Kerala act 030 of 1975 : The Kerala Debtors (Temporary Relief) Act, 1975 (No.30 of 1975)

178

THE KERALA DEBTORS

(TEMPORARY

RELIEF) ACT,

1975 ^.

(Act ^30of

1975)

CONTENTS

Preamble. Sections

1. Short

title,

extent and commencement.

2.

Definitions

3. Bar of suits and

applications

and

other

proceedings.

4

Presumption

as

to transfer of immovable

property

of debtor Exclusion from

benefits... Limitation Interest not

to accrue ⁱⁿ

respect

of debts Act to override other

laws, contracts,

etc. Power to make rulesfomqaauu

THE

KERALA DEBTORS

(TEMPORARY RELIEF)

ACT,

1975' (Act ^30of

1975)

An Act to

provide temporary

relief^to

certain debtors ⁱⁿ the State of

Kerala Preamble—WHEREAS it

IS

expedient

to

provide

tem- porary relief ^tocertain debtors ^m

the State of

Kerala, BE it enacted in^the

Twenty-Sixth

Year of

the

Republic

of India as follows ^—

1 Short

title,

extent and

commencement—(1) This

Act may be called the Kerala Debtors

(Temporary Relief) Act,

1975

(2) ^It

extends^tothewhole^ofthe

State ^ofKerala

(3) ^Itshall ^{come into}force^{at once} 'Received

the

assent of the PreSIdent on the 6th

day

of

October 1975 and

published ^In

the Gazette

Extraordinary

No 602 dated 14th

October,

1975.

—v4\~

L4

._..

179

2.

Definitions—In this

Act.

unless the context otherwise requires,—

(1) "agricultural

land" means^landusedfor

agriculture or

horticulture,

not

being

land

appurtenant

to a

reswlential building;

(2)

"artisan" means ^a

person^{whodoesnothold}any agricultural ^{land and}

whose

pimCipal

means^oflivelihood^is production ^or

repair^oftraditional

tools,

implements ^andother articles ^or

things

used for

agriculture ^or

purposes

ancillary thereto ^andincludes ^a

person who

normally

eains his

liveli— hood

by practising

craft either

by

his

own labour or

by

the labour ^ofthemembers of his

family;

(3)

"creditor"

shall include^the

heirs,

legal representa— tives and aSSIgns of the

creditor,

(4)

"debt" means

any liability ^{incash or}

kind,

whether secured ^or

unsecured,

due from ^or

incurred

by ^a

debtor ^onor before the commencement of this

Act,

whether

payable

under a

contract,

or

under

a decree or order

of any

court,

or other— wxse,

but

does^notinclude—

(a) any ^sum

payable ^to—

(i) ^theGovernment ^of

Kerala ^ortheGovernment of

India^orthe Government ^of

any other State ^orUnion

territory ⁱⁿIndia ^or

any local authority, ^or

(ii) ^the

Reserve^{Bank of}India ^ortheState^Bank of India^or

any subsidiary

bank Within the meaning ^ofclause

(k)

of section^'2ofthe State Bank of India

(Subsidiary

Banks)

Act. 1959 or the Travancoxe Credit Bank

(in

liqui- dation)

constituted under ^theTravancore Credit ^Bank

Act, ^IVof

1113; ^or

(iii) ^a

corporation

owned ^orcontrolled

by ^the Government ^ofKerala ^ortheGovernment ^of any other

State ^orUnion

territory in India

or the Government of India ^{or a}Government company ^asdefined ⁱⁿthe

Companies

Act, 1956, ^or 3I24A—12a

180

(iv) ^theTea

Board constituted under ^theTea

Act, 1953, ^ortheCoffee Board

constituted

under the Coffee

Act,

1942,

or

the Rubber Board constituted under the

Rubber

Act,

1947,

or the Cardamom

Board constituted under the Cardamom

Act, 1965;

or

(v) any co—operative

society, including ^{a Land}

Mort- gage Bank, registered ^ordeemed^toberegis- tered under

the

Co-operative

Societies Act for the time

being

in

force,

or

(b) any ^sum

payable ^to

any

corresponding ^newbank specified ⁱⁿ

column ^{(2) ofthe}

First

Schedule ^{to the}

Banking Companies (Acquxsmon ^and

Transfer^of

Undertakings) ^Act, 1970; ^or

(c) any liability

arising ^outofa

breach^oftrust ^or any tortious

liability, ^or

(d) any liability ⁱⁿ

respect ^of

maintenance,

whether under ^a

decree of court ^or

otherwise;

