{"id":144430,"date":"1966-12-13T00:00:00","date_gmt":"1966-12-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indian-general-investment-trust-vs-shri-purna-chandra-mardaraj-co-on-13-december-1966"},"modified":"2015-10-25T03:32:15","modified_gmt":"2015-10-24T22:02:15","slug":"indian-general-investment-trust-vs-shri-purna-chandra-mardaraj-co-on-13-december-1966","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indian-general-investment-trust-vs-shri-purna-chandra-mardaraj-co-on-13-december-1966","title":{"rendered":"Indian & General Investment Trust … vs Shri Purna Chandra Mardaraj & Co on 13 December, 1966"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Indian & General Investment Trust … vs Shri Purna Chandra Mardaraj & Co on 13 December, 1966<\/div>\n
           PETITIONER:\nINDIAN & GENERAL INVESTMENT TRUST LTD.\n\n\tVs.\n\nRESPONDENT:\nSHRI PURNA CHANDRA MARDARAJ & CO.\n\nDATE OF JUDGMENT:\n13\/12\/1966\n\nBENCH:\n\n\nACT:\n     Orissa  Estates Abolition Act 1951 (Act I of 1952),  s.\n20(1)  &  (2), and Orissa Money Lenders Act 1939, ss.  10  &\n11--Claims Officer required under Abolition Act to determine\namount of debt 'legally and justly due'--In doing so whether\ncan take into account provisions of Money Lenders Act.\n\n\n\nHEADNOTE:\n     The   appellant   company\tadvanced  a  loan   to\t the\npredecessor-in-title  of the respondents against a  mortgage\nof land in 1906.  In 1953 the said land vested in the  State\nof  Orissa  by virtue of a notification under s.  3  of\t the\nOrissa\tEstates Abolition Act 1951.  Under s. 18 of the\t Act\nthe  appellant filed a claim in respect of the\tloan  before\nthe Claims Officer.  The mortgagor contended that since\t the\nappellant  had realised more than double the amount  of\t the\nloan  as interest, the debt stood extinguished according  to\nss.  10\t and 11 of the Money Lenders Act 1939.\t The  Claims\nOfficer and the High Court held against the appellant though\non different grounds.  The appellant came to this Court\t and\ncontended  that\t the procedure for determining\ta  claim  as\nprovided  ;in s. 20 of the Abolition Act was exhaustive\t and\nrecourse  to  the provisions of the Money  Lenders  Act\t was\nunjustified.\nHELD:\t  The  Claims Officer cannot under s. 20(2)  of\t the\nAbolition Act determine the principal and interest due under\na  mortgage without considering the question as\t to  whether\nthe claim is true or whether it is barred by any other\tlaw,\nor  whether  the claim is still subsisting.  These  are\t all\nmatters which properly arise for consideration by the Claims\nOfficer.  The expression 'legally and justly due'  occurring\nin  s.\t20(1) clearly indicates that the first\tand  initial\nduty  of  the  Claims Officer is to  find  out\twhether\t any\nprincipal  amount is at all due to the creditor.   For\tthis\npurpose\t he would be perfectly justified in relying  on\t any\nprovisions  of other statutes bearing upon  that  subject-in\nthis  praticular  case the provisions of the  Money  Lenders\nAct.   Taking  section\t10 and 11 of  the  latter  Act\tinto\naccount\t it  was  clear\t that  no  amount  was\tdue  to\t the\nappellants as they had already received more than double the\namount of the original loan. [224 F; 225 A-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 850 of
\n1964.\n<\/p>\n
Appeal from the judgment and decree dated January 4, 1963 of
\nthe Orissa High Court in Misc.\tAppeal No. 94 of 1960.
\nB.   Sen and S. N. Mukherjee, for the appellant.
\nG.   L. Sanghi, for respondent Nos.  1 and 2.\n<\/p>\n
Deepak Dutta Choudhuri and R. N. Sachthey, for respondant
\nNo. 3.\n<\/p>\n
246<\/span><\/p>\n
The Judgment of the Court was delivered by
\nVaidialingam,  J. This appeal, on certificate,\tis  directed
\nagainst the judgment of the Orissa High Court, dated January
\n4, 1963, and rendered in Miscellaneous Appeals Nos. 94 &  95
\nof 1960.\n<\/p>\n
The  circumstances, under which this appeal arises,  may  be
\nbriefly stated.\t The predecessor-in-title of the respondents
\nhad  executed  three mortgages in favour of  the  appellant-
\ncompany, which is registered in London.\t The first  mortgage
\nwas  executed on October 23, 1903, securing a sum  of  pound
\n1,35,000\/-.   Inasmuch as, according to both  parties,\tthis
\nmortgage  has  been completely redeemed in 1935, it  is\t not
\nnecessary to make any further reference to this transaction.
