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1949 DIGILAW 6 (MP)

Amarlal Lachharam v. Bhuribai

1949-02-23

MEHTA, SANGHI

body1949
JUDGMENT : Sanghi, J. 1. The parties reside in Rupakhedi in Junior Dewas State. The respondent is a Sahukar and also is an agriculturist. The appellant is a Pujari. He, from time to time, deposited his savings with the respondent, The first deposit of Rs.100 was made on Bisakh Sudi 10, Samvat 1998. A memorandum of this and subsequent deposits, was made on a sheet of paper Ex.D/1, An account of these deposits was made up on Baisakh Sudi 3, Samvat 2001 and the total of the deposits came to Rs.351. The memorandum Ex.D/1 was returned to the respondent and fresh memorandum for Rs.351 signed by the respondent Ex.D/2 was delivered to the appellant. Fresh deposits made thereafter Ex.D/2, were recorded on Baisakh Sudi 6 Samvat 2002, Rs.401 stood in the memorandum Ex. D/2 to the credit of the appellant. A cross debit entry for the amount was made on that date, and the deposit was thereby shown as refunded and the document D/2 was handed over to the respondent in token of the dealings up to that data having been brought to an end. A deposit of the same amount, Rs.401 was, however, made on the same day and a fresh deposit receipt Ex.A was executed by the respondent in favour of the appellant. 2. On 1st November 1947, the appellant instituted a suit against the respondent in the Court of the Sub-Judge Dewas for recovery of Rs.401 and interest amounting to Rs.68.3.O. The respondent produced the two documents Exs, D/1 and D/2 and pleaded that the amount was made up of old debts and by reason of the provisions of the Dewas (Junior) Debt Conciliation Act the appellant could not recover the amount. The Debt Conciliation Act came into force on 31st May 1943. By S.4 of the Act it is provided that debtors and creditors should apply to the Debt Conciliation Board for settlement of the debts with in three months from the date of the coming into force of the Act, and if they did not, the debt would be deemed to have been discharged. The learned Sub-Judge found that deposits amounting to Rs.175 had been made by the appellant before 31st May 1943, and he held that out of Rs.401 the appellant was not entitled to this sum. He passed a decree for the remaining amount of Rs.226 made payable by instalments. The learned Sub-Judge found that deposits amounting to Rs.175 had been made by the appellant before 31st May 1943, and he held that out of Rs.401 the appellant was not entitled to this sum. He passed a decree for the remaining amount of Rs.226 made payable by instalments. There being no agreement to pay interest, the interest claimed was disallowed. 3. Appellant's appeal was dismissed by the learned District Judge and he has now come up to this Court in second appeal. His learned counsel urged two points. The first was that a deposit is not a debt as defined in the Debt Conciliation Act, and secondly, the deposit was renewed twice, and the last deposit made on Baisakh Sudi 6, Samvat 2002, was after the coming into force of the Act and was, therefore, not hit by the provisions of S.4 of the Act. No opinion need be expressed on the first ground urged as, in my opinion, the appellant should succeed on the second ground. By the Act a depositee is not prohibited from paying back the deposit to the depositor. By making the cross debit entry on the document D/2 on Baisakh Sudi 6, Samvat 2001, the deposits amounting to Rs.401 were repaid and the depositor made a fresh deposit on the same day of the same amount and obtained the receipt Ex.A from the depositee. The physical act of receiving the money in the hand and giving back to the depositee is not what is to be looked at. For all we know Oven this physical act may have been done. The substance is the intention of the parties. The intention was receiving back the money and depositing it anew, closing the old dealings and entering into a new one. For this reason I set aside the decrees passed by the two Courts below and pass a decree for Rs.401 in favour of the appellant against the respondent with costs incurred by him in this Court and in the two Courts below. The decretal amount including costs shall be paid in three equal instalments payable six monthly commencing from 1st June 1949. Interest shall be payable from the date of the decree on the decretal amount till realisation at the rate of six per cent per annum dated 23rd February 1949. Mehta, J. I agree.