{"id":254165,"date":"1972-01-20T00:00:00","date_gmt":"1972-01-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balkishandas-12-others-vs-state-bank-of-hyderabad-and-anr-on-20-january-1972"},"modified":"2018-08-08T18:24:41","modified_gmt":"2018-08-08T12:54:41","slug":"balkishandas-12-others-vs-state-bank-of-hyderabad-and-anr-on-20-january-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balkishandas-12-others-vs-state-bank-of-hyderabad-and-anr-on-20-january-1972","title":{"rendered":"Balkishandas & 12 Others vs State Bank Of Hyderabad And Anr on 20 January, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Balkishandas & 12 Others vs State Bank Of Hyderabad And Anr on 20 January, 1972<\/div>\n
Equivalent citations: 1972 AIR 1053, 1972 SCR (3) 157<\/div>\n
Author: P J Reddy<\/div>\n
Bench: Reddy, P. Jaganmohan<\/div>\n
           PETITIONER:\nBALKISHANDAS & 12 OTHERS\n\n\tVs.\n\nRESPONDENT:\nSTATE BANK OF HYDERABAD AND ANR.\n\nDATE OF JUDGMENT20\/01\/1972\n\nBENCH:\nREDDY, P. JAGANMOHAN\nBENCH:\nREDDY, P. JAGANMOHAN\nHEGDE, K.S.\nPALEKAR, D.G.\n\nCITATION:\n 1972 AIR 1053\t\t  1972 SCR  (3) 157\n 1972 SCC  (1) 530\n\n\nACT:\nHyderabad Jagirdars Debt Settlement Act, 1952-S. 11 and\t 25-\nIts  scope-Mortgage  executed  in  favour  of\tBank-Whether\nextinguished by virtue of S. 11 and 25 of the Act.\n\n\n\nHEADNOTE:\nRespondent  1, a bank, filed a suit against appellants\tNos.\n1 to 4, members of a joint family, for the recovery of Rs. 5\nlakhs on the basis of a mortgage deed executed in favour  of\nthe  bank, by securing certain immovable properties  without\npossession.   Defendant\t No. 5 became a\t guarantor  for\t the\namount borrowed and executed a separate guarantee in  favour\nof the Bank.  The appellants, who were Jagirdars, had  money\ntransactions  with  the bank prior to the execution  of\t the\nmortgage  on  three separate accounts.\t The  accounts\twere\nhowever,  closed by payment from the amount of Rs.  5  lakhs\nadvanced to them on the basis of the Mortgage deed.  As\t the\ndefendants  failed to pay the amounts which fell  due  under\nthe terms of the mortgage, a suit was filed against all\t the\ndefendants.   The  firm and the 5th defendant  remained\t ex-\nparte, but defendants Nos. 2-4 defended the suit.  The trial\ncourt, decreed the suit against the appellants and the\tHigh\nCourt  also confirmed the judgment and decree of  the  trial\ncourt.\t In an appeal by certificate, two main\tpoints\twere\nurged  :-(I) that the suit debts were extinguished under  S.\n22  of\tthe Hyderabad Jagirdars Debt  Settlement  Act  1952,\ninasmuch as no application was presented by the Bank  u\/s.11\nof the Act before the 30th June, 1953 which was the notified\ndate and (2) the civil court had no jurisdiction to try\t the\nsuit  because u\/s 25 of the Act, all suits  and\t proceedings\nfor  the  recovery  of\ta debt from a  Jagirdar\t had  to  be\ntransferred  to the Jagirdars Debt Settlement  Board,  which\nalone  had jurisdiction to settle it.  It was  contended  on\nbehalf\tof the appellants that the mortgage executed by\t the\nappellants  did not create any new debt but  merely  secured\nthe payment of prior debts which was the balance due to\t the\nBank on the 3 accounts as on the date of the mortgage  which\ndebts  were  pending debts within the meaning of  S.  25(1).\nDismissing the appeal,\nHELD : (i) From the terms of the mortgage deed, it was clear\nthat the debt of Rs. 5 lakhs was a fresh debt created by and\nsecured\t thereunder with interest that may become  due\tfrom\nthe  date of the mortgage and that there was no question  of\nthe  mortgage deed having been executed as a  settlement  of\nprior  debts so as to attract the provisions of Sections  11\nand 25 of the Act. [163 A]\n(ii) The  expression  'pending'\t in Section  25\t related  to\nproceedings  which  were pending on the\t notified  date\t and\ncould  not mean any proceedings which were instituted  after\nsuch  date.  