The Judgment of the Court was as follows:—
In this case, the Petitioner had instituted an account suit against the Opposite Party. His case was that the Opposite Party; Bhik Chand Bhuian, had worked as his Naib, that he had failed to render proper accounts of his collections and that a considerable sum of money amounting to about Rs. 1,000 was due from him to the Petitioner. The Opposite Party filed a written statement in the suit, in which he contended that there was no relationship of principal and agent between the parties, that he had already rendered proper accounts to the Petitioner and that, if accounts were taken, it would be found that money was actually due from the Petitioner to the Opposite Party. After filing the written statement the Opposite Party made an application to the Nasimpur Debt Settlement Board under sec. 8 of the Bengal Agricultural Debtors Act. The Board thereupon issued a stay order under sec. 34 of the Act and on the 2nd May, 1938, the Munsif, 2nd Court of Narayanganj, stayed all further proceedings in the accounts suit. The Petitioner then filed an application in the Court of the Munsif under sec. 151 of the Code of Civil Procedure. In that application he maintained that the liability of the Opposite Party which was the subject-matter of the account suit was a contingent liability and was, therefore, not a liability which could be investigated by the Debt Settlement Board under the Bengal Agricultural Debtors Act. He therefore contended that the Civil Court had no jurisdiction to stay further proceedings in the suit in pursuance of a notice under sec. 34 of the Act. The learned Munsif without investigating the question whether or not the alleged liability fell within the scope of the Bengal Agricultural Debtors Act, rejected the Petitioner's application under sec. 151 of the Code of Civil Procedure on the ground that his only remedy was to move the Appellate Court constituted under the provisions of the Bengal Agricultural Debtors Act, in order to obtain a rescission of the order of the Debt Settlement Board.
The first point for consideration in this case is whether or not the procedure adopted by the Munsif in rejecting the Petitioner's application under sec. 151 of the Code of Civil Procedure was correct. The learned Munsif in his order dated the 11th of June, 1938, stated that the contention of the applicant was that the debt due from the Opposite Party was an unascertaincd debt. From a reference to the petition tiled by the Petitioner, however, it would appear that the Petitioner's main contention on this point was misunderstood by the learned Munsif. In that petition he laid particular emphasis upon the contention that the alleged debt was a contingent liability. If he had been able to sustain this contention, it is clear that the liability in question would have been a protected liability under the provisions of sec. 2(8)(i) of the Bengal Agricultural Debtors Act and would, therefore, have been entirely beyond the scope of the provisions of the Act. This being the case, as the Petitioner had expressly raised a question before the Munsif as to whether the alleged liability fell within the scope of the Act or not, it was clearly the duty of the Munsif to investigate this matter and give his decision on this point before rejecting the Petitioner's request that the stay order under sec. 34 of the Act might be abrogated. If the learned Munsif had decided that the liability of the Opposite Party fell outside the scope of the Act, he would have had jurisdiction to rescind the stay order and proceed with the trial of the account suit under the ordinary provisions of the law.
The jurisdiction of Civil Courts in connection with applications of this nature was recently discussed in considerable detail by Mr. Justice S.K Ghose and Mr. Justice Mukherjea in the case of Nur Mia v. Noakhali Nath Bank, Ltd. in Civil Revision No. 937 of 1938 and Reference No. 5 of 1938 under Or. 46, r. 1, C.P.C
In his judgment in that case, Mr. Justice S.K Ghose stated that he was of opinion
“that it is for the Court on receipt of notice under sec. 34 to decide the question, not only that there is a proceeding pending before it, but also that the subject-matter of that proceeding is a debt as defined in the Act. If the Court finds it is not such a debt, then the notice under sec. 34 cannot operate so as to stay the proceedings in the Civil Court.”
