Madras High Court
Vythilingam Chettiar vs Rangaswami Padayachi on 9 September, 1988
Equivalent citations: (1988)2MLJ339
ORDER
1. Defendant in an unregistered suit (R.No. 43243/79) on the file of the District Munsif s Court, Vridhachalam is the petitioner herein. Respondent-plaintiff filed a suit for recovery of a sum of Rs. 2,600 being the one-half of the Principal and interest due on a promissory note dated 2-6-1974 executed by the defendant for Rs. 4,000 payable with interest at 6% p.a. Plaintiff filed O.S.No. 738 of 1979 in the same Court for recovery of a sum of Rs. 2,514 towards one-half of the principal and interest due on the above promissory note under Tamil Nadu Act 40 of 1978 then in force, and got a decree on 20-6-1979. The said decree had not been executed and satisfied in full. After coming into force of Tamil Nadu Act 40 of 1979, he has filed the present suit for recovery of the amount which is permissible under Tamil Nadu Act 40 of 1979. Learned District Munsif by order dated 30-9-1980 held that the plaintiff could file only one suit on the basis of one cause of action, and as it had been already exhausted in the previous suit in O.S.No. 738 of 1979, he cannot maintain a second suit, and hence rejected the plaint.
2. Plaintiff preferred A.S.No. 92 of 1980 before Sub-Court, Chidambaram which was latter on taken on the file of Sub-Court, Vridhachalam as A.S.No. 153 of 1981. Learned Sub-Judge held that, before coming into force of Tamil Nadu Act 40 of 1979 plaintiff would not have been entitled to the balance of the amount, and therefore, on 15.7.1978, when Tamil Nadu Act 40 of 1979 was ushered in, that itself gave the necessary cause of action in the filing of the present suit, and therefore, he allowed the appeal and directed the trial court to take up the plaint on its file and dispose it of according to law. It is against the said decision, this revision petition is preferred claiming that the present suit filed is not maintainable.
3. When the revision petition was taken up for hearing on 24.7.1986, Learned Judge after referring to the conflicting views expressed in more than one judgment of this Court, had referred the matter for being decided by a Division Bench for the reasons stated in the order.
4. N. Vanchinathan, learned Counsel for defendant, submits that in respect of a promissory note, there could be only one cause of action and a suit having been already instituted and a decree obtained thereon, based on Section 7(2)(i) of Tamil Nadu Act 40 of 1978, the debt due under the promissory note for the balance of the amount having been held in law as wholly discharged, there was no debt available for being proceeded against under Tamil Nadu Act 40 of 1979. Inspite of repeal of Tamil Nadu Act 40 of 1978 under Section 31 of Tamil Nadu Act 40 of 1979, except for Section 29 thereof, nothing in law survives to be proceeded against under Tamil Nadu Act 40 of 1979, and there being no cause of action existing, the present suit filed on a non-existing debt is not maintainable, and when a portion of the debt statutorily having been declared as deemed to have been wholly discharged under Tamil Nadu Act 40 of 1979 and there being no specific provision made to create debts in favour of creditors based on the original promissory note mere repealing of Act 40 of 1978 had not resulted in bringing into existence a debt, which had been wiped out under a prior enactment. Plaintiff having availed of the benefits under the earlier enactment, and subjected himself to the restraint contained therein and having thereby lost his right in the portion of the amount now claimed, repealing of the earlier enactment has not resulted in restoration of this scaled down debt. No reservation having been ever made in the earlier suit for the amount which could not be then sued, plaintiff is estopped from filing the present suit. In any event, a statutorily wiped out debt consequent on plaintiff availing of remedy under the earlier enactment, cannot be claimed under Tamil Nadu Act 40 of 1979, which had nowhere provided for revival of statutorily discharged debt. Hence, the present suit is misconceived in the eye of law.
