Pandit Charan Sirkar and another vs Gangadhar Das and others

This was a suit for the enforcement of what is described in see. 135of the Transfer of Property Act as an actionable claim. The case being called on the 12th February 1895, the pleader for the principal Defendants, informed the Court that they, the Defendants, prayed to be discharged from liability under the bond by paying the price paid by the Plaintiffs in purchasing the same with costs and all incidental expenses, and asked for a month''s time to pay the money. Upon this the Munsif made a decree in these terms: "The suit will be accordingly decreed as follows :--If the Defendants Nos. 1 and 2 will pay to the Plaintiffs the price Rs 170, the costs of the execution and registration of the kobala, Exhibit 3, and interest from the date of the kobala till this day at the rate of 1 per cent per mensem, and Plaintiffs'' costs of this suit in proportion to the amount found due to the Plaintiffs according to the above order within one month from this date, the Defendants will be fully discharged from their liability under the bond in suit; Exhibit 2. But if payment be not made as mentioned above, the Plaintiffs will recover the entire amount claimed and full costs of the suit and interest upon the principal sum at the rate specified in the bond from the date of the suit till the due dale fixed, or date of payment, whichever may first occur" and so on, &c.

On appeal the District Judge has confirmed the decree of the Munsif; and the only question that we have to determine in this appeal is whether, under the circumstances of the case, the Courts were not bound to decree to the Plaintiffs the full amount of their claim, and not simply the amount at which they purchased the bond in question with costs and incidental expenses.

Now, there can be no doubt, looking at the proceedings before the Munsif, that there was neither any payment on the part of the Defendants, nor any offer of payment before judgment was delivered in the case by the Munsif. All that the pleader on behalf of the Defendants offered was to pay the money, if the Court was so pleased, within a month after decree. Sec. 135 of the Transfer of Property Act says:--" Where an actionable claim is sold he, against whom it is made, is wholly discharged by paying to the buyer the price and incidental expenses of the sale with interest on the price from the day that the buyer paid it. But nothing in the former part of this section applies (amongst other matters) in a case where the judgment of a competent Court has been delivered affirming the claim, or where the claim has been made clear by evidence and is ready for judgment.

In the case of Muchi Ram Barik v. Ishan Chunder and others ILR 21 Cal. 568 decided by a Full Bench of this Court, a majority of the Judges who composed the Full Bench held that where an actionable claim has been assigned, the debtor may be discharged from all liability by payment to the buyer of the price and incidental expenses of the sale, with interest on the price from the day that the buyer paid it; provided that such payment is made at any time before a judgment of a competent Court has been delivered affirming the claim or before the claim has been made clear by evidence and is ready for judgment, but that if such payment is not made before the period mentioned, the assignee is entitled to judgment for the whole debt.

In a later case, however before Mr. Justice Ameer Ali, namely, in the case of Debendra Nath Mullick v. Pullin Behari Mullick ILR 23 Cal. 713 that learned Judge seems to have held, that where the debtor, without denying the claim, offers to pay the purchaser the actual price paid by him with interest and expenses of the sale and merely disputes the amount of these items, such a case does not come under the exception in clause (d) of sec. 135 of the Transfer of Property Act and the first paragraph of that section applies; and further that it is not necessary to deposit the money in Court in order to gain the benefit of sec. 135 of the Transfer of Property Act. But a? has already been stated in this particular case, there was neither any payment before judgment was delivered nor was any tender of payment made at the time. All that the Defendants asked was that they might be discharged from liability in the event of their paying the money within a month after the 12th February 1895, when the case was taken up and judgment given by the Munsif. That would not neither be a payment within the meaning of sec. 135, as expounded by the Full Bench, nor an offer of payment within the spirit of the decision passed by Mr. Justice Ameer Ali in the case referred to. We therefore think that the decree passed in this case by both the Courts should be so far modified as to allow the Plaintiffs a decree for the full amount of their claim with interest and costs in all Courts.