Civil Appeal No 465 of 1985
From the Judgment and Order dated 2091983 of the Andhra Pradesh High Court in Appeal No 858 of 1976
G Ramaswamy Additional Solicitor General and P HParekh for the Appellant
TVSN Chari Ms Vrinda Grover Charanjeet VD Miracee and BP Maheshwari for the Respondents
The Judgment of the Court was delivered by DUTT J
This appeal by special leave is at the instance of the appellant the Bank of India a nationalised Bank and is directed against the judgment and decree of the Andhra Pradesh High Court in so far as they direct that the appellant is entitled to recover the amounts claimed by it against the respondent firm only after the scaling down of the debt in accordance with the provisions of the Madras Agriculturists Relief Act IV of 1938 which after the creation of the State of Andhra Pradesh was made applicable to that State as the Andhra Pradesh Andhra Area Agriculturists Relief Act IV of 1938 hereinafter referred to as the Act 
965 The appellant Bank filed a suit being OS No 12 of 1979 in the Sub Court Eluru on February 10 1975 against the respondents including the respondent firm and its partners to recover a sum of Rs181481791 being the balance inclusive of interest of three principal amounts of Rs300000 Rs700000 and Rs80000 severally advanced by the Bank to the firm under cash credit account on 28 11 1967 3 4 1968 and 17 2 1972 respectively
It may be noticed here that the Bank was nationalised on July 7 1969 under the Banking Companies Acquisition and Transfer of Undertakings Act V of 1970 hereinafter referred to as the Banking Companies Act 
The sum of Rs80000 was admittedly advanced by way of loan by the Bank after its nationalisation
The respondent firm owns certain motor vehicles which are mentioned in A and Schedules to the plaint of the said suit
The firm was carrying on its business at Madras as fleet owners and gasolene carriers
It had two partners namely one section Doranna Choudhury since deceased the father of the respondent No 3 and the respondent No 2 Sunkavali Rajlaxmi
The case of the Bank was that in addition to the hypothecation of the A and Schedule properties made in its favour to secure the repayment of the aforesaid amounts of loan the other partner the respondent No 2 created an equitable mortgage in favour of the Bank on December 22 1969 in respect of C Schedule properties of the plaint
section Doranna Choudhury since deceased also created an equitable mortgage in favour of the Bank on February 28 1970 in respect of D Schedule properties of the plaint
The respondent No3 also created another equitable mortgage on September 6 1974 in respect of E Schedule properties of the plaint
The respondents No 4 to 12 are alienees of the mortgaged properties
In the suit the Bank prayed for the sale of the said properties for the recovery of the amounts claimed by it on account of the loan together with interest due thereon
The respondents including the firm contested the suit by filing written statements inter alia denying the creation of any equitable mortgage by the deceased partner and the respondents Nos 2  3 in favour of the Bank
The respondents Nos 4 to 12 the alienees while denying the creation of the mortgages contended that they were bona fide purchasers for valuable consideration and the Bank was bound by the alienations and transfers made in their favour of the properties alleged to be under mortgage
The firm and its partners namely the said section Doranna and the respondent No 2 also filed a counter claim against the Bank for a sum of Rs3448799
It is not necessary for us to 966 state in details the respective cases of the parties including the case of the firm and its partners in making the counter claim against the Bank inasmuch as the scope of this appeal is limited to the consideration of the question as to whether the High Court was justified in decreeing the Bank s claim only after the scaling down of the debt in accordance with the provisions of the Act
Be that as it may the learned Subordinate Judge held that no equitable mortgage was created in favour of the Bank and accordingly dismissed the suit against the respondents Nos 4 to 12 and refused to direct sale of the properties alleged to have been mortgaged to the Bank
The learned Subordinate Judge also found that the claim of the Bank except to the extent of Rs10041855 was barred by limitation
The counter claim of the firm and its partners for the sum of Rs3448799 was decreed and the Bank was directed to pay the same to the firm and its partners
Being dissatisfied with the judgment and decree of the learned Subordinate Judge the Bank preferred an appeal to the High Court
The High Court after elaborately considering the facts and circumstances of the case and the evidence adduced by the parties set aside the judgment and decree of the learned Subordinate Judge including the decree allowing the counter claim of the firm and its partners and decreed the suit instituted by the Bank