Mr. Justice Mukherjea agreed with the conclusion of Mr. Justice S.K Ghose and in doing so, he made the following observations;
“It has already been held in a series of cases by this Court— Vide the cases of Jagabandhu Roy Choudhury Firm v. Bhusai Bepari (2), Ramendra Nath Mandal v. Dhananjoy Mondal (3) and Jatindra Mohan Mandal v. Elahi Bux (4) that when a debt is satisfied by an execution sale and no proceeding in respect of a debt can be said to be pending before a Civil Court, the Court is not bound to stay any proceeding by way of confirmation of sale or otherwise even if this proceeding is expressly mentioned in the notice under sec. 34 of the Bengal Agricultural Debtors Act. I think that it is equally correct to say that the Court can refuse to stay a proceeding or a suit if it is satisfied upon inquiry that there is no proceeding or suit pending before it which is in respect of any debt as defined by the Bengal Agricultural Debtors Act.”
Further in dealing with the functions of the Debt Settlement Board under sec. 18(1) of the Act, the learned Judge after quoting the section says,
“In my opinion, the word ‘debt’ here has the same meaning that is given to it by sec. 2, clause (8) of the Act and the inquiry contemplated by this section is not one as to whether the liability amounts to a debt at all within the meaning of the Act, but whether a debt as defined by the Act and which is alleged by the party to exist exists as a fact; and if so, what is its amount.”
I am in entire agreement with the conclusions at which the learned Judges have arrived in the case cited above. It follows, therefore, that in refusing to investigate the question whether or not the liability with which we are concerned in this case was a contingent liability, the learned Munsif adopted an erroneous procedure and in fact failed to exercise the jurisdiction vested in him by law.
The question, however, remains for consideration whether this liability is really a contingent liability as contended by the learned Advocate for the Petitioner, or is a liability which falls within the scope of the Bengal Agricultural Debtors Act. It is argued on behalf of the Petitioner that a liability, such as this, is in any event an unascertained liability, which after the conclusion of the trial of the account suit may not be found to exist at all. From this point of view it is urged that the liability, if any, may be regarded in some degree as contingent on the result of the account suit. I am however of opinion that a liability of this sort cannot be regarded as a contingent liability with in the meaning of sec. 2(8)(i) of the Bengal Agricultural Debtors Act. From the nature of the plaint which was filed in the account suit, it would appear that, if the alleged liability exists at all, it must be a present liability although the precise amount thereof has not been ascertained. The expression “contingent liability” has not been defined in the Bengal Agricultural Debtors Act. In order to ascertain what is meant by the expression “contingent” reference may usefully be made to the definition of “contingent contract” in sec. 31 of the Indian Contract Act, which is as follows:
“A ‘contingent contract’ is a contract to do or not to do Something, if some event, collateral to finch contract, does or does not happen.”
Further, in sec. 21 of the Transfer of Property Act. “contingent interest” is defined as follows:
“Where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property.”
Reference may also be made to the meaning of the expression “contingent” as given in Stroud's Legal Dictionary, which is as follows:
“Anything is contingent when it is liable to failure on the happening or non-happening of an event, condition or stats of things.”
The under-lying idea in connection with the use of the expression “contingent” in sec. 2(8)(i) of the Bengal Agricultural Debtors Act seems to be that the liability in question, which is one of the protected liabilities under the Act, must depend upon some prior occurrence or condition. It cannot be said that the liability, if any, of the Opposite Party to the Petitioner fulfills this requirement. As already pointed put, this liability may possibly be unascertained, but, if it exists at all, it is a present liability which does not in any way depend upon the happening of any other event or the fulfillment of any other condition. The result is that in my opinion, although the learned Munsif was not right in refusing to investigate the question whether the subject-matter of the account suit was or was not excluded from the operation of the Bengal Agricultural Debtors Act, it nevertheless appears on a consideration of the matter that this liability, such as it is, cannot be regarded as a contingent liability and that the debt represented by this liability must be regarded as falling within the scope of the Bengal Agricultural Debtors Act.
The stay order under sec. 34 of the Act must, therefore, be maintained. This rule is accordingly discharged. I make no order as to costs in the Rule.
P.C