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Sidramappa Basappa Atnure Vs. Bipinchand Fulchand Gandhi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 1483 of 1967
Judge
Reported in(1976)78BOMLR309
AppellantSidramappa Basappa Atnure
RespondentBipinchand Fulchand Gandhi
Excerpt:
indian evidence act (i of 1872), sections 91 and 92-bombay money-lenders act (bom. xxxi of 1947), section 25(2).;the plaintiff had lent rs. 5,000 to the defendant for his cycle business. on september 28, 1962, two documents were executed between the parties. the first document desoribed as a mortgage deed stated that the plaintiff had advanced to the defendant for trade purposes rs. 5,000 and as security for the loan amount the defendant had given to the plaintiff possession of the moveable property mentioned in the schedule and the value of which was rs. 10,000 of his running business and that the property would remain as security with the plaintiff till the loan amount was paid oft fully. the second document was described as a rent note by which the defendant purported to take on hire.....mukhi, j.1. a somewhat interesting point is required to be considered in this second appeal and the question that arises is whether notwithstanding, the provisions of as. 91 and 92 of the indian evidence act, it is permissible for the court to allow a party to show that the contract as mentioned in the relevant document or documents was not the real contract between the parties but that the transaction was something different.2. it is necessary to set out the relevant facts for the purpose of determining this question. the defendant sidaramappa has been carrying on the business of letting out on hire bicycles and furniture in the city of sholapur. sometime in 1962 he required certain additional finance for his business and for that purpose he got an advertisement to be issued in the news.....
Judgment:

Mukhi, J.

1. A somewhat interesting point is required to be considered in this second appeal and the question that arises is whether notwithstanding, the provisions of as. 91 and 92 of the Indian Evidence Act, it is permissible for the Court to allow a party to show that the contract as mentioned in the relevant document or documents was not the real contract between the parties but that the transaction was something different.

2. It is necessary to set out the relevant facts for the purpose of determining this question. The defendant Sidaramappa has been carrying on the business of letting out on hire bicycles and furniture in the city of Sholapur. Sometime in 1962 he required certain additional finance for his business and for that purpose he got an advertisement to be issued in the news paper 'Daily Sakal' calling upon persons who were interested in. financing a business with him to communicate with him. In response to this advertisement, the plaintiff Bipinchand a trader of Poona, wrote to the defendant and agreed to advance to him a sum of Rs. 5,000 as a loan. As a result of the negotiations between the parties, two documents came to be executed. Firstly a document which is described as a mortgage-deed in respect of bioycles, spare-parts and furniture etc. in the shop of the defendant at Sholapur. Although this document is described as a mortgage-deed, it would appear that it is really a pledge. The material terms of this document which has been produced by the plaintiff at exh. 64) are that the plaintiff had advanced to the defendant for trade purposes a sum of Rs. 5,000 and that as security for the said loan amount the defendant had given to the plaintiff possession of the moveable property of his running business as mentioned in schedule A and B thereto. The market value of the moveable properties was stated to be Rs. 10,000 and it was agreed by the defendant that this property would remain as security with the plaintiff until the amount borrowed from him was paid off fully. The period of the loan was fixed at five years and the document further permitted the plaintiff in the event of default to sell away the moveable property pledged with the plaintiff, either by public auction or by private arrangement. It may be mentioned that this document which is described as mortgage-deed of moveables was executed on September 23, 1962. Contemporaneously and on the very same day, the defendant was asked to execute another document and this document exh. 45 is described as a rent-note by which the defendant Sidaramappa purported to take on hire from the plaintiff Bipinchand the moveable property mentioned in the schedule to the rent-note.

3. It requires to be noticed that the moveable property referred to in the rent-note is the identical moveable property valued at Rs. 10,000 which is the subject-matter of the mortgage-deed or pledge. The terms of the rent-note were that the rent was fixed at Rs. 100 per month and that the rent-note was to come into force from that very day that is to say September 23, 1962, when it was executed along with the mortgage-deed of moveables. It is also recorded in the rent-note that, 'The said moveables have been taken by me in my possession from you under this rent-note'.

