Didar Singh vs State Bank of India

This is an appeal under Clause 12 of the Letters Patent for setting aside the judgment dated 4th June, 1987 passed by the learned single Judge

of this Court whereby C.M.P. No. 259/87 was dismissed.

It appears that defendant had filed an application for framing of an additional issue which according to the defendant should have been framed in

the following manner :

Whether defendant No. 1 is a debtor and agriculturist and as such this Court has no jurisdiction to decide the question""?

This application was resisted before the learned single Judge and the learned single Judge relying on Section 2(1) of the J. and K. Debtors Relief

Act of 1976 dismissed the application of the defendant for framing an additional issue and held that the lis pending before it was not covered by the

Debtors Relief Act of 1976, therefore framing of issue was not required.

We have heard learned counsel for the parties.

Mr. Mahajan appearing for the other side contended before us that the debt was not covered by the Debtors Relief Act of 1976, therefore

framing of additional issue was not required. At the request of the learned counsel for the parties we decide the entire matter at this stage and we

propose to decide the appeal without admitting it formally.

Record as also the provisions of law were perused by us.

Debt for which action under Debtors Relief Act of 1976 is envisaged is defined in Section 2 of the Debtors Relief Act. Section 2(l)(ii) is an

exception among other exceptions to the term debt. Sections 2(1) and 2(i) (ii) read as under :

2( 1) 'debt' means a liability of a debtor in cash or in kind payable under a written or unwritten engagement including a liability under a decree or

order of a Civil Court but shall not include-

(i).............

(ii) debts due to the State Land Development Bank, or a Land Development Bank or a Cooperative Bank as defined in the Jammu and Kashmir

Co-operative Societies Act, I960 or any institution mentioned in Section 4(A) of the Jammu and Kashmir Alienation of Land Act, Svt. 1995 or

Section . 140 of the Jammu and Kashmir Transfer of Property Act, Svt. 1977.

7A. The definition of financial institutions given in Section 4(A) of the Alienation of Land Act of 1995 names the financial institutions and includes

such institution which are mentioned in the 2nd schedule to the Reserve Bank of India Act, 1934 and having an office of transacting business of

banking in the State.

Section 140 of the Transfer of Property Act also names the financial institutions and includes within its fold banks which are included in the 2nd

Schedule to the Reserve Bank of India Act, 1934 and having an office of transacting business of banking in the State.

The Debtors Relief Act of 1976 mentions some institutions and names certain institutions to which Act will not apply and those institutions which

are mentioned in Section 4A of the Alienation of Land Act and Section 140 of the Jammu and Kashmir Transfer of Property Act are to be treated

as institutions which are not covered by the Debtors Relief Act.

Mr. Joginder Singh submits that the appellant was a debtor in terms of Section 2(2) of the Debtors Relief Act. But a debtor for purposes of the

debt is one who owes the debt. The debt which is due to be paid to certain institutions mentioned in Section 2( 1) (ii) is not a debt. Therefore Mr.

Joginder Singh's contention that he is a debtor is not correct and is answered by the definition of the word debt itself.

Mr. Joginder Singh has referred to the judgment of this Court reported in 1979 K LJ 303 : AIR 1980 NOC56(Gh. Rasool v. Gh. Ahmad)

This authority will not be applicable to the present case because none of the parties was a financial institution as defined in Section 4A of the

Jammu and Kashmir Alienation of Land Act or as defined u/s 140 of the Transfer of Property Act. That was a dispute between the two private

persons and the learned Judges of the Division Bench were considering the import of Section 28 of the Act pertaining to the jurisdiction of the

Board. In that case admitted question was that the debt sought to be claimed was to be determined to be debt which could be determined by the

Board u/s 28 of the Act, but in this case the liability of the respondent-bank on the petitioner is excluded from the definition of the word debt and

the appellant, as stated already Ls not a dealer within the meaning of Section 2(2) because liability is towards the institution as defined u/s 2(1) (ii)

of the Debtors Relief Act. Therefore, the Division Bench authority referred to above is distinguishable and is not applicable to the facts of the

present case.

We have examined the 2nd Schedule to the Reserve Bank of India Act. State Bank of India is one of the banks included in that Schedule.

From the record it appears that it has an office in the State of J. & K. where it transacts banking business. Therefore, we are of the opinion that the

liability claimed by the bank from the defendant, appellant will not be debt within the meaning of Section 2( 1) (ii) of the Debtors Relief Act of

1976, as the liability is to be discharged towards the institution mentiond in Section 2(1) (ii) of the Debtors Relief Act.

In our opinion the learned single Judge was justified in refusing the prayer of the appellant for framing the issue. The application has been rightly

rejected by the learned single Judge. We see no reason to interfere with that Order. The appeal accordingly fails and is dismissed. There will be no

order as to costs.

At the conclusion of this judgment, Mr. Joginder Singh learned counsel for the appellant made an oral prayer for grant of certificate of fitness to

file an appeal before the Hon'ble Supreme Court. We have considered the prayer. In our opinion no intricate question of any public or

constitutional importance is involved in this appeal which requires grant of certificate of fitness. The prayer is declined.