In decreeing the suit the High Court held that the Bank was entitled to recover the amount claimed by it only after the scaling down of the debt in accordance with the provisions of the Act
Hence this appeal
The Act contains provisions granting reliefs to indebted agriculturists
One of such reliefs is that as contained in section 13 of the Act providing for the scaling down of the debt of an agriculturist
It is not disputed that the partners of the respondent firm are agriculturists
Mr G Ramaswamy learned Additional Solicitor General appearing on behalf of the appellant Bank submits that in view of section 4e of the Act the provisions of the Act were not applicable to the Bank and as such the Bank was entitled to recover the entire amount without the same being scaled down as provided in section 13 of the Act
Before the High Court also the Bank placed reliance on the provision of section 4e of the Act but the High Court negatived the contention relying upon a Division Bench decision in Indian Bank Alamuru vs Krishna Murthy AIR 1983 Andhra Pradesh 347
We shall presently refer to that decision but before we do that it is necessary to 967 refer to the provision of section 4e of the Act which is extracted below S4
Nothing in this Act shall affect debts and liabilities of an agriculturist falling under the following heads                       e any liability in respect of any sum due to any cooperative society including a land mortgage bank registered or deemed to be registered under the Andhra Pradesh Andhra Area Co operative Societies Act 1932 or any debt due to any corporation formed in pursuance of an Act of Parliament of the United Kingdom or of any special Indian law or Royal Charter or Letters Patent
 In view of section 4e the provisions of the Act will be inapplicable to any debt due to any corporation formed in pursuance of an Act of Parliament of the United Kingdom or any special Indian law or Royal Charter or Letters Patent
The question is whether the Banking Companies Act by or under which the appellant Bank was constituted is a special Indian law  or not
It is submitted on behalf of the Bank that the words special Indian law  in section 4e of the Act refers and relates to law made by an Indian Legislature
It is not disputed that the Banking Companies Act is a special law enacted by the Indian Parliament
It has however been urged by Mr Mirasee learned Counsel appearing on behalf of the respondents that the said words mean a special Indian law enacted by the Parliament of the United Kingdom
Indeed in Krishna Murthy s case supra it has been held by the Andhra Pradesh High Court that section 4e while speaking of any special Indian law is only speaking of special Indian law made by the British Parliament as different from any Act enacted by the British Parliament that might have application to India also in common with the rest of the British colonies
The learned Counsel while placing strong reliance upon the said interpretation of the words special Indian law  as made in Krishna Murthy s case supra also submits that the expression should be interpreted in the light of the setting of the same in the words of the provision of section 4e
In support of the contention the learned Counsel has drawn our attention to an obser 968 vation made by this Court in RL Arora vs State of Uttar Pradesh  that a literal interpretation is not always the only interpretation of a provision in a statute and the court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would control the literal meaning of the words used
Accordingly it is submitted by the learned Counsel that as the words special Indian law  are placed after the words an Act of Parliament of the United Kingdom  and before the words Royal Charter or Letters Patent  it must be held in view of the setting that the expressionspecial Indian law  refers or relates to a special law enacted by an Act of British Parliament for India
We are unable to accept the contention
It may be that interpreting the words of the provision of a statute the setting in which such words are placed may be taken into consideration but that does not mean that even though the words which are to be interpreted convey a clear meaning still a different interpretation or meaning should be given to them because of the setting
In other words while the setting of the words may sometimes be necessary for the interpretation of the words of the statute but that has not been ruled by this Court to be the only and the surest method of interpretation
In the instant case the expression special Indian law  has a clear and unambiguous meaning and there is no need for its interpretation
There is no reasonable justification to think that the expression special Indian law  must be an enactment of the British Parliament
