JAGABANDHU DE Vs. AKSHOY KUMAR SIL

JUDGEMENT

(1.) This appeal arises out of a series of transactions commencing with a loan of Rs. 1000 advanced on a promissory note by the plaintiff to the defendant on 15 November 1919. The promissory note was renewed on 6 November 1922, after Rs. 5 only had been paid, by a promissory note for Rs. 1450. This in turn was renewed on 2 November, 1925 by another note for Rs. 2000 with interest at 12 per cent, and the latter by a further note on 6th November 1928 for Rs. 2720 with interest at 9 3/4 per cent. The plaintiff then sued for his dues in money suit No. 62/293 of 1931-30 claiming Rs. 8272-8-0. On 9 May 1932 a consent decree was passed for Rs. 2780. Thereafter, various execution proceedings were taken, and in all Rs. 825 was realised. The plaintiff then started Execution Case No. 102/39 on 14 July 1939 for an amount of Rs. 2034-11-6. On 30 September 1940, the judgment-debtor made an application under Section 36, Bengal Money-Lenders Act, which had just previously come into force. The trial Court held that the original transaction of loan of Rs. 1000 at 15 per cent, could not be reopened as it was more than 12 years prior to the date of the suit, apparently taking this date as being the date of the application by the judgment-debtor. The Court therefore held that the decree could not be re-opened, and directed the judgment-debtor to pay Bs. 1946-5-6 which the Court held was the balance of the decretal debt, and further directed that the amount be paid by annual instalments of Rs. 400. On appeal the District Judge of Burdwan held that "the date of the suit" mentioned in proviso (i) to Section 36 (1), Bengal Money-Lenders Act, referred to the date in 1930 when M.S. No. 62/293 of 1931/1930 commenced and that as even the original promissory note of 1919 was within 12 years of that date, the proviso did not act as a bar; he accordingly held that the decree was liable to be re- opened and remanded the case for disposal. The plaintiff now appeals.

(2.) The main question for decision in this appeal is as to the interpretation to be given to proviso (i) in Section 36(1), Bengal Money-Lenders Act. The proviso was considered in Nrisingha Chandra Pal V/s. Kanak Lata Dassi , where the Court repudiated a contention that the date referred to was the date of the application under Section 36, and held that the date must be the date when the suit contemplated by Section 36(1) was brought. A difficulty however arises in the present case in that the present application is connected with two different suits within the meaning of the sub-section when read in the light of the definition of a "suit to which this Act applies" in Section 2(22) of the Act; it relates to the decree in the suit of 1930, and is itself made in a proceeding in execution of that decree, which proceeding is itself a suit to which the Act applied within the meaning of the definition. We may add that Section 36(1) also contemplates a third type of suit, namely, a suit by the borrower for relief. The question then is which of the three "suits" is referred to in the proviso. The logical answer seems to be that the suit referred to must be that e type of the three types of suit contemplated by Sub- section (1) in the course of which the relief is being given, and in which therefore the question of the application of the proviso arises. If the question arises in the course of a straightforward suit by the creditor for his dues, the date will be the date of commencement of his suit, if it arises in the course of execution, that is to say in a "suit to which this Act applies," which happens to be an execution proceeding, the date will be the date of the application in execution, and if the question arises in a suit by a borrower for relief, the date will be the date of the borrower's suit.

(3.) The above seems to be the natural interpretation of the provisions of Sub-section (1) of Section 36 read with the proviso and no valid reason for any other view was put forward on behalf of the respondent beyond stressing the phrase "suit by the parties" and urging, that this could only refer to the original suit. But a suit by a borrower against a creditor for relief is equally a suit by the parties, as is an execution proceeding by a creditor against his debtor, if that is taken to be a suit by virtue of the definition in Section 2(22) of the Act. On the other hand in none of these cases would it be really appropriate to speak of a suit by the defendant, creditor, or judgment-debtor as the case may be. But the real answer to this contention, is that the phrase by the parties in the proviso under consideration clearly attaches, to the words adjustment or agreement which has been entered into.