SHYAMLAL MARWARI Vs. MIRTUNJAY MANDAL

JUDGEMENT

(1.) This is an appeal from a decision of the Additional District Judge of the Santal Parganas affirming a decision of the Subordinate Judge of Dumka in a suit which was instituted nearly ten years ago on 17-6-1937.

(2.) The suit was for payment of a sum of Rs. 2311, odd payable by the defendants to the plaintiffs on two hathchithas. Of the sum claimed, Rs. 1591-10- 6 representing the balance of the principal and Rs. 719-12-6 the balance of interest. The plaintiffs case was that on 6-6-1930, the defendants first party, through defendant 2, borrowed Rs. 500 from the plaintiffs for family necessity, the loan bearing interest at 10 annas per cent. per month, and that they executed an acknowledgment thereof in the plaintiffs hathchi the. On 9-11-1930, the defendants took a further loan from the plaintiffs of Rs. 2000, also for family necessity, which was also acknowledged in the hathchi the book. This loan carried interest at 12 per cent. per month. In 1931 the plaintiffs and the defendants second party, who up till that time constituted a joint family, separated and in the partition of properties that followed, the two hathchit has were assigned to the plaintiffs. Between 20-9-1930, and 19-6-1934, the defendants made various payments to the plaintiffs, and the statement of accounts in regard to the loans set out in Schedule A to the plaint was as follows: Deducting the said payment of Rs. 115 towards interest due--the balance due is Rs. 2,311-7-0 which is claim in suit. The relevant passages in the plaint covering the above schedule are in paragraphs 7 and 9 thereof and are as follows: 7. From the 20 September, 1930, corresponding to the 3 Asin 1337 B.S. to the 19 June 1934, corresponding to the 4 Asarh 1341 B.S. the defendants, on several dates, made payments to the total extent, of Rs. 1155 of which Rs. 908-5-6 was paid and duly credited towards the principal and the balance towards the interest due from them. As per statement of account given in Schedule A of this plaint, the sum of Rs. 2311-7-0 of which Rs. 1591-10-6 is the principal and Rs. 719-12- 6 is the interest, is now legally due to and recoverable by the plaintiffs from the defendants, but they have failed to pay to the plaintiffs in spite of their repeated demands for the same. In para. 10 of their plaint the plaintiffs stated inter alia, for the purpose of limitation, time will run from the 19 June, 1934, corresponding to the 4 Asarh, 1341 B.S., the date of the last payment of Rs. 10 as under Section 20, Limitation Act, all such payments having been made and duly noted in the hathchitha khata within the time prescribed by the law of limitation, fresh period of limitation shall be computed from the time when each of such payments was made.

(3.) In their defence, the defendants first party denied that the said loans were for family necessity. The major defendants of the defendants first party pleaded in para. 4 of their written statement that the suit was time-barred under the general and special law of limitation. In para. 6 they specifically denied the partition and that the handnotes in question had fallen exclusively to the share of the plaintiffs. In paragraph 7 they alleged that only Rs. 1000 was in fact advanced to them on 9- 11-1930, and not Rs. 2000 as alleged by the plaintiff. In para. 9 they stated that the statement of account given in Schedule A of the plaint was untrue, that theclaim of the plaintiffs was excessive and exorbitant and that the loan of Rs. 500 had already been paid off. In para. 11 they stated that the cause of action and the application of Section 20, Limitation Act, was incorrect.