CHARUBALA DUTTA ROY Vs. ANANTAMAYEE NAG AND ANR.

JUDGEMENT

(1.) THIS appeal is by Defendant No. 1 Charubala Dutta Roy. Plaintiff Respondent No. 1 Anantamayee Nag brought a suit for recovery of Rs. 9,500/ -against the Appellant. The Appellant is the proprietress of the Salchapra Tea Estate. Defendant No. 2 Standard Bank Ltd. was carrying on business in banking in the Silchar Branch and Defendant No. 1 approached Defendant No. 2 to advance money to her to run her garden. The crops were hypothecated. The Defendant No. 1 executed one hypothecation bond in favour of Defendant No. 2 on the 4th February, 1947, to draw from the Defendant No. 2 bank maximum amount of Rs. 18,000 with interest thereon at 8 per cent per annum. One of the conditions of the bond was that Defendant No. 1 was to pay the entire dues to the Defendant No. 2 by the 31st December, 1947. Defendant No. 1 took loan from the Defendant No. 2 of a total sum of Rs. 13,888 -3 -6.

(2.) THE defence taken was that the fact that the Defendant No. 1 withdrew from the bank a total sum of Rs. 13,888 -3 -6 is not true. The purchase by the Plaintiff of the hypothecation bond is denied. In paragraph 10(c) of the written statement it is alleged that from February, 1947 to 11th September, 1947, a total sum of Rs. 12,291/6/ - was withdrawn by Defendant No. 1 from the Defendant bank and as the bank failed to advance further sums of money after 11th September, 1947, the Defendant No. 1 could not manufacture sufficient tea. A total sum of Rs. 7,954 -9 -0 was paid by the Defendant No. 1 to the bank.

(3.) IN appeal a number of points have been placed before us. It is firstly contended that the transfer in favour of the Plaintiff was not a transfer of an actionable claim and as such unless it we registered, the Plaintiff had no right to bring a suit on the basis of the said transfer. Secondly it is urged that there was no open mutual current account between the Plaintiff and the Defendant No. 1 and as such the starting point of limitation will be from the date of each advance made to the Defendant No. 1 by the bank and the present suit is barred by limitation. It was lastly contended that the Plaintiff should have given credit of Rs. 2,500 fixed deposit amount and also for the money which the bank got by direct sale of the export quota of the Defendant for 1946 -47 and 1947 -48. If the Defendant gets a set -off in respect of these amounts the entire liability of the Defendant is wiped off.