\nThe second mortgage was executed on December 18, 1906, under
\nwhich a sum of pound 77,500\/- was borrowed by the mortgagor.
\nEven  according to the appellant, in respect of\t this  mort-
\ngage,  the  respondents\t had  paid  a  total  sum  of  pound
\n1,77,349\/-, by way of interest which is more than twice\t the
\nprincipal  amount  covered  by\tthe  mortgage.\t The   third
\nmortgage was executed on October 21. 1935, under which a sum
\nof pound 65,0001- was borrowed by the mortgagor.
\nThe  appellant\tdemanded the repayment of  the\tamounts\t due
\nunder  these  mortgages, but the mortgagor, so\tfar  as\t the
\nmortgage  of 1906 was concerned, repudiated the same on\t the
\nground\tthat the entire transaction had been wiped  off,  by
\nvirtue\tof  s.\t10 of the  Orissa  Money-Lenders  Act,\t1939
\n(Orissa\t Act  III of 1939) (hereinafter\t called\t the  Money-
\nLenders\t Act), inasmuch as he had paid more than double\t the
\noriginal principal amount, as admitted by the mortgagee.
\nThe appellant, however, did not accept this repudiation and,
\nin consequence, the company took legal proceedings in London
\nand  obtained an. ex parte decree.  But attempts to  execute
\nthe  decree in India did not succeed, as will be  seen\tfrom
\nthe  decision of the Calcutta High Court in I G.  Investment
\nTrust v. Raja of Khalikote(1).\tThe High Court held that the
\ndecree\t obtained  by  the  appellant  in  London  was\t not
\nexecutable in India.\n<\/p>\n
In  the\t meanwhile, the mortgaged properties vested  in\t the
\nState  of  Orissa, under the Orissa Estates  Abolition\tAct,
\n1951 (Act I of 1952) (hereinafter called the Abolition Act),
\non June 1, 1953, by virtue of the notification issued by the
\nState  Government  under  s. 3\tthereof.   Inasmuch  as\t the
\nappellant  had\tnot realised the dues under  the  two  later
\nmortgages,  they  filed a claim petition before\t the  Claims
\nOfficer, under s. 18 of the Abolition Act.\n<\/p>\n
Under  s.  18(1) (a) of the Abolition Act,  every  creditor,
\nwhose debt is secured by the mortgage of, or is a charge on,
\nany estate or
\n(1)  A.I.R. 1952 Cal. 508.\n<\/p>\n
 247<\/span><\/p>\n
part thereof, which has vested in the State Government under
\ns.  3,\thas  to file a claim  within  the  period  mentioned
\ntherein,   to  the  Claims  Officer,  for  the\tpurpose\t  of
\ndetermining  the amount of debt ‘legally and justly  payable
\nto each such creditor in respect of his claim’.\t Though\t the
\nclaim  included the third mortgage dated October  21,  1935,
\nalso,  there does not appear to have been much of a  serious
\ncontest\t about\tthe  liability\tunder  that  mortgage\tand,
\ntherefore,  both  the Claims Officer, as well  as  the\tHigh
\nCourt,\ton appeal, have substantially accepted the claim  of
\nthe  appellant.\t Therefore, the rights of the parties  under
\nthat mortgage, do not also arise for consideration, in\tthis
\nappeal.\n<\/p>\n
So far as the mortgage of December 18, 1906, under which the
\nmortgagor   had\t borrowed  a  sum  of  pound  77,500\/-,\t  is
\nconcerned,  in\tthe claim petition the\tparticulars  of\t the
\nproperties   mortgaged\twere  all  given  in  detail.\t The
\nappellant  had\talso  admitted having received,\t by  way  of
\ninterest,  in  respect\tof this mortgage,  a  sum  of  pound
\n1,77,34918-0  and he had given, in a statement,\t details  of
\nthis  receipt.\t The  rate of  interest\t payable  under\t the
\nmortgage was 6 % per annum.\n<\/p>\n
 It  is\t also  seen,  from  the\t said  statement,  that\t the
\nappellant  has\tgiven credit to payment of a  sum  of  pound
\n29,000\/-  towards  the\tprincipal amount  and,\tas  such,  a
\nbalance\t of  E48,500\/-\tremained  due  as  principal.\t The
\nappellant had claimed this amount, as well as the balance of
\ninterest payable, in the sum of E17,460\/-, as being due upto
\nMay  1, 1953.  The appellant had also claimed certain  other
\namounts which, according to him, were payable as  commission
\nand premium as per the terms contained in the mortgage deed.
