Abdul Hadi, J.
1. The plaintiff is the appellant in this appeal against the judgment and decree in O.S. No. 383 of 1979 on the file of Sub-Court, Cuddalore. The suit is for recovery of a sum of Rs. 14,538 due on the suit promissory note Ex. A-1, dated 30-7-1970 with future interest from the date of the suit on the principal sum of Rs. 7,000 at the rate of 12 per cent per annum stipulated in the second promissory note. Admittedly, the defendant made payment of Rs. 5 on 27-7-1973 and another sum of Rs. 5 on 25-7-1979 towards the promissory note sum and made endorsements thereof accordingly.
2. The defendant filed written statement admitting the execution of the promissory note but contending that the suit promissory note was executed as renewal of an earlier promissory note dated 3-8-1967 executed by him in favour of the plaintiffs wife for a sum of Rs. 2,750 that calculating compound interest on the said promissory note an aggregate sum of Rs. 6,800 was arrived at, that on pressure by the plaintiff, the suit promissory note was executed for Rs. 7,000 and that there was no additional payment of Rs. 200 by the plaintiff to the defendant at the time of executing the suit promissory note. The defendant also pleaded that he was entitled to the benefits of Tamil Nadu Agriculturists Relief Act (Act IV of 1938 as amended by Act 8 of 1973). The defendant expressly stated in the written statement that he was willing to pay the principal and actual interest due on the original promissory note executed in favour of the plaintiffs wife after scaling down the same under the above said Act and that the plaintiff was not entitled to claim interest upto 1-3-1972, nor at the rate of 12 per cent per annum.
3. The above said original promissory note was not produced before Court, but when it was suggested to D.W. 1, the defendant, that the original promissory note in favour of the plaintiffs wife was for Rs. 5,000 he only pleaded ignorance. Ex. A-1 also, though speaks of original promissory note, does not state the amount for which the original promissory note was executed. P.W. 1 the plaintiff deposed that the original promissory note was executed for Rs. 5,000 stipulating interest at 12 per cent per annum. The defendant also admitted that in the original promissory note interest was stipulated at 12 per cent per annum. In the circumstances, the Court held that the original promissory note executed in favour of the plaintiffs wife on 3-8-1967 was for Rs. 5,000. The Court below also found that the denial of receipt of Rs. 200 as on the date of Ex. A-1 could not be disputed as the defendant himself wrote in Ex. A-1 in his own hand that he received Rs. 200 on that date. So, the lower Court also found that a sum of Rs. 200 was received on the date of Ex. A-1. The Court below also held that the defendant was an agriculturist under the above said Act and was entitled to the benefits thereof. It also held that it is the plaintiff who advanced the prior promissory note amount and obtained a promissory note on 3-8-1967 in the name of his wife and that in renewal of the same, he obtained the suit promissory note by making further payment of Rs. 200. Therefore, it held that the defendant was liable to pay only Rs. 5,000 due on the promissory note of 3-8-1967 and the sum of Rs. 200 received on the date of Ex. A-1, viz., 30-7-1970 together with interest from 1-3-1972 at 9 per cent per annum till date of suit (25-7-1979) and thereafter at 6% per annum till date of realisation, after giving credit to the above said sum of Rs. 5 paid on 27-7-1973 and another sum of Rs. 5 paid on 25-7-1976. The principal sum due was thus fixed at Rs. 5,000 in view of Explanation III to Section 8 of the above said Act which was held to be applicable by the trial Court. The interest was awarded only from 1-3-1972 as per the Act and the interest rate was fixed at 9 per cent per annum pursuant to Section 13 of the said Act. Not satisfied with the above amount decreed, the plaintiff has preferred this appeal praying for a decree as prayed for in the plaint, contending that the defendant was not entitled to the benefits of the above said Act, that even assuming that he was entitled to the said benefits, the method of scaling down adopted by the trial Court was wrong, that the above said Explanation 3 was not applicable in the present case and that 9% interest should have been granted upto the date o{|he decree and not simply upto the date of suit.
4. The points for determination are:
(1) Whether the defendant is entitled to the benefits of the above said Act?
(2) If so, how actually the debt in question has to be scaled down under the above said Act?
