SATINATH BAGCHI Vs. RAJA BHUPENDRA NARAYAN SINHA BAHADUR

JUDGEMENT

(1.) (F. M. A. No. 200 of 1941 with application). -This appeal is directed against an Order of the Subordinate Judge of Birbhum dated 10 May 1941, rejecting an application of the appellant for re-opening of a decree under section 36, Bengal Money-Lenders Act. It is conceded on behalf of the appellant that the appeal itself is incompetent but there is an application in the alternative under section 116, Civil P.C. and we are asked to exercise our powers in revision under that section. The appellant is the common manager of the Bagchis of Jamshedpur who were putnidars under the respondent the Raja of Nashipur. The putni rent for the year 1341 B. Section being in arrears, the respondent started proceedings under Kegn. 8 of 1819 on 1 Baisakh 1342 corresponding to 15 April 1935. The claim for putni rent was laid at Rs. 27,698 annas odd. On 15 May 1935, a petition was filed by the common manager of the putnidars before the Collector stating that he had paid Rs. 1821 annas odd to the zamindar in part payment of the rent due and on his request the latter agreed to strike out the Austum proceedings. He acknowledged the liability of the putnidars to pay the balance of the putni rent amounting to Rs. 25,874-10-1 and promised to pay that amount within the month of Sraban 1342 with interest at Re. 1-8-0 per cent, per month upon the loan. As a matter of fact no money was paid and the putni itself was sold under Regn. 8 of 1819 for arrears of a subsequent period. On 15 May 1937, the Raja of Nashipur instituted a money suit against the putnidars for recovery of the amount mentioned aforesaid and a decree was obtained on compromise on 20 February 1939. It is this decree which is sought to be re-opened by the judgment-debtor under section 36, Bengal Money-Lenders Act.

(2.) The only question in controversy is whether the decree was in respect of a loan which could attract the operation of the provisions of the Bengal Money-Lenders Act. Dr. Basak for the appellant has conceded that rent due by a putnidar to a zamindar could not come within the definition of loan as contained in section 2 (12), Bengal Money-Lenders Act, even though it carried interest either under the statute or under an agreement between the parties. His contention however is that in this case it became a loan by reason of subsequent agreement between the parties which was evidenced by the petition filed before the Collector on 15 May 1938. In this petition, as I have said already, the putnidar promised to pay interest in excess of what was payable under law. We do not think that we can ac eept this contention as sound. It may be conceded that even when a debt does not originally come within the definition of loan as given in the Bengal Money Lenders Act yet if a bond or security is subsequently taken in respect of it it may under certain circumstances amount to a loan. This proposition was laid down in Kunja Behari Pal V/s. Satyendra Nath Das . and was approved of later by another Division Bench of this Court in Fateh Chand Mahesri V/s. Akimuddin Chowdhury . To constitute a loan there must be an element of advance either actual or notional and in each case we have got to be satisfied from the circumstances that the transaction in fact involved an advance. The circumstances of this case, however, show conclusively that there was no idea of any advance. There was no bond or security taken in respect of the rents due and it is not that a new obligation was created in substitution of the old. The liability still remains a liability for rent and we are unable to hold that the landlord gave up his rights under the law in return for a personal undertaking given by the common manager of the putnidars. The fact that there was an undertaking to pay interest at the rate of Re. 1-8-0 does not in our opinion really affect the situation. By itself it does not show that it was treated as a loan. Apparently the landlord had to incur certain expenses in connexion with the Austum proceedings and the putni-dars were given further time to pay the rent. In these circumstances there is nothing unnatural that the putnidars agreed to pay rent slightly in excess of what they were bound to pay under law.

(3.) On a consideration of these facts and circumstances, we are of opinion that the Court below was right in the view that the liability of the putnidars for the putni rent could not amount to a loan within the meaning of the Bengal Money-Lenders Act and consequently the application under section 36 was rightly dismissed. The application therefore must be dis- charged. The result is that the appeal and the application are dismissed. There will be no Order for costs either in the appeal or in the application.