\nThe equivalent of all these amounts, in Indian currency, was
\nalso  given  by the appellant in the  claim  petition.\t The
\nappellant,  in\tconsequence,  prayed for  payment  of  these
\namounts, stated to be due to him under this mortgage.
\nThe  mortgagor contested the claim of the  appellant  before
\nthe  Claims  Officer.\tHe pleaded that\t the  claim  of\t the
\nmortgagee, under the mortgage, was no longer subsisting\t and
\nthat the mortgage liability had been discharged by  payments
\nand  by\t operation  of law.   The  mortgagor  pleaded  that,
\ninasmuch  as the appellant had realised interest  which\t is,
\nadmittedly,  far  greater than the amount  of  the  original
\nloan,  the liability under the mortgage had  become  exting-
\nuished, under s. 10 of the Money-Lenders Act.
\nThe mortgagor further contended that the mortgage  liability
\nmust be considered to have been extinguished, under s. 17 of
\nthe   Money-Lenders  Act,  inasmuch  as\t the  mortgage,\t  in
\nquestion,  is  a possessory mortgage and the  mortgagee\t had
\nbeen  in possession and enjoyment of the mortgaged  security
\nfor a period of 15 years.\n<\/p>\n
248<\/span><\/p>\n
There  were  also certain other objections,  raised  by\t the
\nmortgagor  to  the  claim made by the mortgagee\t by  way  of
\ncommission and premium.\n<\/p>\n
The  Claims Officer accepted the plea of the mortgagor\tthat
\nthe mortgage of December 18, 1906, is a possessory  mortgage
\nand  the mortgagees were in possession and enjoyment of\t the
\nproperties  for 15 years from the date of the mortgage.\t  In
\nconsequence, the Claims Officer held that, in terms of S. 17
\nof  the\t Money-Lenders Act, the mortgage of 1906  should  be
\ndeemed\tto have been extinguished on the expiry of 15  years
\nfrom  the date of the mortgage, i.e., long before 1953,\t and
\neven  long  before 1947, when the mortgagor  repudiated\t his
\nliability  under the mortgage.\tBut the Claims\tOfficer\t was
\nnot prepared to accept the plea of the mortgagor that  under
\nss.  10\t and 11 of the Money-Lenders  Act,  the\t transaction
\nshould\tbe considered to have been extinguished.  So far  as
\nthe applicability of ss. 10 and 11 of the Money-Lenders\t Act
\nis  concerned, the view of the Claims Officer appears to  be
\nthat  those provisions can be invoked only when a  claim  is
\nmade by the mortgagee in a ‘suit’, and when a ‘Court’ has to
\nadjudicate upon the same.  According to the Claims  Officer,
\nhe  is\tnot  a\t‘Court’\t and  the  proceedings\tbefore\thim,
\ninitiated  by  the mortgagee, by way of a claim,  under\t the
\nAbolition  Act,\t is  not  a ‘suit’, so\tas  to\tattract\t the
\nprovisions of ss. 10 and 11.\n<\/p>\n
Therefore,  the Claims Officer held that ss.  10 and 11,  of
\nthe  Money-Lenders Act, did not apply.\tBut, inasmuch as  he
\nheld  in  favour  of the mortgagor, applying s.\t 17  of\t the
\nMoney-Lenders\tAct,  that  the\t mortgage  claim  had\tbeen
\nextinguished,  no  relief  was\tgranted\t in  favour  of\t the
\nappellant, so far as this transaction was concerned.
\nBoth  the appellant and the respondents, had  filed  appeals
\nunder  s.  21 of the Abolition Act to the Board,  which,  in
\nthis  case, was the High Court, as provided under s.  22  of
\nthe  Abolition\tAct.   The  appellant  had  challenged\t the
\nrejection of his claim, in respect of this mortgage, by\t the
\nClaims Officer, relying upon s’ 17 of the Money-Lenders Act.
\nCertain\t other reliefs, which had been denied by the  Claims
\nOfficer,  were\talso  the  subject  of\tthis  appeal.\t The
\nrespondents  had  filed their appeal,  similarly,  regarding
\ncertain\t claims\t which\thad been allowed in  favour  of\t the
\nappellant;  and, in particular, challenged the\tdecision  of
\nthe  Claims Officer regarding the non-applicability  of\t ss.
\nIO and II of the MoneyLenders Act, to this transaction.