5. On the first point, the learned Counsel for the appellant submitted that the defendant was not entitled to the benefits of the above said Act, because he was having a house at Manjakuppam and he was owning 25 acres of agricultural land. Regarding the house property, the contention is that P.W. I deposed that the defendant owned house at Manjakuppam and that has not been rebutted by any contra evidence by the defendant. Under the above said Act, as per the Proviso (C) to Section 3(ii) if the person, has in all the four half-years immediately preceding the 1st March, 1972, been assessed to property or house tax, in respect of buildings or lands other than agricultural lands.... the aggregate rental value of such building and lands, being not less than Rs. 1,200 he is not an agriculturist. But, there is no plea in this regard by the plaintiff. So, his mere deposition that the defendant owns house at Manjakuppam cannot help the plaintiff.
6. Further, regarding the ownership of 25 acres of land by the defendant, it is to be noted that the Proviso (A) to the above said Section 3(ii) only says that if a person has in both the financial years ending31st March, 1972been assessed to income-tax under the Income-tax Act, 1961 or under the Income-tax Law in force in any foreign country, he is not an agriculturist entitled to the benefits of the said Act. The submission of the learned Counsel for the appellant is that since D.W. 1 had admitted that he owned 25 acres of agricultural lands, he must be assessable to agricultural income-tax and so, he cannot be deemed to be an agriculturist. But, the above said proviso speaks of only income-tax under the Income-tax Act of 1961 or under the Income-tax Law in force in any foreign country. It does not speak of agricultural income-tax at all. Therefore, this contention of the learned Counsel for the appellant also has no merit at all. No doubt, the learned Counsel for the appellant cited the decision in Anumtga Nadar v. Kumara Pillai (1984) 2 M.L.J. 35 : 94 L.W. 278, which observed in relation to the above said Act that the possession of an extensive coconut thope would involve assessment under the Agricultural Income-Tax Act and that hence once the creditor proves the said possession, the onus shifts to the debtor to prove that he does not come under the above said Proviso (A) in the definition of 'agriculturist'. Based on the above observation, the learned Counsel for the appellant contended that the abovesaid proviso would apply even where the debtor was assessed to agricultural income-tax. But, it is clear that the proviso docs not deal with the assessment to agricultural income-tax at all and hence even though a person was assessed to agricultural income-tax, he would not cease to be an agriculturist. This question was not directly involved in the above said decision reported in Arumuga Nadar v. Kumara Pillai (1984) 2 M.L.J. 35 : 94 L.W. 278 referred to above and there is no discussion regarding the same in full. The discussion was only on the question on whom the onus of proof lies after the creditor proves that the debtor was in possession of extensive agricultural lands. Anyway, in the face of clear language of the above said Proviso (A) to Section 3(ii) of the abovesaid Act, the above said decision cannot be followed to hold that a person would cease to be an agriculturist, if he is assessed to agricultural income-tax during the relevant period.
7. Then, the learned Counsel for the appellant contended that even assuming that the defendant was entitled to the benefits of the above said Act, the method of scaling down adopted by the trial Court was wrong. The method of scaling down is provided under Section 8 of the above said Act.
8. The relevant portions of the said Section 8 of Act IV of 1938, as amended by the above said Act 8 of 1973 run as follows:
Debts incurred before the 1st March, 1972, shall be scaled down in the manner mentioned hereunder, namely:
(1) ....
(2) Where am agriculturist has paid to any creditor twice the amount of the principal whether by way of principal or interest or both such, debt including the principal, shall be deemed to be wholly discharged.
(3) Where the sums repaid byway of principal or interest or both fall short of twice the amount of the principal, such amount only as would make up this shortage, or the principal amount or such portion of the principal amount as is outstanding, whichever is smaller, shall be repayable.
Explanation III to the abovesaid Section 8 runs as follows:
Where a debt has been renewed or included in a fresh document executed before, on or after the 1st March, 1972 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 persona cling on his behalf or in his 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.
9. The trial Court has proceeded on the footing that Explanation III would apply. But the learned Counsel for the appellant contended that the said Explanation III would not apply because, the suit promissory note Ex. A-1 was only in favour of the plaintiff, while the alleged earlier promissory note was in favour of the plaintiffs wife, and that the finding of the trial Court that it was the plaintiff who advanced the prior promissory note amount and obtained the promissory note on 3-8-1967 in the name of his wife, was absolutely without any evidence. He, therefore, contended that there was no case of renewal at all.
