V ANANTHA RAO Vs. V VENKATA KODANDARAO
HIGH COURT OF ANDHRA PRADESH
VASANTHARAO ANANTHA RAO
VIJAPURAPU VENKATA KODANDARAO
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(1.)The Judgment of the Court was delivered by the Hon'ble The Chief
This Civil Miscellaneous Appeal raises a question under the Madras
Agriculturists' Relief Act. The judgment-debtors in O. S. No. 36 of 1930 on
the file of the Subordinate Judge's Court, Visakhapatnam executed two
promissory notes, one dated 14-10-1911 for Rs. 1,000/- and the other in the year
1912 for a sum of Rs. 700/- in favour of the respondent's father one Venkatarao.
Various payments were made under the promissory note of 1912 and, for the
balance it was renewed for Rs. 700/- on 30-7-1920. On 29-11-1920, for the
balance of the amount due under the said two promissory notes and for
the interest due to the creditor on another mortgage deed dated 14-10-1911
executed by the same debtors in his favour and for a small amount of cash, a
fresh promissory note was executed for a sum of Rs. 4,431/- in favour of the
creditor. On 13-8-1923, Venkatarao assigned the said promissory note to his
son Kodanda Rao. It does not appear whether the assignment was for
consideration or for collection. It is also not clear whether the assignment
was made for his personal benefit or for collecting the amounts on behalf of
the family. After the assignment, the promissory note was again renewed in
favour of Kodanda Rao on 24-11-1923 for a sum of Rs. 5,624/-. On 25-11-1925
the amout due under the latest promissory note was split up and two promissory
notes were executed in favour of the same creditor for Rs. 2,001-1-7 and
Rs. 4,912-13-0 respectively. Another prmissory note was executed on 30-4-1928
for the interest due on the aforesaid two promissory notes. On 13-5-1930, the
suit promissory note was executed for the amount due under two promissory
notes dated 25-11-1925 and 30-4-1928. The suit was filed for the recovery of the
amount due under the promissory note dated 13-5-1930 with interest payable
thereunder. The learned District Judge scaled down the decree under .the
provisions of the Madras Agriculturists' Relief Act. The judgment-debtors,
who filed the application for scaling down the decree, preferred the above appeal.
(2.)The learned Counsel appearing for the appellants contended that the
learned District Judge was worng in not excluding the sum of Rs. 2,882-2-0,
the interest due under the mortgage deed dated 14-10-1911 on the ground that
the promisee under the promissory note, Ex. D, was different from the creditor
under the mortgage deed dated 14-10-1911. He contends that that assumption
was wrong and that, as a matter of fact, the creditor under the mortgage deed
is the same as the creditor under the promissory note.
The learned District Judge in paragraph 3 of his judgment stated :
"One of the main questions now before me is as regards the sum of Rs. 2,882-2-0 included
in D being the interest on a mortgage dated 14-10-1911. It is not disputed that the
mortgage was in favour of the father and the promissory note was in favour of the son.
According to the decree-holder, it is a separate debt. "
But a perusal of the mortgage deed and the promissory note shows that
both of them were executed in favour of Venkata Rao, son of Anantharao.
The assumption, therefore, is obviously wrong. If so, the said amount, being
admittedly interest payable by the debtors to the creditor, is wiped out under
the provisions of the Act.
(3.)It is then contended by the learned Counsel for the respondent that the
promissory note Ex. P-44 was assigned by Anantha Rao in favour
of his son Kodandarao and that the subsequent promissory notes were
executed or renewed in his favour and therefore the assignee is not the
same creditor as the creditor under the promissory note dated 29-11-1920.
This argument was not raised in the court below. If it was raised, the judgment-debtors might
have established that the creditors both under the promissory
note dated 29-11-1920 and under the later promissory notes, though
co nomine different, in fact represent the family. We cannot also hold that the
fact that the promisee under the promissory note dated 24-11-1923 is the
assignee from the pro.nisee under the earlier documents makes any difference
in the application of the provisions of the Act. The governing provision
is Section 8 sub-section 4, Explanation III of Act IV of 1938. Explanation III reads:
"Where a debt has been renewed or included in a fresh document executed before or
after the commencement of this Act (whether by the same debtor or by his heirs, legal
representatives or assigns or by any other person acting on his behalf or in his interest
and whether in favour of the same creditor or of any other person acting on his behalf
or in bis interest) the principal originally advanced together with such sums, if any,
as have been subsequently advanced as principal shall alone be treated as the principal
sum repayable under this section."
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