JUDGMENT 1. This is an appeal by the creditor plaintiff from the judgment and decree of the first appellate Court in which it has gone behind the pro-note written in settlement of old acc-aunts and on which the suit was based, on the principle that the creditor who is a moneylender is not entitled to recover from the debtor who is an agriculturist, any interest because he did not periodically send him accounts, that Court has actually deducted the element of interest on examination of older accounts it was able to find in the consideration of the new pro-note and has decreed only what it finds to be the unpaid arrears of the original principal. The appellant contends that, whatever the propriety of disallowing interest on the amount of the pro-note for the period after its execution, the first appellate Court was wrong in going behind the pro-note itself and still assuming that part of the consideration was interest when the borrower himself had treated it as part of the new loan. 2. The respondent, on the contrary has argued that the non-entitlement to interest is a penalty provided by Statute which the first appellate Court has found appropriate in this case. For the purpose of knowing how much had been included in the consideration by way of interest, the Court was competent to go behind the pro-note and reopen the accounts and then disallow what had gone there as interest, and this in addition to the disallowing of interest for the period after the execution of the pro-note. 3. The question is not whether a Court is competent to re-open accounts in general, but, first, whet he in the instant case what was an element of interest before the execution of the pro-note continues to be so, and secondly, whether when both the parties have intended that there should be a fresh consideration treated as a fresh loan and the suit itself is based on it, the Courts are competent still to attribute to it the nature of interest for the purposes of the disability imposed by Sections 9 and 13 of the Madhya Bharat and 3 and 7 of the Madhya Pradesh Moneylenders Act. 4. 4. At this stage the facts found can be treated as non-controversial, The transactions between the plaintiff who is the appellant here and the defendant respondent started on 5-10-1951 with a loan taken by the letter from the former of 3800 and an additional sum of 50 taken sometime later. On 21-7-1954 it was found that the amount payable was 3850 plus interest which was 955. A sum of 2925 had been paid, the largest single payment of 2700 being made on 21-7-1954. The result was that the parties found that on that day a total of 1880 was outstanding, 925 the balance of unpaid principal plus 955 interest on 3850 during this period. It is worth nothing even here that the transactions upto this stage had not contravened any law regarding interest nor involved such terms as would call for interference by the Courts under Section 3 of the Usurious Loans Act. The three-year period was nearly ending and the borrower executed a new pro-note in favour of the creditor on that date for 1880 and interest for the future at the rate of 8 annas per cent per month. Nothing being paid either for interest or towards the principal till November 1955, the present suit was brought for 1880 principal plus 145/12 interest, a total of 2025/12. The borrower urged that he was an agriculturist and the plaintiff creditor was a moneylender for the purposes of the Madhya Bharat Moneylenders Act, the provisions of which in this regard are substantially the same as those in the Madhya Pradesh Moneylenders Act which has subsequently been brought into force in this area also. Under either enactment a moneylender who fails to send annual statement of account to the borrower is subject to the disability that he would not get from the Court anything by way of interest. Certainly when it is a promissory note, the periodical statement of account is an extremely simple formality; but the provision of law being such and the Courts having found that the appellant had not complied with that provision he was not entitled to interest. The trial Court disallowed interest for the future and decreed the suit itself for 1954-11. Certainly when it is a promissory note, the periodical statement of account is an extremely simple formality; but the provision of law being such and the Courts having found that the appellant had not complied with that provision he was not entitled to interest. The trial Court disallowed interest for the future and decreed the suit itself for 1954-11. On appeal by the defendant the first appellate Court took the view that the disentitlement to interest would go even behind the pre-note and operate on all interest claims from the date of the original loan in 1951, Whatever had been paid since would be applied to the principal whether or not the borrower himself had so directed. On that basis the appellate Court reopened the whole matter and on the figures already mentioned reduced the decretal amount to 925/- plus costs, which comes to 1002/- Now it is the turn of the plaintiff creditor to come to this Court. His grievance is not in regard to the interest on the amount mentioned in the pro-note for the period after 21-7-1954; it is that the disability could not be applied to a period before the execution of the pro-note itself. There was an order for instalments, with which we are not concerned immediately. 