4. There is no dispute between the parties that the moveable properties which are the subject-matter of the mortgage-deed and the rent-note, were laying at Sholapur and that they were neither physically pledged or handed over under the mortgage-deed by the defendant to the plaintiff; nor were they handed back under the rent-note by the plaintiff to the defendant. But the parties agreed that for all practical and legal purposes it was to be taken as if the handing over possession of the moveables had been effected in both the oases.

5. It may be mentioned that the loan amount of Rs. 5,000 was given to the defendant by two cheques one for Rs. 4,000 and the other for Rs. 1,000 and there is no dispute that the defendant received this money and has utilized it.

6. In spite of the fact that the defendant has agreed to pay the rent amount of Rs. 100 he fell in arrears and failed to pay the same (for the purpose of this suit) from May 1, 1968 to the end of July 1964. It is for this amount of Rs. 1,500 that the plaintiff filed the suit in the Court of the Joint Civil Judge, Junior Division, Sholapur bearing Suit No. 784 of 1964. The suit came to be heard by the Civil Judge, Senior Division, Sholapur who after trial dismissed it with costs. The learned Civil Judge, framed the necessary issues. Only two, of these are material for the purpose of this Second Appeal. Issues Nos. 1 and 8 read as follows :

(1) Does the defendant prove that the rent was to be paid in lieu of interest?

(8) Can defendant lead oral evidence about the rent to be paid in lieu of interest in the face of the rent-note?

The finding on both these issues was in the affirmative.

7. In other words, the learned civil Judge, was of the opinion that it was open to the defendant by leading oral evidence and otherwise to show what was the real nature of the transaction and on that footing the learned civil Judge, came to the conclusion that the two documents viz. mortgage-deed for moveables and the rent-note formed a single transaction and the real nature of the transaction was that the plaintiff was charging interest on the loan amount of Rs. 5,000 in the guise of rent or hire charges for the moveable property purported to have been pledged to him by the defendant. That is how the learned civil Judge found that the arrears of rent which the plaintiff had claimed in this suit were nothing else than arrears interest at the rate of 24per cent, on the amount shown in the mortgage-deed. It is important to notice that the learned civil Judge held that Section 92 of the Indian Evidence Act, was not a bar to the leading of oral evidence by the defendant to show the real nature of the transaction.

8. Being aggrieved by the decision of the trial Judge, the plaintiff filed an appeal being Civil Appeal No. 105 of 1966, in the District Court at Sholapur. The learned Extra Assistant Judge who heard the appeal framed only two points firstly whether the defendant could lead oral evidence to prove that the rent-note was executed by him in favour of the plaintiff to secure the interest at an exorbitant rate on the amount advanced in view of the provisions of Sections 91 and 92 of the Indian Evidence Act, and secondly whether the plaintiff was entitled to the decree claimed by him.

9. On considering the arguments advanced before him as to the legal position, the learned Extra Assistant Judge, came to the conclusion that it was not permissible to the defendant to lead oral evidence in the face of the relevant provisions of the Indian Evidence Act and that if such evidence was shut out, then plaintiff was entitled to a decree for the rent amount admittedly in arrears.

10. In these circumstances, the appeal was allowed, the decree of the trial Court was dismissed and the defendant ws ordered to pay to the plaintiff Rs. 1,500 with future interest at 6 per cent, and costs.

11. The defendant has now filed this second appeal against the order and judgment of the District Court and Mr. Pinge the learned advocate who appears for him has placed the following propositions before me.

12. Mr. Pinge contends that on a proper appreciation of the legal position as obtaining it would be found that the defendant was entitled to show to the Court what the true nature of the transaction was; that what was to be paid was not rent for hire of the moveable but interest on the loan amount and that too at a rate which was not otherwise permissible.

13. Mr. Pinge then argued that Sections 91 and 92 of the Evidence Act, did not preclude the defendant from proving the real nature of the contract by reference to the surrounding and other relevant circumstances as well as by oral evidence.

