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Sashi Kumar Banerjee and ors. Vs. Mrs. D.J. Hill and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 246 of 1949
Judge
Reported inAIR1951Cal316,54CWN926
ActsGeneral Clauses Act, 1897 - Section 9; ;Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 23
AppellantSashi Kumar Banerjee and ors.
RespondentMrs. D.J. Hill and ors.
Appellant AdvocateParesh Nath Mukherjee and ;Samarendra Nath Banerji, Advs
Respondent AdvocateBankim Chandra Banerji and ;Jagannath Gangopadhya, Advs.
Cases ReferredSankaran Unni v. Raman
Excerpt:
- .....is not disputed that the sum actually deposited was sufficient. what is contended for is that the word 'month' which is used in the judgment of this court means a 'lunar month.' as such it is further contended that the deposit which was made on 28-2-1946 was too late by a day. it was not contended that the date on which the order was made should not have been excluded. in support of his submissions mr. mukherji relied on a decision of this court in the case of south british fire and marine insurance co. of new zealand v. brojanath saha, 36 cal. 516:(13 c.w.n. 425). on behalf of the respondents mr. banerji submitted that the basis of the decision is no longer sustainable in view of later statutory enactments, in england. in the case under discussion a question arose whether condition 9.....
Judgment:

G.N. Das, J.

1. This appeal is at the instance of the representatives of the deceased defendant in a suit tinder Section 36(1), Bengal Money-Lenders Act.

2. The plaintiff Mrs. D. J. Hill borrowed two sums of money from the appellants' predecessor in the year 1933. The interest stipulated to be paid was 10 p. e. p. a. with quarterly rests. On 21-6-1939 a suit to enforce the said mortgages was instituted by the appellant's predecessor and a final decree was obtained for a sum of Rs. 20,580. In execution of that mortgage decree the mortgaged properties were brought to sale on 19-7-1940 and were purchased by the decree-holder for a sum of Rs. 43,300. Thereafter the decree-holder auction purchaser took possession on 9-9-1940. On 30-8-1941 the plaintiff instituted the present suit under Section 36(1), Be441ngal Money-Lenders Act, praying for the requisite reliefs conferred by that section. This suit was dismissed by the learned Subordinate Judge on 30-6-1942. One of the grounds on which the learned Subordinate Judge dismissed the suit was that the case did not come within the purview of Section 36(1), Bengal Money-Lenders Act, the decree in the mortgage suit having been passed after 1-1-1939 and before the Bengal Money-Lenders Act came into force. The learned Subordinate Judge was also of the opinion that the suit could not proceed in any event unless the surplus sale proceeds fetched at the auction sale held on 19-7-1940 were brought back into Court by the plaintiff, a good portion of the same having been taken away by the creditors of the plaintiff.

3. Against this judgment and decree the plaintiff preferred an appeal to this Court being P. A. No. 17 of 1943. This appeal was allowed by this Court on 29-8-1945. This Court was of the opinion that the plaintiff was not disentitled to relief under the Bengal Money-Lenders Act simply because the decree in the mortgage suit was passed after 1-1-1939 and before the Act came into operation. This Court, however, affirmed the view taken by the learned Subordinate Judge that the suit could not proceed unless the surplus sale proceeds were brought into Court. It is necessary to set out a portion of the judgment of this Court which runs as follows :

'We hold that she (the plaintiff) must deposit Rs. 22781-1-6 in the lower Court before she would be allowed to proceed further with her suit under Section 36-..... The suit would be kept in abeyance for a period of six months from today. If the plaintiff (Mrs. Hill) deposits the said sum of Rs. 22781-1-6 in the Court below to the credit of the suit, the suit would proceed on, and the learned Subordinate Judge would decide it on its merits. If, however, the said sum is not deposited by Mrs. Hill within the aforesaid time, the Subordinate Judge would dismiss the suit and in that event with costs .....'

4. On 19-11-1945 the appellants' predecessor filed an application for leave to appeal to His Majesty in Council. On 28-2-1946 the plaintiff-respondent transferred the mortgaged properties to Sunil Baran Choudhury. On 4-7-1946 this Court, granted a certificate for leave to appeal to His; Majesty in Council. The appeal was ultimately heard by the Federal Court and was dismissed: on 30-3-1949. Reported in -Ed. Meanwhile, on 28-2-1946 the plaintiff made the deposit as directed by this Court. The Court thereupon passed an order that the suit would proceed. On 10-7-1946 the appellants' predecessor filed an additional written statement. In 194Y the appellants' predecessor died and his legal representatives have been brought on the record. On 7-2-1949 the executors to the estate of the deceased decree-holder filed an additional written statement which was accepted by the Court on payment of costs as directed by the Court. By a preliminary judgment dated 12-8-1949 the learned Subordinate Judge was of the opinion that he was not required to take any new evidence or to entertain any new plea at that stage. He, therefore, directed the matter to be put up in order that the question whether the deposit made by the plaintiff was in consonance with the order of this Court, might be agitated and for a decision on the merits of the case, namely, the re-opening of the decree and the passing of incidental directions. This matter was considered by the learned Judge and by his judgment dated 18-8-1949 he directed that the previous order dated 12-8-1949 would form & part of his judgment and further held that the order dated 28-2-1946 directing the acceptance of the deposit by the plaintiff was res judicata between the parties. The learned Judge was further of the opinion that even if that order did not operate as res judicata the deposit was made in proper time. He accordingly directed that a new decree be passed for Rs. 23,195-5-2 being the sum due in terms of the Act together with costs, The amount was directed to be paid in three instalments payable in January 1950, January 1951 and January 1952. Against the said judgment and decree the present appeal has been taken by the executors to the estate of the deceased decree-holder.

