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Parmanand JaIn Vs. Firm Babulal Rajendra Kumar JaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal Nos. 111 and 153 of 1971
Judge
Reported inAIR1976MP187
ActsStamp Act, 1899 - Sections 35 and 44; Hindu Law; Code of Civil Procedure (CPC) , 1908 - Order 20 and 20(2), Rule 11(2)
AppellantParmanand Jain
RespondentFirm Babulal Rajendra Kumar JaIn and anr.
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateB.C. Verma, Adv.
Cases ReferredFaquir Chand v. Harnam Kaur
Excerpt:
- - firm jasroop srinath, air 1948 nag 173). it is well established',said the supreme court in gordon woodroffe and co. we are clearly of opinion that on the evidence produced the defendants have failed to make out that the plaintiff is a moneylender.singh, j. 1. this judgment shall also dispose of first appeal no. 153 of 1971. the facts giving rise to these appeals are that the plaintiff parmanand jain filed a suit on 9th october, 1968 for recovery of a sum of rs. 10,041 against the defendants choudhary babulal and his son rajendra kumar. the plaintiff alleged that the defendants borrowed from him on 24th november 1967 a sum of rs. 9,081 at 12 per cent interest. it was further alleged that the defendant babulal executed a hand-note on the same date in the plaintiff's favour. the plaintiff in addition to the principal amount of rs. 9,081 claimed interest amounting to rs. 954 upto the date of the suit at 12 per cent and rs. 6 as notice charges. the decree against rajendra kumar was claimed on the basis that the defendants carried on a.....
Judgment:

Singh, J.

1. This judgment shall also dispose of First Appeal No. 153 of 1971. The facts giving rise to these appeals are that the plaintiff Parmanand Jain filed a suit on 9th October, 1968 for recovery of a sum of Rs. 10,041 against the defendants Choudhary Babulal and his son Rajendra Kumar. The plaintiff alleged that the defendants borrowed from him on 24th November 1967 a sum of Rs. 9,081 at 12 per cent interest. It was further alleged that the defendant Babulal executed a hand-note on the same date in the plaintiff's favour. The plaintiff in addition to the principal amount of Rs. 9,081 claimed interest amounting to Rs. 954 upto the date of the suit at 12 per cent and Rs. 6 as notice charges. The decree against Rajendra Kumar was claimed on the basis that the defendants carried on a joint business of Adhat in the name of Babulal Rajendra Kumar and the loan was taken for this business. The defendant Rajendra Kumar pleaded that he had nothing to do with the suit transactions and that the business carried on by Babulal was this separate business. The defendant Babulal pleaded that the plaintiff carried on the business of moneylending, that the plaintiff used to deposit in the defendant's shop cash from time to time, and that on 24th November 1967 the account of the deposits made by the plaintiff was gone into and Rs. 9,081 were found due against the defendant. According to Babulal's case, the hand-note was executed for this amount which was found due after accounting and that nothing in cash was advanced as loan on that date to the defendants. It was also pleaded that the hand-note amounted to a bond and being understamped was invalid. It was further pleaded that the amount of the bond included interest to which the plaintiff was not entitled as he never sent annual accounts to the defendant as required under the law.

2. The trial Court held that no cash was advanced to the defendants on 24th November 1967, and that the amount of Rs. 9,081 was found due after the previous accounts between the parties were gone into. It was also held that the plaintiff was a money-lender and that as he did not send annual accounts as required under the Money Lenders Act, he was notentitled to any interest. The Court further held that the hand-note amounted to bond. The document was, however, admitted after payment of duty and penalty. As regards Rajendra Kumar, the Court held that he was also liable. In view of these findings, the trial Court decreed the suit for the sum of Rs. 9,081 with interest pendente lite at the rate of 4 per cent on the condition that the plaintiff should produce a valid registration certificate under the Money Lenders Act within two months from the date of the decree. The parties were directed to bear their own costs. It is against this decree that the plaintiff has filed First Appeal No, 111 of 1971 and the defendants have filed First Appeal No. 153 of 1971. As both the parties have come up in appeal, the entire controversy is again open in this Court.