10. In this connection he also drew my attention to Kondayya Chetty v. Sivasankaran Naicker (1955) 2 M.L.J. 577 : 68 L.W. 847 where it was held that there was a difference between a promissory note executed in renewal of a debt and a fresh note and that where after the commencement of the abovesaid Act, the parties with the knowledge of the provisions of the Act clearly intended to effect a severance between one transaction and another, there is nothing in the Act which prevents this intention of the parties, expressed in unequivocal terms being given effect to. Ex. A-1, in the present case also, recites'....
So I think there is clear intention to effect a severance between the two pronotes and there is no renewal. No doubt the learned Counsel for the respondent tried to distinguish Kondayya Chetty v. Sivasankara Naicker (1955) 2 M.L.J. 577 : 68 L.W. 847 from the facts of the present case by stating that in this suit case cash was actually taken as consideration for the second promissory note while it is not so in the present case. At any rate it must be noted, as explained in paragraph 12 below the payee of the promissory note of 3-8-1967 is different from that of the suit-promissory note dated 30-7-1970 and the case of renewal does not arise. 11. Further, the learned Counsel also drew my attention to Srinivasa v. Venkatasubramania : [1966]3SCR208 . There, one N instituted a suit against A for recovery of amount due on the basis of a promissory note dated 28-1-1946 executed by A for Rs. 10,600 in his favour. A claimed that the pro note in suit being in renewal of the earlier pronotes he was entitled to scaling down of the debt under the above said Act. Though in the original pronote of 1930 A's brother was the debtor in subsequent pronotes of 1932 and 1934 A was debtor and N was the creditor. In 1940 A had executed a fresh pronote in favour of the General Bank, a Private Limited Company of which N was in control. This note was executed in favour of General Bank at the direction of N and the amount due with interest was included in the note. The suit note was executed by A in favour of N who actually paid by a cheque the sum of Rs. 10,600 to the General Bank to the credit of A at his request with a view to discharge his liability to the Bank under the note of 1940. In such circumstances it was held that the defendant A was not entitled to scaling down under Explanation III of Section 8(1) of the abovesaid Act as the conditions prescribed by that explanation were not satisfied. In other words, it was held that though the requirement of the explanation about the debtor being the same was satisfied, it could not be said that the agreement was in favour of the same creditor or of any other person acting in his behalf or any other person acting in his interest and that the General Bank had independent existence and though N had the full power and control over the Bank there was no identity between the General Bank and N.
12. I also find that there was no specific plea in the written statement that the prior promissory note also was obtained by the plaintiff only, as creditor thereof, though the said promissory note was got in the name of his wife. It is settled law that no amount of evidence can be looked into on a plea which was never put forward. Anyway I do not find evidence to this effect also. No doubt P.W. 1 deposed as follows:
However he also deposed that that is, the money paid to the defendant under the previous promissory note was that of plaintiffs wife. Therefore, the finding of the trial Court, in this regard, has no basis. So, Ex. A-1 is not in favour of the 'same creditor' (as spoken to in Explanation III) because the earlier promissory note was in favour of the plaintiffs wife and the subsequent Ex. A-1 promissory note was in favour of the plaintiff only. If that is so, there is also no plea that Ex. A-1 was executed in favour of 'any other person' spoken to in Explanation III above. In other words, there is no plea that Ex. A-1 was executed in favour of the plaintiff acting on behalf of his wife or in the interest of his wife. So, Explanation III docs not apply. Therefore, the principal sum due is only to be taken as Rs. 7,000 and not Rs. 5,000 as held by the trial Court.
13. Then both the Counsels agree that as per Sections 8 and 12 of the said Act and in the light of Ramanathan Chettiar v. Oomanathan Chettiar : (1974)1MLJ221 : 87 L.W. 103, interpreting the said Section 8, Rs. 6,990 is payable by the defendant to the plaintiff with interest at the rate of 9% per annum from 1-3-1972. Learned Counsel for the appellant also urged that the said rate of interest must not be simply up to the date of the suit, but must be up to the date of the decree and that it would be a reasonable one within the meaning of Section 34, Civil Procedure Code. I agree with him and grant interest at the rate of 9 per cent per annum upto the date of decree.
14. In the result, the suit is decreed for Rs. 6,990 with interest thereon at 9 per cent per annum from 1-3-1972 till the date of decree and thereafter at 6 per cent per annum till date of realisation. Accordingly the decree of the trial court is modified and the appeal is partly allowed, with proportionate costs.