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State Bank of India, Eluru - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in[1988]63CompCas210(AP)
ActsBanking Regulation Act, 1949 - Sections 21A; Constitution of India - Article 14; ;Andhra Pradesh Agriculturists Relief Act, 1938 - Sections 13
AppellantState Bank of India, Eluru
Appellant AdvocateK. Ramgopal, Adv.
Respondent AdvocateNone
Excerpt:
company - reopening of transaction - section 21 a of banking regulation act, 1949, article 14 of constitution of india, section 13 of andhra pradesh agriculturists relief act, 1938 and usurious loans act, 1918 - whether section 21 a has taken away applicability of acts of 1938 and 1918 - section 21 a can indirect above two acts only if it is found to cover same field - section 21 a forbids courts from reopening transaction between banking company and its debtor on ground that rate of interest charged is excessive - this prohibition does not prevent reopening of transaction on other grounds - in enacting section 21 a parliament did not specifically refer to bank loans advanced to agriculturists - general language of section 21 a is not enough to cover bank loans advanced to agriculturists.....p.a. choudary, j.1. the plaintiff, the state bank of india, eluru branch, is the appellant. it appeals against a judgment of the learned district judge, eluru, who in a.s. no. 151 of 1980 confirmed the judgment of the trial court dismissing a suit filed by the bank for recovery of a sum of money advanced by the bank as loan to an agriculturist. the bank sued its debtor, who is an agriculturist, in o.s. no.176 of 1979 on the file of the district munsif, eluru, for recovery of a sum of rs. 8,26.20. that amount was made up of the principal and compound interest due on the loan minus the part payments made by the defendant agriculturist from time to time. 2. the principal sum the defendant borrowed from the plaintiff was only rs. 7,200 and that amount was secured by a mortgage. but that.....
Judgment:

P.A. Choudary, J.

1. The plaintiff, the State Bank of India, Eluru Branch, is the appellant. It appeals against a judgment of the learned District Judge, Eluru, who in A.S. No. 151 of 1980 confirmed the judgment of the trial court dismissing a suit filed by the bank for recovery of a sum of money advanced by the bank as loan to an agriculturist. The bank sued its debtor, who is an agriculturist, in O.S. No.176 of 1979 on the file of the District Munsif, Eluru, for recovery of a sum of Rs. 8,26.20. That amount was made up of the principal and compound interest due on the loan minus the part payments made by the defendant agriculturist from time to time.

2. The principal sum the defendant borrowed from the plaintiff was only Rs. 7,200 and that amount was secured by a mortgage. But that amount soared to the suit amount even after the defendant had made part payments because of the stipulation in the agreement providing for payment of compound interest. The loan agreement provided for the payment of 1 1/2% of interest over and above the prevailing bank rate but subject to a condition of the debtor paying a minimum of 8 1/2% per annum with quarterly rest on the borrowed amount. Thus, the principal amount of loan earned interest every quarter which was added in that quarter to the principal amount. The principal amount thus got geometrically swollen up. In Telugu, this would be described as (vernacular omitted). This method of charging interest known as the method of charging compound interest is always condemned. Lord Wright in Riches V. Westminster Bank Ltd.[ 1947] AC 390 (HL), refers to the saint-socialist scholar Prof. Tawney to say that money-lending was condemned by the medieval mind as usurious. In our country, charging of compound interest is particularly condemned in relation to the loans advanced to agriculturists. Many reports of the famine and other commissions appointed to look into the cause of the economic misery of the Indian farmer found agricultural indebtedness one of the principal causes for the economic misery of the farmer and asked for enacting laws prohibiting charging of compound interest. From time to time, the laws enacted by the Legislatures had made several attempts to prohibit levying of compound interest on the loans borrowed by the agriculturists and otherwise to relieve the farmers of their economic burden of debts. The A.P. Agriculturists Relief Act of 1938 otherwise known as the Rajaji Act is one of the outstanding modern instances of such enactments. So is the Usurious Loans Act of 1918 as amended by the Madras Actt VIII of 1937. A Full Bench of this court in K. Purshotham v. K. Nageswara Rao [1978] 2 APLJ 145, agreeing with an earlier Full Bench judgment of Subba Rao C. J.(as he then was) in Nainamul v. Subba Rao [1957] 2 An WR 53 [FB], held that the object of section 13 of the above A. P. Agriculturists Relief Act, 1938, is to give effect to the statutory rate of interest, if necessary, even by disregarding the contractual rate of interest. The mode of fixing the allowable rate of interest is settled by section 13 of the Agriculturists Relief Act. Under section 13 of the A.P. Agriculturists Relief Act: 'In any proceeding for recovery of a debt, the court shall scale down all interest due on any debt incurred by an agriculturist after the commencement of this Act, so as not to exceed a sum calculated at 6 1/4% per annum, simple interest, that is to say, one pie per rupees per mensem simple interest, or one anna per rupee per annum simple interest : Provided that the State Government may, by notification in the Official Gazette, alter and fix any other rate of interest from time to time.' However, the amount for the recovery of which the bank had sued the defendant-agriculturist in our present case was calculated on the basis of the contracted rate of compound interest. The defence of the agriculturist in the suit was two-fold. He firmly objected to the mode of appropriation adopted by the bank. But, on this point, both the courts below upheld the method of appropriation adopted by the bank and found against the defendant. As the denfendant had never made any grievance of that finding of the trial court either in the lower appellate court or here in this court, that objection of the defendant may be taken to have been waived. Only the second point of objection of the defendant survives for consideration. The defendant says that he was an agriculturist and that the contract between him and the bank providing for charging of compound interest was contrary to the provisions of section 13 of the above A.P. Agriculturist Relief Act of 1938, and also to the Usurious Loans Act 10 of 1918, as amended by the Madras Amendment Act VIII of 1937. The second objection of the defendant was upheld by the courts below giving rise to this second appeal field by the plaintiff bank.

