Yamuna Prasad Sah vs Prabhu Nath Sah

Choudhary Sia Saran, J.—This second appeal at the instance of the defendant is directed against a judgment of reversal.

The original plaintiff Dina Nath Sahu, after his death stands substituted by his son Prabhu Nath Sahu. Dina Nath Sahu and the defendant-appellant were undisputedly Pattidars. It is also undisputed that Dina Nath Sahu was a professional moneylender. Undisputedly on the request of the defendant, Dina Nath Sahu used to advance loans to the defendant, the latter being the Karta of a joint family. Such transactions of loan commenced as far back as in the year 1949, which transaction of loan was evidenced by a ''chittha''.

According to the plaintiff''s case, an account of the loan advanced by Dina Nath Sahu to the defendant was made on 2-8-1960. A sum of Rs. 4224/-was found due to Dina Nath Sahu from the defendant. The defendant, therefore, executed the ''chittha'' (Ext. 1) on the same date agreeing to pay interest on the said amount at the rate of 12 annas oer cent per month. Subsequently payment was made by the defendant to the plaintiff for this transaction of loan. A sum of Rs. 400/- and 205/- was paid on 26-5-1963 and 4-4-1966 respectively. These two payments were also noted in the ''chittha'' (Ext. 1) in the pen of the defendant himself. On the default of the defendant to pay the loan with interest, the plaintiff instituted the instant money suit against the defendant for realisation of a sum of Rs. 7018.28 paise from the defendant towards principal and interest of the loan evidenced by Ext. 1.

The suit was contested by the defendant, The ground taken was that the dues of the original ''Chittha'' having been paid by the defendant in entirety nothing was due from him but the defendant executed Ext. 1 on the threatening of the plaintiff of being humiliated.

The trial Court did not accept the plea of the defendant that Ext. 1 was executed under pressure. It. however, dismissed the plaintiff''s suit on the ground that it was not maintainable as the original ''chittha'' was not produced by the plaintiff.

The plaintiff took up the matter in anneal. The lower appellate court agreed with the finding of the trial court that the defendant had failed to prove that Ext. 1 was executed under pressure. A categorical finding recorded by the lower appellate court also was that Ext. 1 is a valid and genuine document for consideration. On the terms in which Ext, 1 is couched, the lower appellate court, took the view that the suit based on Ext. 1 was maintainable in law. The result was that the appeal was allowed, the judgment and decree of the trial court were set aside and the plaintiff''s suit was decreed as prayed for,

The defendant has now taken up the matter before this court in second appeal. The substantial question of law formulated by the learned single judge while admitting this second appeal may be seen in order No. 8 dated 26-1-1979.

The sole contention of Shri Bishwa Nath Prasad learned counsel for the appellant before this court was that Ext. 1 being a mere acknowledgment of the earlier debts no claim is sustainable on Ext. 1. This contention was refuted bv Shri Kailash Roy learned counsel for the plaintiff-respondent. It may be appropriate to quote certain relevant portion of Ext. 1, which is to the following effect;

"Chitha Bana Diya. Jamuna Prasad Sah, Wald Babu Gouri Shankar Prasad Sah, Motwafa, Jat Jaisawal, Pesa Maha-Jani Wo Tijarat, Sakin Sahar Motihari, Tappa Madhwal, Zila Champaran. Beyaz Dar 12 Anna (Barah Anna) Saikara Mahwari Likhal Se Sahi. Baklam Khash Jamuna Prasad Sah.

2-6-60

... ... Likha Babu Dina Nath Sah Wald Babu Jado Lal Sah Motwafa, Sakin Sahar Motihari Jama Kharch Likha.

Jama

Kharch

Rs. 4224/-Miti Jeth Dudi Saan 1367 Sal Mo. Ta.

2-6-60

Sab Chitha ka Baki Hal Par Kabul Karke Naya Bana Diya. Char Hazar Do Sau Chaubis Rupaya.

Thumb Impression Jamuna Prasad Sah."