In the facts and circumstances of the case\t the\ndebt  created  by  the mortgage deed is\t a  fresh  debt\t and\ntherefore,  the\t provisions.  of  S. 1 1  and  25  are,\t not\nattracted. [161 E]\nJoint  family  of  Mukund Dais v. State\t Bank  of  Hyderabad<\/a>\n[1971] 2 S.C.R. 136, followed.\n158\n(iii)\t  Once the provisions of S. 11 and 25 were shown  to\nbe  not applicable, the civil court had jurisdiction to\t try\nthe  suit  and\tthe decree granted by the  Trial  Court\t and\nconfirmed  by  the Appellate Court did not suffer  from\t any\ninfirmity. [163 H]\nState of Rajasthan v. Mukund Chand, [1964] 6 S.C.R. 903, and\nState  Bank of Hyderabad v. Mukunda Raja Bhagwandas &  Ors<\/a>.,\n1963 (11) Andhra Weekly Reporter 14, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 547 of 1967.
\nAppeal from the judgment and decree dated November 14,\t1966
\nof  the Andhra Pradesh High Court in Original  Side  Appeal.
\nNo. 9 of 1959.\n<\/p>\n
A.   R.\t Somnath Iyer, R. K. P. Shankardass, R.\t V.  Ramarao
\nand P.\t  K. Pillai, for the appellants.\n<\/p>\n
S.   V.\t  Gupte,  A.  V.  Rangam  and  A.  Subhashini,\t for
\nrespondent No. 1.\n<\/p>\n
The Judgment of the Court was delivered by
\nP.   Jaganmohan\t Reddy,\t J. This appeal\t is  by\t certificate
\nagainst the judgment of the Andhra Pradesh High Court  which
\nconfirmed  the judgment and decree of a single Judge of\t the
\nOriginal  Side\tof that Court.\tThe  first  respondent\tBank
\nfiled a suit against the appellants-defendants Nos. 1-4\t who
\nare members of the joint family firm, for the recovery of  a
\nsum  of I.G. Rs. 5,00,000\/- on the basis of a mortgage\tdeed
\nexecuted  by them in favour of the Bank by securing  certain
\nimmovable  properties  without\tpossession.   As  a  further
\nsecurity, the first defendant on behalf of the joint family,
\ncaused\tthe  5th  defendant-respondent 2  to  guarantee\t the
\namount borrowed from the Bank and accordingly he executed  a
\npromissory note in favour of the 5th defendant on  26-9-1953
\nfor  Rs. 5,00,000\/- which he in turn endorsed in  favour  of
\nthe  Bank.   The  5th defendant\t also  executed\t a  separate
\nguarantee  in favour of the said Bank on the same date.\t  As
\nthe  defendants\t failed to pay the amounts  which  fell\t due
\nunder  the  terms  of  the mortgage, a\tsuit  was  filed  as
\naforesaid against all the defendants.  The 1st defendant who
\nwas  the manager and Karta of the joint family remained\t ex-
\nparte.\t The 5th defendant though he appeared in the  Court,
\ndid  not  file\tany written statement and  chose  to  remain
\nexparte\t throughout.   Defendants 2-4  alone  filed  written
\nstatements  resisting.\tthe suit on several  pleas,  two  of
\nwhich alone may be noticed for the purposes of this  appeal,
\nnamely,\t (i)  that the suit debts  were\t extinguished  under
\nsection\t 22 of the Hyderabad Jagirdars Debt  Settlement\t Act
\n1952   (hereinafter  called  ‘the  Act’),  inasmuch  as\t  no
\napplication  was presented by the Bank under section  11  of
\nthe Act before 30th June 1953 which was the notified
\n 1 5 9
\ndate;  and (ii) the Civil Court had no jurisdiction  to\t try
\nthe  suit  as  under section 25 of the\tAct  all  suits\t and
\nproceedings  for the recovery of a debt due from a  Jagirdar
\nhave  to  be transferred to the\t Jagirdars  Debt  Settlement
\nBoard which alone had jurisdiction to settle it.  It appears
\nthat  the  appellants who it is admitted are  Jagirdars\t had
\nmoney  transactions with the Bank prior to the execution  of
\nthe  mortgage on three separate accounts.  Ultimately  these
\naccounts  were\tclosed\tby payment from the  amount  of\t Rs.
