P L D 1958 Dacca 308 (PLP)

Provided that the Certificate Officer, instead of at once certifying any part of such amount to be irrecoverable, may make a report to the Board which may pass an order declaring that the debtor is insolvent and thereupon the provisions of subsection (5) of section 22 shall as far as possible apply to such insolvent." Mr. Siddique Ahmed Chowdhury, who appears for the respon dent, points out that this point has been dealt with by the learned Judge, and he relies on the provisions of subsection (1) of section 28 of the Act and urges that even if there is no compliance with the provisions of subsection (5) of section 29 of the Act, the provisions of section 33 read with those of subsection (1) of section 28 of the Act will show that the present suit is maintainable under the Act:: The learned Advocate also points out that section 33 of the Act begins with the words "Except as provided in this Act". The learned Advocate for the respondent has also in this connection referred to the case of Nalini Kanta Maity v. Brojamohan Patra (45 C W N 466.). As the learned Judge has already referred to it and quoted certain passages from it, it is not necessary for us to deal with that case over again. The learned Advocate has also relied on the case of Ashutosh Patra v. Sundar Singh (58 C W N 134 (137)) and has particularly relied on the following passage "Section 28 (1), inter alia, provides :‑ `If by the date fixed the debtor fails to pay any amount pay able under an award such amount shall be recoverable as a public demand on application made within the prescribed period by a creditor to whom the amount is due. If the creditor does not so apply such amount shall, for the purposes of clause (iii) in section 35, be deemed to be a debt incurred by the debtor after the date of the signing of the award. `It will thus be seen that there is provision for a new debt in place of the amount of the award. That being so, a suit to recover that debt would undoubtedly lie. But so long as section 35 is operative, the decree could not be executed until either of the two conditions set out in clause (iii) of section 35 was satisfied. The difficulty with regard to execution of the decree was not present in the case before Mukherjea and Biswas, JJ. (Nalini Kanta Maity v. Broja Mohan Patra) and was accordingly not the subject‑matter of their decision'." This point has been elaborately dealt with by the learned Judge, and we have no hesitation in agreeing with him and upholding the contention of the learned Advocate for the respondent, and, therefore, hold that the suit is not hit by the provisions of section 33 of the Act. The next branch of the argument of the learned Advocate for the appellant as to the maintainability of the suit is that the award in question is not a valid award and is not at all enforceable. Mr. Saha has strenuously argued that on a perusal of the terms of instalments starting from the 12th of April 1944, to the 15th of February 1948, it will be found that on the 30th of March 1948, when the award was actually signed and became operative, the dates for the payment of the various instalments had expired and the debtor could not at all pay any of the instalments, and this is contrary to the provisions of subsections (1) (a) and (1) (e) of section 25 of the Act read with rule 61 of the Rules framed there under and Form No. XII, Schedule C, referred to in the said rule. Section 25, subsection (1) (a) and (1) (e), are as follows :‑ "(1) An award shall be in the prescribed form and shall include the following particulars (a) a list of the immovable properties of the debtor with particulars of any mortgage, lien or charge subsisting thereon ; (e) the manner and the order in which and the tines at which the amounts referred to in clause (d) shall be paid Provided that the order in which such amounts shall be paid shall be in accordance with any rules made under this Act; " Relevant portion of Rule 61 of the Rules framed under the Act runs thus "An award in respect of an insolvent debtor shall be in Form XIII or Form XIV, as the case may, and any other award shall be in Form XII." In Form XII, our attention has been drawn to the words "shall be paid", stating that they contemplate future payment and not past. So, point is made that, according to the award as the instalments that were to be paid were not payable in future but in the past, it must be held that the award is without jurisdiction. Mr. Siddique Ahmed. Choudhury for the respondent‑ has relied on subsection (2) of section 19 of the Act and stresses that the Board; on the other hand, had no jurisdiction to incorporate in the award any terms that were not originally settled on the date of the settlement, i.e., on the 11th of July 1943, and that if they had varied or altered the term of instalment as settled on the 11th July 1943, the award would have been invalid on that ground and, therefore, it should be held that the award of the 30th March 1948, is a perfectly valid award. It is also pointed out that admittedly this settlement was made amicably under section 19 (1) (a) of the Act as will appear from the award itself, and that subsection (2) requires that such a' settlement should be embodied in the award. Section 19 (1) (a) and subsection (2) of section 19 of the Act run thus "Section 19 (1) (a) : Subject to rules made under this Act‑ (a) when any creditor agrees in respect of any debt owing to him to an amicable settlement with the debtor, the Board shall embody such settlement in writing. Section 19 (2) : The terms of any settlement of debt under subsection (1) shall be embodied in an award to be made by the Board." In support of his argument, the learned Advocate for the respon dent has relied on the case of Promode Kumar Roy and others v. Hirendra Nath Mukherjee and others (A I R 1952 Cal. 232), the case being disposed of by Harries, C. J., and Chakravarti, J., and the leading judgment was delivered by Chakravarti, J. The learned Advocate relies on the following passage in that judgment :‑ "There is another small point which was not specifically urged before us, but which is noticed in the judgment under appeal. The order by which the amount was directed to be paid in a certain number of instalments is the order dated 14th November 1942. The instalments