or

(e) any liability ⁱⁿ

respect ^ofwages ^or

remuneration due ^as

salary ^or

otherwise^forservices

rendered; ^or

(i) any^debtwhich

represents ^the

price ^of

goods purchased ^forthepurpose ^of

trade, ^or

(g) any liability ^forwhich^a

charge ^is

provided

under subAclaiise

(b)

of clause

(4) ^ofsection^55of

the Transfer of Property ^Act,1882, ^or

(h) any ^rent

payable ⁱⁿ

respect ^ofany budding: ^or

(i) any^rentormichavaram

payable ⁱⁿ

respect ^ofany land; ^or

(1) any^{debt or}

debts ^{dueto a}

widow^atthecom— mencement of this

Act,

prov1ded

that the

value

of the

property owned

by

her at such

commencement,

including

the

principal amount of the

debt^ordebts ^so

due,

does^notexceed ten thou— sand rupees

Explanation—For ^thepurposes^ofthis

sub-clause, ^the house in which ^thewidow

lives, ^her

wearing apparel

or similar personal belongings

shall^notbe

regarded ^as

property, ^or

181

(k) any

liability

incurred^or

arismg under ^a

chitty ^or kuri. which is

registered

or

licensed under the Travancorc Chitties

Act,

1120,

or the Cochin Kuries

Act,

VII of

1107,

or conducted under any chit fund

scheme,

and which has not terminated one

year before the commencement of this Act:

Provided that

nothing

in

this sub-clause shall

apply

to the liability ^ofaforeman incurred^or

arising

under any^such

chitty or

kuri,

where the

foreman is a

co-operative society

registered or

deemed

to be

registered

under the

Co-operative

Societies Act for the time

being

in

force. Explanation—For ^the

purposes ^{of this}

sub-clause, ^:1 chitty ^orkurishall^bedeemed^tohaveterminated—

(i) ^{when the}

period

fixed ^inthe

variola ^orvaimbu or

kuripattika

or the

period

as altered

by

a subsequent

special

resolution^fortheduration ^of the

chitty

or

kuri,

has

expired,

or

(ii) ^whenthe

legal representative ^ofadeceased foreman or the

guardian

of a foreman of unsound mind or the

subscriber or the

subscribers

selected therefor fails or fail to conduct the

chitty ^or Run or to make suitable

arrangements ^forthe further conduct of

the

chitty

or

kuri,

or

(iii) ^onthefailure^ofthe

foreman^topaythe

prize amount to the subscriber

within^onemonth from the

due date

thereof;

or

(iv) ^{on the}

failure^oftheforeman ^orformen toconduct the

chitty

or kuri at

any instalment ^oron

any __

ither date before the^nextinstalment^as

may^be agreed uponⁱⁿ

writing by ^a

maJority ^ofthe non-prized

subscribers ^. Provided ^thatifthere ^aremoreforemen^{than one and} one or more of such foremen is

or are

living

and¹⁵or are not disqualified ^toconduct

the~

chitty ^{or Run, the}

chitty ^orkuri shall ^notbedeemed ^tohaveterminated ^ifthere ^is

provision in the variola ^orvaimbu^or

kuripattika enabling

the remain- ing

foreman ^orforemen ^toconduct^the

chitty ^{orkuri orif the} non-prized

subscribers agree^{by a}

speCial

resolution^tothe conduct ^ofthe

chitty ^orkuri

by ^the

remaining

foreman^or foremen; ^or

.

182

(1) any^debt

exceeding

three thousand rupees borrowed under a

Single

transaction and due before

the commencement of

this

Act to

any banking company

as defined in the

Banking Regulation ^Act,1949; ^or (in) any amount^dueonaccount^ofany goods ^toa financier who

financed

the

purchase

of such

goods

and whose principal

busmess ^isto

finance^the

purchase ^of

goods, ^or

(ii) any ^sum

advanced^forthepurposes^of

agriculture by ^aninstitution receivmg financial assistance^fromthe

Agri— cultural Refinance

Corporation

established under the

Agricul- tural Refinance

Corporation

Act,

1963.