\n5,00,000\/-  advanced  to them by the Bank on a\tcash  credit
\naccount\t secured  by the aforesaid mortgage  deed.   It\t was
\ncontended  that\t as  the amounts due on\t the  three  earlier
\naccounts  to the Bank were debts which were pending  on\t the
\ndate  of the Act and since these loans were secured  by\t the
\nmortgage,  the provisions of the Act are applicable and\t the
\ndebts  got  extinguished as the Bank had not  applied  under
\nsection 11 before 30-6-1953 to refer them for settlement  by
\nthe Jagirdars Debt Settlement Board.\n<\/p>\n
The  trial court on the evidence held that the\tamounts\t due
\nfrom  the  appellants  on the three old\t accounts  were\t Rs.
\n5,00,000\/-  made  up of (a) Rs. 2,59,436-0-0 on\t the  L.B.D.
\nAccount;  (b) Rs. 2,05,358-8-8 on Overdraft Account  (Clean)
\nLedger\tNo.  14) Dwarkadas Mukandas; (c) Rs.  35,205-7-4  on
\nOverdraft Account (Clean) (Ledger No. 2) Dwarkadas Mukundas.
\nIt  further held that at the request of the appellants\tthey
\nwere  granted by the first respondent a cash credit  to\t the
\nextent\tof Rs. 5,00,000\/and in compliance with the terms  of
\nsanction the appellants executed a mortgage deed (Ex.  P-10)
\nin  favour  of\tthe Bank; that from the\t fresh\tcash  credit
\naccount\t which\twas opened on 8-8-1953 in the  name  of\t the
\nappellant  firm\t with the Bank, the appellants\tcleared\t the
\nearlier liabilities under the three accounts mentioned above
\nwhich  were  closed  and  that on the  same  date  the\tBank
\nreturned  to the appellants thirteen bills duly endorsed  in
\nfavour\tof  the appellant firm.\t On these facts,  the  trial
\ncourt held that as the 1st respondent was a Scheduled  Bank,
\nthe provisions of the Act would not bE applicable by  virtue
\nof  section 3(v) and accordingly the Civil Court would\thave
\njurisdiction   to  entertain  the  suit.   The\t suit\twas,
\ntherefore,  decreed  against the appellants and\t the  second
\nrespondent, against which an original side appeal was  filed
\nin  the\t High  Court.  By the time the appeal  came  up\t for
\nhearing,  a  Full Bench of the Hyderabad High Court  in\t the
\ncase of State Bank of Hyderabad v. Mukundas Raja  Bhgawandas
\nand  Sons and Ors<\/a>.(1) held that under section 25(1)  of\t the
\nAct,  all  suits  appeals, applications\t for  execution\t and
\nproceedings other than revisions, taken before the Courts in
\nregard\tto debts for which applications under section 11  of
\nthat  Act  could  be  made to  the  Board  and\tinvolve\t the
\nquestions,  as\tto the status of the Debtor  and  the  total
\nextent of his debts, are liable to be transferred if they
\n(1)  (1963) (II) Andhra Weekly Reporter, 147.\n<\/p>\n
160<\/span><\/p>\n
were  pending on the date. notified ‘under section 11,\ti.e.
