A. N. RAY, J. ( 1 ) THIS is a Bank's suit for recovery of loans granted to a partnership firm which is the first defendant in this suit. The four partners of the Firm are defendants Nos. 2, 3, 4 and 5 in the suit. ( 2 ) THE first four defendants have filed a joint written statement and the fifth defendant has filed a separate written statement. ( 3 ) THE parties went to trial on the following 8 issues :1) Is the 5th defendant at all liable as a partner of the first defendant ? 2) Is the suit liable to file against the 5th defendant for misdescription of Kamal Kanoria as Kamal kamania ? 3) Are the defendants liable to pay a sum of Rs. 1,63,773. 59 as alleged in paragraph 8 of the plaint ? 4) Did the defendants admit or acknowledge their liabilities ? 5) Did the plaintiff fail and neglect to realise the dues from the Firms on whom the bills were raised within the period of limitation as alleged in paragraph 6 of the Written Statement and if so have the defendants lost valuable right therefor ? 6) a) Did the defendants agree to pay interest at the alleged rates as contained in Schedule 'm' to the plaint or at any lower rate ? b) Are the rates of interest contrary to the Usurious Loans Act as alleged in paragraph 7 of the Written Statement ? 7) Is the suit barred by limitation ? 8) To what reliefs, if any, is the plaintiff entitled ?"proof of the amount due and owing : ( 4 ) THIS is the third issue in the suit. The Bank at this distance of time from the date of filing of the Suit faced certain difficulties about tracting witnesses who were at the concerned Brabourne Road Branch of the Bank at the time the transaction actually occurred. The Bank thus put in the box, one Debasis Adhikary who was not at the concerned branch at the material time. However, many of the documents executed by the defendants were admitted as part of Exhibit "a" being Judges Brief of Documents. Several signatures of the defendants were proved by Mr. Adhikary from the box and Mr. Surana appearing for the defendants, could, understandably, not put any serious suggestions to the witness disputing the signatures proved by Mr. However, many of the documents executed by the defendants were admitted as part of Exhibit "a" being Judges Brief of Documents. Several signatures of the defendants were proved by Mr. Adhikary from the box and Mr. Surana appearing for the defendants, could, understandably, not put any serious suggestions to the witness disputing the signatures proved by Mr. Adhikary ( 5 ) THE most important document regarding exact proof of the amount claimed is Exhibit 'h'. It is not disputed before me that Exhibit "h" is certified in accordance with the Bankers' Book Evidence Act. Mr. Adhikary gave evidence of his personal knowledge about the two signatures. of the bank officials appearing on the face of Exhibit "h" for proving that exhibit. The amount claimed in the plaint appears as the total amount arrived at in Exhibit "h". ( 6 ) MR. Surana for the defendants stated that though Exhibit "h" might be an acceptable method of proving the actual entries in the Books of Accounts of the bank, yet by reason of S. 34 of the Evidence Act liability cannot be fixed upon the defendants by reason only of proof of entries in the Books of Accounts. Mr. Surana relied in this regard on the case of Chandradhar Goswami reported in AIR 1967 SC 1058 . That case lays down the proposition that by reason of entries alone in the Books of Accounts, it would not be permissible for a Court of Law to pass a decree fixing liability on the defendants. Some other evidence is necessary for founding a decree on a confirmed legal footing. What that balance evidence will be is a matter for decision in the facts and circumstances of each different case. In the Supreme Court case there was a specific dispute about an advance of an amount of Rs. 10,000/ -. Their Lordships of the Supreme Court felt that there was no evidence apart from the Books of Accounts to prove the advance of this sum of Rs. 10,000. 00. ( 7 ) IN our case, we do not find any specific dispute as to any principal amount raised on the part of the defendants, nor any specific dispute about any interest rate in that sense, that, the defendants have not said that the bank's interest rate charged is wrong and that the interest rate should be some other rate specified by the defendants. The entire defence on facts on the part of the defendants has been only of a defect finding nature. ( 8 ) UNDER those circumstances, the evidence as to the amount due given by the Bank would not need much confirmation for the purpose of passing of a decree. However, in this suit there are sufficient papers whereby even a judgment upon admission could have been passed. There is no dearth of documents for the purpose of additional evidence for corroborating the entries in the Books of Accounts. ( 9 ) TO mention only one of the many acknowledgments or admissions which came from time to time from the defendants to the Bank, one need merely refer to the letter of 11/11/1982 at page 41 of Exhibit "a" That letter mentions a principal amount of Rs. 13,063. 