Explanation

l.—For^the

purposes ^ofthis

clause,—

(i) ^the

liability ^ofa

surety ^whoisadebtor shall^be deemed to be a debt Within the meaning of this Act

notWithstanding ^that

the

principal

debtor is not a debtor for the purposes of this

Act, (ii)

where^adebthasbeen

split^upinany

manner whatsoever,

whether before ^orafter^thecom- mencement of this

Act,

and fresh documents have been executed in

respect

of different portions ^ofthe

debt, ^{each such}

different

portion shall be ^a

debt. Explanation

IL—Where^thedebtisa

liability ⁱⁿ

kind, the value of the

commodity

shall be

commuted

at the market rate

prevailing ^onthe date^onwhich the debt was incurred

(5)

"debtor" means

any

person^whohasan

interest, other than as a

simple

mortgagee,

In

any agricultural

land

in the State of

Kerala,

from whom any debt is due^and

includes—

(a) ^alandless

labourer,

(b) ^an

artisan; ^and

(c) ^a

kudikidappukaran but does not include—

(i) any person assessed^tosalestax^ona

turnover which in^the

aggregate

is not less than

twenty thousand rupees ⁱⁿ

any ^two

years within the three years immediately preceding

the com- mencement of this

Act,

under

the Kerala General 1'

183

Salestax

Act, 1963,

or the Central Salestax

AC1,

1956, ^orthelawofany other State

relating ^to salestax.

(ii) any

person assessed^toincome-tax under^the Income—tax

Act, 1961,

in any

two

years Within the three years immediately preceding

the com- mencement

of this Act and whose total income for the purposes^oi

the said Act exceeded

eight thousand rupees per

annum;

(iii) any person assessed^to

agricultural

income—tax in

any

two

years within the three

years immedi-

:

ately

preceding

the commencement of this

Act, under the

Agricultural

Income—tax

Act,

1950.

or under any other law

relating

to

agricultural income-tax, ^onanincome

exceeding eight thousand rupees

per

annum, Exp]anation.—Notw1thstanding

anything

containedⁱⁿ the

Indian Ev1dence

Act, 1872, where,

a creditor proves that his debtor is a

person

assessed to the

tax

mentioned

in

sub-clause

(i) or sub-clause

(11)

or

sub—clause

(ill)

forlthe

period

referred

to in that

sub-clause,

the burden of provmg that

such debtor does not fall under

the

category

speCified

in that sub— clause

shall lie on the

debtor;

(iv) ^afirm

registered

under^theIndian

Partnership Act, 1932, ^{or a}

company ^asdefined^inthe Companies Act, 1956, ^ora

corporation

formed ⁱⁿ pursuance of^anAct of Parliament of the United Kingdom ^orofany

spec1a1

Indian^Law. Explanation—For ^thepurposes^ofthis

clause, ^theterm

"person"

shall include^a

family,

provided ^thatsub-clauses ⁽¹⁾ to

(iii),

in their

application ^toa

family

consisting

of^notless than five

members,

shall have effect as^ifforthe

turnover,

total income ^or

income

specified

therein,

twice

such

turnover,

total income or

income, ^asthe case

may he, ^weresubstituted?

(6) "family"

means^aHindu undiVided

family ^ora Marumakkathayam

tarward^orthavazhi ^{or an}

Aliyasanthana kudumba or kavaru ^or

a Nambudiri

illom;

(7)

"interest" means

any

amount^orother

thing paid ^or payable ⁱⁿexcess^ofthe

principal

amount borrowed^or

pecuniary obligation incurred, ^orwhere

anything ^hasbeen

borrowed ⁱⁿ

184

kind in excess of

what has been so

borrowed.

by

whatsoever name

such

amount or

thing may be

called,

and

whehter the same is

paid

or

payable

entirely

in cash or

entirely

in kind or

partly in cash and

partly

in kind and whether the same is

expressly mentioned ^or

not in the

document^or

contract, ^ifany,

(8)

"kudikidappukaran"

shall^havethesame

meaning as in clause

(25)

of section 2 of the

Kerala Land

Reforms

Act,

1963:

(9)

"landless labourer" means^a

person^{who doesnot} hold any agricultural

land and whose

princrpal

means^ofliveli- hood is manual

labour;

(10)

"pay" ^{with its}

grammatical variations,

includes deliver;

(11) "principal

amount" means^the

amount

originally advanced,

together ^Withsuchsum,^ifany, ^ashasbeensubse— quently

advanced,

notwithstanding any stipulation ^totreat any interest^as

principal

and

notWithstanding

that the debt has been renewed or included in a fresh

document,

whether

by

the same debtor or

by

his

heirs, legal representatives ^or

assrgns

or by any other person acting ^onhisbehalf^{or inhis}

interest, ^and whether in

favour of the same

creditor or his

heirs,

legal representatives ^or

assrgns ^orofany other person acting ^onhis behalf or in his

interest. 3, ^Barof suits and

applications

and other

proceedings.— No suit for recovery of a debt shall be

instituted,

no

application for execution of a decree in

respect

of a debt shall be made and no

appeal,

revision

petition

or

application

for

review

against any decree or order in any such suit or

application

shall

be presented ^{or made in}

any civil^orrevenue court before^the expiry ^{of one}

year^fromthecommencement^{ofthisAct or such} longer

period ^as

may^be

specified by ^the

Government

by

noti- fication in the

Gazette,

and all such

suits, applications,

appeals and

petitions

instituted,

made

or

presented

before such com- mencement and

pending ^atsuchcommencement shall stand stayed ^forthesaid

period Explanation ^{L—In this}

section, ^theterm"suit"

shall^not include a claim^toa set-off ^madeina suit instituted

by

a

debtor. m..."