\nBoth  the appeals have been disposed of by the Board,  by  a
\ncommon\tjudgment,  dated January 4, 1963.  So  far  as\tthis
\nmortgage  is concerned, the Board has held that the view  of
\nthe Claims
\n249<\/span>
\nOfficer, that it has been extinguished, in view of S. 17  of
\nthe MoneyLenders Act, is not correct.  The Board has,  after
\na  consideration  of  the evidence on record,  come  to\t the
\nconclusion that the mortgagee has not been in possession for
\nthe  requisite period referred to in s. 17 and that, on\t the
\nother  hand, the mortgagor himself had been  in\t possession.
\nTherefore, the Board, differing from the conclusions arrived
\nat by the Claims Officer, has held that the mortgage  cannot
\nbe  considered\tto have been discharged under S. 17  of\t the
\nMoneyLenders Act.\n<\/p>\n
But, the mortgagor, pressed before the Board the  contention
\nthat,  applying ss. 10 and 11 of the Money-Lenders Act,\t the
\nmortgage  claim,  in any event, must be considered  to\thave
\nbeen  extinguished.   Though  this contention,\tas  we\thave
\npointed\t out,  did not find acceptance at the hands  of\t the
\nClaims\tOfficer, the Board, ultimately, upheld this plea  of
\nthe mortgagor.\tNo doubt, the Board was of the view that the
\nClaims Officer, though not a ‘Court’, could exercise  larger
\npowers\tand grant relief to the mortgagor, because it  is  a
\ntribunal  and  its  jurisdiction must be  considered  to  be
\nwider.\t On  this basis, the Board, after  reference  to  S.
\n20(1)  of  the\tAbolition Act,, was of\tthe  view  that,  in
\nconsidering the question whether the amount was ‘legally and
\njustly due’, to the appellant, the Claims Officer could have
\ndue regard to the provisions contained in the  Money-Lenders
\nAct.   In  this\t view,\tthe  Board,  ultimately,  held\tthat
\ninasmuch as, even according to the appellant, the  mortgagee
\nhad  paid a sum of pound 1,77,349\/-, the entire\t balance  of
\nprincipal  and interest claimed by the mortgagee  should  be
\nconsidered  to have been fully paid.  The Board was also  of
\nthe  view  that certain claims made, by way of\tpremium\t and
\ncommission,  had  also been paid off by the  excess  amounts
\npaid  by  the  mortgagor.  Therefore, the  Board,  like\t the
\nClaims\tOfficer, ultimately. held that no amount at all\t was
\npayable under the second mortgage.\n<\/p>\n
It will be seen that both the Claims Officer, as well as the
\nBoard have come to an identical conclusion in favour of\t the
\nmortgagor,  viz.,  that\t no  amount  is\t payable  under\t the
\nmortgage of December 18,1906.  While the Claims Officer came
\nto  the\t conclusion by applying S. 17 of  the  Money-Lenders
\nAct,  the  Board,  on  the  other  hand,  reached  the\tsame
\nconclusion,  by applying ss. 10 and 11 of the  Money-Lenders
\nAct read with S. 20(1) of the Abolition Act.  The mortgagee-
\nappellant has come to this Court, challenging this  decision
\nof the Board that no amounts are due by the mortgagor  under
\nthe mortgage of December 18, 1906.\n<\/p>\n
Though,\t in this Court, on behalf of the  mortgagors-respon-
\ndents, Mr. G. L. Sanghi, learned counsel, has challenged the
\ncorrectness  of\t the decision of the Board  about  the\tnon-
\napplicability of S. 17\tof the Money-Lenders Act, we do\t not
\nthink it necessary to go
\n250<\/span>
\ninto  that aspect, because we are accepting  his  contention
\nthat  the Board was justified in holding that  the  mortgage
\nhas  been  extinguished under ss. 10 and It  of\t the  Money-
\nLenders Act.\n<\/p>\n
Before\twe advert to the contentions of Mr. B. Sen,  learned
\ncounsel\t for the appellant, it is necessary to refer to\t the
\nmaterial provisions of the two Acts, referred to above.
\nThe  Money-Lenders  Act has been enacted in  1939;  and\t the
\npreamble   says\t that  it  was\tfound  expedient,   by\t the
\nLegislature,  to regulate money-lending transactions and  to
\ngrant  relief to debtors in the State of Orissa.  Section  9
\nprovides the maximum rates at which interest may be decreed.