14. It was also Mr. Pinge's contention that in any event his case fell under proviso (6) of Section 92 road with Section 95 of the Evidence Act, so that the defendant was entitled to load oral evidence and prove his case that what was referred to as rent for hire of moveables was in effect interest at 24 per cent, on the loan amount to Rs. 5,000 for which the deed of mortgage for moveables had first been executed.

15. The last contention of Mr. Pinge for the defendant-appellant was that in any event, the payment of interest at 24 per cent, was illegal as being in contravention of the Bombay Money Lenders Act of 1946, and therefore the proviso (1) of Section 92 of the Indian Evidence Act, was attracted. It was thus open to the defendant to prove such facts as would demonstrate the illegality of the transaction is so far as the payment of interest was concerned.

16. Mr. Nitiknavare, the learned advocate for the original plaintiff contended on the other hand, that although the two documents viz. the mortgage-deed of moveables and the rent-note for hire of the moveables were executed on the same day, they were two separate transactions and each of these two transactions was capable of being understood and implimented. According to Mr. Naiknavare, Section 92 of the Indian Evidence Act, was a bar to leading of oral evidence to vary the terms of the contract. He emphasised that an attempt was being made to show that the word 'Rent' should be read as 'Interest' and that the bar of Section 92 would clearly apply because what was sought to be proved was that the terms of the document were different than what they read.

17. His second contention was that the agreement for payment of rent for the hire of moveables which had come to, the possession of the plaintiff and were being hired out could not be said to be illegal. It did not contravene or violate any law.

18. Mr. Naiknavare, contended that the plaintiff's suit was for recovery of arrears of rent and there was nothing illegal about the claim particularly as it was not disputed that the rent for the period from May 1,1963 to June 80,1964 had not been paid. Mr. Naiknavare then said that the two documents were separate and not inconsistent with each other and, therefore, there was no room for the defendant's contention that oral evidence was admissible and that Section 92 of the Evidence Act did not constitute a bar. He pointed out that both the documents were clear and there was no ambiguity or difficulty in understanding them.

19. Several authorities have been cited before me as to the effect of Section 92 of the Indian Evidence Act and the circumstances in which it creates a bar to the leading of oral evidence as well as those circumstances in which it did not so constitute a bar.

20. The real question that arises for determination before me is whether Section 92 of the Evidence Act can be said to stand in the way of the defendant in his attempt to show that the real nature of the transaction was different than that which is disclosed by a perusal of the two documents viz. deed of mortgage of moveables and the rent-note for hire of the moveables.

21. Mr. Pinge, drew my attention to a judgment of the Madras High Court in Arumoorlhi v. S.E. Committee [1962] A.I.R. Mad. 860 where that Court was considering a document which purported to be a rectification deed. In that deed it was stated that what had boon really sold under the previous document were 111 acres and odd and that 24 acres and odd were left out by mutual mistake. It was then contended that the rectification deed was for recording this mistake and at the same time the vendor was applying to the authorities for transfer of Patta in relation to these 24 acres and odd in the name of the plaintiff. In other words, the document was described as a rectification deed and its purpose was to now include in the property certain additional 24 acres and odd which were said to have been left out by mistake. The point of law urged before Madras High Court on these facts was, that the plaintiff was attempting to make out that the agreement between the parties was really for sale and conveyance of the 24 and odd acres and that, such an attempt would be barred by as. 91 and 92 of the Indian Evidence Act. The Madras High Court rejected this argument and held (p. 361) :.There is material difference between an attempt to show that the terms of a contract were different from those recorded in a deed, and an attempt to show that the contract as mentioned in the deed was not the real contract between the parties but it was something different. It is the former that is hit by Section 91 of the Evidence Act but the latter is not so hit.

After referring to decisions of the Judicial Committee of the Privy Council in Feroz Shah v. Sohbat Khan A.I.R. [1933] P.C. 178 : 38 Bom. L.R. 877 and in Tyagaraja v. Vedathanni A.I.R. [1936] P.C. 70 : 38 Bom. L.R. 373 the Madras High Court came to hold that an attempt to show by leading oral evidence that the real contract between the parties was different than what was to be found in the document was not hit by the provisions of Sections 91 and 92 of the Evidence Act.

