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Kumarkhali Banking Corporation Ltd. Vs. Bibhuti Bhusan Pal Chaudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1948Cal65
AppellantKumarkhali Banking Corporation Ltd.
RespondentBibhuti Bhusan Pal Chaudhury and ors.
Cases ReferredManmatha Nath Bose v. Renula Bose
Excerpt:
- .....paid rs. 1000 as interest. on 28th october 1927, accounts were taken of the loan advanced on this hand-note of october 1921. it was found that rs. 3000 was due on account of principal and rs. 1160 on account of interest. on that date the borrower paid rs. 160 to the lender in cash and executed a promissory note for the balance of rs. 4000. that amount is admittedly made up of rs. 3000 which was the principal advanced on the bandnote of october 1921 and rs. 1000 being the arrears of interest due on that date. the hand-note is in the usual terms, namely.that on demand the promisors promise to pay the said sum of rs. 4000 with interest at 12 per cent, per annum, for money advanced to them by way of loan.no reference was made to the promissory note of october 1921, nor was the fact.....
Judgment:

Mitter, J.

1. In October 1921, defendant 1 and the ancestor of the other defendants borrowed a sum of Rs. 3000 from the appellant, namely, the Kumarkhali Banking Corporation Ltd., on a hand-note at an interest of 12 per cent, per annum. Between 1921 and September 1927 they paid Rs. 1000 as interest. On 28th October 1927, accounts were taken of the loan advanced on this hand-note of October 1921. It was found that Rs. 3000 was due on account of principal and Rs. 1160 on account of interest. On that date the borrower paid Rs. 160 to the lender in cash and executed a promissory note for the balance of Rs. 4000. That amount is admittedly made up of Rs. 3000 which was the principal advanced on the bandnote of October 1921 and Rs. 1000 being the arrears of interest due on that date. The hand-note is in the usual terms, namely.

that on demand the promisors promise to pay the said sum of Rs. 4000 with interest at 12 per cent, per annum, for money advanced to them by way of loan.

No reference was made to the promissory note of October 1921, nor was the fact mentioned that the said sum of Rs. 4000 which was treated as the principal in the promissory note was made up of the accounts which we have already indicated. After the execution of this promissory note for Rs. 4000 on 28-10-1927, the borrowers paid to the lender a sum of Rs. 4985-11-9 before the institution of the suit by the lender to enforce the promissory note of 28-10.1927. That suit was instituted on 15-4-1941. In the plaint the claim was laid at Rs. 3014-4-3 on the following basis. The lender took the principal of the loan to be Rs. 4000 mentioned in the promissory note of 28-10-1927 and proceeded on the basis of Section 30 (1)(a), Bengal Money-lenders Act, 1940, that is to say, they took up the position that they could recover the principal and the interest equal to the principal less payments. In fact, Rs. 3014-4-3 is the balance which is left from Rs. 8000 after deducting the payment of rupees 4985-11-9. The Court of first instance gave a decree for the said sum with costs and made the decree payable in five installments. The borrowers preferred an appeal. Before the appellate Court they contended, as was their contention in the Court of first instance, that the decree could only be on the basis that the actual advance of Rs. 3000 which had been advanced at the time when the first promissory note of October 1921 had been executed was to be taken as principal of the loan for the purpose of Section 30(1)(a), and inasmuch as Rs. 6145-11-9 had already been paid, there could be no decree in favour of the lender having in view the provisions of Section 30(1)(a), Bengal Money-lenders Act, 1940. The learned District Judge gave effect to this contention. At the time when the learned District Judge decided the appeal this Court had given its decision in Manmatha Nath Bose v. Renula Bose ('41) 45 C.W.N. 1091 and the learned District Judge gave his decision relying upon that decision. Since his decision the decision of this Court in Manmatha Nath Bose v. Renula Bose ('41) 45 C.W.N. 1091 has been reversed by the Privy Council. The decision of the Privy Council is reported in Renula Bose v. Manmatha Nath Bose . The position is clear. Sections 30 and 36 of the Act, must be read together. Paragraph 1 of Section 30 contemplates two classes of suits, namely, (1) a suit by the borrower for relief. We are not concerned with that part of the section, because the appeal before us is not in a suit brought by the borrower for relief. The other class of suits contemplated in Section 36 is a suit to which the Bengal Money-lenders Act applies. The phrase 'suit to which this Act applies' occurring in Section 36 has been defined in Section 2(22) of the Act, as follows: Suit to which this Act applies means any suit...instituted or filed on or after 1-1-1939, or pending on that date and includes a proceeding in execution, for the recovery of a loan, etc. A suit by the lender to recover the loan instituted after 1-1-1939, would be a suit to which the Act applies within the meaning of Section 36 of the Act. The relevant portion of Section 36 would, therefore, read as follows:

