RAJENDRA PRASAD Vs. GAYA PRASAD SAH

JUDGEMENT

(1.) This appeal by the defendant is directed against a decree for money passed by the Second Additional Subordinate Judge of Motihari.

(2.) The plaintiff-respondent filed a suit for recovery of Rs. 10,871/- being the principal and interest due on the basis of a Chitha dated Asarh Sudi 1366 F. S. corresponding to the 18th of July, 1959. The plaintiff alleges that he was a registered money lender and had transactions with the defendant who used to borrow money, for his business, as the head of a joint Hindu family, and the account used to be entered in his Bahi Khata kept in regular course of business. In the year 1366 accounting was done and the balance of Rs. 19,059/8/- was found due with the defendant and in respect of this amount due he had executed a Chitha on the 18th July, 1959. It is further said that there was, at the time of the execution of the Chitha, an oral agreement with the defendant to pay interest at the rate of 1 per cent. per mensem. This account was also entered into the Bahi Khata of the plaintiff. It is said that the aforesaid loan was taken for the benefit of the joint family. The plaintiff then states that a sum of Rs. 14,242/- was paid by the defendant through his brother and the said amount was also entered in the Bahi Khata and in the Chitha. In that view of the matter a sum of Rs. 10,064/- was found due towards the principal and a sum of Rs. 807/- towards interest was payable by the defendant. The cause of action for the suit, it is said, had arisen on the 18th July. 1959, the date on which the Chitha was executed after adjustment of accounts and on the 9th November, 1961, the date on which the aforesaid amount of Rs. 14,242/- was paid off.'

(3.) The defendant's case on the other hand is that it is true that the father of this defendant used to take loans from the plaintiff in course of his business but the aforesaid Chitha was executed by him without taking any accounts, on the assurance of the plaintiff that he would help the defendant by lending money, in times of need, for running of his business. It is said that there was no consideration paid for the Chitha aforesaid, that not a single pie remained due from this defendant, that there was no stipulation for payment of any interest over the amount mentioned therein, that the Chitha amounted to, mere acknowledgment and could not form the basis of the suit and the suit is bad for non-joinder of parties, that the suit comes within Section 7 of the Money Lenders Act, that it is a case where accounts should be reopened under Section 8 of the said Act, that the Bahi Khatas of the plaintiff were not kept in regular course of business, that no payment was made by the defendant through Bhupendra Prasad, that the plaintiff is not a registered money-lender and that the suit is bad on account of Section 4 of the said Act. On these grounds, it is stated that the suit is fit to be dismissed.