22. The next authority placed before me by Mr. Pinge was a judgment of the Gujarat High Court in Heirs of Jatashanker v. Heirs of Mavji : AIR1969Guj169 to show firstly that when there were two documents executed on the same date it was open to the Court to hold on the facts and circumstances that the two documents constituted a single transaction and secondly that when the question was as to what was the true nature of the transaction then the same would have to be found out by looking at the contents of the document, the surrounding circumstances and by resorting even to the oral evidence of the parties.

23. In that case before the Gujarat High Court, there were two documents of the same date i.e. a possessory mortgage and a rent-note. The arrangement was that on the footing that possession was handed over to the mortgagee, under the possessory mortgage the property would be leased back to the mortgagor for which the mortgagor would then pay rent and this rent was fixed at a figure which represented the interest on the mortgage amount.

24. It was held by the Gujarat High Court that the two documents could be construed as forming a single transaction. While so holding the High Court followed the decision of a single Judge of this High Court (Shah J.) in Harilal Bhagwanji v. Hemshanker Umiyashanker : AIR1958Bom8 where this Court had hold that the two documents in the case before the Court, viz., the mortgage and the lease back formed part of the same transaction.

25. Now as regards the question whether oral evidence would be admissible to prove the real nature of the transaction, their Lordships of the Gujarat High Court noted that Section 92 was only supplementary to Section 91 and that in terms it excluded oral evidence as between the parties or their representatives for the purpose of contradicting, varying, adding to or subtracting from the terms of the document which is proved under Section 91 by the document itself. Their Lordships further held that the question of construction of these two documents must be approached on the settled principles of construction which are merely incorporated in the relevant sections of the Indian Evidence Act. If there was no inconsistency and if the language of the document was not ambiguous or obscure and the case did not fall within any of the six provisos of Section 92, the document would have solely to be construed on its own terms. Their Lordships then held that the prohibition contained in Section 92 of the Evidence Act was only as regards different terms being sought to be established and that there was no prohibition to proving that the transaction was different than what it purported to be and further that the oral evidence as regards intention would therefore always be admissible to prove the real nature of the transaction. Their Lordships finally observed that (p. 178) :.In order to find out the true nature of the transaction there was no bar of Section 82 of the Evidence Act in looking to the surrounding circumstances as such extrinsic evidence was only to find out the true nature of transaction and the bar of Section 92 applied only when it was sought to be proved that the terms of the transaction were different and not that the transaction itself was different that what it purported to be.

It may be noticed that the learned Judges of the Gujarat High Court came to the aforesaid conclusion after discussing and considering the various authorities cited before them including the decisions of the Privy Council viz. Balkishen Das v. W.F. Legge I.L.R. (1890) All 22 . : 2 Bom. L.R. 523 s.c. Hanif-un-nissa v. Faiz-un-nissa I.L.R. (1911) 33 All. 340: 13 Bom. L.R. 891 s.c. and Feroz Shah v. Sohbat Khan.

26. Now it is appropriate to notice that in Hanif-UU-nisaa's case the Judicial Committee particularly observed that the decision of the High Court (from which the appeal arose) could not be sustained as the High Court had held that Section 92 of the Evidence Act precluded the parties from giving oral evidence to show that the deed of sale was in reality intended to be a gift deed.

27. I find myself in respectful agreement with the view expressed by the Madras and Gujarat High Courts as to the legal effect of Section 92 of the Evidence Act and hold that it does not constitute a bar when the effect is to show the real nature of the transaction before the Court.