73 as due and owing to the Bank. This sum, if anything, is about four thousand rupees more than the principal amount claimed by the bank in Exhibit "h" referred to above. I am of the opinion therefore that the dispute as to the amount claimed by the Bank is unsubstantial. Limitation of the claim : ( 10 ) IT is not in dispute that the bills which were discounted were of 1977 ranging from the months of August to December. That is also shown by Exhibit "h" and there was no challenge as if some other bills than the ones mentioned in Exhibit "h" were outstanding on the part of the defendants. ( 11 ) FOR the purpose of saving limitation as acknowledgment of a debtor-creditor relationship would be necessary within 3 years of these bills. There are many such admissions on record. Mr. Sen appearing on behalf of the plaintiff admitted documents Nos. 6, 7 and 8 disclosed on the part of the defendants. These were items 14, 15 and 16 of the brief of documents. In my opinion these letters of 1978 and 1979 contain a sufficient acknowledgment of the debtor-creditor relationship for saving limitation with regard to the each of the bills mentioned in Exhibit "h". Read with the aforesaid letter dated 11-11-1982, this is sufficient to dispose of the 4th and 7th issues. Interest : ( 12 ) INTEREST prior to date of suit is well known to be governed by contract. Read with the aforesaid letter dated 11-11-1982, this is sufficient to dispose of the 4th and 7th issues. Interest : ( 12 ) INTEREST prior to date of suit is well known to be governed by contract. In the instant case the rate interest is sufficiently indicated in the promissory notes which were executed by the parties from time to time. These are also part of Exhibit "a". The interest calculated by the Bank as appearing in Exhibit "h" has not been shown to have been calculated at any rate other than those mentioned in the promissory notes or in annexure 'm' to the plaint. However, there is no challenge to the figure of Rs. 94,666. 79 appearing as the claim for interest in Exhibit "h" which is worthy of any serious credence. Under these circumstances there is no reason not to accept the correctness of the total interest calculation made on the part of the Bank, as shown in Exhibit "h", although it is not possible to hold that the Bank has succeeded in proving the individual rates of interest as set out in the schedule 'm' to the plaint. ( 13 ) SO far as interest pendente lite is concerned, the grant of interest is also to be at the rate agreed unless there are compelling and inescapable reasons to the contrary. Mr. Sen appropriately relied in this regard on the two Division Bench decisions of this Court, the same being the cases of B. Gupta Tea Private Ltd. and Art. Trend Experts, reported respectively in AIR 1987 Cal at page 64 and AIR 1992 Cal at page 12. For the purpose of calculating, the interest agreed upon between the parties, however, the relevant Reserve Bank circulars would be necessary. The same not being in evidence, there is no alternative to granting the bank any interest other than only a minimum rate prescribed in the aforesaid promissory notes. The minimum rate prescribed is 17% in the promissory notes of 1977 and 1981 and accordingly that shall be the rate of interest pendents lite. The Justice of the case would be sufficiently served if further interest is granted at not more than 6% hoping for expeditious execution on the part of the bank. The minimum rate prescribed is 17% in the promissory notes of 1977 and 1981 and accordingly that shall be the rate of interest pendents lite. The Justice of the case would be sufficiently served if further interest is granted at not more than 6% hoping for expeditious execution on the part of the bank. I would perhaps have been minded to grant further interest at a slightly higher figure but I am persuaded not to do so if only out of veneration for the able and concise arguments advanced by Mr. Surana even though I am not able to accept them for the purpose of deciding any of the issues in his favour. Usurious Loans Act. : ( 14 ) THOUGH this point was seriously argued, I do not think it should have been raised at all. Under 21a of the Banking Regulation Act, 1949, as amended, the application of Usurious Loans Act is made in effect impermissible from the 15/02/1984. It is only a few days before that date that this suit was instituted. In my opinion, it would be impermissible for a Court decreeing a suit to seek to reopen a transaction on the basis of S. 3 of the Usurious Loans Act unless at the date of passing of the decree, the Court were free to apply the said Act to the transaction covered by the suit. ( 15 ) IN any event, in the absence of any evidence being given from the box on the part of the defendants, it would take facts stark and glaring for a Court to come to a conclusion