SHIVCHAND MANNALAL Vs. BHAGWAN

JUDGEMENT

(1.) THIS is an appeal by the plaintiff whose suit has been allowed only in part and whose claim based on an agreement has been treated as, in substance a loan, in view of the history of the transactions between the parties; accordingly, under the Madhya Bharat Moneylenders Act, the accounts have been reopened, the claim has been scaled down from Rs. 6,447 to Rs. 3,252 payable in instalments of Rs. 1,000 annually. In appeal he prays that his claim should be allowed in toto. The facts which have all been found in favour of the plaintiff -appellant have not been challenged in any cross -appeal. Thus, the only questions arising here are, firstly, whether the claim is for a loan or for something which is in substance a loan; and secondly, whether in the event of its not being a loan, the accounts could at all have been reopened in the manner that has been done, and whether instalments could have been allowed.

(2.) THE history of the transaction between the two parties shows that in our country, while it is easy to get a decree, the decree -holder rarely realises the decretal amount. On account of certain money transactions during a period before 1932, the plaintiff -appellant ultimately obtained a decree on 30 -8 -1938. Instalments were no doubt provided. The last out of the several applications in execution was No. 105 of 1949. On the 29th January 1950, the parties filed an agreement, by which, the judgment -debtor undertook to pay the decree -holder, certain cash amounts and deliver to him some cattle and other goods the value of which was set out in the agreement, the total value coming to Rs. 4,746 -12 -3. In return, the decree -holder prayed that his decree might be treated as having been satisfied and the execution case disposed of on full satisfaction. This was accordingly done by an order dated 30 -1 -1950.

(3.) THE basic contention on the part of the plaintiff -appellant is that this is not a loan. Whether or not the statements prepared are factually correct, need not be examined in this suit; the principle applied by the learned Civil Judge is, according to the plaintiff, one indicated for loans and as such of no validity here. Both parties have argued on this, the defendant's stand being, this is still in substance a loan.