3. The first question to be decided in this case is whether the plaintiff is a money lender. The plaintiff has examined himself as P.W. 1. His statement is that he is a farmer and that he used to sell his agricultural produce in the Adhat of the defendants who carried on Adhat business. The sale price of the agricultural produce sold by him in the Adhat used to remain lying with the defendants on which they paid interest. The plaintiff has further stated that he used to obtain from the defendants from time to time as much money as he needed from his account. The plaintiff has also stated that he does not do any money lending business. As regards the transaction in suit, the plaintiff's case is that two days before 24th November 1967 the parties settled their accounts and the; plaintiff received Rs. 9,081 which he advanced as loan on that date to defendants and the defendant Babulal executed the hand-note Ex. P-1 promising to repay that amount at 12 per cent interest. The plaintiff admitted in cross-examination that on 10th October 1966 there was a similar transaction and after the accounts were gone into the plaintiff received Rs. 8,000 from the defendants which he advanced as loan to them on a hand-note executed by the defendant Babulal. The said hand-note is Ex. D-1. Babulal examined himself as D.W. 4. He has stated that the plaintiff used to sell foodgrains in his Adhat and he also used to deposit cash from time to time. Babulal has further stated that six monthly accounts used to be settled and he used to give hand-notes in respect of the amount found due in favour of the plaintiff. Babulal has alsostated that the plaintiff did not advanceany cash loan either on 24th November, 1967 when Ex. P-1 was executed, or on 10th October 1966 when Ex. D-1 was executed. On a consideration of the evidence, it appears to us that no cash was advanced by the plaintiff to the defendants either on 10th October 19.66 or on 24th November 1967. The fact appears to be that on these dates the parties settled the accounts of the sale-proceeds of the agricultural produce which the plaintiff used to sell in the defendant's Adhat and in respect of the amount found due in favour of the, plaintiff the defendant Babulal executed the hand-notes Ex. D-1 and Ex. P-1. It also appears that when Ex. P-1 was executed the old hand-note Ex. D-1 was returned to the defendants. However, we do not accept the statement of Babulal that the plaintiff used to deposit cash in his shop or that the accounts used to be settled six monthly. The defendants' books of account have been produced in Court. But the learned counsel for the defendants frankly admitted before us that in the Rokad the sale-proceeds of agricultural produce are also shown as cash transaction and that on the basis of the accounts produced it cannot be said whether any particular item was a cash advance or an entry relating to sale price of the plaintiff's agricultural produce sold in the defendants' Adhat. The examination of the accounts produced by the defendants goes to show that they have not produced the Nakal Bahi relating to sale of the agricultural produce. Had that Bahi been produced, it could possibly have been found out whether all the transactions in the Rokad relate to sale of agricultural produce or whether the plaintiff on any occasion made any cash deposit with the defendants. We may here mention that the defendants have produced those entries of the Nakal Bahi which relate to calculation of interest. But the entries relating to the sale of agricultural produce have not been produced. The non-production of the relevant entries of the Nakal Bahi is a circumstance which goes against the case of the defendants that the plaintiff apart from selling his agricultural produce or other foodgrains in the Adhat of the defendants also used to make cash advances or cash deposits. Certain entries in the Rokad purport to be signed by the plaintiff, but the signatures have neither been proved nor put to the plaintiff. The alleged cash deposits have also not been put to the plaintiff in his cross-examination. Our conclusion, therefore, is that the plaintiff never made any cash deposit in the defendants' shop nor did he make any cash advance to the defendants.

4. The letters Exs. P-4 and P-6 written by the defendant Babulal to the plaintiff go to show the nature of the dealings between the parties. Babulal's business was of an Adhatia. The plaintiff is a farmer. The plaintiff used to send his agricultural produce to the defendants for being sold. After selling the same the defendants used to intimate the plaintiff that his goods have been sold at a particular rate. After the plaintiff's goods were sold, the defendant used to enter the price payable to the plaintiff in the Rokad. The plaintiff used to receive the price of his goods as and when needed and the defendants used to pay on the balance remaining with them interest at the rate of 9 or 12 per cent. On 10th October 1966 the parties went through the accounts and the defendant Babulal executed the hand-note Ex. D-1, promising to repay Rs. 8,001 at 12 per cent interest. Ex. D-1 states that the amount has been obtained in cash from the plaintiff. Again on 24th November 1967 the accounts were gone into and Babulal executed another hand-note Ex. P-1 in which he promised to repay Rupees 9081 with interest at 12 per cent. This document also mentions that the amount was obtained in cash from the plaintiff. The question to be decided on the basis of these dealings is whether the plaintiff carried on the business of money-lending. But before we direct our attention to this point it is necessary to discuss some other evidence which the defendants have produced to show that the plaintiff carried on money lending business.