In his usual frankness Shri Kailash Roy conceded that if Ext. 1 is a mere acknowledgment, the plaintiff''s claim on the basis of Ext. 1 may not be entertainable. A catena of decisions, cited by Shri Biswanath Prasad in support of his contention that a claim for money cannot be solely based on mere acknowledgment, need not, therefore, be discussed in detail. The Question is whether Ext. 1 is a mere acknowledgment of the past liability of the defendant or it is something more than that, the contention of Sri Kailash Roy being that it is a bond evidencing a transaction of loan agreeing to pay interest thereon.

The word ''loan'' has been defined in Section 2 (j) of the Bihar Money-lenders Act, 1974. It states, inter alia that loan means a loan on interest advanced by a money-lender whether of money or in kind and shall include Mandeorha, Sawaiva. Rehan, Bandhki. Pauni, Sudbharna, Kishti and any transaction on a bond bearing interest executed in respect of a past liability. The definition adds that loan shall not include the two items mentioned therein with which we are not concerned in the instant appeal. ''Acknowledgment'', as this term is commonly understood means acceptance of past liability. Section 18 of the Limitation Act, 1963 deals with the effect of acknowledgment in writing. Sub-section (1) of Section 29 of the Limitation Act states that nothing in this Act shall effect Section 25 of the Indian Contract Act, 1872. Sub-section (3) of Section 25 of the Indian Contract Act states, inter alia, that an agreement made without consideration is void unless it is a promise made in writing and signed bv the person to be charged there with or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. It further states that in any of these cases including that covered by Sub-section (3) of Section 25 such an agreement is a contract. Another term of significance arising in course of argument is ''account stated'' referred to in Article 64 of the Indian Limitation Act, 1908. This article provides a period of limitation for three years for money payable to the plaintiff for money found to be due from the defendant to the plaintiff on account stated between them. The three years'' limitation commences when the accounts are stated in writing signed by the defendant or his agent duly authorised in this behalf unless where the debt is simultaneous agreement in writing signed as aforesaid made payable at a future time and then when that time arises.

The lower appellate court has found as a fact, that Ext. 1 is valid, genuine and for consideration, based on due consideration of the materials on record. As this finding is a finding of fact it is binding on this court while sitting in second appeal. The defendant categorically stated in Ext. 1 that on accounting a sum of Rs. 4224/- was found due to the plaintiff from him which he accepted and acknowledged. The defendant further wrote therein that this amount of Rupees 4224/- would carry monthly interest at the rate of 12 annas per cent per month. The promise made in Ext. 1 was acted upon by the defendant by making two payments on two different dates of two substantial amounts mentioned above. These two amounts'' have been set off by the plaintiff towards dues arising from Ext. l at the time of institution of the suit If one goes deeply into the terms of Ext. 1 the irresistible conclusion would be that Ext. 1 evidence a transaction of loan with promise by necessary implication to re-pay the same with interest stipulated therein. Thus Ext. 1 assumes the form of a bond and cannot be treated as a mere acknowledgment of debt contemplated in the Indian Limitation Act. The view taken above also stands supported by a decision of the Supreme Court reported in Hiralal and Others Vs. Badkulal and Others, . In that case the defendant who had mutual dealings with the plaintiff signed an entry in the plaintiff''s khata of account on which earlier mutual accounts had been entered, to the following effect; "Rs. 34,000/- ballance due to be received upto Bhadon Sudi 11 Sambat 2006 made by check and understanding of accounts with defendant''s books". The acknowledgment was signed bv the defendant with the following endorsement; ''after adjusting the accounts Rs. 34,000/- found correct and payable.'' The plaintiff brought a suit on the basis of the entry for recovery of the amount. It was held by their Lordships (at p. 227):

"..... under which the entry was made were sufficient to furnish a cause of action on the plaintiff for maintaining the suit."