4. Mr. Mukherji appearing on behalf of the appellants has raised three contentions. In the first place he contends that the deposit was not made in proper time. In the second place he contends that the learned Judge was not right in not allowing the appellants to raise the plea contained in the additional written statement filed by the appellants and in precluding the appellants from leading evidence on that plea. In the third place he contends that the order for costs was unfair to his clients. I shall take up these points in the above order. The learned Subordinate Judge accepted the deposit as a valid one on two grounds : (1) on the ground that a reagitation of this matter was barred by the principle of res judicata; (2) that the deposit was, in fact, made within the time allowed by this Court. Mr. Banerji appearing for the plaintiff-respondent has supported the view taken by the learned Subordinate Judge. It is not necessary for us to express any opinion on the question whether the order of the Court dated 26-2-1946 accepting the deposit operates as a bar to a reagitation of this question. We are clearly of the opinion that the deposit which was made was duly made. The judgment of this Court was pronounced on 29-8-1945. This Court directed the plaintiff to make the required deposit within six months from date. It is not disputed that the sum actually deposited was sufficient. What is contended for is that the word 'month' which is used in the judgment of this Court means a 'lunar month.' As such it is further contended that the deposit which was made on 28-2-1946 was too late by a day. It was not contended that the date on which the order was made should not have been excluded. In support of his submissions Mr. Mukherji relied on a decision of this Court in the case of South British Fire and Marine Insurance Co. of New Zealand v. Brojanath Saha, 36 Cal. 516:(13 C.W.N. 425). On behalf of the respondents Mr. Banerji submitted that the basis of the decision is no longer sustainable in view of later statutory enactments, in England. In the case under discussion a question arose whether condition 9 (f) of the Marine Policy which requires a suit to be instituted within six months next after the loss, had been complied with. In that case the loss was alleged to have occurred either on 14-10-1906 or in the earlier hours of 15-10-1906. The suit was filed on 15-4-1907. It was contended in that case that if the word 'month' used in the Marine Policy refers to a 'lunar month' the suit would be beyond time. Maclean C. J accepted the contention urged on behalf of the defendant that the suit was beyond time, as the word 'month' in condition 9 (f) of the Marine Policy must mean a 'lunar month.' In the course of his judgment the learned Chief Justice observed that

'the ordinary meaning of the word 'month' in English language is a 'lunar month' and not an artificial month in the Gregorian calendar. This is sufficiently shown by the fact that until the year 1850 the word 'month' in the Act of Parliament meant 'lunar month' since which date however by virtue of statutory enactment the word 'month' is used in Act of Parliament to mean a calendar month. But the rule as to 'month' meaning a 'lunar month' in contracts still remains the law in England.'

Referring to the argument at the Bar that the law in India was different, the learned Chief Justice referred to the material provisions contained in the General Clauses Act and in the Limitation Act and observed as follows :

'We see no reason why the interpretation of an ordinary word in a contract in England should bear a different significance in India to that in England.'

Harington and Fletcher JJ. concurred in the above view. The above decision relied on behalf of the appellants does not expressly deal with the meaning to be put on the word 'month' in a judicial pronouncement. Mr. Mukherji contends that the reasons given by the learned Chief Justice in the above case should be applied in interpreting a judgment of a Court. The decision cited was pronounced in January 1910. It proceeded on the state of the law which was in force in England at the time. The law in England has since been modified by the Law of Property Act, 1925. Since the coming into operation of the Law of Property Act, 1925, the word 'month' in all deeds, contracts, wills, orders and other instruments executed or made or coming into operation after December 1925 means, unless the context otherwise requires, a calendar month.

