S. RAJAMMAL Vs. RANGASWAMI REDDIAR

JUDGEMENT

(1.) THE suit promissory note was executed on 21st February,, 1953, for a sum of Rs. 1,000. There were two payments, one of Rs. 25 on 8th February, 1956 and the other of Rs. 527 on 8th May, 1957 both expressed to be towards principal and interest. There was a demand notice dated 15th September, 1959 served on the defendant and the suit was instituted on 7th January, 1960. It is common ground that the defendant is an agriculturist. It is also common ground that the payments were not appropriated before the date of the suit. In these circumstances the trial Court, applying Section 13 of Madras Act IV of 1938, directed that the defendant would be entitled to " re -appropriation " of the amounts paid by him with interest calculated at the rate of 51/2 per cent per annum throughout. The suit was decreed on that basis for a sum of Rs. 779 -28 nP. with subsequent interest on Rs. 679 -55 nP - at 51/2 Per cent Per annum from the date of the suit till payment. This petition is to revise the order of the trial Judge.

(2.) IF payments had been appropriated earlier to the institution of a suit, in a case governed by Section 13, towards interest, Chellammal v. Abdul Gaffoor Sahib, (1961) 2 M.L.J. 222 has held that the appropriation cannot be re -opened. The Full Bench there was concerned with a certain sum paid towards interest and admittedly appropriated towards interest. The learned Judges pointed out:

(3.) But, as I said, in this case the payments had not been appropriated and therefore the principle of the latter Full Bench will have no application. Sri K.S. Desikan for the petitioner contends that under the general law of appropriation, as laid down in Manamathi Munisami Mudali v. Perumal Mudali : (1919)37MLJ367 Commissioner of Income Tax, Bihar and Orissa v. Maharajadhiraj of Dharbanga and Gajram Singh v. Kalyan Mal, I.L.R. (1935) All. 791 the plaintiff was entitled to appropriate the payment in the plaint towards interest. But a precisely similar contention was raised before and rejected by Govindarajachari, J. in Muthiah Thevar v. Lakshmanan Pandithar : (1948)2MLJ500 . Dealing with the question, the learned Judge observed: The question however is whether the principle established by this and other cases, which is part of the general law of appropriation, has not been departed from in Section 13 of Madras Act (IV of 1938)....If Mr. Raghunathan's argument is to be accepted the result would be that in a large number of cases where the debtor makes no appropriation at the time when he makes his payment and where he does not take the additional precaution of stating that his payment should be applied towards the interest due on the debt calculated at the rate specified in Section 13 of the Act and not at the contract rate, he will be deprived of the benefit of the relief intended by Section 13, and by a unilateral act the creditor can get round the provisions of Section 13. While the departure from the law of the country is not to be easily inferred it is in my opinion, sufficiently clear from the wording as well as the object of Section 13 that the Legislature clearly intended to protect an agriculturist notwithstanding his own contract, and that it could not have intended to make his right to the benefit contemplated by the Act liable either to be defeated or materially curtailed by an act of the creditor to which the debtor is no consenting party.