1. Three brothers, Binayakdas, Bidhubhusan and Sreenath borrowed on 22nd March 1913, Rs. 10,000 on a simple money bond from Kalichandra Bhattacharjee. The loan carried 7 1/2 per cent, interest. The appellants are the legal representatives of Kali Chandra and the respondents are the sons and heirs of Sreenath, who had died in 1922. After Sreenath's death and just when the debt was about to be barred by time Bidhubhusan and the sons of Binayakdas, who had also died in the meantime, executed a renewed bond on 18th March 1925, in favour of Kali Chandra. The said bond was not produced by the appellants in the lower Court. They have produced the same before us with an application to receive it as additional evidence. We have taken in the document by consent and have marked it as Ex. H.C. (1). The said bond recites the loan of 1913 and part payments made from time to time. After adjustment a sum of Rs. 20,000 was found to be due on the loan of 1913 and the executants promised to pay the same with interest at a certain rate. This bond was not executed on behalf of the sons of Sreenath who were all minors at that time. Several payments were subsequently made on this bond by the executants of the bond. In 1932 the appellants with the consent of the heirs of Binayakdas, Bidhubhusan and Sreenath separated their liability and three registered bonds were executed on llth April 1932, separately by those sets of heirs in favour of the appellants. The bond executed by the heirs of Sreenath was for Rs. 9100. That bond recited the joint loan of 1913 and the renewed bond of 1925. It proceeded upon the footing that the liability of the executants based on the loan of 1913 had continued all along. In law the liability of the heirs of Sreenath in respect of the loan advanced in 1913 had become unenforceable by suit at that time, because the bond of the year 1925 had saved limitation only as against the heirs of Binayakdas and Bidhubhusan. In this appeal we are not concerned with other two bonds which had been executed on 11th April 1932, by the heirs of Binayakdas and Bidhubhusan, one of which we are told was subsequently discharged by payments. On 25th July 1941, the heirs of Sreenath filed an application under Section 38, Bengal Money. Lenders Act, 1940 (hereafter called the Act.). The learned Subordinate Judge has declared that Rs. 2697-9-6 was due by them to the appellants taking the principal of the loan to be what had been advanced in 1913. The creditors have preferred this appeal against the said order of the learned Subordinate Judge. They contend (i) that the transaction represented by the bond of 11th April 1932, cannot be reopened, and (ii) even if it can be reopened, the transaction represented by the bond of 18th March 1925, cannot be reopened, as it is beyond 12 years of the date of the application made under Section 38.
2. In dealing with the last mentioned point we need not consider as to whether the bond of 1925 had closed previous dealing in respect of the loan of 1913 and had created a new obligation within the meaning of Proviso (1) to Section 36(1)(a) of the Act, for the reason that the respondents or their predecessors-in-interest not being parties to that instrument are not bound by it. They do not, therefore, require the transaction represented by it to be reopened. The position, therefore, is that if the transaction represented by the bond of nth April 1932, can be reopened there would be nothing in between it and the original loan of 1913, which would prevent the Court from taking as principal of the loan the amount that had actually been advanced in 1913. As the liability of the heirs of three executants of the bond of 1913 had been separated with the consent of the creditors and debtors, the principal of the loan in that case and in relation to the respondents must be taken to be one-third of Rs. 10,000.
3. The second question depends upon the consideration as to whether the bond of 1932 executed by Sreenath's heirs can be regarded as 'a transaction' within the meaning of Section 36(1)(a) of the Act. That sub-section obviously contemplates a transaction between the borrower and lender which has reference to, that is, connected with the loan. Its ultimate source must be loan in respect of which the accounts are to be taken. The bond in question would come within Section 36(1)(a), unless it can be said that it is not a transaction between a lender and a borrower or that it had no connection with the loan of 1913; in other words, unless the relationship of lender and borrower had ceased before its execution. The contention of the learned Advocate for the appellants is that there was no relationship of lender and borrower at that time, as the appellants could not then have recovered by suit from the heirs of Sreenath what was due on the loan of 1913, as their right to recover that loan had become barred by time at that time, and as the obligation to pay in terms of the bond of 1932 arose only by reason of the provisions of Section 25, Contract Act, the last-mentioned bond had created an obligation which was absolutely unconnected with the obligation which arose from the contract of 1918 on the basis of which the-loan was then given. That is one part of his argument on this part of the case. His other argument is that the idea of re-opening a transaction means wiping of the rights and obligations created by it and implies falling back upon a prior connected transaction. In other words, reopening a transaction means the replacement of the obligation of the borrower created by it by another and prior obligation which by contract between the borrower and the lender had been replaced either immediately or immediately by the obligation of the transaction to be reopened. In effect it comes to this : that what the parties had replaced by contract is in its turn to be replaced by the Court in an inverse order, when it is exercising its powers of reopening. He submits that if the transaction represented by the bond of 1932 be reopened, that is to say, the obligation created by it be made to disappear there would be no other obligation to which the appellants could be left by the Court to fall back upon, as the obligation of Sreenath's heirs to repay the loan advanced in 1913 had been extinguished by lapse of time. We cannot accept his contentions.
4. A debt, that is to say, the right of the lender to the money lent, which, looked from another angle, means the obligation of the borrower to repay the money borrowed, is not extinguished simply because the remedy to re-l cover by suit is lost by the lapse of time as Section 28, Limitation Act speaks of the right 'to recover possession of property.' Thus, if a debtor pays a barred debt, he cannot recover it back from the creditor on the ground that he had paid the money under the mistaken belief that the creditor had not then lost the right to recover it by suit by reason of lapse of time. What Clause 3 of Section 25, Contract Act, in substance does is not to revive a dead right, for the right was never dead at any time, but to resuscitate the remedy to enforce payment by suit. As the debt was not extinguished but the remedy by suit was only lost in 1932, the relationship of creditor and debtor was subsisting at the date of the bond of 1932, and by its very terms the bond showed its connection with the loan of 1913. The theory of replacement propounded by the learned advocate for the appellant does not prevent falling back upon the obligation created in 1913, for the object of reopening is to take accounts in a manner laid down by the Act in supersession of the manner provided for by contract between the lender and the borrower and there is no other object. On the reasons we have given in Jnanendra Narayan v. Naba Kumar : AIR1947Cal141 the bond of 1932, which is substantially a transaction of money lending as distinguished from a transaction representing repayment of the loan, would be a transaction within the meaning of Section (36)(1)(a), for, if left undisturbed it would have obstructed the reliefs intended by the Legislature to lighten the oppressive burden of interest. As the bond of 1932 was executed within twelve years of the date of the application filed under Section 38 of the Act it can be reopened, proviso (i) to Section 36(1)(a) being out of the way Birbhadra v. Surendra : AIR1944Cal303 ; and it is the bounden duty of the Court to reopen it. The first contention is also overruled. The result is that this appeal is dismissed but in the circumstances without costs. The cross-objection is not pressed and is accordingly dismissed without costs.
5. I agree.