there mentioned are twenty instalments beginning from Chaitra, 1349, up to 1368 B. S. This was an order passed apparently by the Kasimbazar Debt Settlement Board where the application was initially filed. For some reason and by some process which are not apparent on the record, the case ultimately went to the Berhampur Special Debt Settlement Board and that Board made an order on 15th November 1944, and directed an award to be written up and signed in accordance with the order of the "previous Debt Settlement Board of Kasimbazar", obviously meaning thereby the order of 14th November 1942. When, however, the award came to be written up, the instalments: were altered. Whereas by its order dated 14th November 1942, the Kasimbazar (sic) had directed the instalments to commence from Chaitra, 1349, the award directs them to commence from Chaitra, 1351. The lower Court took notice of this discrepancy, but observed that it was immaterial and that, the instalments directed by the Kasimbazar Board would prevail. I am unable to agree with the learned Judge that the discrepancy can be got rid of in that manner. What is effective under the Act is the award and it is the award which debars the creditor from pursuing his ordinary‑remedies before a Civil Court. The Civil Court, when it is confronted with discre pancy between an order settling a debt and an award drawn up in purported accordance with that order, is not entitled to say that the order would prevail rather than the award. It must take the award as it is, and, in my view, since the award was not an award in accordance with the order upon which it was based, it was not a valid award at all." We respectfully agree with the view taken by their Lordships in the above case. There is no doubt that the real order which is material is the order settling the debt and the provisions of section 40 of the Act lay down that such an order is open to appeal, revision, etc., and, therefore, if parties happen to move against the order of settlement and the signing of the award is delayed on account of such proceedings, it cannot be said that after such proceedings have terminated, the terms of the settlement may be varied because of the time taken by the said proceedings. In this case, it appears that although the debt was amicably settled on the 11th of July 1943, before the Board, because of the proceedings the award could not be signed and registered before the 30th March 1948, and the learned Advocate is quite correct in urging that subsection (2) of section 19 of the Act gives no option to the Board to vary the terms of settlement. We may also in this connection refer to the following observations of Chakravarti, J., in the above case Promode Kumar Roy and others v. Hirendra Nath Mukherjee and others to show that the real order is the order of settlement and not the confirmation of the order by the signature of the Board :‑ "Mr. Sen contended in the next place that the award was a bad award inasmuch as, so far as one of the decree‑holders was concerned, it was an award against a dead person. This conten tion was based on the fact that Tarit Bhusan Roy died on 17th March 1944, and the award which was drawn up on 31st January 1945, still showed Tarit Bhusan Roy as one of the decree holders: In my opinion, this contention of Mr. Sen is also not correct. The real order which resulted in the award is the order of 20th June 1942, and it is not disputed that on that date Tarit Bhusan Roy was alive. The award drawn up on 31st January 1945, was, as the trial Court has pointed out, a mere piece of formality and in no way affected the merits of the case. The position really was as if one of the parties had died between the delivery of the judgment and the drawing up of the formal decree. In my opinion, the death of Tarit Bhusan Roy between 20th June 1942 and 31st January 1945, does not affect the validity of the award on the ground that his representatives had not in the meantime been substituted." So, there is no substance in the contention that the award is invalid. The third branch of the argument as to the maintainability of the suit is that inasmuch as items 3 and 7 of the properties in the Schedule to the plaint have not been included in the award, the suit is not maintainable. There is no substance whatsoever in this contention, for, on the face of it, the suit is a money suit under subsection (1) of section 28 of the Act and not a mortgage suit. The second main point urged by the learned Advocate for the appellant is that inasmuch as the award was signed on the 30th March 1948, and the suit was filed on the 28th September 1951, it ought to have been held that the suit is barred by the law of limitation. It is not necessary for us to discuss and refer to the various Articles of the Limitation Act and say whether one Article or the other applies, for, it will appear that, on the face of it, even if the period of limitation is three years, the suit was filed nearly sir months ‑after three years. So, we will have to see whether this is saved by any provision of the Act. Section 52 of (lie Act, which provides for such an exclusion, runs thus : "Notwithstanding anything contained in any other Act, when the period of limitation is calculated for any 'application, suit or appeal regarding a debt which has been the subject of any pro ceedings under this Act, the time during which such proceedings continued and the time during which the person interested in such debt was debarred by any provision of this Act from making or instituting the application, suit or appeal, or executing the decree in question, as the case may be, shall be excluded." In this case, the period of limitation undoubtedly will run from the date of the signature of the award, i.e., 30th larch 1948, and the plaintiff is entitled to get the period that was spent in the proceed ings before other authorities. The learned Judge has rightly pointed out that the plaintiff is entitled to exclude the period from the 30th March 1948, to the 19th of May 1951, which is the date of disposal of the revision petition before the District Judge. If that period is C excluded, there can be no doubt that the suit is not hit by the law of limitation. The result, therefore, is that this appeal is dismissed with costs. . NANDI, J.‑ I agree. Appeal dismissed.