Bhuputram v. Rajah Sir Sourendra Mohan Tagore

This suit is under Chap. XXXIX of the Civil Procedure Code which lays down a certain procedure entitling the Plaintiff to obtain a decree without going into evidence. The form of the summons is prescribed in Sch. 4, Form 172. Sec. 532 prescribes that when the procedure under Chap. XXXIX is adopted, and a summons is taken out in accordance with the form given in the schedule, the Defendant shall not be entitled to appear without leave; and if he has not obtained such leave or does not appear to defend pursuant to such leave, the Plaintiff shall be entitled to a decree for any sum not exceeding the sum mentioned in the summons together with interest at the rate specified (if any) to the date of decree.

In the case before me no interest is specified in the note, but the Plaintiff in his plaint claims interest under an agreement said to have been entered into apart from the note and has chosen to calculate the interest on that basis and to insert it in the summons. When the case came on before me on the 9th February I pointed out to learned counsel that under sec. 532 the interest must be specified in the note contended on the authority of a case in 1 Calcutta Series and the explanation attached to sec. 532 that he was entitled to give evidence regarding the agreement as to interest. I am of opinion that this position is wholly untenable. In fact the case in the Calcutta Series is entirely against the proposition. In that case the promissory note was payable by instalments and contained a stipulation that in default in payment of the first instalment the whole amount was to become due. A suit was brought thereupon under the Bills of Exchange Act V of 1866, the provisions of which for the purposes of this case may be taken as in pari materia with the provisions of sec. 532, and the Judge there held that no such suit could be brought under Act V of 1866.

In the beginning of his judgment Mr. Justice Phear said as follows:—

“I think the Act was only intended to apply to those cases in which the bill itself together with mere lapse of time is sufficient to establish for the Plaintiff a primâ facie right to recover.” Anybody who was conversant with the language of statutes would put the same construction on the provisions of Act V of 1866 and would put the same construction upon the provisions of sec. 532. But the Legislature did not apparently understand what Mr. Justice Phear was aiming at and apparently not understanding the meaning of the language inserted the explanation which, so far as I am able to construe, conveys absolutely no meaning. The object apparently of the draughtsman was to negative what Mr. Justice Phear had stated and with that object the explanation was put in, which seemingly contradicts Mr. Justice Phear's dictum and goes no further. It does not explain what class of cases the section applies to. It only says “This section is not confined to cases in which the bill, hundi or note sued upon together with mete lapse of time, is sufficient to establish a primâ facie right to recover.”

As it stands, speaking with all respect, it is wholly unintelligible and meaningless and stultifies the substantive provisions of the section.

In my opinion the Plaintiff is not entitled to recover interest on this action, no interest having been specified in the note.

Mr. Chatterjee on behalf of the Plaintiff has applied that being my opinion he might be allowed to proceed under Chap. Y of the Code. That course was ordered by Mr. Justice Phear in the case referred to and I propose to allow the Plaintiff to adopt that course and will give him the summons under Chap. V. The order will be drawn up in the same way as in that case.

[Mr. Chatterjee asked that the Defendant be directed to file a written statement.

Ameer Ali, J.:— Very well.]

A.N.C