JUDGMENT 1. Defendant No. 4 and predecessor-in-interest of Defendant No. 5 (hereafter called the Bhattacharjees) of Ellenga, borrowed from the Respondents a sum of Rs. 5,000 on the 9th of December, 1913, on the promissory note-Exhibit 2. In 1917 an adjustment was made in respect of this loan and a sum of Rs. 6,385 was then found due on account of principal and arrears of interest. For that sum, Defendant No. 4 and Defendant No. 5 who had succeeded to his father's estate, executed the promissory note-Exhibit 3. In 1920, accounts were taken in respect of the principal and arrears of interest due in terms of Exhibit 3 and a sum of Rs. 7,800 was then due on account of. principal and interest. A small cash payment was. made and on the 12th of January, 1920, the promissory note-Exhibit 4 was executed by them for the sum of Rs. 7,924. Accounts were taken of the dues on this promissory note-Exhibit 4 in 1923. A sum of Rs. 10,000 and odd was found due and a further sum of Rs. 126 in cash was advanced on the 29th of January, 1923, and on that date a promissory note-Exhibit 5 for Rs. 10,162 was executed by those Defendants in favour of the Respondents. Shortly thereafter, Defendants Nos. 4 and 5 executed a trust deed by which they appointed certain persons as trustees with power to manage their estate and to pay off their debts. The trustees made a payment of Rs. 2,756-7-6 pies on the promissory note Exhibit 5 and endorsed the payment on its back. Another payment of Rs. 2,698 was paid by the trustees in January, 1929, and that payment was endorsed on the back of the promissory note Exhibit 5. In January, 1932, accounts were taken on the dues under the promissory note Exhibit 5. A sum of Rs. 12,941-7-3 p. was found due and for that the trustees executed a promissory note Exhibit 1 on the 13th of January, 1932. On the 12th of September, 1938, the Respondents instituted a suit being Suit No. 41 of 1938 in the Court of the Subordinate Judge at Dacca to recover money on the basis of the promissory note Exhibit 1. On the 13th of January, 1932, that promissory note had been executed by the trustees at Mymensingh. On the 12th of September, 1938, the Respondents instituted a suit being Suit No. 41 of 1938 in the Court of the Subordinate Judge at Dacca to recover money on the basis of the promissory note Exhibit 1. On the 13th of January, 1932, that promissory note had been executed by the trustees at Mymensingh. The Defendants contended that the learned Subordinate Judge at Dacca had no jurisdiction to entertain that suit, the proper place for suing being Mymensingh where the promissory note sued upon had been executed. They also raised the question that the Plaintiffs were not entitled to the sum that they had claimed in the suit in view of the provisions of the Bengal Money-Lenders Act of 1933 which was then in force. The learned Subordinate Judge held that he had jurisdiction to entertain the suit. He gave his judgment before the Money-Lenders Act of 1940 had come into operation. He applied the Bengal Money-Lenders Act of 1933 and gave, a decree for the sum of Rs. 20,000 and odd. Against that decree the Defendants preferred an appeal to this Court being First Appeal No. 13 of 1941. While the appeal was pending in this Court the Bengal Money-Lenders Act of 1940 came into operation. An application was made in this Court by the Defendants Appellants under sec. 36 of the last-mentioned Act, whereupon a Division Bench of this Court keeping the appeal in the file of this Court passed the following order on the 28th February, 1944: Two applications hare been made in these two appeals under sPC. 36 (6) (b) of the Bengal Money-Lenders Act 1940. On the materials before us it is not possible for us to exercise our powers under sec. 36 of the Act. We accordingly refer the petition to the trial Judge, and direct him to exercise the powers under sec. 36 of the Act. The trial Judge is also directed to return the record with additional evidence, if any, taken by him and his findings and reasons therefor to this Court within three months. After the receipt of the record from the lower court the matter will be again placed on the list for further hearing. In accordance with that direction the lower Court considered the application made under sec. 36, took evidence, recorded findings and have forwarded its findings together with the evidence taken to this Court. After the receipt of the record from the lower court the matter will be again placed on the list for further hearing. In accordance with that direction the lower Court considered the application made under sec. 36, took evidence, recorded findings and have forwarded its findings together with the evidence taken to this Court. We have to determine not only the points which were raised in the appeal as originally filed but also the points raised in connection with the application under sec. 36 of the Bengal Money-Lenders Act. 2. The learned Advocate appearing on behalf of the Defendants Appellants urges that the Dacca Court had no jurisdiction to entertain the suit and that if it be held that that Court had jurisdiction to entertain the suit, for the purpose of sec. 30 of the Bengal Money-Lenders Act, 1940, the principal of the loan has to be taken to be Rs. 5,000, the amount which was actually advanced in 1913. He urges the last-mentioned point because the learned Subordinate Judge held that the principal of the loan is to be taken