SUKUMARI GUPTA Vs. DHIRENDRA NATH ROY CHOWDHURY

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit raised by him on 16 March 1936, for recovery of Rs. 8000 as principal and interest on a bond (ex. 5) executed in his favour on 23 July 1924 by defendant 20 as common manager appointed under Section 95, Ben. Ten. Act, of Sidhakati estate of which defendants 1 to 14 are proprietors. The bond in suit was executed for Rs. 4000 with the permission of the District Judge of Backergunj. Plaintiff's case is that out of this amount Rs. 2340 was set off against his dues from the Sidhakati estate (hereinafter referred to as the estate ) on account of a loan taken by Kali Kumar Ganguli, the previous common manager of the estate, and that the balance, namely Rs. 1660, was paid in cash to defendant 20. Plaintiff's case further is that defendant 20 as common manager paid to the plaintiff interest on this bond from time to time and that on account of the payment of interest on this loan the claim on the bond in suit has not been barred by limitation. The defence of the proprietor defendants in substance is that there was no consideration for the bond in suit at all and that even if there was any they were not bound to pay anything to the plaintiff as the alleged loan was not incurred for the benefit of their estate. They also plead limitation. The defence of defendant 20 is that he is not at all liable for the bond in suit and that the suit is not maintainable against him inasmuch as no notice under Section 80, Civil P.C., was served on him and the permission of the Court appointing him common manager to sue him was not obtained.

(2.) The trial Judge has dismissed the suit. His findings are these : (1) That out of the consideration of the bond in suit Rs. 2340 was set off against plaintiff's dues on account of a loan given by him in the benami of one Sasi Bhusan to Kali Kumar, the previous common manager and the balance, viz., Rs. 1660 was paid in cash by the plaintiff to defendant 20. (2) That the loan contracted by Kali Kumar was not for the benefit of the estate and that in any event the said debt could have been paid off by skilful management. (8) That there was no justification for borrowing Rs. 1660 from the plaintiff by defendant 20 and that the said loan was not incurred for the benefit of the entire estate. (4) That defendant 20 obtained permission from the District Judge to raise the loan of Rs. 1660 by practising fraud upon the District Judge as well as upon defendants 1 to 9 and husband of defendant 10 for whose benefit the raising of the said loan was alleged by defendant 20 to have been necessary. (5) That the loan in question was contracted for a purpose unconnected with the estate and that the raising of such a loan is not a legal duty of a common manager appointed under the provisions of the Bengal Tenancy Act. (6) That defendant 20 was not competent to save limitation against the proprietors by paying interest on the disputed loan inasmuch as he was not their agent. (7) That the suit is not maintainable against defendant 20 as no notice under S.80, Civil P. C, was served on him and as no permission of the District Judge to sue him was obtained.

(3.) On 3 June 1920 Kali Kumar obtained permission of the District Judge to raise a loan of Rs. 2400 from Sasi Bhusan Gupta to pay off debts amounting to Rs. 2150 due to (a) Jogendra Nath Sen and others, (b) Rindhon Samity and (c) Jnanendra Mohan Roy Chaudhury (ex. 1-A, Ex. 9-B). He however borrowed only Rs. 2000 (Ex. 4-K, Ex. 4-J, Ex. 4-1 and Ex. C). Although the bond for Rs. 2000 was executed in favour of Sasi Bhusan (P.W. 4) his evidence shows that the money which was lent belonged to the plaintiff and that he was the benamidar of the plaintiff. Out of this amount Rs. 1700 was raised on behalf of defendants 1 to 8 and Rs. 300 on behalf of defendant 9 (Ex. C). This amount of Rs. 2000 would not have been raised by Kali Kumar on behalf of these nine proprietors only unless they had authorised him to do so. At the time when the bond in suit was executed Rs. 289 was due as interest on the amount raised on behalf of defendants 1 to 8 and Rs. 51 was due as interest on the amount raised on behalf of defendant 9 (ex. c and Ex. A- (6)). The total amount due to the plaintiff on account of this loan at the time of the execution of the bond in suit was, therefore, Rs. 2340. This amount was set off against the consideration of the bond in suit with the consent of defendants 6 to 9 (ex. 16). The learned advocates appearing on behalf of the proprietor respondents contended before us that the recovery of the debt contracted by Kali Kumar was barred by limitation at the time of the execution of the bond in suit. I am unable to accept this contention. There is no evidence in this case to show what was the due date of the bond. Interest on this amount was paid by Kali Kumar and defendant 20 from time to time. The proprietors themselves consented to set off this amount against the consideration of the bond in suit. The materials on the record of the present ease are not sufficient to show that Kali Kumar could have paid the debts due from defendants 1 to 9. by skilful management without borrowing any money.