If on the date the Act was passed there was no Indian Legislature such an interpretation might be justified but when there were existence of Indian Legislatures including a Legislature at the Centre it would be quite unreasonable to think that special Indian Law  must be a law enacted by the British Parliament
In this connection we may refer to section 327a of the  which defined Indian law  as meaning any Indian law enacted by the Indian Legislature
In view of the said definition the expression special Indian law  means a special Indian law enacted by the Indian Legislature
In the face of the provision of section 327a of the  as it stood on the day the Act was passed we do not think that there is any justification for laying down that the expression special Indian law  in section 4e of the Act means a law enacted by the British Parliament specially for India
We are therefore unable to accept the view of the Andhra Pradesh High Court in Krishna Murthy s case supra and also the contention of the respondents made in that regard which is rejected
969 The next contention made on behalf of the respondents is that even assuming that the expression special Indian law  means a law enacted by the Indian Legislature and that the Banking Companies Act is such a law still the provision of section 4e of the Act will not apply inasmuch as the appellant Bank was not formed in pursuance of any special Indian law  but by or under a special Indian law  that is the Banking Companies Act
It is submitted that there is a good deal of distinction between the formation of a corporation in pursuance of  and by or under  a special Indian law
It is urged as the appellant Bank has been formed by or under and not in pursuance of the Banking companies Act
it is not a corporation within the meaning of section 4e of the Act
In support of this contention the respondents have placed reliance on Krishna Murthy s decision where it has been observed that the words in pursuance of  refer to the action taken under the law and not by the law itself and that the phrase formed in pursuance of  in section 4e signifies a process of formation of a corporation under the law and not by the law itself
Further it has been observed that the words in pursuance of  can be said to have been used appropriately by the Legislature only to signify the activity or formation of a corporation carried on by an intermediary third party acting under a law as different from an activity of formation carried on by that law itself
We are afraid such a narrow and technical interpretation of the words in pursuance of  is contrary to the intention of the Legislature
Although theoretically there may be a distinction between the words in pursuance of  and the words by or under  but by using the expression in pursuance of  in section 4e the Legislature in our opinion has not meant that the corporation in question should be formed by a third party in pursuance of the law and not by the law itself in order to come within the purview of section 4e of the Act
The intention of the Legislature is very clear in that the provision of section 4e would apply to a corporation which is the creature of a special Indian law whether it is created in pursuance of or by or under the special Indian law
There is no difference or distinction whatsoever between the corporation formed in pursuance of a special Indian law and a corporation formed by or under a special Indian law
It will be highly unreasonable and illogical to think that as a corporation has been formed by or under a special Indian law and not in pursuance of such a law it will not come within the purview of section 4e of the Act
Accordingly we hold that the Banking Companies Act is a special Indian law and the provision of section 4e is applicable to the appellant Bank
The learned Counsel for the respondents has drawn our atten 970 tion to the fact that the Banking Companies Act was first formed or created by the Ordinance VIII of 1969 promulgated on July 19 1969
The Ordinance was replaced by an Act of Parliament being Act XXII of 1969 with certain modifications
This Court however in RC Cooper vs Union of India  struck down the Act XXII of 1969 as unconstitutional
Thereafter a fresh Ordinance being Ordinance No III of 1970 was promulgated on February 14 1970 with certain further modifications and thereafter replaced by the present Banking Companies Act
It is submitted that as the appellant Bank was nationalised andor created under the Ordinance VIII of 1969 promulgated on July 19 1969 and the present Banking Companies Act only ratifies the already created Bank under the said Ordinance the appellant Bank was not therefore formed or created under any special Indian law
This contention is devoid of any merit and fit to be rejected on the face of it