\nSub-ss.\t (1)  and (2) of s. 10, which are relevant  for\t our
\npurpose, are as follows :\n<\/p>\n
\t       “10.  (1)  Notwithstanding  anything  to\t the
\n\t      contrary\tcontained  in any other\t law  or  in
\n\t      anything\thaving\tthe force of law or  in\t any
\n\t      other  contract, no Court shall, in any  suit,
\n\t      whether  brought by a money-lender or  by\t any
\n\t      other  person, in respect of a  loan  advanced
\n\t      before or after the commencement of this\tAct,
\n\t      pass  a decree for an amount of  interest\t for
\n\t      the  period preceding the institution  of\t the
\n\t      suit  which, together with any amount  already
\n\t      realised\t as   interest\tthrough\t  Court\t  or
\n\t      otherwise,  is greater than the amount of\t the
\n\t      loan originally advanced.\n<\/p><\/blockquote>\n
\t       (2)  Where, in any suit, as is referred to in
\n\t      sub-section  (1), it is found that the  amount
\n\t      already realised as interest through Court  or
\n\t      otherwise,   for\tthe  period  preceding\t the
\n\t      institution  of the suit, is greater than\t the
\n\t      amount  of  the loan originally  advanced,  so
\n\t      much  of the said amount of interest as is  in
\n\t      excess  of  the  loan  shall  be\tappropriated
\n\t      towards  the satisfaction of the loan and\t the
\n\t      Court  shall pass a decree for the payment  of
\n\t      the balance of the loan, if any.”\n<\/p><\/blockquote>\n
Sub-s.\t(3)  of s. 10 gives jurisdiction  to  the  executing
\nCourt  to  grant similar appropriate  relief.\tSection\t 11,
\nagain,\tenables\t the Court to re-open  the  transaction\t and
\nappropriate excess interest towards the loan.
\nIn particular, it will be seen, that under sub-s. (2) of  S.
\n10, extracted above, if it is found that the amount  already
\nrealised  as interest through Court, or otherwise,  for\t the
\nperiod\tpreceding  the institution of the suit,\t is  greater
\nthan  the  amount  of the loan originally  advanced,  it  is
\nnecessary  to  appropriate towards the satisfaction  of\t the
\nloan, so much of the said amount of interest as is in excess
\nof  the loan, and the Court can pass a decree only  for\t the
\npayment\t of the balance of the loan, if any.   Pausing\there
\nfor a moment,
\n251<\/span>
\nit  may be stated that, in this case, the mortgagor, when  a
\ndemand was made for payment of the amount by the  mortgagee,
\nhas, by his letter dated September 14, 1947, repudiated\t his
\nliability, relying on these provisions of the  Money-Lenders
\nAct.\n<\/p>\n
Coming to the Abolition Act, S. 18 provides for a  creditor,
\nwhose  debt is secured by a mortgage or is a charge  on\t any
\nestate\tor any part thereof vested in the State\t Government,
\nto apply to the Claims Officer for determining the amount of
\ndebt  ‘legally and justly payable’ to each such creditor  in
\nrespect\t of his claim.\tSub-sections (1) and (2), of s.\t 20,
\nof the Abolition Act, which are material, are as follows :\n<\/p>\n
\t       “20.  (1)  The  Claims  Officer,\t shall,\t  in
\n\t      accordance   with\t  the\trules\t prescribed,
\n\t      determine\t the  principal amount\tlegally\t and
\n\t      justly  due to each creditor and the  interest
\n\t      (if any) due at the date of such determination
\n\t      in respect of such principal amount.
\n\t       (2)  In determining the principal amount\t and
\n\t      interest\tunder  sub-section (1),\t the  Claims
\n\t      Officer shall, notwithstanding the  provisions
\n\t      of  any  agreement  or law  to  the  contrary,
\n\t      proceed in the following\tmanner\n<\/p><\/blockquote>\n
\t       (a)  he\tshall  ascertain the amount  of\t the
\n\t      principal\t originally advanced in\t each  case,
\n\t      irrespective  of\tthe  closing  of   accounts,
\n\t      execution\t of fresh bonds, or decree or  order
\n\t      of a Court;\n<\/p><\/blockquote>\n
\t       (b)  he\tshall  ascertain the amount  of\t the
\n\t      interest\talready paid or realised  and  shall
\n\t      set  off towards the amount of  the  principal
\n\t      any amount paid or realised as simple interest
\n\t      in  excess of six per centum per annum or\t the
\n\t      stipulated  rate\tof  interest  whichever\t  is
\n\t      lower;\n<\/p><\/blockquote>\n
\t       (c)  he\tshall separately specify the  amount
\n\t      of  the  principal  and  the  amount  of\t the
\n\t      interest,\t if any, due to the  creditor,\tsuch
\n\t      interest\t being\t calculated  at\t  the\trate
\n\t      mentioned\t in clause (b) and being limited  to
\n\t      the   amount  of\tthe   principal\t  originally
\n\t      advanced;\n<\/p><\/blockquote>\n
\t       (d)  if\the  finds,  that  in  any  case\t the
\n\t      creditor\thas received or realised by  way  of
\n\t      interest\tan amount equal to or more than\t the
\n\t      amount  of the principal, he shall  not  allow
\n\t      any further interest to run on such principal;
\n\t       Explanation : In the case (if a\tusufructuary
\n\t      mortgage,\t or a lease executed in lieu  of  an
\n\t      advance  made of an estate or in the  case  of
\n\t      possession of such estate or part thereof by a
\n\t      widow  in\t lieu  of her dower  debt,  the\t net
\n\t      amount of rents and profits accruing from such
\n\t      estate shall be deemed to be the ;Interest for
\n\t      the purposes of this section.\n<\/p><\/blockquote>\n
252<\/span><\/p>\n
\t       (e)  in\tother  cases,  the  amount  of\t the
\n\t      principal\t  ascertained  to  be  due  to\t the
\n\t      claimant shall carry interest at such rate not
\n\t      exceeding\t six per centum per annum as may  be
\n\t      prescribed by the State Government;\n<\/p><\/blockquote>\n
\t       (f)  no\tfuture\tinterest shall\trun  on\t any
\n\t      interest ascertained to be due to a creditor.”\n<\/p><\/blockquote>\n
Mr.  B. Sen, learned counsel for the appellant, attacks\t the
\norder of the Board, applying the provisions of ss. 10 and 11
\nof  the MoneyLenders Act, to the transaction in question.  .
