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Appeals Nos. 6 and 7 of 1963, decided on 4th August 1965.

, S. 63 read with S. 2‑Words "debt" and "debtor"‑Meaning.

The Banking Companies Ordinance 1962 itself does not define a debt or a debtor: Therefore, the expression "debtor" will have to be understood in its accepted legal connotation. Legally speaking, a person is a "debtor" only in respect of a debt enforceable as such in a Court of law. That is the sense in which the word "debt" is normally understood in legal phraseology.

In accordance with the express terms of the Ordinance, it must be held that a "debtor" is a person whose liability in respect of a debt is enforceable under the law apart from the provision of the Ordinance which has been expressly stated to be subject to "any other law for the time being in force". Thus, a person is not a "debtor" within the meaning of section 63 in respect of any debt which had become barred under any other law of the country.

Stroud's Judicial Dictionary, 3rd Edn, Volume 1, p 733 ; Rawley v. Rawley (1876), 1 Q B D 460 ; Doraisami Padayachi v. Vaithilinga Padayachi I L R 40 Mad. 31 and Burrow's "Words and Phrases Judicially Defined", Volume 2, p. 32 ref.

, S. 63 Trovision furnishes a short‑cut and summary method of enforcing a debt otherwise enforceable by cumberous and dilatory procedure.

Ss. 63 & 73‑Banking Company without presenting any petition for winding up making application under S. 63, for settlement of list of debtors‑Such Company cannot pray in aid provisions of S. 73 merely because it is working under arrangement sanctioned under S.153, Companies Act (VII of 1910.

, O. IX, r. 9‑Execu tion of decree‑Case dismissed for non‑prosecution‑Plain tiff barred to bring fresh suit except upon obtaining condonation of default from Court‑Such application must be made within thirty days of order of dismissal‑Limitation Act (IX of 1908), Art. 163.

Mustafa Karnal with A. S. M. Shamsuzzaman and Nasiruddin Chowdhury for Appellant No. 1.

A. S. If. Shamsuzzaman for Appellant No. 2.

Asrarul Hussain with Rafiqul Huq and Latifur Rahman for Respondent.

Dates of hearing : 3rd and 4th August 1963.

.‑These two appeals under section 72 of the banking Companies Ordinance, 1962 (LVII of 1962) (hereinafter called the Ordinance) are covered by the same judgment as they raise similar points for consideration. They have been heard together by us and this judgment will also dispose of both the appeals. We shall, however, indicate briefly the relevant facts of each of the appeals in so far as they are material for their disposal.

Respondent Comrade Bank Ltd. (Pakistan Zone) applied to this Court under section 153 of the Companies Act for sanctioning and approving a scheme submitted by it for carrying on the business of the Bank. The said scheme was presented on the 7th of April 1952, and was sanctioned and approved by this Court on the 25th of December 1953. It so happened that on the 13th of April 1954, another application was submitted to this Court under the said provision of the Companies Act. According to the Lank the said application was nothing but a prayer for modification of the original scheme sanctioned and approved by this Court. According to appellants it was a fresh application giving rise to a fresh scheme. This point has, however, become immaterial for the purpose of these appeals and we would take leave of it here.

On the 6th of December 1962, an application under section 63 of the Ordinance was presented to this Court for settling a list of debtors in accordance with notices served on persons who, as claimed by the Bank, were its debtors. One Mahmud Ali, appellant in Appeal No. 7 of 1963, was alleged to be one of such debtors. He was made opposite‑parties Nos. 41 and 50. He objected to the inclusion of the alleged debts against him, both in respect of Messrs. M. F. P. and in his personal capacity.

Similarly one Sajjad Ali Choudhury, appellant in Appeal No. 6 of 1963, was one of such objectors.

With regard to Appeal No. 6 of 1963, the claim of the Bank is that the said Sajjad Ali Choudhury was a debtor to the extent of Rs. 20,101. It was contended on his behalf that the Bank instituted, in respect of the said debt, a suit which was dismissed for non‑prosecution. It is claimed that the debt was not merely barred by the law of limitation at the time when the said application under section 63 of the Ordinance was filed in this Court but was also barred by the principles of estoppel and res judicata. This contention was overruled and the claim against Sajjad Ali Choudhury was allowed by this Court.

With regard to Mahmud Ali the claim is in respect of two particular debts, namely, an amount of Rs. 34,171.25 and another sum of Rs. 23,906.75. Admittedly, the B ink had instituted a money suit, being Money Suit No. 60 of 1948, for realising the amount of Rs. 34,171.25 and had obtained a decree in respect of the same. The decree was put into execution and the execution case was dismissed for non‑prosecution. Similarly, the said Bank obtained a decree in respect of Rs. 23,906.75 and the money execu tion case in respect thereof was also dismissed for default. It was contended that the said amount of money was not legally realisable by the Bank in accordance with the processes of law available in this country on the date of the presentation of the application under section 63 of the Ordinance. It was urged that it was not permissible under section 63 to include in the list of the alleged debts a debt which was no longer enforceable at the time when the present application was filed in this Court. It is not necessary to set out the other contentions of this appellant. This Court by a judgment pronounced by Asir, J., on the 27th of August 1963, overruled these contentions and included the aforesaid debts in the list of debtors as aforesaid. Hence these appeals.