5. Tamil Nadu Act 40 of 1978 come into force on 15.7.1978. Under Section 6(1) all debts payable by any debtor on the 14th day of July, 1978 have to be scaled down in accordance with the provisions of Chap. II of that Act. Section 7 dealt with scaling down of debts. Hence, by availing of the provisions of the said Act, O.S.No. 738 of 1979 was filed by the plaintiff based on the promissory note dated 2.6.1974 and he obtained a decree on 20.6.1979. Thereafter, on 15.7.1979, Tamil Nadu Act 40 of 1979 come into force and Section 7 therein deals with scaling down of debts. Under S.31, Tamil Nadu Act 40 of 1978 was repealed, except for Section 29 thereof, which dealt with Amendment of Tamil Nadu Act XXIII of 1943.
6. The crucial section to resolve the point involved, is Section 33 of Tamil Nadu Act 40 of 1979, which is extracted hereunder:
33. Removal of doubts - (1) Any liability incurred or arising order any debt due from a debtor shall be deemed ever to have been discharged under the said Act, as if the said Act was not passed and every such debt shall be scaled down in accordance with the provisions of this Act.
(2) Nothing contained in this section shall be deemed to invalidate any proceeding in which the order passed has been executed or satisfied in full before the date of the publication of this Act in the Tamil Nadu Government Gazette.
7. On the earlier enactment being repealed, and as to what extent the repeal of the Act would operate on the debts which are covered by later enactment, under Section 33(1), it had been made clear that, except for the limited category which would fall within the four corners of Section 33(2) in respect of any other debt due from a debtor, it continues to exist because, in relation to such debts, it will be dealt with as if Tamil Nadu Act 40 of 1978 had not been ever enacted. Section 7 which deals with scaling down, refers to all debts payable by any debtor on the 14th day of 1978, which was the crucial date even for Tamil Nadu Act 40 of 1979. Therefore, the intention of the Legislature was to deal with under Tamil Nadu Act 1979 the debts which are covered by Tamil Nadu Act 1978 and provide for different kinds of scaling down, except in such of these cases where by awailing of the earlier enactment of 1978, order had been secured and full satisfaction had been obtained. The purport of S.31 of Tamil Nadu Act 40 of 1979 in repealing Tamil Nadu Act 40 of 1978 is to superimpose 1979 Act over the debts which were covered by 1978 Act and efface that Act from the statute book and occupy the field. It was dealt with by way of substitution, only in respect of such of those debts which had remained unsatisfied. Decree obtained under the earlier enactment and which have been fully satisfied, have not been declared as invalid, inoperative or illegal. Under the 1978 Act, only a portion of the debt having been declared by law as available for realisation the cause of action under the promissory note got split up, and only on the permissible cause of action the earlier having been laid, and later on by operation of law the statutorily discharged cause of action having been restored by statute, the subsequent suit could be instituted for recovery of such of the amount which is permissible of recovery under 1979 Act, after giving credit to the decree already obtained under the law then in force. In the instant case, it is stated by K. Ramamoorthy, learned Counsel for plaintiff-respondent that on 23.11.1979, a satisfaction was recorded stating therein that it would be without prejudice to Tamil Nadu Act 40 of 1979, and thereafter on 4.12.1979, the present suit was filed. Hence, in view of Section 33(1) of 1979 Act, the statutorily restored debt relating to the original debt recognised under the said Act could be pursued with by the creditor as if 1978 Act had not been passed, after giving credit to whatever decree that had been secured in a Court proceeding, by virtue of the repealed Act. Hence, the second suit filed is maintainable. This should suffice to answer the reference.
8. There is no need for this Division Bench to refer to the various provisions of the two enactments, in the light of the considered decision rendered by Ratnam, J. in Lakshminarayana Reddiar v. Balarama Chettiar (1985) 1 M.L.J. 148. Regarding the scope of the various other sections in the two Acts, it is unnecessary to deal with the point any further, because the Learned Judge had rightly concluded that the right to recover one-half of the principal and one-half of the interest thereon was restored under 1979 Act, and it was also preserved in tact against the bar of limitation under Section 34 of the said Act, so that that right could be enforced without in any manner being affected by the provision of Tamil Nadu Act 40 of 1978.