5. Kamlesh Kumar (D.W. 2) has stated that on 2nd December 1970 he obtained a sum of Rs. 200 as loan from the plaintiff at the interest rate of 2 per cent per week, and that he repaid the same after a week. The witness produced a receipt Ex. D-2 dated 9th December, 1970. The whole of the receipt except the signature is in the handwriting of the witness. The plaintiff has denied that he ever advanced any loan to Kamlesh Kumar. His explanation about the receipt is that it has been forged on some paper which bore his signature and which the defendants have somehow managed to obtain. We have seen the receipt. The receipt shows that the gap between the lines has gradually increased towards the end and a conscious effort has been made to complete the writing above the signature. Even then there is a considerable gap between the signature and theend of the body writing. Further, the body writing when compared with the signature appears to be in a different ink, The paper of Ex. D-2 is torn from the top. The appearance of the document supports the case of the plaintiff that the receipt was scribed on a piece of paper which was already signed by him. Kamlesh Kumar (D.W. 2) in his cross-examination stated that he has no other document except Ex. D-2, although he obtained loans from the plaintiff on various occasions and repaid those loans after obtaining similar receipts. The explanation that he offered for non-production of other receipts is that all those receipts have been lost The evidence of Kamlesh Kumar read as a whole does not inspire any confidence, and, in our opinion, he is not a truthful witness. Another witness produced by the defendants in the same context is Jeewan Kumar (D.W. 3). His evidence is that in September 1967 the plaintiff told him that if he did not want to retain the sale-proceeds of the plaintiff's foodgrains sent to him for sale, he may send the same to Singhai Rajaram Tulsirain on which he sent Rs. 8,000 to Singhai Rajaram's shop in the account of the plaintiff. The evidence of Jeewan Kumar (D.W. 3) does not show that any loan was advanced to him by the plaintiff. It may incidentally be mentioned that Jeewan Kumar is brother-in-law of the defendant Babulal. Singhai Komalchand who carries on business in the name of Singhai Rajaram Tulsiram has been examined as D.W. 5. He admits to have received a sum of Rs. 8,000 on 29th September 1967 from Jeewan Kumar in the account of the plaintiff. He states that the plaintiff recovered this amount in three or four instalments. He further states that there was no agreement to pay interest, but he paid interest to the plaintiff amounting to Rs. 263.90 at the rate of 12 per cent because he had utilised the money in his shop and had profited from it and he could have got deduction of interest in income-tax assessment. The witness states that the plaintiff did not demand any interest and that it was on his request that the plaintiff accepted to take interest. Reading the statement of Komalchand it cannot be said that his evidence establishes any advance of loan from the plaintiff to him. Another witness produced by the defendants is Bhagwandas (D.W. 6). This witness states that the plaintiff carries on regular business of money-lending and advances loans to all and sundry. The witness states that he himself took loan from the plaintiff tenyears before, i.e. in 1961. The cross-examination of the witness shows that he came to depose on the asking of one Jagannath Singh. The evidence of Bhagwandas does not inspire any confidence. We may further mention that the alleged transactions of loan deposed to by Komalchand (D.W. 5) and Bhagwandas (D.W. 6) were not put to the plaintiff to obtain his explanation. In our opinion, the evidence discussed above does not establish that the plaintiff apart from his dealings with the defendants carried on any business of money lending.