\nAccording  to the learned counsel, these provisions  do\t not
\napply,\twhen a claim is made by a secured creditor before  a
\nClaims Officer, and which claim is adjudicated upon by\tthat
\nOfficer\t exercising  his  special  jurisdiction\t under\t the
\nAbolition Act.\tAccording to learned counsel, the  Abolition
\nAct  is a self-contained Code and, in particular,  has\tvery
\nelaborately laid down, in s. 20, the various matters,  which
\nalone could be taken into account, by the Claims Officer, in
\ndetermining  the  principal  amount  and  interest  that  is
\npayable\t to a creditor.\t Counsel points out that the  Claims
\nOfficer,   exercising\tjurisdiction  under   this   special
\nenactment,  viz.,  the Abolition Act, can have,\t and  should
\nhave, recourse only to the provisions of that statute.\t Mr.
\nSen  also points out that there is absolutely no  indication
\nin the Abolition Act that the Claims Officer can, take\tinto
\naccount\t provisions  contained\tin  the\t Money-Lenders\tAct.
\nInasmuch  as the Legislature has not made the provisions  of
\nthe  Money-Lenders Act applicable to proceedings  under\t the
\nAbolition  Act,\t Mr.  Sen points out, the  Board  has  acted
\nillegally  in applying the provisions of  the  Money-Lenders
\nAct and, in consequence, holding in favour of the mortgagor.
\nCounsel\t also  points  out that the provisions\tin  the\t two
\nstatutes   cannot  be  applied\tin  respect  of\t  the\tsame
\ntransaction;   because,\t  the\tprovisions   regarding\t the
\nadjudication  of  a claim under the Money-Lenders  Act\twill
\nhave  to  be done on a basis entirely  different  from\tthat
\ncontained  in  the  Abolition  Act.   Therefore,  the  short
\ncontention,  of the learned counsel, is that ss.  IO and  II
\nof the Money-Lenders Act should not have been applied at all
\nso as to non-suit his client.\n<\/p>\n
Mr.  Sanghi,  learned counsel for the  respondents,  on\t the
\nother hand, pointed out that the mortgagor had, as early  as
\n1947,  repudiated his liability under the mortgage,  relying
\non the provisions of the Money-Lenders Act.  In the  absence
\nof any indication in the Abolition Act that a debtor  cannot
\navail\thimself\t of  relief  granted  to  him  under   other
\nameliorative measures-in this case, the MoneyLenders Act-the
\nBoard,\taccording  to the learned  counsel,  was  perfectly,
\njustified in applying ss. 10 and 11 of the Money-Lenders Act
\nto  find out whether at all any principal amount was due  to
\nthe mortgagee.\tCounsel also points out that the object of a
\nclaim  being filed by a creditor, like the appellant is,  as
\nindicated in S. 18(1)(a)
\n253<\/span>
\nof  the\t Abolition Act, for the purpose of  determining\t the
\namount of   debt, ‘legally and justly payable, to each\tsuch
\ncreditor  in respect of his claim’.  Counsel further  points
\nout that, even under s. 20(1) of the Abolition Act, the duty
\nof the Claims Officer is to determine  the principal  amount
\n‘legally and justly due’ to each creditor.  For the  purpose
\nof  adjudicating on the claim of the appellant, and  finding
\nout what is the principal amount, ‘legally and.justly due to
\nhim,  the Board was perfectly justified in relying upon\t the
\nprovisions  of the Money Lenders Act.  Counsel\talso  points
\nout that if, by applying the provisions of the Money-Lenders
\nAct,  the liability of the mortgagor is extinguished,  that,
\ncertainly,  will  clearly show that there  is  no  principal
\namount\t‘legally  and justly due’ to the appellant.  If\t the
\nappellant  had\tinstituted a suit in the  Orissa  Courts  to
\nenforce\t his claim on this mortgage, the Courts\t would\thave
\ncertainly  applied the provisions of the  Money-Lenders\t Act
\nand  held  that the appellant’s claim  had  been  satisfied.