Notwithstanding anything contained in any law for the time being in force, if in any suit to which this Act applies, whether heard ex parte or otherwise, the Court has reason to believe that the exercise of one or more of the powers under this section will give relief to the borrower, it shall exercise all or any of the following powers as it may consider appropriate, namely, shall (a) reopen any transaction and take an account between the parties; (b) notwithstanding any agreement, purporting to close previous dealings and to create new obligations, re-open any account already taken between the parties, (c) release the borrower of all liability in excess of the limits specified in cls. (1) and (2) of Section 30.

But the power to re-open, etc., is limited by proviso (i) to Section 36(1) of the Act. That proviso is as follows: That the Court shall have no power to re-open any adjustment or agreement, purporting to close previous dealings and to create new obligations, which has been entered into at a date more than 12 years prior to the date of the suit by the parties or any person through whom they claim. This suit was instituted on 15-4-1941, which is beyond 12 years of the hand-note of 1927. Therefore, if that hand-note closed previous dealings and had created a new obligation, the transaction represented by the hand-note, cannot be re-opened, and if that transaction cannot be re-opened, the principal of the 'original loan' for the purpose of Section 30 must be taken to be the amount of Rs. 4000, and not Rs. 8000 which was the actual advance at the time when the promissory note of 1921 was executed. The Privy Council has pointed out in Manmatha Nath Bose v. Renula Bose ('41) 45 C.W.N. 1091 Section 30 and Section 36 of the Act must be read together. The sole question is whether the previous dealings of the parties had been closed on 28-10-1927, and a new obligation created by the hand-note executed by the borrowers on that date. The question would depend upon the intention of the parties and for purposes of finding out the intention of the parties, the document and the document alone has to be looked into, unless there is ambiguity. This is the decision in Nripendra Kumar Roy v. Santosh Kumar Das ('46) 50 C.W.N. 720. There is no ambiguity in the hand-note in question. Admittedly previous dealings between the parties had been closed at the time of the execution of the hand-note and that hand-note of 28.10-1927 created a new obligation. The obligation created by the earlier hand-note of October 1921 has been completely superseded by this later promissory note. We accordingly, hold that the principal of the loan is to be taken to be Rs. 4000, the amount treated as principal in the promissory note of 28-10-1927.

2. The result is that this appeal is allowed. The judgment and decree of the learned District Judge is set aside and the decree of the learned Subordinate Judge restored, subject to the modification about installments. As the borrowers are in involved circumstances, they having other debts to pay, we think that the amount decreed by the learned Subordinate Judge is to be paid in eight equal annual installments, the first of such installments to be paid on or before 3-1-1948 and the succeeding seven installments on or within 3rd of January of each succeeding year.

3. In view of the fact that the learned District Judge had proceeded on the law as it was then laid down, namely, the decision in Manmatha Nath Bose v. Renula Bose ('41) 45 C.W.N. 1091 and since that decision given by this Court has since been reversed by the Privy Council, we think that the parties should bear their respective costs throughout, except that the plaintiffs would get the costs of the court-fees paid on the plaint. In calculating the amount of installments, that is to be added to the decretal amount.

Ahmad, J.

4. I agree.


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