DURGA SANKAR SUKUL Vs. PRAFULLA CHANDRA NAG

JUDGEMENT

(1.) This appeal is by the plaintiffs against a decree of the Subordinate Judge, 4 Court, Mymensingh, in a suit for recovery of money due from the defendants on a promissory note, Ex. 1, dated 8 January 1927, for Rs. 8225 as principal and simple interest at 6 per cent, per annum. The suit was filed on 27 October 1941, that is, after the Bengal Money-lenders Act had come into operation. The promissory note in suit was the final result of a series of monetary transactions which began as early as 1915.

(2.) On 1 November 1915, one Kailash Chandra Nag borrowed Rs. 800 with interest at 12 per cent, per annum by Ex. D. Again on 31 January 1916 he borrowed Rs. 500 with interest at 12 per cent, per annum by a promissory note Ex. D-1. Kailash on 21 October 1920, borrowed Rupees 400 at 12 per cent, by Ex. D-2 and again on 3 July 1921, he took a loan of Rs. 100 at 12 per cent, interest by Ex. D3. It appears that he then retired to Benares. He had four sons, Profulla, Suresh, Khitish and Bimal. On 20 October 1921, Profulla in renewal of Exs. D and D-1 executed a fresh promissory note, Ex. D-4, for Rs. 1300 at 12 per cent interest. On 26 January 1923 Suresh borrowed Rs. 500 at 12 per cent, interest by Ex. D-5. Kailash died on 2l March, 1923. Then all the four sons of Kailash executed on 5 November 1923, a promissory note for Rs. 4730 with interest at 6 per cent, per annum in renewal of the balance due under Ex. D-2,-small previous payments having been made. Then on 23 June, 1924, Profulla and Suresh executed Ex. D-7 for a loan of Rupees 135 bearing interest at 9 per cent, per annum. On 14 October 1924, Profulla, Suresh and Khitish executed Ex. D-8, a promissory note in renewal of the balance due under Ex. D-4 which, as I have previously said, had been in renewal of the two earlier promissory notes, Exs. D and D-i. Then on 8 January 1927, all the four sons of Kailash who were defendants in the suit executed a promissory note, Ex. 1, which is the promissory note in suit in renewal of the previous existing promissory notes, Exs. D-5 to D-8 for Rs. 8225 with interest at 6 per cent, per annum.. It may be mentioned here that these facts are not in controversy any longer and further it is not contested that although some of the previous promissory notes were executed individually by different defendants they were for the joint purposes of all of them and that is the reason why the promissory note in suit Ex. 1 was executed by all. I have already said that the suit was filed on 27 October 1941. The suit was for the principal of Rs. 8225 and interest of Rs. 7275, that is for a total sum of Rs. 15,500. It may be mentioned here that neither the rate of interest nor the total amount is in contravention of Section 30, Bengal Money-lenders Act provided the principal is taken to be Rs. 8225. Rupees 23 had been paid as interest on different dates and thus limitation was saved in the present case and a small amount of Rs. 5- 12-3 pies was relinquished by the plaintiffs.

(3.) The suit had been brought on the allegation that the consideration for Ex. 1 had been paid in cash, but the learned Subordinate Judge has found that no cash payment had been made and that Ex. 1 was in renewal of previous promissory notes. This finding of the learned Subordinate Judge has been accepted by the plaintiffs appellants. It may further be mentioned that the plaintiffs are money lenders by profession. The learned Subordinate Judge considered that previous dealings were not closed and new obligations created by the renewal of the promissory note and therefore proviso (i) to Section 36(1), Bengal Money-lenders Act, did not apply. So, he re-opened the transactions and considered that the plaintiffs were not entitled to more than Rs. 10, 800 from the defendants as the actual money advanced was Rs. 5,400. A payment of Rs. 74 by the defendants was accepted and the learned Subordinate Judge gave a decree to the plaintiffs for Rs. 10,726 with costs payable by the defendants in annual instalments of Rs. 800 plus an instalment for the balance, and the instalments were to fall due in Kartick every year.