\nBecause\t of  the  fact\tthat the claim\tis  made  under\t the
\nAbolition  Act,\t counsel points out that it could  not\thave
\nbeen  the intention of the Legislature to make the  position
\nof  creditors, like the appellant, better than it  is  under
\nthe MoneyLenders Act.\n<\/p>\n
Though\twe are not inclined to accept the reasons  given  by
\nthe  Board for applying the provisions of ss. 10 and  11  of
\nthe  MoneyLenders  Act, we are, nevertheless,  in  agreement
\nwith the views expressed by the Board that those  provisions
\ncan  be\t applied- If so, the conclusion arrived\t at  by\t the
\nBoard, that the mortgage liability has been extinguished, is
\ncorrect.   We do, no doubt, see force in the  contention  of
\nthe  learned  counsel, for the appellant, that there  is  no
\nspecific provision in the Abolition Act making any reference
\nto  the Money-Lenders Act.  We are also conscious  that\t the
\nAbolition  Act does lay down some principles in clauses\t (a)
\nto  (f)\t of  sub-s.  (2) of s. 20, as  to  how\texactly\t the
\ncalculation  has  to  be  made.\t  There\t is  also  a  slight
\ndifference  in\tthe  method of calculation  adopted  by\t the
\nMoney-Lenders Act and the Abolition Act.  But, notwithstand-
\ning these circumstances, we are of opinion that, in order to
\ndetermine  ‘the principal amount legally and justly  due  to
\neach  creditor’\t as laid down in s. 20(1) of  the  Abolition
\nAct,  it  is  the duty of the Claims  Officer  to  find\t out
\nwhether,  in respect of a claim that is made by a  creditor,
\nthere is a legal impediment for recognising the same,  i.e.,
\nwhether\t the  claim is such which will be  recognised  by  a
\nJudicial Tribunal.\n<\/p>\n
The  legislature  emphasises  upon this aspect\teven  in  s.
\n18(1)(a) of the Abolition Act.\tThe purpose of a claim being
\nmade by a secured creditor, under s. 18(1)(a) is, as we have
\nalready\t pointed  out, ‘for the purpose of  determining\t the
\namount of debt legally and .justly payable to each  creditor
\nin  respect  of\t his  claim’.\tThe  same  idea\t is,  again,
\nreiterated by the legislature in s. 20(1) of the Aboli-\n<\/p>\n
254<\/span><\/p>\n
tion  Act when it makes it obligatory on the Claims  Officer
\n‘to  determine the principal amount, legally and justly\t due
\nto each creditor’.  No rules, as contemplated under s. 20(1)
\nof the Abolition Act, have been brought to our notice.\t The
\nexpression  ‘legally and justly due must, certainly, in\t our
\nopinion,  mean\tthat  before a claim is\t recognized  by\t the
\nClaims\tOfficer\t he  must be satisfied\tthat  the  principal
\namount\tcovered\t by that claim is ‘legally and\tjustly\tdue’
\ni.e., that such a claim, if sought to be enforced in a Court
\nor  Judicial  Tribunal, will find recognition on  the  basis
\nthat it does not suffer from any legal infirmity.