6. The question now to be examined is whether the plaintiff's dealings with the defendant Babulal go to show that he was carrying on any money lending business. We have already stated that there is no evidence to show that the plaintiff made cash deposits with the defendant. The plaintiff only used to sell his agricultural produce in the Adhat of the defendant. The defendant after selling the plaintiff's goods used to enter the price payable to the plaintiff in his account books and paid interest on the price so entered. In an Adhat business of the nature carried on by the defendant the Adhatia is an agent only upto the stage of sale of the goods of hie constituent. The parties to whom the goods are sold are not brought into any jural relationship with the constituent and their names are not disclosed to him. The Adhatia only intimates the rates at which the goods are sold. It is the Adhatia who is liable to his constituent for the price. This course of business is clear from Exs. P-4 and P-6. Having regard to the nature of dealings and the course of business, after the plaintiff's goods were sold by the defendant Babulal through his Adhat, the relationship of seller and buyer arose between the parties and the defendant became liable to pay the price of the goods to the plaintiff. The course of dealings goes to show that the defendant's position was that of a Pakka Adatiya who acts as a principal in relation to his constituent (Shop Bakshiram Rodmal v. Firm Jasroop Srinath, AIR 1948 Nag 173). 'It is well established', said the Supreme Court in Gordon Woodroffe and Co. v. Shaik M. A. Majid and Co., AIR 1967 SC 181 at p. 185 'that even an agent can become a purchaser when an agent pays the price to the principal on his own responsibility.' Simply because the defendant in his account books entered the price which he was liable to pay to the plaintiff as cashreceived by him from the plaintiff or because the plaintiff allowed the amount of price to lie with the defendant, it cannot be held that the relationship of lender and borrower was created between the parties. Payment of interest on the amount of price by the defendant is also inconclusive on the question of change of relationship because even a buyer is liable to pay interest on the unpaid price according to contract or usage of the market and the Court is also empowered to allow interest even though there may be no specific contract for payment of interest; (See Section 61, Sale of Goods Act).

7. The Madhya Pradesh Money Lenders Act, 1934, defines 'loan' to mean 'an actual advance made within twelve years from the date of the last transaction whether of money or in kind at interest', and to include 'any transaction, which the Court finds to be in substance a loan'. The definition further goes on to provide that certain transactions are not included in the definition. We are not concerned with this part of the definition. The definition of loan must be read in the background of the legal concept of loan. Although a loan creates a debt but every debt is not a loan. The concept of debt is much wider than that of loan. In Ram Ratan Gupta v. Director of Enforcement, AIR 1966 SC 495 the Supreme Court in holding that foreign exchange deposited in the Current Account of a foreign Bank to be used whenever necessary did not amount to a transaction of loan, observed as follows:

'What is the meaning of the expression 'lend'? It means in the ordinary parlance to deliver to another a thing for use on condition that the thing lent shall be returned with or without compensation for the use made of it by the person to whom it was lent. The subject-matter of lending may also be money. Though a loan contracted creates a debt, there may be a debt created without contracting a loan, in other words, the concept of debt is more comprehensive than that of loan.'

Similarly, in Shree Ram Mills Ltd. v. Commr. of E. P. T., AIR 1953 SC 485 it was held that when managing agents allowed the commission payable to them under the managing agency agreement to lie with the company, the arrears of commission became a debt, but there was no borrowing or loan. In the course of its judgment, the Court said :

'Of course, money so left could, by a proper agreement between the parties, beconverted into a loan, but in the absence of an agreement mere inaction on the part of the managing agents cannot convert the money due to them, and not withdrawn, into a loan. A loan imports a positive act of lending coupled with an acceptance by the other side of the money as a loan. The relationship of borrower and the lender cannot ordinarily come about by mere inaction.'

8. If the legal nature of the transaction is not lending of money, the transaction cannot be regarded as a loan although it may carry out the same economic function which is performed by entering into a transaction of loan. It is on this reasoning that hire-purchase agreements are not regarded as money-lending under the English Moneylenders Act: (See Olds Discount Co. Ltd. v. John Playfair Ltd. (1938) 3 All ER 275 and Premore Ltd. v. Shaw Brothers, (1964) 2 All ER 583 at pp. 588, 589. On the same logic the business of purchase of bills at discount, which is a business quite distinct from moneylending, was not regarded as moneylending within the Malayan Moneylenders Ordinance: (See Chow Yoong Hong v. Choong Fah, (1961) 3 All ER 1163 (PC).)

