- (1.) THIS is an appeal by the plaintiff-bank which is a limited company. The bank had filed the suit for recovery of Rupees 6,612-12-9 against the defendants on the basis of a cheque for Rs. 5,200 issued by the defendants in favour of the bank on 11th November 1947 and a payment-order for Rs. 400 issued the next day. i.e., on the 12th November 1947. Both the cheque and the payment order were dishonoured on account of stoppage of the payment by the defendants Hence the suit for recovery of Rs. 6,612-12-9 including interest at Rs. 6 per cent per annum, with monthly rests, plus pendente lite and future interest at the rate of Rs. 6 per cent per annum.
(2.) THE preliminary facts are not disputed between the parties. The defendants were carrying on business in Peshawar under the name and style of Harishingh Govind Singh, while the plaintiff-bank had one of its branches at peshawar. The defendants had a cash credit account in the name of their firm with the Peshawar Branch of the plaintiff-bank. The defendants used to borrow money from the plaintiff-bank against the pledge of goods by way of security. On 23rd November 1946 the defendants borrowed a sum of Rs. 30,000 from the bank and executed a promissory note in lieu thereof. Later on, in February 1947, the defendants further executed a deed of pledge in favour of the bank whereunder 425 bags of Mash (urd) were pledged with the bank to secure the payment of the aforesaid loan of Rs. 30,000 with interest. The defendants drew on then said cash credit account from time to time and repaid part of the dues of the bank, with the result that on 11th November 1947 a sum of about Rs. 5,600 was outstanding against the defendants in their cash credit account. It was in order to pay off this debt that the defendants had issued a cheque for Rs. 5,200 in favour of the plaintiff on 11-11-1947 and a payment order for Rs. 400 on 12-11-1947 in full and final adjustment of the plaintiffs dues. From this stage there is difference between the versions of the parties. According to the plaintiff, the bank had handed over the key of the godown in which the pledged bags of Mash (urd) were lying stored, by way of symbolic delivery of possession of the goods to the defts. The plaintiffs case further is that the cheque and the payment order, which had been issued by the defendants in favour of the plaintiff only amounted to conditional payment of the plaintiffs dues outstanding against the defendants, and inasmuch as the same had been dishonoured, the debt remained due from the defendants to the plaintiff; as such the plaintiff-bank was entitled to recover Rs. 5,600 as the principal amount and Rs. 1,012-12-9 as interest, in all Rs. 6,612-12-9. On the other hand, the case of the defendants was that they had issued the cheque and the payment order on the condition that the plaintiff-bank would return the pledged goods to them but the plaintiff-bank failed to do so, hence on 16-11-1947 the defendants stopped the payment of the cheque and the payment order in question. By amendment of their written statement on 20th February 1952 it was further pleaded by the defendants that in any case they were protected under the provisions of Section 17(1)(b) of the Displaced Persons (Debts Adjustment) Act, 1951. This Act came into operation in Uttar Pradesh on the 10th of December 1951, while the instant suit had been instituted on the 4th of November 1950.
(3.) IT has strenuously been argued by the learned counsel for the appellant-bank that the provisions of S. 17(1)(b) were applicable only to proceedings under the Act which were pending before the Tribunal and they had no application to an ordinary civil suit filed by the creditor. In support of his contention the appellants counsel relies upon a single Judge decision of the Punjab High Court in Banka Mal Naranjan Das v. Central Bank of India Ltd., AIR 1952 Punj 400 wherein Weston, C.J. had held that S. 17 was not an addition to the general substantive law but was a provision enforceable only by the Tribunal appointed under the Act, holding debt adjustment proceedings under Chapter II of the Act, in which S. 17 found place. It was further pointed out that the fact that S. 17 fell in Chapter II which was headed "Debt Adjustment Proceedings" and lay between two sections, each of them providing the law to be applied by the Tribunal, tended to show that S. 17 was also intended as a provision applicable to proceeding of the Tribunal. It was further observed by the learned Judge that the circumstance that Ss. 19 and 20 contain substantive law applicable to proceedings outside those of a Tribunal was not substantial reason for holding that the provisions of S. 17 should be available to the debtor in a suit out side the Act.;