9. In Rama Reddiar v. Raja Reddiar (1982) 1 M.L.J. 288, it was held that in all cases where the debt or the decree had not been fully and finally discharged or satisfied under 1978 Act, then the application for scaling down of such debt of decree can be made under 1979 Act. It was further held that the bar under Section 33(2) will not operate and that decree-holder would have the right to have the decree amended under Section16 of the Act.
10. In Duraiswami v. Thangavel A.I.R. 1983 Mad. 286 it was held that, as the earlier suit under 1978 Act had been filed only for the amount which could be claimed under the said Act, and it having been decreed in full, the decree-holder is not entitled to further claim that, under 1979 Act, he is entitled to enlarge the scope of the suit itself, because the amount claimed would be beyond the suit claim, and therefore, Section 16 will have no application for such a suit claim.
11. In Karuppanna Gounder v. Ramaswami (1984) 2 M.L.J. 207, it was held that the debt due under the promissory note is one and entire and it is not possible to split it up into two and file two separate suits for the same debt, and that Order 2 , Rule 2, C.P.C. would also apply, and that a repeal of a statutory provision does not affect the previous operation of these provisions unless the statute specifically says that the repealed provision should be taken to have been not in the statute book at all. Section 33(1) of Tamil Nadu Act 40 of 1979 having been enacted to remove any doubt that could exist on this aspect, and as pointed out in Lakshmi Narayana Reddiar v. Balarama Chet-tiar (1985) 1 M.L.J. 148, since Order 2, Rule 2, C.P.C. would have no application to a matter of this nature, the approach made by the learned Judge in Kamppanna Gounder v. Ramaswami (1984) 2 M.L.J. 207 cannot be approved.
12. In Lakshmana Perumal Naicker v. Narayanaswatni Naicker (1985) 2 M.L.J. 64, it was held as follows:
A careful reading of Sub-section (23) shows that the provision of Act 40 of 1979 do not in any way affect the earlier proceedings....
On considering the terms of the receipt passed by counsel for plaintiff therein, it was interpreted to reflect a full satisfaction having been entered into in relation to the promissory note date.
13. It is surprising to note that R.S. Venkatachari, learned Counsel, who is reputed to place every conceivable decision on a point whether reported or not, having argued the case in Lakshminaray-and Reddiar v. Balarama Chettiar (1985) 1 M.L.J. 148, none of the decisions which have been rendered earlier has been referred to in that decision and the solitary decision which had found a place therein is Muthuveerappa Chetty v. Adaikappa Chetty 39 M.L.J. 312 : (1920) I.L.R.43 Mad.845 which dealt with the aspect of annulment.
14. On the opinion already rendered, the analysis and the reasonings issued in Lakshminarayana Reddiar v. Balarama Chettiar (1985) 1 M.L.J.148. finds approval of this Division Bench, and therefore, inspite of an earlier suit having been filed by availing of the remedy conceived of under Tamil Nadu Act 40 of 1978, if a decree obtained therein had not been satisfied in full on or before 15.7.1978 then such a decree-holder is entitled to file another suit for the balance of the amount which could be recovered under Tamil Nadu Act 40 of 1979.
15. Hence, the decisions rendered in Duraiswami v. Thangavel A.I.R. 1983 Mad.286 Karuppanna Gounder v. Ramaswami (1984) 2 M.L.J 207 and Lakshmana Perumal Naicker v. Narayanaswami Naicker (1985) 2 M.L.J. 64 are hereby overruled. The decision in Rama Reddiar v. Raja Reddiar (1982) 1 M.L.J. 288 and Lakshminarayana Reddiar v. Balarama Chettiar (1985)1 M.L.J.148 are hereby approved and the reference is accordingly answered.