Their Lordships observed that truly speaking the suit was not based merely on the acknowledgment but was based on the mutual dealings and the accounts stated between them and was thus clearly maintainable. The submission of Shri Biswanath Prasad was that since the case of Hiralal v. Badkulal (supra) was a case of bilateral transaction, the decision given therein could not be applicable to the instant case. I fail to appreciate this argument. If Ext. 1 evidence an agreement, as it does, the transaction evidenced by Ext. 1 would be bilateral in nature.

The next submission of Shri Bishwanath Prasad was that as Ext. 1 failed to state in express terms that, the defendant promised to pay the dues, existence of a promise to pay interest, will not imply such a promise so as to give the plaintiff a cause of action for the suit. If parties enter into an agreement and the agreement is put in black and white, one should look to the document as a whole to find out if such a promise stands manifested in the document. Even the attendant circumstances should be looked into. W it is so done, it, is apparent that Ext. 1 bv necessary implication, shows an agreement to pay the dues.

Shri Kailash Roy also relied on a Division Bench decision of this Court reported in Rajendra Prasad Vs. Gaya Prasad Sah, . The ''chit- tha'' in that case showed that certain amount was found due after the ac counting in respect of previous transaction which was embodied in the earlier, ''Chittha''. There was acknowledgment of this debt. Their Lordships observed that obviously in view of the law laid down in Maniram''s case (1906) 33 Ind App 165(PC) the acknowledgment implied a promise to pay. The ''chittha'' also showed that payment was made towards the aforesaid amount by the defendant and an entry to that effect was made in the ''chittha'' itself, as in the instant case. This according to their Lqrdships clearly indicated a promise to pay and a partial fulfilment of the promise. The suit was thus one on the basis of a chittha implying a ''promise to pay''. The suit was, there fore, held maintainable.

Learned counsel for the appellant mainly relied on three decisions in suport of his contention that the suit was not maintainable on Ext. 1. One of them is reported in 1967 BLJR 763 (Baidyanath Prasad Sah v. Jamuna Prasad Sah). The relevant portion of the ''chittha'' in that case reads as follows:

"Credit

Debit.

The 1st June 1957.

Rs. 37,576/- executed new chittha for Rs. 37,576/- in respect of previous dues under chittha dated 19-10-1954 after adiustment of accounts and (deduction of the) payment made.

(Signed On eight revenue stamps of one anna each) I, Yamuna Prasad Sah, son of Sri Gouri Shankar Prasad deceased of Motihari Tappa Madhwal, Fergana Maihawa, District Champaran, executed the chittha with interest at the rate of Re. 1 per hundred rupees per mensem.

Sd. Yamuna Prasad Shah. By my own pen 1-6-1957.

In that case the ''chittha'' carried no promise to pay interest at any particular rate as Ext, 1 shows. This apart there was no repayment of the dues acknowledged, as in the instant case. The facts of this case are, therefore, distinguishable from the facts of the instant case. Another decision relied up- on by Shri Prasad is reported in AIR 1934 147 (Privy Council) . This decision referred to two forms of accounts stated and their Lordships of the Privy Council discussed the effects thereof. The plaintiff does not base his claim in the instant suit on any account stated and as such this decision is of no consequence. The third decision relied upon by Shri Prasad stands reported in AIR 1940 10 (Federal Court) . The facts of this case are distinguishable from the facts of the instant case. There two ''chitthas'' were under consideration. The endorsement in one of the Chitthas did not contain any promise to pay the amount or any stipulation to pay interest. In the account prepared by the plaintiff''s Munib the rate of interest was mentioned but there was no express stipulation to pay such interest. In Ext. l the subject matter of the instant suit. as stated above, there is a clear stipulation to pay interest on the loan evidenced by Ext. 1. On a consideration of all these, the irresistible conclusion is that Ext. 1 evidences a bond in respect of the loan mentioned therein with a clear stipulation for payment of interest thereon.

In such a situation the lower appellate court has rightly held that the suit filed by the plaintiff was maintainable in law. There is thus no merit in this appeal which, fails and is dismissed. In the facts and circumstances of this case, however, there will be no order as to costs of this second appeal and the parties shall bear their own costs.