Kalyan Rai Surana, J.

1. Heard Mr. D. Mozumdar, learned senior counsel, assisted by Ms. J. Kakati, learned counsel for the appellants and Mr. H.K. Deka, learned senior counsel assisted by Mr. P. Choudhury, learned counsel for the respondents.

2. By this appeal under Section 96 CPC, the appellants have challenged the judgment and decree dated 11.02.2010 passed by the learned Civil Judge No. 2, Kamrup, Guwahati in Money Suit No. 7/2004, thereby decreeing the suit without cost.

3. The appellants were arrayed as the defendants No. 1 and 2 in the suit. The suit was instituted by the respondent No. 1 for realizing Rs. 45,12,062.83 with interest, cost, etc. The defendants No. 3 and 4 in the suit are arrayed as proforma respondents No. 2 and 3 in this appeal.

4. As per the plaint, the case in brief is that the respondent No. 1 is a registered member of the Gauhati Tea Auction Centre and is in the business of tea auction/tea broker. The parties had steady business relationship in the matter of sale of tea since the year 2000. It was projected that in course of business, the respondent used to make advances to the appellant No. 1 as and when required for cultivation and manufacture of tea under agreed terms and conditions. In respect of said transactions, the respondent maintained true ledger account, which was current open and mutual. By letter dated 12.02.2000, the appellants requested the respondent No. 1 for a loan of Rs. 45,00,000/- lakh (Rupees Forty five lakh). Pursuant to discussion with the appellant No. 2, the managing partner of the appellant firm, the parties entered into an agreement dated 12.02.2001, by which the respondent agreed to advance a sum of Rs. 40,00,000/- (Rupees Forty lakh only) under the terms and conditions as laid down in the agreement. After availing the said loan, the appellants used to send their made tea produced in their gardens for sale in the auction centre through the respondent No. 1, and the loan with interest was to be adjusted from the sale proceeds. It was projected that during the course of business, from time to time, the appellants used to avail loan advances from the respondent No. 1 Company exceeding Rs. 40.00 lakh as and when required by them. It was projected that thereafter, the dispatches of made tea became irregular, which were not sufficient to liquidate the loan and after 30.03.2002 supply of made tea had totally stopped. It was stated that as on 31.1.2003, the outstanding dues stood at Rs. 45,12,062.83. On 29.06.2002, the appellant had issued a cheque of Rs. 10.00 lakh, which was dishonored on presentation, for which a proceeding under Section 138 of the Negotiable Instruments Act have been initiated. Hence, by stating that the cause of action arose on 10.03.2000, 12.01.2001 and 30.03.2002, the respondent No. 1 had filed the said suit for realization of money, interest and cost.

5. The appellants had contested the suit by filing their written statement. It was pleaded that the suit was liable to dismissed under Section 7-D of the Assam Money Lenders Act, 1934. It was stated that the loan was given against the stock of made tea of Kamarbund Tea Estate and as on 31.12.2001, a sum of Rs. 19,76,679/- was payable by Kamarbund Tea Estate, which was to be realized from them because in the meanwhile by virtue of Deed of Reconstitution dated 31.05.2002, amongst (i) the appellant No. 2, (ii) proforma respondent No. 2, (iii) proforma respondent No. 3, (iv) R.P. Barooah Tea & Enterprises Pvt. Ltd., a partner of appellant No. 1, and (v) Kamarbund Tea Estate, firm, a new entity i.e. Kamarbund Tea Estate was constituted and the proforma respondents No. 2 and 3 had retired from the said firm and the assets and liabilities in respect of the said Kamarbund Tea Estate was taken over by the proforma respondent No. 3 and R.P. Barooah Tea And Enterprises Pvt. Ltd. The said reconstitution was confirmed and declared vide deeds and writings dated 06.02.2002 and 24.09.2003, and that a notice for the sam