28. Mr. Pinge also invited my attention to a judgment of a single Judge of this High Court, (Vimadalal J.) in Belapur Co. v. Mah. State Farming Corp. : AIR1969Bom231 where the learned Judge considered the relevant sections of the Evidence Act and in particular the ambit of proviso (6) to Section 92 and dealt with oases where extrinsic evidence was admissible as an aid to the interpretation of a document as contemplated by that proviso. The learned Judge after discussing the several authorities oiled before him set out the propositions that according to him, emerged from a consideration of these authorities on the subject. According to Mr. Pinge proposition No. 4 was attracted. Now that proposition as laid down by Court reads as follows (p. 258) :.If, however, the words are such that one may suspect that they do not convey the intention correctly, or in other words, there is some doubt as to what the words mean or how they are to be applied to the circumstances of the writer or to the facts existing at tire time when the document was executed, extrinsic evidence is admissible, both under proviso (6) to Section 92 of the Indian Evidence Act as well as in English law.

The proposition as laid down by Court is no doubt correct but I have not been able to appreciate how it is applicable to the facts of the present case before me.

29. The question before me is not as to interpretation of the two documents. There is no suggestion that there is any doubt as to what the words mean or how they are to be applied. What has been urged before me by Mr. Pinge is that the two documents viz. the deed of mortgage for moveables and the rent-note in relation to the movables by themselves do not reveal the real nature of the transaction and that Section 92 of the Evidence Act does not constitute a bar to finding out by looking at the surrounding circumstances or even by leading oral evidence the real nature of the transaction. That question did not fall for consideration by Vimadalal J. in the case just cited.

30. It requires to be noticed that the Gujarat High Court in the judgment cited above referred to a judgment of this Court in Harilal Bhagwanji v. Hemshanker Umiyashanker. Now in that case Shah J- was considering two documents which had been contemporaneously executed. The defendant in that suit mortgaged with possession the house in suit to the plaintiff by a mortgage-deed dated August 28, 1952. The mortgage sum was to carry interest at 9 per cent. and the principal sum along with interest was charged on the mortgaged property. The period for redemption was fixed at one year. Simultaneously with, the mortgage, by a rent-note executed on the same day, the portion of the house in the defendant's occupation was leased back to him by the plaintiff for a term of six months, the rent stipulated being Rs, 24-4-0 per month. The plaintiff sued the defendant for possession of the said portion and for arrears of rent on the strength of the rent-note. The defence was that the rent-note was a nominal document executed for securing payment of interest, that no relationship of landlord and tenant was created and that the plaintiff could not, therefore, sue for eviction nor for rent on the strength of the rent-note.

31. It was firstly held by Shah J. that the two documents clearly formed part of the same transaction. It was further held that the rent reserved being equivalent to the interest on the mortgage sum, was an important circumstance to prove that it was merely a device for securing payment of interest. His Lordship on this finding further held that the plaintiff was not entitled to enforce the rent-note and recover possession of the premises in the occupation of the defendant. Although the learned Judge did not grant a decree for possession he held that there was no valid objection to give a decree for rent on the footing that it really represented interest payable by the defendant.

32. The legal position that emerges from the discussion of the authorities and the relevant provisions of the Evidence Act is that Section 92 of the Evidence Act does not constitute a bar to an attempt on the part of a party to prove that the real transaction in suit was different than what the document or documents in suit purport to show. While this can be done by showing the surrounding circumstances, and perusing the document or documents themselves, oral evidence to prove the real nature of the transaction can also be led and Section 92 of the Evidence Act would not stand in the way.

33. The bar of Section 92 will of course apply where it is sought to show that the terms of the transaction between the parties are different than those set out in the document.

34. It is also dear that when there are two or more documents, it would be open to the Court on the facts and circumstances of the case to consider whether they formed part of one and the same transaction and to construe them accordingly.

35. In this view of the matter, I must hold that the trial Court was right when it held that it was open to the defendant to lead evidence to show that the rent note was only a device to provide for payment of interest at the rate of 24 per cent. on the loan amount of Rs. 5,000 advanced by the plaintiff to the defendant. The learned Extra Assistant Judge, was obviously wrong when he came to the conclusion that the defendant could not be allowed td lead oral evidence to prove that the rent-note was executed by him in favour of the plaintiff to secure interest at the rate of 24 per cent. on the loan amount.

36. The learned Extra Assistant Judge, was also wrong in declining to consider the oral evidence brought on record and the submissions as to the real nature of the transactions as demonstrated by the oral evidence and the surrounding circumstances.