9. The essence of the definition of loan under the Moneylenders Act is that it should be an actual advance whether of money or in kind at interest. The inclusive clause in the definition that loan shall include 'any transaction which the Court finds to be in substance a loan' in the context only means that even when apparently there is no actual advance of money or in kind at interest, a transaction would be a loan if in substance it amounts to an actual advance of money or in kind at interest. The definition does not depart from the basic conception of a loan and transactions which in law create relationship different from lender and borrower are not included within it. The most common illustration of the application of the inclusive part of the definition can be found in those cases where the money is not actually put in the hands of the borrower by the lender but in substance the transaction amounts to that. This is consistent with the general rule of Law 'that in every case where a transaction resolves itself into paying money by A to B, and then handing it back again by B to A, if the parties meet and agree to set the one against other they need not go through the form and ceremony of handing the money backwards and forwards': (See Spar-go's case (1861-73) All ER (Reprint) 261 at p. 265). This principle is reflected in the case of Beninson v. Shiber, AIR 1946 PC 145, where it was held by the Privy Council that if a man finds money for another and expends it on that other's behalf and in accordance with his request, he is lending it although he never physically transfers it to the borrower. It is on the same principle that the Supreme Court in the passage that we have earlier quoted from Shree Ram Mill's case (AIR 1953 SC 485) (supra) recognised that the parties may by an agreement convert arrears of commission due to one of them into a loan and bring into existence the relationship of lender and borrower. And, it is an application of the same principle that when a loan is renewed by the execution of a fresh document, the Courts find no difficulty in holding that the former loan is repaid by borrowing a fresh loan on the document of renewal: (see B. S. Lyle Ltd. v. Chappell, (1932) 1 KB 691, referred with approval in Jiwanlal v. Rameshwarlal, AIR 1967 SC 1118 at p. 1121.

10. Let us now revert to the transactions entered into between the plaintiff and the defendant Babulal. As earlier stated, at the stage when the plaintiff's goods were sold by the defendant the defendant became liable to pay the price of the goods to the plaintiff and the relationship of seller and buyer came into existence. This relationship created a debt in favour of the plaintiff but the debt did not amount to a loan even though the plaintiff allowed the unpaid price to remain with the defendant and the defendant paid interest on it. The parties, however, on 10th October 1966 settled the account and the defendant executed a hand-note for a sum of Rs. 8,001 which was found due against him promising to pay it at 12 per cent interest. This document recites that the amount was received in cash by the defendant. Applying the principle that it is not always necessary for the creation of a relationship of lender and borrower that the money should actually be placed in the hands of the borrower by the lender, the accounting and the acceptance of the hand-note of Rs. 8,001 which recites that the money was paid in cash, had the legal consequence of creating the relationship of lender and borrower between the plaintiff and the defendant. The nature of the transaction was as if Rs. 8,001 had been paid by the defendant to the plaintiff andthe same had been advanced as a loan to the defendant. Therefore, under the definition of loan contained in the Moneylenders Act the transaction was in substance a loan. Similarly, when the accounts were again gone into on 24th November 1967 and the old hand-note was renewed by execution of another hand-note Ex. P-1, it can be said that the transaction amounted to a fresh loan. The result, therefore, is that the plaintiff advanced two loans to the defendant within the meaning of the definition of loan in the Moneylenders Act on the dates when he accepted the aforesaid hand-notes from the defendant.