Even assuming that the Bank was created under the Ordinance VIII of 1969 and not under the Banking Companies Act still it must be held that it was created under a special Indian law for an ordinance is as much a law as an enactment of Parliament or Legislature
In this connection it may also be pointed out that under sub section 2 of section 1 of the Banking Companies Act the provisions of the Banking Companies Act except section 21 which shall come into force on the appointed day shall be deemed to have come into force on July 19 1969
Sub section 1 of section 3 of the Banking Companies Act provides that on the commencement of the Banking Companies Act there shall be constituted such corresponding new Banks as are specified in the First Schedule
Therefore it is manifestly clear that the appellant Bank which is mentioned in the First Schedule has been created under the provisions of the Banking Companies Act with effect from July 19 1969
The contention of the respondents that the Bank has been nationalised or formed under the Ordinance VIII of 1969 is without any substance whatsoever and is rejected
We may refer to a decision of this Court in Life Insurance Corporation of India vs Kota Ramabrahmam  Gupta J while delivering the judgment of the Court observes that there is no dispute that the corporation established under the is a corporation as contemplated by section 4e of the Act
This decision has been strongly relied upon by the respondents in support of their contention that as the major part of the loan that is to say a sum of Rs 1000000 was contracted before the nationalisation of the appellant Bank the provision of section 4e is not applicable
In Life Insurance Corporation s case the loans were 971 advanced by the Andhra Insurance Company of Masulipatanam and by Nagpur Pioneer Insurance Company Limited Bombay admittedly before the creation of the Corporation under the and it was held by this Court that the debts due to the insurers in these two cases were liable to be scaled down in accordance with the provisions of the Act
In the instant case the amounts of loan were advanced by the Bank to the firm under the cash credit account opened in favour of the firm
Normally the advances that are made from the cash credit account are repaid and thereafter fresh advances are made
It is not known what was the actual balance on the date the Bank was nationalised
It is true that in the judgment of the High Court it has been stated that the principal amounts of Rs300000 Rs700000 and Rs80000 were severally advanced by the Bank to the firm under the cash credit account on 28 11 1967 3 4 1968 and 17 2 1972 respectively
But there is no further statement whether the first two amounts were repaid by the firm and thereafter fresh advances were taken out of the cash credit account
The respondents did not advance any such contention either in their written statements or in the arguments before the Trial Court and the High Court
It is for the first time before this Court that such a plea is raised in the argument of the learned Counsel for the respondents
The contention involves a question of fact which has to be pleaded and proved
In the absence of any such pleading we are unable to allow the respondents to raise such a contention for the first time in argument before this Court
At this stage it may be stated that in Krishna Murthy s case supra it has been held by the Division Bench that the latter part of section 4e of the Act containing the words any debt due to any Corporation formed in pursuance of an Act of Parliament of the United Kingdom or any special Indian law or Royal Charter or Letters Patent  is offensive to Article 14 of the Constitution and accordingly void
The learned Counsel for the respondents submits that in view of the decision in Krishna Murthy s case this Court should declare the latter part of section 4e of the Act to be void as offending Article 14 of the Constitution although no such point has ever been taken by the respondents up to this Court
On the other hand it is submitted by the learned Additional Solicitor General that the said finding of the Division Bench in Krishna Murthy s case to the effect that the latter part of section 4e of the Act is void is erroneous
The reasons given by the Division Bench of the Andhra Pradesh 972 High Court in Krishna Murthy s case for holding the latter part of section 4e of the Act as void are that section 4e of the Act was enacted to protect the British economic interests and although such a law could permissibly be enacted under the Constitutional Scheme of the 1953 Government of India Act that law after the inauguration of our Sovereign Democratic Republic cannot but be held to have become void as making invidious discrimination in favour of the British Corporation offending against the equality clause under Article 14 of the Constitution