The first question which arises before us is, what is meant by the expression "debt" within the meaning of section 63 of the Ordinance in the context of the requirement of the section, namely, to settle a list of debtors Is a person a "debtor" in respect of a debt even if it is unenforceable in accordance with the law of the country apart from section 63 Or, in other words, the question is, does the Ordinance merely provided a new method of realising a normally enforceable debt or does it seek to revive debts which are otherwise barred by law

The Ordinance itself does not define a debt or a debtor. Therefore, the expression "debtor" will have to be understood in its accepted legal connotation. Legally speaking, a person is a "debtor" only in respect of a debt enforceable as such in a Court of law. That is the sense in which the word "debt" is normally understood in legal phraseology.

In Stroud's Judicial Dictionary, Third Edition, Volume 1, page 733, one of the primary meanings of the word "debt" has been stated as follows:

"A debt' is a sum payable in respect of a liquidated money demand, recoverable by action."

This definition of the word "debt" has been quoted with approval in the case of Rawley v. Rawley ((1876) 1 Q B, D 460).

In the case of Doraisami Padayachi v. Vaithilinga Padayachi (I L R 40 Mad. 31) a Full Bench of the Madras High Court was called upon to construe the meaning of the word "debt" with regard to a particular document. The Full Bench, in giving its opinion, observed:

"We think that the word debt' used in this context must be taken to have been used in its ordinary meaning of a sum payable in respect of a money demand recoverable by action."

In Burrows' "Words and Phrases Judicially Defined" Volume 2, page 32, a Canadian decision in the case of Diewold v. Diewold (1941 S C R 35) is quoted, wherein the word "debt" was construed thus:

" The word debt' is defined in Stroud's Judicial Dictionary as 'a sum payable in respect of a liquidated money demand, recoverable by action'."

It is important to remember the provisions of section 2 of the Ordinance which reads thus:

"The provisions of this Ordinance shall be in addition to, and not, save as hereinafter expressly provided in derogation of, the Companies Act, 1913 (VII of 1913), and any other law for the time being in force."

It must necessarily follow that, in accordance with the express terms of the Ordinance as quoted above, it 'must be held that a "debtor" is a person whose liability in respect of a debt is enforce able under the law apart from the provision of the Ordinance which has been expressly stated to be subject to "any other law for the time being in force." Thus, a person is not a "debtor" within the meaning of section 63 in respect of any debt which had become barred under any other law of the country.

If the scheme of the enactment is considered, it would be apparent that the intention of the Legislature was not to revolutionise the legal concept of an enforcable debt but to provide for a speedier and easier mode of realising debts. Section 63 of the Ordinance, furnishes a short‑cut and summary method of enabling a banking company to enforce a debt which would have been otherwise enforceable by a somewhat cumbrous and dilatory procedure.

Mr. Asrarul Hussain has contended that the law of limitation does not extinguish the debt but merely bars the remedy. This is so and one need not quarrel with a well‑settled proposition. See, for instance, Sultan Muhammad v. Ladha Singh (A I R 1926 Lah. 633). But, such an enquiry is irrelevant under the present context. If the remedy is barred, the debt becomes unenforceable as a debt. We have seen that under section 63 of the Ordinance there is ‑no "debtor" in respect of an unenforceable debt.

Our attention was invited to the provisions of subsection (1) of section 73 of the Ordinance, which runs thus:

"73. Special period of limitation.‑(1) Notwithstanding anything contained in the Limitation Act, 1908 (IX of 1908), or in any other law for the time being in force in computing the period of limitation prescribed for a suit or application by a banking company which is being wound up, the period commencing from the date of the presentation of the petition for the winding- up of the banking company shall be excluded."

It is obvious that the concession given in section 73 (1) of the Ordinance is in respect of a suit or an application filed by a banking company. The section is attracted only when the said banking company is being wound up by a petition specifically and expressly directed towards its winding up and that it does not come into operation when the indirect result of some other kind of scheme is to effect a winding‑up of the said company. Mr. Asrarul Hussain has argued that an arrangement or scheme under section 153 of the Companies Act may effect a winding‑up of a banking company and that, in such a sense,‑ section 153 can be treated as an alternative mode of winding‑up. It may be that an arrangement under the said section 153 may result in such winding‑up and it may be permissible to say, in such a limited sense, that a company can be wound up under the provisions of section 153. But, this is not the kind of winding‑up contemplated by section 73 of the Ordinance which speaks of presentation of a petition to that effect, namely, specifically for such purpose. An application under section 153 of the Companies Act is not presentation of a petition for winding‑up of a banking company although it may lead to such a result. Section 73 (1) of the Ordinance is couched in the following terms:

" ... . the period commencing from the date of the presentation of the petition for the winding ‑up of the banking company shall be excluded."