\n30-6-1953.   But, if they were filed after that\t date,\tthey
\nare liable to be transferred only on notice by the Board  by
\nreason of an application under section 11 or statement under
\nsection\t  21  of  the  Act.   AR  other\t  ;suits,   appeals,
\napplications  for execution or other proceedings,  including
\ncases relating to debts incurred subsequent to the  notified
\ndate  are clearly beyond the purview of section 25  and\t are
\nnot  liable  to be transferred to the Board,  as  the  Board
\nitself cannot deal with such suits or proceedings because of
\nthe  limitations  placed in the Act.  What is meant  by\t the
\nexpression  ‘pending’  in section 25(1) was  interpreted  as
\npending on the notified date.\n<\/p>\n
In  view  of this decision, the questions  that\t were  urged
\nbefore the appellate court were whether the debt was a post-
\nnotification  debt  or\ta  pre-notification  debt,   namely,
\nwhether\t it was contracted after 30-6-1953 or prior to\tthat
\ndate.\tIf  it was a pre-notification debt,  the  said\tdebt
\nwould  be extinguished by virtue of section 22 of  the\tAct.
\nEven  if it was a post-notification debt, it was urged\tthat
\nthe civil court would not have jurisdiction under section 25
\nnotwithstanding the judgment of the Full Bench of the Andhra
\nPradesh High Court referred to above.  Further, section 3 of
\nthe Act was also challenged as ultra vires of Article 14<\/a>  of
\nthe Constitution of India on  the    application   of\t the
\ndecision of the Supreme Court in the State   of Rajasthan v.
\nMukand Chand.(1) It was held by the Rench    that\t the
\ndrawing of money in the new account and the payment into the
\nold  accounts had discharged the old debts which  could\t not
\nform the basis of a suit against the defendants for recovery
\nof the said amounts.  Accordingly, following the Full  Bench
\njudgment, it was held that the Civil Court had\tjurisdiction
\nto  entertain the suit as the debt was\ta  post-notification
\ndebt  and in this view confirmed the judgment and decree  of
\nthe trial court.\n<\/p>\n
In   this   appeal  on\tthe  reasoning\tof  the\t  Court\t  in
\nMukandchand’s case(1) the provisions of section 3  exempting
\nScheduled  Banks from the application of the  provisions  of
\nthe Act equally offend Article 14<\/a> as was section 2(e) of the
\nRajasthan   Act\t which\twas  analogous\tso  that   the\t 1st
\nrespondent’s debts to a Jagirdar are liable to be challenged
\nunder  any  of the provisions of the Act like those  of\t any
\nother  creditor to whom section 3 was not  made\t applicable.
\nBefore dealing with the contentions raised before us, it  is
\nnecessary to state that as a consequence of the abolition of
\nJagirs\tby  the Hyderabad (Abolition of\t Jagirs\t Regulation)
\n1358 Fasli (1949 A.D.) and the Hyderabad Jagirs (Commutation
\nRegulation) 1359 F (1950 A.D.) passed on 25-1-1950, the\t re-
\nsources\t of  the Jagirdars were greatly affected  and  as  a
\nconsequence  the-  creditors of those  JagirdaRs  were\talso
\nfaced with a
\n(1)  [1964] 6 S.C.R. 903.\n<\/p>\n
162<\/span><\/p>\n
\t      must relate to proceedings which were  pending
\n\t      on the notified date and could not take in any
\n\t      proceedings which came to be instituted  after
\n\t      such  date.   The\t other\tcondition  for\t the
\n\t      applicability  of s. 25 was that the  suit  or
\n\t      other proceedings must be in respect of a debt
\n\t      with  regard  to\twhich  a  Jagirdar  or\t the
\n\t      creditor\tcould  make an application  to the
\n\t      Board  on\t or before the date which  the\tGov-\n<\/p>\n
\t      ernment  had notified for settlement of  debts
\n\t      due  by the Jagirdar.  A close examination  of
\n\t      s. 22 puts the matter beyond controversy.\t  If
\n\t      no  application  had been made under  s.\t1  1
\n\t      within  the period, specified therein  or\t for
\n\t      recording a settlement made under s. 15  every
\n\t      debt   due   by  the  debtor  was\t  to   stand
\n\t      extinguished.  In a case of the present kind a
\n\t      debt  would  have\t stood\textinguished  if  no
\n\t      application  had been made under s. 11  within
\n\t      the specified period.  Thus the material\tdate
\n\t      would  be the one notified by  the  Government
\n\t      under  s. II and only those debts\t which\twere
\n\t      due on or before that date from a debtor or in
\n\t      respect of which any proceedings were  pending
\n\t      in  a court or before the Board would  be\t the
\n\t      subject-matter of settlement by the Board”.