\nIn this case, even according to the appellant, in respect of
\nthe  principal amount of pound 77,500\/- advanced  under\t the
\nmortgage  of December 18, 1906, admittedly, a sum  of  pound
\n1,77,349-18-0  has been received by him as  interest.\tThis
\namount is more than two times the principal amount  advanced
\nunder  this  mortgage.\tIf, in spite of\t this,\tthe  present
\nclaim had been made for recovery of further amounts, on\t the
\nbasis  of this mortgage, by the appellant, in any Court,  it
\nis  needless to state that the Court would have applied\t the
\nprovisions of the Money-Lenders Act.  By applying ss. 10 and
\n11 of this Act, the Court would have come to the  conclusion
\nthat  the  appellant  is not entitled to  recover  any\tmore
\namounts\t inasmuch as the entire claim must be considered  to
\nhave been satisfied by the respondent, having paid a sum  of
\npound  1,77,349-18-0  by way of interest.  That\t means,\t the
\nCourt  would  have come to the conclusion  that\t no  further
\namounts,  by way of principal, are ‘legally and justly\tdue’
\nto the appellant; and, quite naturally, the further finding,
\nwould be that no interest at all is due.  If no Court  would
\nhave recognized the present claim of the appellant, the same
\nprinciples  must  be applicable when the Claims\t Officer  is
\nalso  called upon, under s. 20(1) of the Abolition Act,\t ‘to
\ndetermine the principal amount legally and justly due’.\t For
\nthe  purpose of determining whether the principal amount  is
\n‘legally and justly due’, he would be perfectly justified in
\nrelying\t on  any provisions of other statutes  bearing\tupon
\nthat subject-in this particular case, the provisions of\t the
\nMoney-Lenders Act.\n<\/p>\n
Mr.B.Sen,  learned  counsel,  has urged\t that  in  order  to
\nconsider a claim made by the  creditor, the jurisdiction  of
\nthe Claims Officer is restricted, by the various  provisions
\ncontained in clauses (a) to (f) of s. 20(2) of the Abolition
\nAct.  We are not inclined to accept this large contention of
\nthe  learned counsel for the appellant.\t For instance, if  a
\nplea  of  discharge is raised by a debtor in  a\t claim\tpro-
\nceeding, or, if a plea is raised by a debtor that the  claim
\nis barred by the law of Limitation, no provision is made  in
\nclauses\t (a) to (f) of s. 20(2) giving jurisdiction  to\t the
\nClaims\tOfficer\t either to entertain such  objection  or  to
\ninvestigate the same.  Acceptance of the contentions of the’
\nlearned counsel for the appellant, will lead to this
\n255<\/span>
\nconclusion  that  when a claim is made under  the  Abolition
\nAct,  the  Claims  Officer  will  have,\t straight  away,  to
\ndetermine  the. principal amount and interest  under  sub-s.
\n(2) of S. 20 without considering the question as to  whether
\nthe claim is true or whether it is barred by any other\tlaw,
\nor  whether  the claim is still subsisting.  These  are\t all
\nmatters\t  which,   in  our  opinion,  property\t arise\t for
\nconsideration  when  a Claims Officer has to  determine\t the
\nprincipal  amount under S. 20(1) of the Abolition Act.\t The
\nexpression ‘legally and justly due’, occurring in S.  20(1),
\nclearly\t indicates  that the first and initial duty  of\t the
\nClaims\tOfficer is to find out whether any principal  amount
\nis  at\tall  due to the creditor which\the  is\tentitled  to
\nrecover\t either\t in law or justly.  It may  be\tthat,  after
\narriving,  on this aspect, at a conclusion, one way  or\t the
\nother, and depending upon that decision, the Claims  Officer
\nwill  have  to adjudicate upon the rights  of  the  parties,
\nhaving\tdue  regard  to the  various  matters  mentioned  in
\nclauses (a) to (f) of sub-s. (2) of S. 20.  We are therefore
\nsatisfied  that the Board is correct when it, held that\t the
\nprovisions  of\tthe  Money-Lenders Act\tcan  be\t taken\tinto
\naccount\t by  the  Claims  Officer, under  S.  20(1)  of\t the
\nAbolition  Act.\t If the provisions of the  MoneyLenders\t Act
\napply,\tas they have been applied by the Board, there is  no
\ncontroversy  that the claim under the mortgage\tof  December
\n18,  1906, must be considered to have been extinguished\t and
\nthat no further amounts will be due, as held by the Board.
\nThe  result is that the appeal fails and is  dismissed.\t  In
\nthe .circumstances of the case, there will be no order as to
\ncosts.\n<\/p>\n
G.C.\t\t\t\t   Appeal dismissed.\n256<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Indian & General Investment Trust … vs Shri Purna Chandra Mardaraj & Co on 13 December, 1966 PETITIONER: INDIAN & GENERAL INVESTMENT TRUST LTD. Vs. RESPONDENT: SHRI PURNA CHANDRA MARDARAJ & CO. DATE OF JUDGMENT: 13\/12\/1966 BENCH: ACT: Orissa Estates Abolition Act 1951 (Act I of 1952), s. 20(1) & (2), […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-144430","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nIndian & General Investment Trust ... vs Shri Purna Chandra Mardaraj & Co on 13 December, 1966 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/indian-general-investment-trust-vs-shri-purna-chandra-mardaraj-co-on-13-december-1966\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indian & General Investment Trust ... vs Shri Purna Chandra Mardaraj & Co on 13 December, 1966 - 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