5. Even before the enactment of the Law of Property Act, 1925, the same rule did apply in ecclesiastical matters as also in mercantile transactions in the city of London and in mortgage transactions, and construction of statute passed since 1850. Mr. Banerji also drew our attention to Order 64, Rule 1 of the Rules of the Supreme Court which interprets the word 'month' to mean a calendar month in any document which forms a part of any legal procedure. It is, therefore, clear that since 1926 the word 'month' is interpreted in England as referring to a calendar month and not a lunar month. In the Oxford Dictionary the word 'month' has been stated to bear both the meanings. It is true that the General Clauses Act or Section 25, Indian Limitation Act, merely defines the word 'month' as meaning a calendar month for the purposes of interpreting Indian statutes and cases coming within the operation of the Indian Limitation Act. The above discussion, however, clearly shows that at the present date the word 'month' would in its ordinary acceptance, mean a 'calendar month' and not a 'lunar month.' The above proposition must be subject, however, to an exception where in a particular place or business or trade the word 'month' has acquired a secondary meaning. In such cases the accepted interpretation in the particular place, business or trade must govern the rights of the parties and the ordinary interpretation must yield to that secondary meaning of the word 'month.' Mr. Banerji appearing for the respondents drew our attention to the case of Roshan Lal v. Bashir Ahmad : AIR1925All138 . In that case after referring to certain cases including the decision in the South British Fire and Marine Insurance Co. of New Zealand v. Brojonath Saha, 36 Cal. 516 : (13 C. W. N. 425) referred to already, their Lordships observed that it was a matter of interpretation in every case, thus laying down a somewhat elastic rule. In the Court below reliance was placed on the decision in the case of Puran Chand v. Mohd. Din, A. I. R. (22) 1935 Lah. 291 : (16 Lah. 1082). That case did not deal with the interpretation of the word 'month' but laid down that the principles underlying Section 9, General Clauses Act, were applicable by analogy to a construction of decrees. In the case of Sankaran Unni v. Raman : AIR1925Mad743 the rule contained in Section 10, General Clauses Act, was applied as being an embodiment of the principle of equity. In our opinion the word 'month' used in the judgment dated 29-8-1945 must be taken to mean a 'calendar month' and not a 'lunar month'. In this view the deposit which was made was in time. The first contention raised on behalf of the appellants must, therefore, be overruled.

6. The second contention was negatived by the learned Judge on the ground that the position taken by the appellants was inconsistent with that taken by the late decree-holder in the additional written statement filed by him on 10-7-1946 and further that the point not having been raised before the Federal Court was no longer available to the appellants and lastly that the decision of this Court directing the suit to be heard on the merits which was affirmed by the Federal Court precludes the Court below from taking cognisance of this plea. As regards the first ground the position is that in para. 2 of the additional written statement filed by the late decree-holder it was suggested that no interest had passed to the transferee and that the transferee was not a borrower, as such no relief could be claimed in this suit. In the additional written statement filed by the appellants it is stated in para. 4 that the plaintiff having parted with his interest has no locus standi to maintain the application. In our opinion both the written statements proceed on one and the basic fact, namely, that there was a transfer by the plaintiff denuding the plaintiff of all interest in the disputed property. The difference was in the conclusion which was drawn as a matter of law in the two written statements. There is no such inconsistency which disentitles the appellants from claiming relief if they are entitled to one.

7. The second ground on which the learned Judge proceeded was that the point was no longer available to the appellants. It is to be observed, however, that the judgment of this Court was pronounced on 29-8-1945. The application for leave to appeal to His Majesty in Council was filed on 19-11-1945. Both these are dated prior to the transfer by the plaintiff. It was, therefore, not possible for the appellants to agitate this matter in the appeal before the Federal Court. Moreover, before this matter can be raised some evidence has got to be adduced in order to support the plea contained in para. 4 of the additional written statement filed by the appellants. The order of this Court directing the suit to be heard on the merits or the final order made by the Federal Court must be construed as limited to the pleas which were then raised before those Courts. In our opinion, the mere fact that this point was not specifically raised before the Federal Court does not disentitle the appellants from raising the plea which is based on the admitted fact that there has been a transfer by the plaintiff of her interest in mortgaged premises. In our opinion this plea is still available to the appellants. We, therefore, hold that the second contention raised on behalf of the appellants must be given effect to. As regards the third contention the question was entirely within the discretion of the Court below. It is impossible for us to hold that the discretion was improperly exercised. The third contention must, therefore, be overruled.

8. The result, therefore, is that the order made by the Court below must be modified and this case remitted to that Court in order that that Court may take additional evidence limited to the point which is raised in para. 4 of the additional written statement filed by the appellants on 7-2-1949. Both parties will have the liberty to adduce evidence limited to this point only. After such evidence, has been taken the Court will proceed to dispose of the suit on the evidence already on record and on the additional evidence which may be adduced by the parties. We desire to make it clear that no other plea will be allowed to be raised by the appellants or the defendant's successors when the matter goes back. Parties would bear their own costs in this appeal.

Guha, J.

9. I agree.


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