MOHES CHANDRA GUHA Vs. RAJANI KANTA DUTT

JUDGEMENT

(1.) This Rule was granted under Section 25 of the Provincial Small Cause Courts Act, on the application of the plaintiff in the Court below. He sued to recover money due on a bond for Rs. 100 executed in his favour on the 28th July 1910 by one Tilak Chandra Dutt and his two sons, Rajani Kanta Dutt and Mohesh Chandra Dutt. The bond recited that on the 28th May 1904 the plaintiff advanced Rs. 50 to Tilak Chandra Dutt and Mohesh Chandra Dutt and took a bond on the basis whereof payments had been made from time to time, that a considerable sum was still due on account of principal and interest, and, that inasmuch as Mohesh Chandra Dutt was not present and could not renew the bond, Rajani Kanta Dutt joined his father Tilak Chandra Dutt in the execution of the second bond. The Small Cause Court Judge has dismissed the suit as against the two sons on the ground that in so far as they were concerned, the bond was executed without consideration and was not binding on them as it was not registered. We are now invited by the plaintiff to set aside the decree of dismissal in favour of the two sons.

(2.) It is indisputable that the suit has been rightly dismissed as against Mohesh Chandra Dutt, as the suit has been brought on the renewed bond and he was not a party thereto. On the other hand, if the suit were treated as brought for enforcement of the original obligation, the claim as against him would clearly be met by the plea of limitation. But in respect of the liability of Rajani Kanta Dutt, it is plain that the Subordinate Judge has taken an erroneous view. One of the witnesses for the plaintiff stated in cross-examination that no cash consideration was paid for the bond in suit. The Subordinate Judge has inferred from this that the bond was without consideration, and his observation that the bond was not binding because unregistered seems to indicate that he had the provisions of Section 25 of the Indian Contract Act, in view, which, it cannot be disputed, have no bearing on the case. The Subordinate Judge is clearly wrong in his view that a bond cannot be operative unless supported by cash consideration: See Indian Contract Act, Section 2(d). What happened was that the creditor required that the bond should be renewed by the original executants; one of them was absent and could not comply with his demand. The creditor agreed to release the absent debtor from liability, if his brother would make himself responsible in his place. Rajani accordingly executed the renewed bond. This, then, is a case where the creditor released his debtor and accepted a new debtor in his place. The release of the original debtor furnishes good consideration for the new contract: Alliance Bank v. Broom (1864) 2 Drew. & Sm. 289 : 13 W.R. 127 : 5 N.R. 66 : 34 L.J. Ch. 256 : 10 Jur. (N.R.) 1121 : 11 L.T. 332 : 62 E.R. 631 : 143 R.R. 120, Fullerton v. Provincial Bank of Ireland (1903) A.C. 309 : 72 L.J.P.C. : 89 L.T. 79 : 52 W.R. 238, Glegg v. Bromley (1912) 3 K.B. 474 : 81 L.J. K.B. 1081 : 106 L.T. 825. The view taken by the Subordinate Judge cannot consequently be supported. But it is necessary to remand the case for investigation of one question and one question only, namely, whether Rajani really executed the bond. He denied in his written statement that he did so, but this point has not been determined by the Subordinate Judge.

(3.) The result is that this Rule is discharged in so far as Mohesh Chandra Dutt is concerned; it is made absolute against Rajani Kanta Dutt and the case is remitted to the Subordinate Judge in order that he may re-try the case against him in view of the observations made in this judgment. There will be no order for costs in this Court.