This presupposes that the winding‑up is in consequence of a petition for such an express purpose.

We are, therefore, clear in our minds that a banking company which has not presented a petition for winding‑up cannot pray in aid the provisions of section 73 merely because it is working under an arrangement sanctioned under section 153 of the Companies Act. This disposes of the contention raised on behalf of the respondent Bank on this point. In the present case there has been no petition presented for the winding‑up of the Comrade Bank Limited.

In settling a list of debtors there is no warrant for allowing debts which have already become barred. With this preface the contention of the appellant, in Appeal No. 6 of 1963, is, that the sole debt which is claimed against him appertains to a debt in respect of which a suit was brought and dismissed for non‑prosecution. The appellant has assailed the inclusion of his name in the aforesaid list of debtors on two scores: In the first place, he has contended that even if the aforesaid suit in respect of such a debt is ignored and one proceeds on the footing that no suit has been brought, the claim became barred, beyond any dispute, at the time when the application was made under section 63 of the Ordinance.

On behalf of the respondent Bank it has been faintly urged that under section 73 of the Ordinance the debt would be still enforceable. It is difficult to follow the logic of this conten tion. We have already seen that section 63 does not purport to revive a time‑barred debt. Moreover, an application under section 153 of the Companies Act simplicited does not amount to presentation of petition for winding‑up. Therefore, the respondent Bank cannot pray in aid section 73 of the Ordinance in making an application under section 63 thereof.

M. Mustafa Kamal has further contended on behalf of the appellants that principles of estoppel analogous to those of res judicata would also bar any suit for enforcement of the aforesaid debt having regard to the fact that a prior suit was, in fact dismissed for non‑prosecution. He has submitted that a person, cannot be allowed to re‑agitate an issue which he has specifically raised in a suit but did not allow an adjudication upon it. The gist of his argument is that when one has raised a fight he is not allowed to run away from it and fight the battle again. Having regard to the finding we have already recorded above, we are not called upon to give a decision on this point.

We now turn to the next appeal, that is, Appeal No. 7 of 1963: In this case, appellant has urged, as it will be seen from what has been stated above, that the debts claimed against him are in respect of two items with regard to which the above‑mentioned suits were brought and the said decrees were obtained. The decrees were put into execution and the execution cases were dismissed for non‑prosecution. That being so, it is clear that under the provisions of Order IX, rule 9 of the Code of Civil Procedure, the respondent Bank is barred from bringing fresh suits except upon obtaining an order of condonation from the Court on the ground that for good reasons they were prevented from prosecuting the case. It should be remembered that such an application must be made within thirty days from the date of the order of dismissal. This Court cannot ignore the fact that a considerable period elapsed between the aforesaid order of dismissal and the application made under section 63 of the Ordinance. It has been argued that even now the Bank can apply to the Court to have the order of dismissal set aside. We do not think that such a situation is possible. It is impossible for any Court to make such an allowance in favour of the respondent Bank.

Apart from the provisions of Order IX, rule 9, of the Code of Civil Procedure, the respondent Bank would be hit by another principle of law. Having put a decree into execution and having allowed the execution case to stand dismissed, it is not permissible for the respondent Bank to sleep for such long years. The Bank cannot, at this interval enforce the debt.

Asir, J., has disposed of the point raised, on behalf of this appellant, with regard to Order IX, rule 9, of the Code of Civil Procedure, by saying that an application under section 63 of the Ordinance is not a suit. The crucial point is that the alleged debts cannot now be enforced by way of a suit or by way of executing former decrees after such a long interval.

We are not saying that section 73 of the Ordinance will not be available to an applicant under section 63 thereof; but, we do say that in this particular case the arrangement sanctioned under section 153 of the Companies Act does not amount to presentation of a petition for winding‑up. The provisions of section 73 of the Ordinance are, therefore, not available to the respondent Bank.

The result is that we hold that the appellants cannot be held to be "debtors" of the respondent Bank within the meaning of section 63 of the Ordinance.

Both the appeals are, therefore, allowed without, however, any order as to their costs. The judgment and order passed by this Court on the 27th day of August, 1963, in Company Matter No. 32 of 1962 are hereby set aside only in so far as they affect the appellants before us. We' direct that the appellants be excluded from the list of debtors settled under section 63 of the Ordinance and that the certificates issued under the said section in respect of the appellants be recalled.

.‑I agree.

S. Q. Appeals allowed.

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