KHETAI MOLLA Vs. NITYANANDA SARKAR

JUDGEMENT

(1.) Defendant 1 borrowed a sum of Rs. 5999 from one Gopiballav Sarkar, the predecessor-in- ihterest of the plaintiffs on 20 April 1921. There was a stipulation to pay interest at the rate of 12 per cent, per annum to be compounded at the end of every year. As security for the loan, defendant 1 executed a mortgage in favour of the said Gopiballav Sarkar. Thereafter defendant 1 made three part payments on the three occasions and endorsed these payments on the back of the mortgage instrument. The last part payment which was endorsed on the back of the mortgage by him, was made on 21 May 1927. This suit has been filed on 16th November 1939, which is beyond 12 years of the date of the last payment. The claim has been laid at Rs.5999 only, the mortgagees having given up practically whole of their claim for interest. A question was raised in the lower Court to the effect that the suit was barred by limitation. That question was raised by the defendant on two grounds; the first ground was that in fact defendant 1 did not make any part payment on 21 May 1927, and endorse the same under his signature. That point was negatived by the learned Subordinate Judge, who came to the finding that defendant 1 had made part payment on the said date and the endorsement, which is marked Ex. 6 (a), was in the handwriting of the said defendant and bore his signature. This part of the case has not been placed before us by the appellant, defendant 1.

(2.) For the purpose of saving the suit from limitation, the plaintiffs pleaded that they were entitled by reason of the provisions of sections 33 and 52, Bengal Agricultural Debtors Act, to add the time between 25 April 1939, and 16 November 1939, when they actually presented their claim in the civil Court. This plea taken by the plaintiffs has been given effect to by the learned Subordinate Judge and the correctness of this part of his judgment has been challenged by Mr. Sen, appearing for the appellant.

(3.) The facts bearing upon the last mentioned question are as follows: the plaintiffs filed an application under section 8, Bengal Agricultural Debtors Act, against defendant 1 on 25 April 1939. The total debt of the said defendant exceeded the sum of Rs. 5000, but was below the amount of Rs. 25,000. On the date when this application was made before the Debt Settlement Board, there was no limitation on the pecuniary jurisdiction of Debt Settlement Boards. On 15 May 1939, the Local Government, however, made rules under section 55(2a), Bengal Agricultural Debtors Act. By that Notification certain rules are framed of which Rule 143 to 150 are relevant. Those rules came into force on 15 June 1939, and they were made applicable to all applications made before the Debt Settlement Board, except those in which the Debt Settlement Board had already determined the debt under section 18 of the Act, by 15 June 1939. Rule 144 provides that the Debt Settlement Board would deal with all applications for settlement of debts if the total indebtedness of the debtors did not exceed Rs. 5000. If, however, the total indebtedness exceeded Rs. 5000, but did not exceed Rs. 25,000, the Debt Settlement Board could deal with such application provided the sanction in writing of the Collector had been obtained. Rule 146 provides: If the sum total, of all debts mentioned by the debtor in his application under section 8 or statement of debt under Sub-section (1) of section 13 exceeds Rs. 5000 but does not exceed Rs. 25,000, the Board shall forward the application to the Collector for sanction under the proviso to Rule 144 before passing any Order upon it under Sub-section (2) of section 13 or under section 18. In this case the Board forwarded the application, which the plaintiffs had presented before the Debt Settlement Board on 25 April 1939, to the Collector for sanction in accordance with the provision of Rule 146, on 25 September 1939. The Collector, however, refused his sanction on 4 October 1939. On these facts the question is as to whether the application, which the plaintiffs had filed before the Debt Settlement Board on 25 April 1939, would be taken to be pending before the Debt Settlement Board till 4 October 1939, when the Collector refused the sanction prayed for. If it could be held to be pending, the plaintiffs would be entitled to add the period from 25 April 1939, to 4 October 1939, in computing the period of limitation. If the plaintiffs are entitled to that period, it is admitted that the suit would be in time, because in that case limitation would expire during the Pujah Vacation, and the plaint was presented, on the reopening day after the vacation, that is to say on 16 November 1939.