11. So the evidence produced by the parties does disclose that the plaintiff who is a farmer and who in the normal course sells his agricultural produce in the Adhat of the defendant Babulal advanced two loans to him. Now the question is whether the plaintiff on the basis of this evidence can be described as a moneylender as denned in the Act. Moneylender, as defined in the Act, and in so far as relevant for our purposes, means 'a person who in the regular course of business advances a loan.' The words 'in the regular course of business' signify a certain degree of system and continuity of transactions. Every person who has advanced a loan, therefore, is not a moneylender. Under the corresponding English Act, moneylender includes every person whose business is that of moneylending. Adverting to this definition, in Kirkwood v. Gadd, 1910 AC 422 Lord Loreburn L. C. remarked that 'it imports a series or repetition of acts. Each separate piece of business may consist of many stages and incidents, and the business as a whole comprises many separate pieces'. In Chow Yoong Hong v. Choong Fah (1961-3 All ER 1163) (supra) Lord Devlin, in the context of the definition of moneylender in the Malayan Moneylenders Ordinance, said that 'to lend money is not the same thing as to carry on the business of moneylending. In order to prove that a man is a moneylender, it is necessary to show some degree of system and continuity in his moneylending transactions'. Referring to the definition of moneylender in our Act, the Supreme Court in Gajanan v. Brindaban, AIR 1970 SC 2007 observed as follows:

'There is a long catena of authorities on the statutes regulating and controlling moneylenders in which the expression 'moneylender' has been so construed asto exclude isolated transaction or transactions of moneylending. Vivian Bose J. while dealing with the Act which concerns us, in Sitaram Shrawan v. Bajya Parnya, AIR 1941 Nag 177 said:

'The word 'regular' shows that the plaintiff must have been in the habit of advancing loans to persons as a matter of regular business. If only an isolated act of moneylending is shown to the Court it is impossible to state that that constitutes a regular course of business. It is an act of business, but not necessarily an act done in the regular course of business.' The definition of moneylender was also recently considered by & Division Bench of this Court in Rajaram v. Nandkishore, 1975 MPLJ 419 where the learned Judges said:

'Speaking generally a man who carries on a moneylending business who is ready and willing to lend money to all and sundry, provided that they are from his point of view eligible. We do not, of course, mean to say that a moneylender can evade the Act by limiting his clientele to those whom he chooses to designate as 'friends' or otherwise, as observed by Farwell, J. in Litchfield v. Dreyfus, (1906) 1 KB 584. It is, therefore, a question of fact in each case whether a person was really carrying on the business of moneylending as e business, or was merely lending money as an incident of another business or to a few old friends by way of friendship.'

12. It is clear from the aforesaid discussion that by advancing two loans under the hand-notes Exs. D-1 and P-1 to the defendant Babulal through whose Adhat the plaintiff sold his agricultural produce, the plaintiff did not become a moneylender. Indeed, the second loan is really not even an independent loan as it is in the nature of renewal of the first loan. We are clearly of opinion that on the evidence produced the defendants have failed to make out that the plaintiff is a moneylender. The finding of the trial Court on this point is erroneous.

13. In view of our finding that the plaintiff is not a moneylender, he could not be deprived of interest and costs simply on the ground that he did not send annual statement of accounts as is required to be done by .a moneylender under the Moneylenders Act. For the same reason, the plaintiff was not required to get himself registered under the Act for bringing the suit.

14. The next question to be considered in this appeal is about the plaintiff'sright to recover from the defendant Babulal duty and penalty paid under Section 35 of the Stamp Act on Ex. P-1. We have already stated that the defendants raised an objection that Ex. P-1 was a bond and that being under-stamped it was invalid. This objection was accepted by the trial Court and the plaintiff had to pay Rs. 1,210 as duty and penalty under Section 35 for making the document admissible in evidence. The plaintiff claimed that he is entitled to recover this amount from the defendant under Section 44 of the Act. As provided in Section 29 of the Act, the expense for providing the proper stamp on a bond is to be borne by its executor. Ex. P-1 was executed by the defendant Babulal. The duty to bear the expense for providing the proper stamp on Ex. P-1 was, therefore, on him. In accordance with Sub-section (1) of Section 44 the plaintiff is entitled to recover the duty and penalty paid by him under Section 35 from the defendant and this amount can be included as costs in the suit as provided in Sub-section (3) of the same section: (See Lokmat Motor Service v. New Lokmat Lodging, AIR 1945 Nag 178).