185

Explanation

II.—For^thepurposes^ofthis

section, ^asuitin which a decree in

respect

of a debt ^is

prayed ^for

shall ^be deemed to be a suit for^therecovery^of

the

debt,

notWithstand- mg that other reliefs ^are

prayed

for ⁱⁿsuch

suit,

and^adecree shall be deemed to be a decree ⁱⁿ

respect

of a debt notwith— standing ^thatother reliefs^are

granted ^insuchdecree' Provided

that a suit

or

decree

for

possession

of land shall not be deemed to be a suit

for recovery of,

or a decree

in respect of, ^adebt

by

reason

merely ^ofmesne

profits being ^also prayed ^fororincluded ^{in suchsuitor}

decree Explanation

llI.—Nothing ^{in this}section shall

debar^a decree-holder from

enforcmg

reliefs other than

in

respect

of a debt,

where^thedecree contains

independent

reliefs

4.

Presumption

as^to

transfer of

immovable

property

of debtor.—(1) Every

transfer ^ofimm0vable

property ^made

by ^a debtor entitled to the benefits

of section

3,

made

during

the period

mentioned^inthatsection

shall, inany ^suitorother proceedings ^With

respect ^{to such}

transfer, ^be

presumed,

until the

contrary

is

proved, ^to

have

been made ^Withintent^todefeat or

delay

the

creditors

of

the transferor.

(2)

Where^adebtor

entitled^tothebenefits^ofsection³ has in collusmn with another allowed

his immovable

property to

be sold

during

the

period

mentioned

in that section

through court or

otherWise,

With a View

to defeat

or

delay

his

creditors, the

sale shall be vaidable at the

option

of any creditor

so defeated ^or

delayed.

5 Exclusion

from

benefits.—Notw1thstandmg anything contained ⁱⁿ

this

Act,

where

a

debtor entitled

to

the benefits of section

3,

With intent^todefeat or

delay

his creditor or

creditors, has made any voluntary

transfer of any

interest

in

immovable property during ^the

period

mentioned^inthesaid

section, ^such debtor

shall^notbe entitled to the benefits of that section

6 Limitation—In

computing

the

period

of

limitation for a

suit

for recovery of a debt or an

application

for the execution of a decree ⁱⁿ

respect

of a debt or an

appeal,

reviSion

petition or

application

for reView

against any decree

or

order in

any such suit ^or

application,

the time

during

which the institution of the suit ^or

the

making

of

the

application

or the

presentation of the

appeal

or

petition

186

7 Interest

not

to accrue in

respect

of

debts.—No interest shall accrue

during

the

period

mentioned in section 3 in

respect of a debt due at the commencement of this Act from a debtor entltled to the

benefits

of

section 3.

8 Act ^to

override other

laws,

contracts,

etc.—The pr0v1- Sionr.

of this Act shall have

effect

notwnhstandmg

anything

in- consistent therewzth contained in the

Code

of ClVll

Procedure,

1908

(Central

Act 5 of

1908),

or in

any other law for the time being ⁱⁿ

force, ^orin

any custom, usage ^or

contract, ^orin

any decree ^or

order of a

court

or other

authority. 9, Power to

make

rules—(l)

The

Government may, by notification in the

Gazette,

make rules for

carrying

out^thepur- poses of this Act.

(2)

Every ^rulemadeunder ^{this Act}shall^be

laid, ^as soon

as

may be after it

15

made,

before the

Legislative

ASSembly while it

is

in session

for a total

period

of fourteen

days

which may be

comprised ^{in one}session^or

in ^twosuccessive sessrons, and if before the

explry

of the session in which it is so laid or the sessmn

immediately

following,

the

Legislative

ASsembly makes any modification in the rule or

decides

that

the

rule should not be

made,

the rule shall thereafter have effect

only in such modified ^formor

be of no

effect,

as the case

may be, so however that any such modification

or

annulment shall be without

prejudice ^tothe

validity ^of

anything

preViously

done under that rule.