that the transactions covered by the suit were substantially unfair. I could not discern even any complaint of any unfairness in any correspondence. It was correctly submitted by Mr. Sen that such unfairness of transaction has to be proved as a separate element for invoking S. 3, than the other element of proving excessive interest. Mr. Sen relied upon two cases being the case of Nabin Chandra Deb, reported in AIR 1928 Rangoon at page 7 and the case of Narendra Nath, reported in AIR 1930 Calcutta at page 776. It is not necessary to enter into the facts of these two cases for drawing assistance as to under which extreme circumstances the Court will infer substantial unfairness of loan transactions. It is not necessary to enter into the facts of these two cases for drawing assistance as to under which extreme circumstances the Court will infer substantial unfairness of loan transactions. The Fifth defendant : ( 16 ) THE fifth defendant is described in the plaint as "kamal Kamania". Mr. Surana did not appear for any Kamal Kamania, but he appeared for Kamal Kanoria. ( 17 ) IN the present day it is impossible to find any fault with a suit where a person named Kamal Kanoria has been misdescribed in the plaint as Kamal Kamania when the real person, that is, Kamal Kanoria, has notice, and is represented by able counsel for defending his case. The second issue accordingly must be answered against the fifth defendant. ( 18 ) IT is also on record that the fifth defendant, after being introduced to the firm in the year 1981 in place of the deceased partner named Prabhudayal, executed the 1981 Promissory Note which is at page 27 of Exhibit-A. The fact of execution of the Promissory Note by the 5th defendant is also deposed about by the plaintiff's witness amongst other places at question No. 40 of his Examination-in-chief. ( 19 ) REGARDING the liability of the fifth defendant, Mr. Surana relied upon a Division Bench Judgment of this Court in the case of Gouri Shankar reported in AIR 1959 Cal page 262. The said case is a good authority for the proposition that for the purpose of executing a decree against a partnership firm the assets of the firm may be proceeded against, but that, in case the firm remains the same only in name and there has been a substantial or total alteration in the nature of the Partnership holding, then and in that event, the levy of execution would be illegal, because it would amount to levying execution against the property of persons other than those against whom the decree has been passed. There is no such substantial or total alteration of partnership in the instant case. Apart from the fifth defendant coming in, the other partners have remained steady. If no decree is passed as against the fifth defendant it would mean that the interest of the fifth defendant in the partnership would be immune from execution pursuant to any decree passed herein. Apart from the fifth defendant coming in, the other partners have remained steady. If no decree is passed as against the fifth defendant it would mean that the interest of the fifth defendant in the partnership would be immune from execution pursuant to any decree passed herein. That cannot be, because there is no evidence before me showing that the defendant No. 5 in his introduction to the firm has, by reason of any contract or agreement, kept himself or his share in the firm immune from any of the continuing contingent or future liabilities of the firm. Mr. Sen also has drawn my attention in this regard to a clause in the agreement with the bank whereby the firm agreed even in the initial period (that is 1972) for being continuing to be bound notwithstanding any change in constitution, i. e. the 6th Clause of the document at page-2 of the Exhibit A. Even though a firm is ordinarily a compendious way of description for the purpose of impleding partners in a suit yet it has been held in some cases that even a partnership is for some purposes a legal entity. It is not necessary to enter into any such fine discussion in this case as it is nobody's case that the partnership itself or the partnership properties are in any way, or to any degree, taken out of the possibility of satisfaction of the bank's decree by levy of execution as against those. ( 20 ) I need not enter into the questions raised by Counsel on the various Sections of the Negotiable Instruments Act (Ss. 30, 32, 93, 94 and 98 were referred to) as the suit is not upon an instrument, or more than one instruments, but upon original consideration. ( 21 ) THERE shall accordingly be a decree for Rs. 1,63,773. 59; Interest @ 17% p. a. pendente lite on Rs. 69,106. 80, further interest @ 6% p. a. on the said principal sum of Rs. 69,106. 80. The plaintiff shall be entitled to the costs of this suit assessed at Rs. 7,000. 00 including Court Fees paid. ( 22 ) THE plaint shall be treated as corrected to read Kamal Kanoria for the 5th defendant in place of Kamal Kamania. Order accordingly.