GOURI SANKAR DAGA Vs. PARASHURAM AGARWALLA

JUDGEMENT

(1.) The Plaintiff-Appellant purported to have filed the suit out of which this appeal arises under Section 36 of the Bengal Money Lenders Act. Various defences had been raised but the question about the maintainability of the suit was raised as a preliminary issue. That issue has been decided against the Plaintiff.

(2.) Such facts as are relevant to appreciate the question of maintainability may be stated within a short compass. The Defendant-Respondent had advanced to the Plaintiff different sums. The Defendant brought a suit (being suit No. 8 of 1951), in the court of the Subordinate Judge, Jalpaiguri, for recovery of the alleged dues of Rs. 43,000 and odd. This suit was decreed by consent of parties in accordance with certain terms of compromise filed in court. Rs. 15,000 Was the amount held due payable in 12 equal annual instalments. Certain items of moveable property belonging to the Defendant which had been attached before judgment were to remain so attached until the realisation of the entire decretal dues. A decree was passed on April 16, 1951. Within a few months thereafter in September, 1951, the present suit filed by the debtor under Section 36 of the Bengal Money Lenders Act for reopening the transaction and the consent decree referred to above. It was prayed for after proper accounting the amount payable might be determined, releasing the Plaintiff from all liabilities in excess of the limits specified in the relevant provisions of the Money Lenders Act. The Plaintiff accordingly prayed that a new decree be passed in accordance with the Act, the amount due being payable in 20 annual instalments.

(3.) Of the various issues raised the question of maintainability of the suit was taken up as a preliminary issue. The learned Subordinate Judge held that the suit as filed was not maintainable, as advances were made, as it appears from the recitals in the present plaint, on the basis of cheques which were negotiable instruments. It was also found that the decree which is proposed to be reopened was passed in 1951 and could not be deemed to be a decree in a "suit to which the Act applies" "which was not "fully satisfied by the first day of January, 1939". On both these grounds the court found against the Plaintiff. Hence this appeal to this Court by the debtor-Plaintiff.