5. The argument has covered a wide range including the general competency of a Court to reopen accounts that are settled between the parties, the competency of a Court to reopen such accounts with reference to one or the other of the enactments that are meant to protect the interests of the borrower, specially, the agriculturist borrower, such as the Usurious Loans Act, 1918, which has been recently brought into force in this State, the Madhya Bharat Interest Act, some decisions under which have been referred to by the parties, and third, the Madhaya Bharat (and the Madhya Pradesh) Moneylenders Act. which imposes certain disabilities on the creditors who fail to send periodical statements of account. 6. Under the general law an account stated between the parties and reduced to a fresh instrument may not be reopened except for fraud, mis-representation and the like. This is based on the principle that when parties voluntarily enter into a contract and there is no legal ban on their doing so, it is not for the Courts to substitute on their own what they would consider to be a fair one. This is based on the principle that when parties voluntarily enter into a contract and there is no legal ban on their doing so, it is not for the Courts to substitute on their own what they would consider to be a fair one. On the other hand, if there is evidence of misrepresentation or fraud, the settled accounts should be reopened' without reference to any enactment of a special nature. Except on these grounds nothing short of a statutory provision can justify a Court's reopening of the new agreement. 7. A statutory provision enabling a Court or tribunal to reopen accounts may be one of two kinds, the first, which expressly directs or at any rate empower it to reopen accounts and go behind the fresh bond or pro-note or undertaking. Such cases give rise to no difficulty in practice: The second kind of provision is one which does not say in so many words that the Court or tribunal can or shall re-open settled accounts, but which directs or empowers it to do certain things which necessarily involve the reopening and cannot be done without doing so. A typical case is the principle of damdopat as recognized in most States; the law instead of expressly directing the Court to reopen the accounts prohibits it from decreeing a claim for interest in excess of the sum actually advanced. Therefore it becomes necessary in such cases for it to ascertain the sum actually advanced. This necessarily implies that the Court can in appropriate circumstances go behind settled account. This was the kind of case that came up before this Court before a single Bench in Bondarsingh Vs. Bhawanisingh, S. A. No 456 of 1959 (decided at Indore on 17th October 1962 "Where a Court is required to do or not to do a certain thing which cannot be done or not done unless some other thing is done, then the power to do that other thing is implied by the provision requiring it to do or not to do that thing". 8. The most frequent case that has come recently before this Court is where under the Madhya Pradesh Interest Act the rate of interest charge-able is in dispute. There were quite a number of decisions between which there was some apparent conflict which has been cleared by the opinion of the Full Bench in Keshavrao Vs. 8. The most frequent case that has come recently before this Court is where under the Madhya Pradesh Interest Act the rate of interest charge-able is in dispute. There were quite a number of decisions between which there was some apparent conflict which has been cleared by the opinion of the Full Bench in Keshavrao Vs. Mahadev, Civil Revision No. 48 of 1960, given on 7th April 1962. "The Madhya Bharat Interest Act, 1956, does not empower the Court to reopen a settled account. The power of reopening a settled account is now to be found in section 3 of the Usurious Loans Act, 1918 which has teen extended to the entire Stale of Madhya Pradesh by the Madhya Pradesh extension of Laws Act, 1958. With the extension of the Usurious Loans Act, 1918, the Madhya Bharat Interest Act, 1956, which is corresponding law, has ceased to be operative under Section 6 of the Extension of Laws Act. The repeal is no doubt subject to the proviso to section 6, but in cases to which the Usurious Loans Act, 1918, applies, the Court has now the power to reopen transactions under Section 3 of the Act". It is however unnecessary to examine this point further because the instant one is clearly not a case calling for the application of the Usurious Loans Act nor has it been urged by the parties that it is so. 9. Yet another enactment under consideration is the Madhya Bharat (Madhya Pradesh) Moneylenders Act. in particular, the provision disqualifying the creditor from getting interest. The numbers of the section are different in the two Acts, but the wording is similar. “M. B. Act S.9(1)(b). Every Moneylender shall furnish such debtor every year with a legible statement of accounts signed by the moneylender or his agent, Munim or Gumasta of any balance or amount that may be outstanding against such debtor within three months after Diwali (Kartik Badi Amawas) of each