for that purpose at the figure of Rs. 10,162, namely, the amount mentioned and treated as principal in the promissory note-Exhibit 5 of the 29th of January, 1923, because according to the opinion of the learned Subordinate Judge the transaction represented by that promissory note cannot in law be re-opened in view of the proviso (1) of sec. 36 (1), cl. (a) of the Bengal Money-Lenders Act of 1940. The third point that he urges is that in view of the means and circumstances of the debtors and creditors 20 years' instalments ought to be given for payment in place of nine which the learned Subordinate Judge has recommended. We will deal with these points in the order stated above. We have already said that the promissory note-Exhibit 1 on which the suit has been brought was executed at Mymensingh. The learned Advocate for the Defendants relies upon that fact and on the provision of sec. 70 of the Negotiable Instruments Act in support of his contention and contends that the only place where the suit could be brought was Mymensingh. For the purpose of dealing with this question three sections of the Negotiable Instruments Act, namely, sees. 68, 69 and 70 are relevant, as also the terms of the promissory note Exhibit 1. 70 of the Negotiable Instruments Act in support of his contention and contends that the only place where the suit could be brought was Mymensingh. For the purpose of dealing with this question three sections of the Negotiable Instruments Act, namely, sees. 68, 69 and 70 are relevant, as also the terms of the promissory note Exhibit 1. The relevant portions of those sections are as follows:- Sec. 68 says that A Promissory Note made or payable at a specified place and not elsewhere must, in order to charge any party thereto, be presented for payment at that place. Those of sec. 69 are as follows: A Promissory Note made or payable at a specified place must, in order to charge the maker thereof, be presented for payment at that place. Those of sec. 70 are as follows: A Promissory Note not made payable at mentioned above in sees. 68 and 69, must be presented for payment at the place of business (if any), or at the usual residence, of the maker, thereof, as the case may be. 3. Sec. 70 is accordingly a residuary section. If a promissory note is made payable at a specified place, it is to be presented for payment at that place only, but where no place is specified for payment, a promissory note is to be presented for payment at the place where it was made or at the place of business or of usual residence of the maker. Locking to Exhibit 1 we found that the amount mentioned in that promissory note was made payable at the creditor's residence and the creditor was residing admittedly at Dacca. Therefore the case before us comes within the terms of sec. 69 of the Negotiable Instruments Act and the Dacca Court had jurisdiction to entertain it. The first point is, therefore, overruled. 4. In view of Ordinance XI of 1945 the Bengal Money-Lenders Act, 1940, is applicable to a loan advanced on the security of a promissory note. Although the promissory note is stamped with a stamp which would be leviable on a hundi and although it is described in the lower Court's proceedings at many places as a hundi, it is not a hundi or a bill of exchange but a promissory note because there is no drawee and no order on the drawee. Although the promissory note is stamped with a stamp which would be leviable on a hundi and although it is described in the lower Court's proceedings at many places as a hundi, it is not a hundi or a bill of exchange but a promissory note because there is no drawee and no order on the drawee. The Bengal Money-Lenders Act being, therefore, applicable by reason of the said Ordinance, the question is whether the learned Subordinate Judge was right in holding that the transaction represented by the promissory note Exhibit 5 cannot be re-opened. If that transaction cannot be re-opened, the amount mentioned as principal in that document must be treated as principal for the purpose of sec. 30 of the Bengal Money-Lenders Act and not a sum of Rs. 5,000 which was actually advanced in the year 1913. In order that proviso 1 to sec. 36 (r), cl. (a) may be attracted and the transaction represented by this promissory note-Exhibit 5, may be protected, it is accessary that by that promissory note the previous dealings between the parties, namely, the borrowers and the lenders had been closed and a new obligation had been created. That phrase has been interpreted in an earlier decision of this Court in the case of Jadu Nath Roy v. Jagat Prosanna Mukherjee (1194) 45 C.W.N. 625. The test is, as was pointed there, whether there is a complete substitution of the earlier obligations by Exhibit 5. We must, therefore, examine the facts. By reason of provisions of cl. (b) of sec. 80 of the Negotiable Instruments Act a negotiable instrument can be discharged by cancellation but cl. (b) of that section recognises other methods of discharge. For the purpose of considering this question the endorsement upon the promissory note Exhibit 4 which was executed on the 12th of January, 1920, and the terms of the promissory note Exhibit 5 are important. The endorsement on the promissory note, Exhibit 4, was made on the same date on which the promissory note Exhibit 5 was executed. The endorsement on Exhibit 4 runs thus: In lien of this bill, we execute a new bin consolidating the principal and interest and renew this bills. 