\nIn  view of this legal position, on behalf of the  appellant
\nit is urged that the mortgage executed by the appellants did
\nnot  create any new debt but merely secured the\t payment  of
\nprior  debts which was the balance due to the Bank on the  3
\naccounts  as  on the date of the mortgage which\t debts\twere
\npending\t debts\twithin\tthe meaning of s.  25(1).   On\tthis
\nbasis, it is contended that as no application was made under
\ns.  11\tin  respect of the prior  debts,  the  debts  became
\nextinguished  and  accordingly\tthe  mortgage  deed   lacked
\nconsideration  to make it enforceable.\tApart from the\tfact
\nthat   both   the  courts  on  the  evidence   and   on\t  an
\ninterpretation of the mortgage deed, held that the  mortgage
\ntransaction  was in respect of a fresh loan advanced to\t the
\nappellants  under that deed, no plea that the debt  was\t not
\nsupported  by  consideration or that the earlier  debts\t had
\nbeen  extinguished was either raised before the trial  court
\nor  before  the\t appellate  court.   The  learned  advocate,
\nhowever,  referred  us to prayer in para 9  of\tthe  written
\nstatement  in  which a plea was taken that the suit  is\t not
\nmaintainable and that “the plaintiff ought to have submitted
\nits claim before the Debts Settlement Board”.  This plea  is
\ngeneral in character and does-not indicate that the suit  is
\nliable\tto  be dismissed as the mortgage is  unsupported  by
\nconsideration.\tThere was also neither an issue in the trial
\ncourt  nor has any ground been taken in the Memo  of  Appeal
\nthough as many as 75 grounds were urged against the judgment
\nof  the\t trial\tcourt.\tWe  cannot,  therefore,\t permit\t the
\nappellant  to  raise any contention based  on  the  mortgage
\nbeing unenforceable for want of consideration for the  first
\ntime in this Court.\n<\/p>\n
163<\/span><\/p>\n
A  perusal  of\tthe  terms  of\tthe  mortgage  deed  clearly
\njustifies  the conclusions that the loan of  Rs.  5,00,000\/-
\nwas  a\tfresh debt created by the mortgage deed.   There  is
\nunimpeachable  evidence to show, and this has been  accepted
\nby both the courts, that all the three prior debts were paid
\nfrom  out of Rs. 5,00,0001- cash credit loan granted to\t the
\nappellants  under  the\tmortgage deed and the  13  bills  of
\nexchange,  the time for payment of which had not fallen\t due
\nand  some of which were executed by parties other  than\t the
\nappellants,  were endorsed in favour of the  appellants\t and
\nreturned  to them as a consequence of the discharge  of\t the
\ndebts due on the three prior accounts.\n<\/p>\n
The  mortgage  deed states that the properties\tdetailed  in
\nschedule  annexed  thereto  were  being\t mortgaged   without
\npossession  as better security for the repayment of the\t sum
\nof  Rs.\t 5,00,000\/under\t the  deed  together  with  interest
\naccruing in future and\tother sums thereby secured.   Clause
\n1 of the deed states that the mortgagor shall repay the said
\nsum of Rs. 5,00,000  and all other sums secured\t thereunder
\nwithin a period of 5 years from the date, in the manner\t and
\nsubject\t to  the conditions detailed  thereafter;  that\t the
\nmortgagors  shall  pay\tinterest  on the  said\tsum  of\t Rs.
