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Mahendra Chandra Dey Vs. Mahendra Chandra Kar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1947Cal288
AppellantMahendra Chandra Dey
RespondentMahendra Chandra Kar
Excerpt:
- .....bond which originally showed that rs. 200 had been paid. this had been altered into rs. 100. the learned munsif held that rs. 100 had in fact been paid and that the instalment for the year 1351 was still due.2. mr. pakrashi for the petitioner has urged three points. he has argued first that there was no cause of action inasmuch as the third instalment was not due on the date on which the suit was instituted. he has further argued that the court below ought to have found that the amount j5aid, in respect of which an endorsement was made on the back of the bond, was rs. 200. he has also argued that instalments ought to have been granted by the court below and ought to be granted by this court sitting as a court of revision.3. with regard to the first of these arguments, the document.....
Judgment:
ORDER

Lodge, J.

1. This rule was issued on the prayer of the defendant to show cause why a decree passed by the Munsif, Third Court, Narainganj, in Small Cause Court jurisdiction should not be set aside. The plaintiff opposite patty sued to recover Rs. 50 from the present petitioner on the basis of an agreement entered into on 26th of Agrahayan 1349 B.S. It is now conceded that on 26th Agrahayan 1349, the present petitioner borrowed Rs. 400 from the opposite party and executed a document in which he acknowledged having borrowed the money and agreed to repay the loan in eight annual instalments of Rs. 50 each. The opposite party asserted that Rs. 100 Had been paid in respect of the instalments for 1349 and 1350 B.S. and he claimed in the present suit the instalment for the year 1351 B.S. The present petitioner asserted that Rs. 200 had been paid and he denied that any sum was due. There was an endorsement on the back of the bond which originally showed that Rs. 200 had been paid. This had been altered into Rs. 100. The learned Munsif held that Rs. 100 had in fact been paid and that the instalment for the year 1351 was still due.

2. Mr. Pakrashi for the petitioner has urged three points. He has argued first that there was no cause of action inasmuch as the third instalment was not due on the date on which the suit was instituted. He has further argued that the Court below ought to have found that the amount j5aid, in respect of which an endorsement was made on the back of the bond, was Rs. 200. He has also argued that instalments ought to have been granted by the Court below and ought to be granted by this Court sitting as a Court of revision.

3. With regard to the first of these arguments, the document simply provides that an instalment of Rs. 50 should be repaid each year. It is clear from the plaint that the plaintiff interpreted this as meaning Rs. 50 in each Bengali year and that the first instalment was due to be paid before the end of the year 1349 B.S., the second before the end of the year 1350 B.S. and so on. Mr. Pakrashi contends that the phrase 'each year' means 'within one year from the date of the execution of the document and within one year from each subsequent anniversary of the document.' This defence was not taken in the Court below and the learned Munsif was not called upon to deal with this argument. In my opinion the document is capable of the interpretation which the plaintiff put upon it and it is not obvious that the interpretation which Mr. Pakrashi seeks to put upon it is the only possible interpretation. In this view inasmuch as the matter was not agitated in the Court below I do not consider I am entitled to go into the matter in revision and hold that the decision of the Court below was wrong.

4. With regard to the amount actually paid fey the petitioner and the endorsement made on the back of the document, the learned Munsif has referred in his judgment to the evidence on both sides and has come to the conclusion that the payment was a payment of Rs. 100 only. The learned Munsif has referred to all the evidence adduced with the exception of one post card. This was a registered post-card sent by the present petitioner to the opposite party some time after the payment in question. In this post-card a statement was made that a sum of Rs. 200 had been paid. The post-card was refused by the opposite party and no further action was taken by the opposite party apparently until he instituted the present suit. Mr. Pakrashi suggested that the conduct of the opposite party was such as to show that the actual payment was a payment of Rs. 200. Alternatively, Mr. Pakrashi has argued that the learned Munsif in the Court below should have referred to this post-card and considered the effect of this evidence. In my opinion no inference can be drawn from this post card and the learned Munsif referred to all the other relevant evidence and came to a definite finding of fact. I am not entitled in revision to interfere with that finding and I am not of opinion that the learned Munsif in coming to that finding omitted to consider relevant evidence.

5. With regard to the third point argued by Mr. Pakrashi, it was first suggested that the learned Munsif in the Court below ought to have granted instalments under the provisions of Section 34(1)(b), Bengal Money-lenders Act, and if he failed to do so, this Court might do so in revision. Section 34(1)(b), Bengal Money-lenders Act refers to suits in respect of loans advanced before the commencement of this Act. The present suit is not such a suit but it is a suit in respect of a loan advanced after the commencement of this Act. It seems, therefore, clear to me that under Section 84(1)(b) the learned Munsif had no power to grant instalments in the present case.

6. Mr. Pakrashi next argued that under Sections 36(2) and 36(6)(b) this Court has power to grant instalments. Section 36 (2) directs a Court to take certain steps only if the Court in exercise of the powers conferred by Sub-section (1) re-opens a decree. In the present case there was no question of re-opening a decree under the provisions of Section 36(1). Section 36(6)(b) provides that any Court before which an appeal is pending in respect of a decree referred to in Clause (a) may exercise certain powers. This is not a Court before which an appeal is pending. There is no appeal provided from, a decree of a Court of small causes and I am of opinion that a Court before which an application in revision is pending, is not a Court before which an appeal is pending within the meaning of Section 36(6)(b), Bengal Money-lenders Act. I am of opinion, therefore, that the Court below had no authority to grant instalments and that I too have no such power. In this view, therefore, I see no reason to interfere with the findings and decision of the Court below and I direct that this rule be discharged with costs-hearing fee one gold mohur.


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