M RAM NARAIN Vs. MUKAT BEHARI LAL

JUDGEMENT

(1.) THIS appeal arises out of a suit for the recovery of a sum of money on the basis of a promissory note. The only questions in appeal are whether the plaintiff is entitled to interest and to costs. It is not denied that the provisions of the Agriculturists Relief Act apply to this case. Under the provisions of Section 32 of that Act, the creditor is compelled (a) to maintain a correct account of the transaction and (b) to supply the debtor with a full and correct statement of account every year. Under the provisions of Section 34 the Court is bound to disallow costs if the creditor does not keep proper accounts and is bound to disallow interest for every period in respect of which a statement of account is not supplied to the debtor. In the case before me, the debtor took the plea that the creditor had not kept proper accounts within the meaning of the Act and the creditor did not establish that he had done so. It followed in accordance with the mandatory provision of Section 34 (b) that the Court had to disallow costs. The Courts below have allowed costs on the ground of justice and equity but no considerations of justice and equity can override the mandatory provision of the statute. On the question of interest, the learned Judge of the lower appellate Court allowed interest from the period from 28 October 1936 to 2 June, 1942, although it was admitted that no statement of account had at any time been supplied to the debtor. The reason why the learned Judge allowed interest was that the debtor had made an application under the Encumbered Estates Act on 28 October 1936, and the proceedings under the Act had not been quashed till 2 June, 1942. The learned Judge said that during that period the provisions of the Agriculturists Relief Act did not apply. It seems to me that this argument is indefensible. The Encumbered Estates Act certainly lays down that the provisions of the Agriculturists Relief Act shall not apply to a decree passed under the Encumbered Estates Act, but that does not mean that the parties to proceedings under the Encumbered Estates Act are for all purposes exempted from the operation of the Agriculturists Relief Act during the period when the proceedings under the Encumbered Estates Act are pending. There is a proviso to Sub-section (c) of Section 34, but it does not apply to the facts of this case. It allows a Court to condone a delay in furnishing a statement of account to the debtor. In this case no statement of account was ever furnished to the debtor and therefore there was no question of condoning any delay. In the circumstances the Courts were bound by the mandatory provision of Sub-section (c) of Section 34 and were bound to disallow interest for the whole period. The result may seem to be somewhat inequitable, but it was creditor's own fault that he did not take the necessary precautions. He certainly had a good excuse for not sending a statement of account to the debtor while the Encumbered Estates Act proceedings were in progress, but his proper course was to send a statement of account after those proceedings had been quashed and before he instituted the suit. If he had done that the provisions of the proviso would doubtless have been applied to him.

(2.) THERE was another ground that interest should be disallowed under the provisions of Section 39, Agriculturists Relief Act, but it is not necessary to express any opinion on that point. The trial Court disallowed interest under the provisions of that section. The reason given by the Court may not have been justified, but the result was correct under the provisions of Secs.32 and 34. I, therefore, set aside the decree of the learned Judge of the lower appellate Court and restore the decree of the trial Court but I direct that the plaintiff-respondent shall pay his own costs in the trial Court and the costs of both parties in the lower appellate Court and this Court.