year. “M. B. Act S.9(1)(b). Every Moneylender shall furnish such debtor every year with a legible statement of accounts signed by the moneylender or his agent, Munim or Gumasta of any balance or amount that may be outstanding against such debtor within three months after Diwali (Kartik Badi Amawas) of each year. Such Statement of account shall include all transactions in respect of the loan entered into during the year to which the statement relates and shall be furnished in legible Hindi language and Devanagri script and in such manner, and in such form and containing such details as may be prescribed." "13 (c) Notwithstanding anything contained in any other enactment for the time being in force in any suit or proceeding relating to a loan if the Court finds that the provisions of clause (b) of subsection (1) of section 9 have not been complied with by the moneylender, it shall, in computing the amount of interest due upon the loan, exclude every period for which the moneylender omitted duly to furnish the account as required by that clause and may disallow costs either wholly or partly. Provided that if the moneylender has, after the time prescribed in that clause, furnished the account and the plaintiff satisfies the Court that he had sufficient cause for not furnishing it earlier, the Court may, notwithstanding such omission, include any such periods or period for the purpose of computing the interest" 10. The problem before us is not whether in the instant case the creditor is disqualified from getting interest which has been found by both the lower Courts, but whether interest to which he is disqualified is one payable on the consideration of the pro-note on which the suit is based, that is, the one for 1880/- dated 21-7-1954 or whether it is the interest on the original loan of 3800/- taken on 5-10-1951. On the face of it the position taken by the first appellate Court seems incorrect because it is going behind the cause of action on which the suit itself is based; in effect it tells the plaintiff, that in his suit based on the fresh cause of action, that is, the pro-note he is disqualified to get interest not only for the period after it, but for the period before it, the interest for which as such was not the subject-matter of the suit itself, A similar position arose in the case covered by the ruling reported as a short-note .numbered 35 in (Chandmal Vs. Velji Dhunraj), 1961 JLJ SN 329=1960 Madhya Pradesh law Journal SN 35. The relevant portion is clear enough and is actually based on the Supreme Court decision in Hiralal Vs. Badkulal, AIR 1953 Supreme Court 225 : "It is obvious from the scheme of the Madhya Bharat Moneylenders Act and the provisions of sections 9 and 13 that section 13 comes into play only when the accounts are not settled. Were once the accounts are settled and acknowledged by the debtor to be true, then it cannot be reopened except on grounds of fraud coercion, undue influence or mistake of fact. Where there is no such plea by the debtor, the accounts cannot be reopened on the ground that moneylender has failed to comply with section 9 (1) (b) of the Madhya Bharat Moneylenders Act." A precisely similar position arose in a later case also short-noted but with sufficient clarity and numbered 307 (Nathulal Vs. Girdharilal), 1961 Madhya Pradesh law Journal SN 307; "When once accounts are made and settled between the parties and the debtor has acknowledged certain amount as due film him, then that would be the "principal" amount and such a settled account cannot be reopened, except on proof of fraud, coercion, mistake of fact, or undue influence. The provisions of the M. B. Moneylenders Act and M. B. Interest Act nowhere expressly authorised the Court to reopen settled account." 11. The first appellate Court has based its decision en the case reported in Shrikisan Vs. Mahadeo, 1959 JLJ 135 =1959 Madhya Pradesh Cases 22= 1959 MPLJ 50 . The provisions of the M. B. Moneylenders Act and M. B. Interest Act nowhere expressly authorised the Court to reopen settled account." 11. The first appellate Court has based its decision en the case reported in Shrikisan Vs. Mahadeo, 1959 JLJ 135 =1959 Madhya Pradesh Cases 22= 1959 MPLJ 50 . There the law applied was section 3 and 7 of the C. P. and Berar Moneylenders Act (which is new called the Madhya Pradesh Moneylenders Act), the corresponding sections being those numbered 9 and 13 in the Madhya Bharat Act. This ruling follows the principle laid down in the earlier Nagpur ruling reported in Tulsiram Vs. Badriprasad, 1948 Nagpur law Journal 223. A comparision of the situation in these two cases with that in the present one shows a basic difference w that there is no real conflict between these rulings and the decisions already referred to. In 1959 Madhya Pradesh Cases 22 the debtor had made certain payments which he as well as the creditor had agreed would be on account of interest. There was no doubt arithmetical verifications but no settlement of accounts properly so called giving rise to a new cause of action and a new loan embodied in an appropriate pre-note or bond. The Court held that the creditor being disqualified to receive interest, the very payments made as interest by the creditor should now be applied to the principal because he had got what he was