RAJANI KANTA PAL Vs. HRISHIKESH DAS

JUDGEMENT

(1.) On 18 November 1928 defendant-respondent 1 Hrishikesh Dass purported to borrow from the plaintiff appellant Rs. 1,60,000 on the security of immovable properties. The mortgage bond which was executed on that date provided for payment of compound interest at the rate of 8 1/2 per cent, per annum with yearly rests. Thereafter he paid large sums of money on diverse dates totalling Rs. 1,02,205. On calculating interest in terms of the mortgage bond and after giving credit for the payments Rs. 1,64,217-0-0 was found due from him on the 31 Chaitra 1342 B.S. (=14 April 1936). At the intervention of common friends, Rai Bahadur Satyendra Nath Dass and Jogesh Chandra Das, the appellant agreed to remit the sum of Rs. 48,012. On 14 Asar following corresponding to 18 June 1936 a memorandum (Ex. 4) signed by both the appellant and the respondent was addressed to Rai Bahadur Satyendra Nath Dass and Jogesh Chandra Dass. The material portion of the said memorandum runs thus: After giving credit for payments made towards interest arid after deducting Rs. 48,012 only for remission allowed, a sum of Rs. 1,16,000 remains due as principal on the 1 Bysack 1343 B.S. in respect of the mortgage bond executed by Hrishikesh Babu. I, Hrishikesh Dass, acknowledge the said debt. From the 1st Bysack last interest will run on the aforesaid principal sum at the bond rate.

(2.) The plaint was filed before the Bengal Money-Lenders Act, 10 of 1940, had been passed. The claim at the date of the suit was laid at Rs. 1,03,524-8.0. While the suit was pending that Act came into force. The learned Subordinate Judge after taking into consideration Section 30 of that Act and also other defences has decreed the suit for Rs. 90,107 plus costs. He has directed payment in fifteen annual instalments. He found that Rupees 1,53,687-9-0 and not Rs. 1,60,000, as stated in the bond, had been actually advanced and that Rs. 63,286 only was the principal and Rs. 20,882 arrears of interest due at the date of the suit. He allowed Rs. 6882 as pendente lite interest. In arriving at the finding that Rs. 84,118 was due to the plaintiff at the date of the suit on account of principal and interest, he held that the defendant was not entitled to get the benefit of the full remission (Rs. 48,012) made by the plaintiff and noticed in Ex. 4. Proceeding on the admission of the plaintiff's pleader (an admission, which the plaintiff's advocate appearing before us has withdrawn) he held that defendant was entitled only to propor tionate remission. He calculated the amount of remission to be allowed to the defendant in the following manner. As Rs. 48,012 was remitted on the footing that Rs. 1,64,012 was the amount then due and as on calculating interest at 8 per cent (simple) in terms of Section 30, Bengal Money-Lenders Act, instead of at the rate of 8 1/2 per cent (compound) in terms of the bond, Rs. 1,44,019-4-0 would be payable, the remission was calculated in the proportion which 144019 bore to the figure 164012. Applying the Rule of three, the amount came to Rs. 42,150 and not Rs. 48,012 and that sum and not Rs. 48,012 he allowed as remission to the defendant. Against the decree of the Subordinate Judge the plaintiff has preferred this appeal. The defendant has filed a memorandum of cross-objections. The plaintiff's contentions are: (i) that in view of the amount claimed by the plaintiff in the suit no relief to the debtor under the Bengal Money-Lenders Act is admissible, and (ii) that the rate at which pendente lite interest has been given is inadequate.

(3.) The defendant has urged the following points in support of his cross-objections: (i) that the learned subordinate Judge ought to have deducted the full amount of Rs. 48,012, which the plaintiff had remitted (ii) that the Court below ought to have held that the amount actually advanced was less than Rs. 1,53,687-9-0, and (iii) that the Court below ought to have held that the defendant had paid more than what the plaintiff has admitted. The first point urged in the appeal and the first point urged in support of the cross- objection.