37. In this view of the matter, it is not necessary to consider Mr. Pinge's next argument that in any event this case is covered by proviso (6) of Section 92 road with Section 95 of the Evidence Act and that on that basis the defendant would he entitled to lead oral evidence. Prima facie, the contention of Mr. Pinge in this behalf is untenable because neither proviso (6) to Section 92 nor Section 95 can be said to have any application to the facts of this case. There is no question of any necessity to show in what manner the language of the two documents is related to the existing facts nor can it be said that the language used in the two documents is unmeaning in reference to existing facts.

38. The last contention of Mr. Pinge was that by virtue of proviso (1) of Section 92 of the Evidence Act, it was open to the defendant to prove such facts as would demonstrate the illegality of the transaction in so far as payment of interest is concerned. It was argued that the rent-note was a mere device to secure interest on the loan amount at the rate which was in excess of what was permissible under the Bombay Money Lenders Act, 1946 and that on that basis the rent-note was not legally enforceable. In other words, Mr. Pinge says that the defendant is pleading an invalidating circumstance which he is entitled to do under proviso (1) to Section 92 which reads as follows ;

(1) Any fact may be proved which would invalidate any document, or Which would entitle any person to any decree or order relating thereto such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.

The argument is that it is open to the defendant to prove that the rent-note was invalidated by reason of Sub-section (2) of Section 25 of the Bombay Money Lenders Act, 1946 which provides that notwithstanding anything contained in any law for the time being in force, no agreement between a, money-lender and a debtor for payment of interest at rates exceeding the maximum rates fixed by the State Government... shall be valid and no Court shall in any suit to which the Act applies award interest exceeding the said rates.

39. It appears to me that there is considerable substance in this contention. It is obvious that the two documents before me are in respect of a single transaction and the intention dearly was for the plaintiff to provide for payment to himself interest on the loan amount at the rate of Rs. 24 per cent.; a rate of interest which is clearly in excess of what is permissible under the Bombay Money Lenders Act, 1946.

40. It may be noticed that in the Bombay Money Lenders Act 1946, Section 2(2) defines 'business of money lending' as a business of advancing a loan and by Section 2(6) 'interest' includes any sum, by whatsoever name called, in excess of the principal paid or payable to a money-lender in consideration of or otherwise in respect of a loan. Now it is true that under Sub-section (9)(g) a loan to a trader is excluded from the definition of loan but it is specifically provided that Sections 28 and 23 of the Bombay Money Lenders Act, 1946 will nevertheless apply. Therefore, even if the loan in' the matter before me is a loan to a trader Section 25 is nevertheless is applicable. As I have said Sub-section (2) of Section 25 would invalidate the agreement for payment of interest in excess of the maximum rates fixed by the State Government.

41. It requires to be noticed that there is more than sufficient oral evidence placed on record to show that the rent-note was executed for the purposes of providing payment of interest on the loan amount. Defendant Sidramappa has deposed that he executed the rent-note for interest or profit and that as the plaintiff had no money lending business he took him to a pleader at Poona who advised the plaintiff to take a rent-note for interest and that is how he (defendant) executed the rent-note The defendant categorically stated that he had never agreed to give any rent, but he had agreed to pay interest at the exorbitant rate of 24 per cent, as he was badly in need of capital for his shop. The plaintiff in his evidence has deposed that he had no moiety lending licence and that he was not doing money lending business. But he admitted that o> contacted the defendant on reading the advertisement in the news paper and he called the defendant as ho wanted to advance money to him. The plaintiff says, 'It is true that I wanted to advance money to get some income from him.' The plaintiff then admits that both the mortgage-deed and the rent-note were interconnected, that both these documents were drafted by one Shri V.N. Kelkar a pleader of Poona and that no physical possession of the moveables was actually taken or given. Naturally the plaintiff has denied that he took the rent-note for Rs. 100 per month, because he could not charge interest at 24 per cent. Such a denial has however no meaning. The surrounding circumstances, the oral evidence on record and in particular the fact that both the documents were executed on the same day at Poona (a place at a considerable distance from Sholapur where the moveable goods were physically situate) clearly show that the rent-note was a device and that the true nature of the transaction was that interest would be paid at the rate of 24 per cent.