15. The question that now remains for our decision is whether the defendant Rajendra Kumar can be made liable. We have already said that the hand-note Ex. P-1 is executed by the defendant Babulal alone. The plaintiff seeks to make Rajendra Kumar liable on the allegation that the business carried on in the name of Babulal Rajendra Kumar is a joint business of both Babulal and Rajendra Kumar. There is no evidence that this business was .an ancestral business or that it was opened with the help of joint family funds or joint funds. The evidence of Babulal is that the business was started by him in 1954-55 after obtaining loans from Singhai Karelal Kundanlal and that this was an entirely new business started by him in which Rajendra Kumar had no interest or share. It is true that the name of Rajendra Kumar is associated in the name under which the business is carried on. It is also true that there is evidence that Rajendra Kumar helped his father Babulal in carrying on the business. But these facts are insufficient to hold that Rajendra Kumar had any interest in the business. It is a common practice to associate the name of sons and other members of the family in the business. It is also natural for a son to help his father in the business. But these facts cannotgive rise to an inference that the son whose name is associated in the business or who helps the father in his business has any interest in the business. We are, therefore, of opinion that Rajendra Kumar cannot be made personally liable for payment of the money due under Ex. P-1. Rajendra Kumar, however, being the son of Babulal is under a pious obligation to discharge his debts. It has been, admitted by Babulal that there has been no partition between him and Rajendra Kumar. Although Babulal in his evidence denies existence of any joint Hindu family property, no enquiry has been made in that direction. It is now settled law that debts incurred by the father in the course of a business started by him are not avyavaharika debts and the sons are under a pious obligation to discharge such debts. The text of Gautama to the effect that the sons are not liable for their father's commercial debts has long become obsolete (Mulla, Hindu Law, 13th Edition, p. 353; Mayne, Hindu Law, 11th Edition, p. 400; Venkateswara Rao v. Ammayya, AIR 1939 Mad 561 and Ramsingh v. Jalamsingh, AIR 1939 Nag 192.) Rajendra Kumar, therefore, although not personally liable can be made liable for the payment of the amount due under Ex, P-1 to the extent of his share in the joint family property, if any: (see the 2nd proposition in Brij Narain v. Mangala Prasad, AIR 1924 PC 50 at p. 56 approved Faquir Chand v. Harnam Kaur, AIR 1967 SC 727).

16. It was argued by the learned counsel appearing for the defendants-respondents that as the plaintiff has come with a false case that cash was advanced to the defendant Babulal at the time when Ex. P-1 was executed and as he persisted in saying that in his statement, costs should not be allowed. We are, however, not inclined to accept this argument. It is true that the plaintiff's evidence is false in this respect that no cash was actually received by him before execution of Ex. P-1 and no cash was actually handed over by him to the defendant at the time when Ex. P-1 was executed. But the legal result of the transaction as discussed earlier was the same. Therefore, we do not find that there is sufficient ground to disallow costs of the suit to the plaintiff.

17. Learned counsel for the defendants prayed before us for grant of instalments under Sub-rule (1) of Order 20, Rule 11, C.P.C. There is, however, no material to know as to what is the present financial position of the defendants. Inthe absence of any material on that point we are not in a position to examine the merits of the prayer for instalments made by the learned counsel. It would, however, be open to the defendants to apply under Sub-rule (2) of Order 20, Rule 11 for grant of instalments. Under a local amendment of this sub-rule, Instalments can be allowed without the consent of the decree-holder even after the passing of decree.

18. In the result, First Appeal No. 111 of 1971 filed by the plaintiff Parmanand is allowed with costs. In addition to the amount of Rs. 9081 decreed by the trial Court, the plaintiff will be entitled to get Rs. 6 as notice expenses and Rupees 954 as interest upto the date of the suit. The plaintiff will get interest pendente lite and till payment at 4 per cent as allowed by the trial Court. The plaintiff will also recover costs of the suit incurred by him in the trial Court. The amount of Rs. 1,210 paid as duty and penalty on Ex. P-1 shall be included in the costs of the suit which the plaintiff shall recover from the defendants. The liability of the defendant Rajendra Kumar will, however, be limited to the extent of his share in the joint family property, if any. First Appeal No. 153 of 1971 is dismissed, subject to this direction to be incorporated in the decree that the liability of Rajendra Kumar shall be limited to the extent of his share in the joint family property, if any. The parties shall bear their own costs of this appeal.


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