HARIHARA IYER Vs. GEORGE

JUDGEMENT

(1.) This appeal is filed by the 4th counter petitioner creditor in the lower court against an order under S.8, 9 and 15 of the Travancore Debt Relief Act fixing the amount of debt payable by the petitioner in the lower court. On 23.7.1101 a hypothecation bond for Rs. 25,000/- had been executed by the petitioners deceased father and uncle in favour of the first counter petitioner who is the appellants father. After this it was alleged that Rs. 12,000/- was paid in Meenom 1103, and Rs. 6,000/- in Mithunam 1104 to the creditor. Ext. I is that hypothecation bond. There had been a renewal of this bond on 3.1.1113. It was stated in the petition that though this bond which is Ext. II in the case was for the consolidated principal and interest due till then, the provisions of the Debt Relief Acts enable the Court to re-open the account and to direct the petitioner to pay the original principal amount together with interest not exceeding a moiety of the same, less payments already made. According to the petitioner, the balance thus due under Ext. I was only Rs. 19,500/- and the petitioner wanted permission to discharge this under S.8 and 9 of the Debt Relief Act. He had also stated that his deceased father had on 6.9.1094 executed another hypothecation bond viz. Ext. IV to the first counter -petitioner for Rs. 3600/-. For interest due thereon, two puravaippa had been executed and a portion of the interest had been paid in cash in 1096, 1099 and 1101. The total amount, according to him, due under that bond including a moiety of the principal as interest, less payments already made, would come only to Rs. 3824/-. He wanted to discharge this debt also under the Debt Relief Act. Since the creditor did not accept the figures shown by the petitioner he wanted to have the accounts settled under S. 15 of the Debt Relief Act.

(2.) The creditor who is the first counter petitioner objected to the calculation made by the petitioner. He contended that the amounts due under the hypothecation bond of 1101 were calculated and the total sum due on 3.1.1113 was arrived at, that a new hypothecation bond Ext. II, had been executed that day, and that it was not open to the petitioner to agitate for the re-opening of the accounts already settled. According to Ext. II, the amount due on 3.1.1113 was Rs. 41,250/-. The interest due thereon had to be treated as principal at the end of each year, as agreed to in Ext. II, and the total debt due on that bond on 31.1.1116 was Travancore Rupees 40,358 Chuckrams 18 and cash 15. He also stated, that besides Ext. IV hypothecation bond of 1094, another document for Rs. 10,800/- had been executed on 20.10.1108, that this bond was Ext. V, that on 3.1.1113 a renewal was executed consolidating both the bonds and fixing the principal amount at Rs. 14,400/-, and the interest till that date at Rs. 8206/-. There was provision in that document also to treat the accrued interest as principal at the end of each year. The total amount thus due on 31.1.1116 would be Rs. 27,357-12-9. In order that the petitioner might get the benefit of the Debt Relief Act, it was contended that 6 per cent of the two amounts mentioned above had to be deposited towards the first instalment.

(3.) The court below found, that though two renewal bonds had come into existence in 1113, it was competent for that court to re-open the accounts by virtue of the Explanation to S. 3 of the Debt Relief Act. It therefore ignored the two bonds of 1113, that is, Exts. II and VI. With the re-opening of such accounts it was found that money was due to the first counter petitioner under four transactions, that is under Ext. IV dated 6.9.1094 for Rs. 3600/-, Ext. I dated 23.7.1101 for Rs. 25,000/-, Ext. V dated 20.10.1108 for Rs. 10,800/- and Ext. III dated 15.1.1109 for Rs. 1712 . By a series of calculations, which shall be referred to presently, the court below came to the conclusion that the amount due, under these four documents on 31.1.1116 would be Indian Rs. 63,773-9-4. The debtor has submitted to the finding recorded by the lower court, whereas, the creditors legal representative has come up in appeal, and according to him, the amount found by the court below is less than what is actually due, by Travancore Rupees 11803 chuckrams 19 cash 4.