42. Mr. Naiknavare's argument that the two documents constitute different transactions or that the rent-note is not illegal and invalid, cannot be accepted.

43. In my opinion, if the real nature of the transaction is taken into consideration then it is obvious that the arrangement was that interest was to be paid at the rate of 24 per cent, on the loan amount of Rs. 5,000. And if that is so then the agreement called 'the rent-note' is clearly illegal to the extent that it provides for interest on the loan amount of Rs. 5,000 in excess of that permissible under the Bombay Money Lenders Act, 1046.

44. Mr. Naiknavare argued that Section 92 constituted a bar to the placing of oral evidence on record. I have already held that in the circumstances of this case, there is no such bar; because what has been sought to be shown is the nature of the real transaction between the parties, which was that on the loan amount of Rs. 5,000 interest at 24 per cent, per annum would be made.

45. In the result, the order and judgment of the learned Extra Assistant Judge cannot be allowed to stand. The question however arises as to what is the proper order that may be passed by this Court in this second appeal in the circumstances of this case.

46. Now it is obvious that although the rent-note executed was a device for securing interest at the rate of 24 per cent, it cannot be said that the rent-note is wholly illegal in the sense that nothing would be required to be paid by way of interest to the plaintiff. The illegality of the rent-note (which I have held provides for payment of interest) will only be to the extent that it provides for payment of interest at a rate exceeding the maximum rate fixed by the State Government. In other words, interest at the permissible rate would certainly be payable, I am told at the Bar that the interest rates prescribed under the Bombay Money Lenders Act are 9 per cent in respect of a secured loan and 12 per cent, in respect of unsecured loan. Mr. Pinge naturally contends that in view of the fact that a mortgage-deed of moveables was executed, the loan must be considered a secured one.

47. Now a pledge is a bailment of moveable property. Possession is given so that there is a transfer of special property in the subject of the security; that is to say the moveables. Thus in a pledge the pledge is in possession and he has a special property in the goods with the result that he can detain the goods to secure repayment of the loan amount.

48. In the present case there is no dispute that physical possession of the moveables was never given so that it can never be said that the plaintiff as a pledge is or ever was in possession of the goods. Since he is hot in physical possession of the goods it cannot be contended that the plaintiff is in a position to retain such possession to secure repayment of the loan amount due to him. It would not be correct to say that the transaction represented by the two documents which we have noticed produced a pledge of moveables and that thereby the loan is a secured loan. If this is the. correct view, and the transaction did not result in a secured loan the interest payable on the loan amount would be at the rate of 12 per cant.

49. As to the nature of the order that can be passed by the High Court in a second appeal it has boon held that Section 108 of the code of Civil Procedure is a provision which enables the High Court in a given case (if the evidence on record is sufficient in its view) to give a finding cm an issue of fact where either that issue has not been determined by the first appellate Court or has been wrongly decided; having regard to the provisions of Section 100(2) of the Civil Procedure Code. This enables the High Court in an appropriate case to pronounce a proper judgment, (See Laxminarayan v. Bhiku Punjaji [1973] Mah. L.J. 489 : 76 Bom. L.R. 83 S.C. .

50. In my view, there is sufficient evidence on record of the Court to come to the conclusion that the real transaction between the parties was that the plaintiff would give a loan of Rs. 5,000 to the defendant for a period of five years and that the defendant would pay interest thereon (described as rent) at Rs. 100 per month. The legal position, therefore, is that the defendant is liable to pay interest at 12 per cent, per annum. On this footing the plaintiff is entitled to a decree to that extent.

51. The appeal is partly allowed and the order of the learned Extra Assistant Judge, is modified. The suit is decreed for the sum of Rs. 750 with future interest at 6 per cent, from the date of the suit till realization. As to costs, I feel that consonant with justice the defendant should pay the costs of the plaintiff throughout as also bear his own throughout. I order accordingly.


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