not really entitled to. 12. At place in the earlier report in 1948 Nagpur Law Journal 223, the words "settle the accounts" have been used. But it is in the sense that from time to time the creditor gave statements the arithmetical correctness of which had been verified by the debtor. "Account settled" properly so called is where after investigating older transactions the parties agree that there should be a new agreement to the effect that one of them will pay a certain amount in settlement of all the older claims. This is sometimes endorsed in the books themselves that "I agree to pay so much", or "I agree that so much is due from me", and the like, and sometimes more formally as in the instant case in the from of a separate bond or pro-note. The distinctive feature is the coming into existence of a new agreement washing out all the other claims and liabilities. 13. The distinctive feature is the coming into existence of a new agreement washing out all the other claims and liabilities. 13. The distinction between the cases referred to before and the ones on which the first appellate Court has relied on is that while in the former cases there was such a new agreement, in the latter the old transactions were still open and all that had happened was that certain payments had been voluntarily made by the debtor expressly on account of interest. The Courts .held that in view of the disqualification imposed by sections 3 and 7 of the C.P. and Berar Act these payments should be applied to the principal just like any other payments by mistake or oversight. It is difficult to see how this principle can be applied to a case where the parties bilaterally agree that the older transactions have all been done with and now a new loan has been incurred. If there are other circumstances such as fraud and the like, or those attracting section 3 of the Usurious Loans Act, or section 15 of the Madhya Bharat Moneylenders Act, the Court might certainly go behind even this new agreement. But it cannot go behind it because the creditor had disqualified himself to get interest. That disqualification shall only apply to the period after the new loan. 14. A further argument made by the respondent is that in terms of the definitions of "loan" and "interest" in the Madhya Pradesh and the Madhya Bharat Moneylenders Acts, the element which was originally interest on the original loan but has now become part of the new consideration, still continues to be interest for the purpose of the Act. It is difficult to agree. The definition of "interest" in section 2 (5) of the Act really entails into the definition of loan : " 'Interest' includes the return to be made over and above what was actually lent". "(6) 'Loan' means an advance...and shall include any transaction which the Court finds to be in substance a loan." There are a number of exclusions but none of them is relevant to our present purpose. In the instant case the parties came together on 21-7-1954 and after investigating their older transactions agreed that the debtor had still to pa y the creditor 1880/-. This is certainly a transaction which has to be called a loan. 15. In the instant case the parties came together on 21-7-1954 and after investigating their older transactions agreed that the debtor had still to pa y the creditor 1880/-. This is certainly a transaction which has to be called a loan. 15. On behalf of the respondent while it is admitted that there is the difference already pointed out between the instant case and the one in 1959 JLJ 135 it is alleged that that difference is immaterial for our present purpose, and if anything the case for the borrower is stronger in the present context than in the older one. It is difficult to agree. There the matter was open at the time of the suit and it was possible for the Court to apply towards the principle what had been paid as interest in ignorance of the statutory disqualification. Here the matter had been settled well before the controversy came before the Court. In the result, as far as the claim is concerned, the judgment and the decree of the first appellate Court has to be set aside and the judgment and decree of the trial Court has to be restored. 16. There is one more point of detail, namely, as to the propriety of granting instalments and their number. The trial Court seems to have granted a large number of instalments; but the first appellate Court ordered that the amount decreed by it should be paid in two instalments, one falling due three months from the date of the decree and the other after a lapse of twelve months. It appears that neither instalment bas been paid and the creditor of 1954 is just where he was then after a lapse of 10 years. This matter has not been argued before me. It is only proper that on the same principle the total decretal amount granted now should be spaced out into four instalments, the first to be due on the lapse of three months from the date of this decree and the others to follow after a lapse of twelve months each, all amounts outstanding being liable to immediate realisation on the judgment-debtor's failure to pay any single instalment in time. The appeal is allowed on these terms with costs of this Court payable by the respondent to the appellant along with pleaders fee according to rules.