S. K. Das, J. - (1.) This is an appeal on a certificate wanted by the High Court of Bombay under S.110 of the Code of Civil Procedure, and arises out of a suit which the appellants had brought for recovery of Rs. 9,99,940/- with interest and costs from Mir. Nawab Himayatalikhan Azamjah, who was then known as the Prince of Berar, being the eldest son of the Nizam of Hyderabad. The circumstances in which the appeal has arisen are these.
(2.) On or about January 31, 1937 Baboo Mull and Co., sold and delivered to the Prince of Berar in Bombay various articles of jewellery the aggregate value of which was Rs. 13,20,750/- Lala Kapurchand Godha, who was the first plaintiff in the action and Lala Heeralal Godha, the original second plaintiff, carried on business, in jewellery in partnership with their father and one Lala Baboo Mull (since deceased ) in the name and style of Baboo Mull and Co. It is not disputed that the appellants, now before us own the entire interest in the subject matter of the suit and instead of using the name of Baboo Mull and Co. We shall name the appellants as the person who sold the jewellery to the Prince of Berar on January 31, 1937. A writing dated January 31, 1937 was executed by the Prince of Berar respondent before us, by which he declared and acknowledged having purchased the jewellery specified in a schedule from the appellants at the aggregate price of Rs. 13,20,750/- In that writing (Ex. A) the respondent stated: "I promise on behalf of myself and my heirs, executors, administrators and successors to pay to you or to your order at my option and leisure at your abovementioned address the said sum of rupees thirteen lacs twenty thousand seven hundred and fifty only together with simple interest thereon @10% ten per cent per annum." It is not disputed that the jewellery was in fact delivered by the appellants to the respondent and after January 31, 1937 the respondent passed various acknowledgments in respect of the debt due at the time of the passing of the respective acknowledgments. These documents consisted of an acknowledgment of liability and a promise to pay on behalf of the respondent and the last of sue acknowledgements was passed on February 15/16, l948. By that time the debt of Rs. 13,20,750/- with ten per cent interest thereon had increased to about Rs. 27,79,000/- By that last document the respondent admitted his liability for the amount of Rs. 27,79,078-2-0 and promised to pay the amount again at his option and leisure, On April 30, 1948 the appellants presented their bill and some time in January 1949 one of the appellants has an interview with the respondent and was told that the Nizam had passed the bill. In 1949 when Hyderabad was under military occupation after the Police Action, a Committee was set up on February 8, 1949 by the Military Governor known as the Princes Debts Settlement Committee. The report of this Committee shows that it was set up in accordance with a resolution made by the Military Governor in order to scrutinise all debts of the Prince of Berar and his younger brother. On February 19, 1949 the appellants presented a petition to the Military Governor with regard to their claim and asked for payment of the amount due to them or in the alternative for the return of the jewellery. The claim of the appellants was considered by the Committee in para 11 of their report. The Committee recommended that the appellants should be paid a sum of Rs. 20 lacs in full satisfaction of their claim. The Committee further stated that they did not recommend the return of the jewellery. It may be here stated that the Committee consisted of two persons, namely, Zaheruddin Ahmed , who was the Controller of Accounts to the Nizam and A. N. Shah, a member of the Indian Civil Service. It may also be stated that the report of the Committee shows that it made a reduction of about ten percent in the case of all suppliers of goods to the two Princes because the Committee thought that in most of the cases the suppliers inflated the prices for the supply of goods to the two Princes. The Committee also thought that the reasonable rate of interest would be six percent in the case of creditors who had to wait for a number of years for payment of their dues. On September 27, 1949 a sum Rs. 11,25,000/- was paid to the appellants. At that time there was a dispute going on as to whether the appellants were entitled to the entire amount of Rs. 20 lacs or to only 9 th share thereof. That dispute having been finally settled in favour of the appellants, the appellants received a second payment of Rs.8,75,000/- on February 14,1950. This amount along with the earlier amount paid to the appellants came to the total of Rs. 20 lacs, which the Committee had recommended should be paid to the appellants in full satisfaction of their claim. On February 14, 1950 a receipt was passed by the appellants for the sum of Rs. 8,75,000/- (Ex.C) and this receipt ran in the following terms: "RECEIVED from the Controller General of Accounts and Audit Hyderabad Government the sum of Rs. 8,75,000/- (Rupees eight lacs and seventy five thousand) only in full and final payment of the balance of rupees twenty lacs allowed by the Government in respect of my claim under the pronote dated 15th February 1948 passed by the Prince of Berar in my favour, reserving however my right to recover the balance amount due to the under the said pronote from the Prince of Berar." The relevant authorities refused, however to make payment on the receipt Ex.C in which the appellants reserved their right to recover the balance amount due from the Princes of Berar. Thereupon, the appellants discharged all the previous pronotes and on each one of them recorded a satisfaction of full payment. We may refer to the last of them, namely, the one dated February 15/16, 1948. This was for a sum of Rs. 27,79,078-2-0 and on this document Kapurchand Godha, one of the appellants, recorded "received payment in full."
(3.) Then on August 14, 1950 the appellants served through their solicitors a notice on the respondent asking him to make payment of the balance of Rs. 9,99,940/- with interest of ten percent. The respondent not having paid the amount a suit was instituted on February 5, 1951 in the High Court of Bombay for recovery of the amount.;