Civil Revision Application No. 441 of 1980. Case: Rajendra Bhati Vs Babulal Tarachand and Co.. High Court of Bombay (India)
| Case Number | Civil Revision Application No. 441 of 1980 |
| Counsel | For Appellant: C.K. Jaisinghani, Adv. and For Respondents: H.V. Chande, Adv. |
| Judges | D.N. Mehta, J. |
| Issue | Maharashtra Debt Relief Act, 1975 - Sections 2, 4, 7, 11 and 12; Code of Civil Procedure, 1908 (CPC) - Section 11 - Order 21, Rule 22 |
| Citation | 1982 (1) BomCR 333 |
| Judgement Date | August 25, 1981 |
| Court | High Court of Bombay (India) |
Judgment:
D.N. Mehta, J.
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The petitioner in this revision application has impugned the judgment and order of the learned Judge of the Bombay City Civil Court of the 17th April, 1980 wherein the plea of the petitioner that he was a "debtor" within the meaning of the Maharashtra Debt Relief Act, 1975 (Act No. III of 1976), was rejected.
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Before dealing with the rival contentions of learned Advocates, it will be pertinent to set out briefly a few facts. The respondent (who will hereinafter be refereed to as "the plaintiff") filed a summary suit in the Bombay City Civil Court at Bombay against the present petitioner (who will hereinafter be referred to as "the defendant") for the recovery of a sum of Rs. 5,000/- together with interest and costs. The plaintiff took out a summons for judgment in that suit against the defendant on 16-4-1975. After hearing the parties the learned Judge was pleased to grant conditional leave on the defendant depositing a sum of Rs. 3,500/- on or before 3-7-1975. On the defendant failing to deposit the said amount as per the order, an ex-parte decree was passed against him on 16-10-1975.
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The Maharashtra Debt Relief Ordinance, 1975, was passed on 27-8-1975. On 20-10-1975 the defendant took out a chamber summons in the Bombay City Civil Court praying that he be given the benefit of the said ordinance and that he be declared as a "debtor" as defined under the said ordinance. On 19-12-1975 the defendant's chamber summons was dismissed for default of appearance.
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On 3-1-1976 the Maharashtra Debt Relief Ordinance, 1975 was repealed and the Maharashtra Debt Relief Act, 1975 (Act No. III of 1976) came into force as and from the date.
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On 15-9-1978 the plaintiff took out a notice under Order XXI Rule 2, Civil Procedure Code for leave to execute the decree passed on 16-10-1975 against the defendant. The defendant opposed the said notice being made absolute and in his affidavit the defendant claimed to be a "debtor" under the newly passed Maharashtra Debt Relief Act, 1975 (Act No. III of 1976) (hereinafter referred to as "the said Act") and claimed that the debt was wholly discharged under section 4 of the said Act.
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The notice came to be heard by His Honour Judge Shri V.K. Joshi, who after hearing both the parties rejected the contentions of the defendant and made the notice under Order XXI, Rule 22 of the Civil Procedure Code absolute. This defendant has now approached this Court in revision against the said order of the learned Judge.
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The learned Judge rejected the application of the defendant for relief under the Maharashtra Debt Relief Act on two grounds. Firstly, the learned Judge held that the issue whether the defendant was a "debtor" under the said Act was barred by the principle of res judicata. The learned Judge held that this plea could have been raised by the defendant in the suit itself at the time of the passing of the decree since the Maharashtra Debt Relief Ordinance had come into force on 27-8-1975. Since the defendant had failed to take up such a plea, the issue had become barred by the principle of res judicata. Secondly, the learned Judge was pleased to reject the application of the defendant on the ground that he had already taken up this plea in his chamber summons...
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