provisions of Order IX, rule 9 of the Code of Civil Procedure, the respondent Bank is barred from bringing fresh suits except upon obtaining an order of condonation from the Court on the ground that for good reasons they were prevented from prosecuting the case. It should be remembered that such an application must be made within thirty days from the date of the order of dismissal. This Court cannot ignore the fact that a considerable period elapsed between the aforesaid order of dismissal and the application made under section 63 of the Ordinance. It has been argued that even now the Bank can apply to the Court to have the order of dismissal set aside. We do not think that such a situation is possible. It is impossible for any Court to make such an allowance in favour of the respondent Bank. Apart from the provisions of Order IX, rule 9, of the Code of Civil Procedure, the respondent Bank would be hit by another principle of law. Having put a decree into execution and having allowed the execution case to stand dismissed, it is not permissible for the respondent Bank to sleep for such long years. The Bank cannot, at this interval enforce the debt. Asir, J., has disposed of the point raised, on behalf of this appellant, with regard to Order IX, rule 9, of the Code of Civil Procedure, by saying that an application under section 63 of the Ordinance is not a suit. The crucial point is that the alleged debts cannot now be enforced by way of a suit or by way of executing former decrees after such a long interval. We are not saying that section 73 of the Ordinance will not be available to an applicant under section 63 thereof; but, we do say that in this particular case the arrangement sanctioned under section 153 of the Companies Act does not amount to presentation of a petition for winding‑up. The provisions of section 73 of the Ordinance are, therefore, not available to the respondent Bank. The result is that we hold that the appellants cannot be held to be "debtors" of the respondent Bank within the meaning of section 63 of the Ordinance. Both the appeals are, therefore, allowed without, however, any order as to their costs. The judgment and order passed by this Court on the 27th day of August, 1963, in Company Matter No. 32 of 1962 are hereby set aside only in so far as they affect the appellants before us. We' direct that the appellants be excluded from the list of debtors settled under section 63 of the Ordinance and that the certificates issued under the said section in respect of the appellants be recalled. ABU MD. ABDULLA, J.‑I agree. S. Q. Appeals allowed.