BRINDARANI DASSYA Vs. NARENDRA NATH MITRA

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for arrears of rent. The plaintiff claims rent from the defendants at the rate of Rs. 4,794-4-6, annually with cesses and damages in respect of two years (Bhadra 1324 to Bhadra 1326). The defendants resist the claim on the ground, amongst others, that the payments made by them from time to time wiped out the debt. The Subordinate Judge has overruled this contention and decreed the suit in part. On the present appeal the defendants have argued that the Subordinate Judge has not really investigated the points urged in defence.

(2.) It is admitted that the defendants hold 19 distinct tenancies under the plaintiff and that from time to time they paid to the plaintiff Rs. 61,889 on account of rent and cesses. The defendants urge that this sum has wiped out all the arrears due in respect of all the 19 tenancies held by them. The plaintiff contends, on the other hand, that he has applied the sums paid in satisfaction of the arrears due on the other 18 tenancies, and that, after the balance has been appropriated in partial satisfaction of the arrears due in respect of the tenancy now in suit, a substantial sum is still recoverable.

(3.) It is not disputed that at the time the alleged payments were made the defendants did not direct how the sums were to be appropriated. Consequently the rule enunciated in Section 60, Contract Act, became applicable. That section is in these terms: Where the debtor has omitted to intimate and there are no circumstances to indicate, to which debt the payment is to be applied, the creditor may apply it at his own discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time being as to the limitation of suits.