Before declaring the same as void the Division Bench took the view that the words any special Indian law  could not have been intended to refer to any law made by any Legislature of our country but to a law made by the British Imperial Parliament as a piece of special legislation applicable to India
It has already been discussed by us that the words any special Indian law  refers and relates to a law made by the Indian Legislature and not by the British Parliament
In that view of the matter the reasons given by the Division Bench for holding the latter part of section 4e to be void as making a discrimination in favour of corporations created by British Parliament will not apply to corporations formed or created by any special Indian law which in the instant case is the Banking Companies Act
In our opinion therefore the Banking Companies Act is quite legal and valid
No other point has been urged by either party in this appeal
In view of the discussion made above we hold that the provisions of the Act are not applicable to the appellant Bank and therefore there is no question of scaling down the debt due to the Bank by the respondents
For the reasons aforesaid the judgment and decree of the High Court in so far as the same direct the scaling down of the debts due to the Bank by the respondents are set aside
The Bank will be entitled to realise the amount decreed in its favour by the High Court without any scaling down of the same under the provisions of the Act
The appeal is allowed
There will however be no order as to costs in this Court
NPV Appeal allowed


Summary:
 The respondent landlord sought eviction of the appellant tenant on the ground of having sub let without written consent the portion in his occupation in favour of Ms RC Abrol  Co The appellant resisted the petition for eviction contending that it was not maintainable in the absence of a notice to quit while determining the tenancy that there was no sub letting or parting of possession by the appellant in favour of Ms RC Abrol  Co in view of Clause 14 of the Lease agreement which provided That the lessee undertakes not to sub let the premises to any other party without the written permission of the lessor and that the lessee s contractors Ms
RC Abrol and Co will share the premises with the permission of the lessor
The Rent Control Tribunal ordered eviction of the appellant on the ground of sub letting
The High Court dismissed the Second Appeal of the appellant and confirmed the decision of the Rent Control Tribunal ordering eviction
In the appeal to this Court by special leave it was contended for the appellant that there was no sub letting or parting of possession by the appellant tenant in favour of Ms RC Abrol  Co P Ltd and that if there was sub letting that had been made with the written consent of the landlord
Dismissing the Appeal  HELD 1
Sections 141 proviso b 162 and 3 of the Delhi Rent Control Act 1958 require the tenant to obtain consent of the landlord in writing for sub letting of the premises
The purpose of such written consent was that it would cut out litigation on this ground
Mere permission or acquiescence would not do
The consent must be to the specific sub letting and must be in writing
There is no implied permission
1026A 1028D 1024 South Asia Industries Private Ltd vs section Sarup Singh  others  referred to
Raja Ram Goyal vs Ashok Kumar and others  Kartar Singh vs Shri Vijay Kumar and Another and Ms Delhi Vanaspati Syndicate Delhi vs Bhagwan Dass Faquir Chand approved
Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his individual capacity
Waiver is a question of fact which has to be decided by facts and evidence
1029C Chaplin vs Smith 1926 1 King s Bench Division 198 referred to
In the instant case there was no question of waiver
There was no conscious relinquishment of the advantage of any statute
No Court has gone into this fact
It does not seem to have been urged before the High Court also
As this requirement of the statute is in the public interest there cannot be any question of waiver of a right dealing with the rights of the tenants or the landlord
1029D 3
To constitute sub letting there must be parting of the legal possession
Parting of the legal possession means possession with the rights to include and also the right to exclude others
This is a question offact
1032B Mehta Jagjivan Vanechand vs Doshi Vanechand AIR 1972 Gujarat 6 referred to
In the instant case exclusive possession was given to the sublessee RC Abrol  Co and the tenant has transferred the right to possess in that portion
It is clear that the sub letting was done wihout the consent in writing of the landlord
There was therefore an inevitable breach of the covenant
The High Court was therefore right in upholding the order of the Rent Control Tribunal and directing eviction of the appellant
1032G 1033A