5. It is signed by the Bhattacharjees. Material terms of Exhibit 5 are as follows : On the-27th Pons, 1326 B.S. last, we, two brothers, borrowed the sum of Rs. The endorsement on Exhibit 4 runs thus: In lien of this bill, we execute a new bin consolidating the principal and interest and renew this bills. 5. It is signed by the Bhattacharjees. Material terms of Exhibit 5 are as follows : On the-27th Pons, 1326 B.S. last, we, two brothers, borrowed the sum of Rs. 7,924 from your tahabil at Digbazar, Dacca, on executing a promissory note. Up to this time we have not been able to pay a farthing either towards the said amount or towards the interest thereon. Hence the said principal amount being Rs. 7,924 and the interest thereon upto yesterday being Rs. 2,111 12-0, the total sum of Rs. 10,035-12 as. is justly due to you and legitimately due by us. As we are unable to pay off the said amount now and as we take a further sum of Rs. 126 6 as. today, we both brothers, admit our liability in respect of the total sum of Rs. 10,162-2 as on executing this Promissory Note, jointly and severally promise that after the period of thirty days from this date we shall pay off the said sum of Rs. 10,1622 as. to the payee or order. 6. The recitals-begin not with the loan that had been advanced in 1913 but it stated that they had borrowed the amount Rs. 7,924 on the 27th of Pous, 1326 B.S. corresponding to 12th of January, 1920, that is to say, the date on which the promissory note Exhibit 4 was executed. No reference is made to the earlier transactions. The endorsement on the back of the promissory note Exhibit 4 was- that this promissory-note Exhibit 5 was being given in lieu of- the promissory note Exhibit 4. Although the holder of Exhibit 4 does not by his endorsement discharge the makers of that promissory note, the position is clear. By agreement between the parties, the holder and the makers, the-rights of the holder under the promissory note Exhibit 4 were put an end to and a new obligation, the obligation created by a new promissory note Exhibit 5, was created. The past dealings of the parties were closed and by Exhibit 5 a new obligation was created. Thus Exhibit 5 completely substituted the earlier obligation. The past dealings of the parties were closed and by Exhibit 5 a new obligation was created. Thus Exhibit 5 completely substituted the earlier obligation. As that document is beyond 12 years of the date of the suit we hold that the learned Subordinate Judge was right in treating Rs. 10,162-2-0 as principal of the loan for making the calculations under sec. 30 of the Act. He is, therefore, right in holding that the amount of the decree ought to be for a sum of Rs. 14,544-12. The decree, therefore, must he for that sum together with the costs of the lower Court added to it. In the circumstances of this case we think the Plaintiff should get the sum representing the court-fees that they had paid on the plaint but ether costs must be calculated on the basis of not on the amount claimed in the plaint but on the basis of Rs. 14,544-12, the amount for which we are decreeing the suit. There remains the question of instalments. It is not challenged for the purpose of this appeal that the debts of the Appellants amount to about Rs. 80,000 including the debt which is the subject-matter of this appeal and the other connected appeal, namely, First Appeal No. 19 of 1941. Their income is derived from the landed property. There is oral evidence to the effect that their landed property yields a net income of Rs. 6,000 annually. Their maintenance expenses amount to Rs. 4,000 and in every alternate year they have to perform Durga Puja and Kali Puja. The Respondents, namely, the creditors are men of substance, although their money-lending business is not in such a flourishing state as it was in the past. They have landed property. In fact they had purchased the share of chhota taraf. It would have been better if the Appellants had produced their collection papers to substantiate that the net income is Rs. 6,000 and their family expenses Rs. 4,000 a year. Considering the number of family members it. would: not be unreasonable to accept their statement that Rs. 4,000 would be annually required to maintain them. But we have some doubt about their net income. Their witnesses admit that Rs. 2,000 to Rs. 2,400 is the annual collection charges. There are indications in the evidence that the revenue paid is not high. would: not be unreasonable to accept their statement that Rs. 4,000 would be annually required to maintain them. But we have some doubt about their net income. Their witnesses admit that Rs. 2,000 to Rs. 2,400 is the annual collection charges. There are indications in the evidence that the revenue paid is not high. In these circumstances, we are of opinion that they understated their net income when they stated that Rs. 6,000 represent their net annual income. In these circumstances we think that the judgment-debtors should be given an opportunity to pay off the decretal amount in 12 equal annual instalments. The first instalment to be paid by the end of Magh of the current year and the succeeding instalments within Magh of the following years. In default of payment of any instalment that instalment only would be recovered by execution in accordance with the provision of sec. 34 (i), cl. (b) of the Bengal Money-Lenders Act of 1940.