SALT BEEKAMCHAND DHANNALAL FIRM Vs. PERICHERLA SUBBARAJU

JUDGEMENT

(1.) This is an appeal directed against the Judgment and Decree of the Subordinate Judge of Amalapuram, in O.S. No. 66 of 1954. The suit was filed for recovery of a sum of Rs. 23,882-15-1, as against defendants I to 4 and 8 personally and defendants 1 to 7 from out of the joint family properties. The Court below exonerated defendants 5 to 7 and passed a decree as against defendants 1 to 4 and 8 for a sum of Rs. 16,436-8-7 with interest at 3 per cent, from the date of suit till payment. The learned Subordinate Judge further directed that the decree might be executed against the 8th defendant only after the plaintiff exhausted his remedies against defendants 1 to 4. The plaintiff has consequently preferred the appeal in so far as his claim was disallowed.

(2.) Four questions arise for consideration in the appeal : (1) whether the liability was incurred on 3rd November, 1951, when the accounts were settled or whether the liability was incurred as and when the monies were borrowed from the plaintiff; (2) whether, the Subordinate Judge was right in disallowing interest from the several dates of borrowing at 5 per cent; (3) whether the Court below was justified in awarding interest at 3 per cent, from the date of suit till the date of realisation ; and (4) whether the Court having passed a joint and several decree against the defendants 1 to 4 and 8 had a discretion to direct the plaintiff to exhaust his remedies against defendants 1 to 4 before proceedings against the 8th defendant? Section 13 of the Madras Agriculturists Relief Act, hereinafter referred to as ' the Act', provides that in any proceeding for recovery of a debt, the Court shall scale down all interest due on any debt incurred by an agriculturist after the commencement of the Act so as not to exceed a sum calculated at 5 per cent, per annum simple interest. The first question that arises for decision is whether the debts by the defendants were incurred on the respective dates of borrowing or when the accounts were settled between the parties as on 3rd November, 1951. The expression 'incurred' is used not only in section 13 but also in sections 8 and 9 of the Act. The meaning of the word ' incur ' as given in the Webster's New International Dictionary is to "render liable or subject to, entail". In Bouvier's Law Dictionary, the meaning is given as follows : "To have liabilities cast upon one by act of parties or operation of law ". We have no doubt whatsoever that the liability is incurred only when the amount is borrowed and not when the accounts are settled or when any document is executed is pursuance of the settlement of accounts. The meaning as given in Bouvier's Law Dictionary was adopted by a Bench of the Madras High Court in Mottai Meera v. Chinna Sheik Abdul Kadir Rowther, (1939)1 M.L.J. 528.

(3.) Varadachariar, J., delivering the judgment of 'ihe Bench held that the word ' incurred ' in the opening sentence of section 9 no doubt suggested the idea of a liability voluntarily incurred but the terms of clause i of that section seemed to indicate that the section referred not only to contractual liability, but even to liabilities arising under law, custom or decree of Court. Reference was next made to the decision in Govindaraja Nadar v. Namadevar Reddiar, (1956) 2 M.L.J. 425. The learned Judges therein held that :