\n5,00,0001-  or such other sum that may remain due from\tthem
\nto  the mortgagees from time to time at the rate of six\t per
\ncent  per annum till the whole amount is fully repaid;\tthat
\nthe  mortgagors\t shall pay the interest accruing  due  every
\nthree months without default, that the principal sum of\t not
\nless than Rs. 1,00,000\/was to be paid per year by the end of
\neach  year  following;\tand that the  payments\ttowards\t the
\nprincipal shall not be less than Rs. 5,006\/- – at a time per
\nmonth  and the balance to make up Rs. 1,00,000\/-  per  annum
\npayable\t shall\tbe  paid  before the  expiry  of  each\tyear
\nfollowing.   There  are\t other\tterms to  which\t it  is\t not
\nnecessary to refer except the last one by which it is agreed
\nthat  “If  the\tmortgagors  commit  breach  of\tany  of\t the
\nconditions  and\t covenants and the  mortgage  money  becomes
\npayable\t either\t by  reason of default or  any\tother  cause
\nwhatsoever and the mortgagors fail to pay the amount due  on
\ndemand,\t the mortgagee will be entitled to sue and bring  to
\nsale  the said properties hereby mortgaged and if  the\tsale
\nproceeds are not sufficient to satisfy the mortgagee  decree
\nthe mortgagors will pay the said balance personally and from
\ntheir  other properties both movable and  immovable”.\tFrom
\nthe  terms of this mortgagee it is evident that the debt  of
\nRs.  5,00,0001-\t is  a fresh debt  created  by\tand  secured
\nthereunder  with interest that may become due from the\tdate
\nof the mortgage and that there is, therefore, no question of
\nthe  mortgage deed having been executed as a  settlement  of
\nprior debts so as to attract the provisions of sections 1  1
\nand  25\t of  the Act.  In this view,  the  Civil  Court\t had
\njurisdiction and the decree granted by the trial court\tand
\nconfirmed by the appellate court
\n164<\/span>
\ndoes  not  suffer from any infirmity.  The  appellants\thave
\nasked  for  a direction to allow them to  pay  the  decretal
\namount by, instalments but we do not think that there is any
\njustification  for  granting this prayer.   The\t respondent,
\nhowever, is prepared to give them time for payment  provided
\nhalf  the  amount is paid within a certain period  and\tthe
\nbalance\t thereof  thereafter  so that  the  entire  decretal
\namount\tis  payable  within a year from\t the  date  of\tthis
\njudgment.   We\taccordingly  direct the\t appellants  to\t pay
\nwithin\tfour months from the date of the judgment  half\t the
\ndecretal  amount with interest due thereon and\tthe  balance
\nthereof\t together  with\t further interest  within  8  months
\nthereafter.  If half the decretal amount is not paid  within
\nfour  months as directed, the first respondent will be\tfree
\nto  execute  the entire decree.\t With these  directions\t the
\nappeal is dismissed with costs.\n<\/p>\n
S.C.\t\t\t\t       Appeal dismissed.\n165<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Balkishandas & 12 Others vs State Bank Of Hyderabad And Anr on 20 January, 1972 Equivalent citations: 1972 AIR 1053, 1972 SCR (3) 157 Author: P J Reddy Bench: Reddy, P. Jaganmohan PETITIONER: BALKISHANDAS & 12 OTHERS Vs. RESPONDENT: STATE BANK OF HYDERABAD AND ANR. DATE OF JUDGMENT20\/01\/1972 BENCH: REDDY, P. […]<\/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-254165","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBalkishandas & 12 Others vs State Bank Of Hyderabad And Anr on 20 January, 1972 - 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\/balkishandas-12-others-vs-state-bank-of-hyderabad-and-anr-on-20-january-1972\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Balkishandas & 12 Others vs State Bank Of Hyderabad And Anr on 20 January, 1972 - 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