3. The question:

The only question that falls for the consideration of this court in this second appeal is whether the findings of the courts below upon the surviving point of the controversy between the parties should be upheld.

4. Previous judgments of this court :

In onw or two recent judgments of this court for which I spoke, similar question of law were considered. In Indian Bank v. Muddana Krishna Murthy, AIR 1983 AP 347; [1983] 1 ALT 357, a Division Bench held that the Indian Bank constituted by the mandate of section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act was not a corporation constituted by a special Indian law and that section 4(1)(e) of the A. P. Agriculturists Relief Act of 1938 to the extent it confers exemption from the applicability of the above A. P. Agriculturists Relied Actt of 1938 on any corporation formed in pursuance of an act of Parliament of the United Kingdom or any special Indian Law or Royal Charter or Letters Patent is void, and that consequently the provisions of the A. P. Agriculturists Relief Act would apply to all the loans advanced by banks to farmers. In that judgment, it was also held as a separate point of law that the provisions of the abovesaid Usurious Loans Act of 1918, as amended by the Madras Amendment Act of 1937 (Act No. VIII of 1937), would apply to the loans advanced by these banks to the agriculturists and would consequently render the bank loan charging compound interest from a farmer a substantially unfair transaction without any special circumstances being shown justifying the charging of such compound interest. In Indian Bank, Adoni, In re, [1984] 1 An WR 127, the same view was reiterated with particular reference to the Usurious Loans Act of 1918, as amended by the Madras Amendment Act VIII of 1937, and the meaning of the special circumstances was further explained.

5. These judgments of this court are clear authorities for the following propositions of law. The courts should not enforce against an agriculturist any contractual rate of interest over and above what was provided for by or under section 13 of the A. P. Agriculturists Relied Act. (2) The courts should not enforce an agreement providing for charging of compound interest against an agriculturist. (3) Under the provisions of the Usurious Loans Act of 1918, as amended by the Madras Amendment Act VIII of 1937, the courts should treat a loan to an agriculturist charging compound interest to be a substantially unfair transaction.

6. Effect of those previous judgments and the contention of the bank:

Judged by the ratio of the abovementioned judgments of this court, the judgment of the lower court in this case must be upheld and this appeal filed by the plaintiff bank should be dismissed. So much is not denied even by the bank. But what is argued by the appellants bank in this second appeal is that the above judgments of this court, following which the lower courts rendered their judgments, are themselves rendered inapplicable to the loan transaction between the plaintiff bank and defendant- agriculturist by section 21A of the Banking Regulation Act (Act No. 1 of 1984). The contention of the bank in substance is that the above section 21A of the Banking Regulation Act of 1938 and the Usurious Loans Act of 1918, as amended by the Madras Amendment Act VII of 1937, to the loans given by the banks to the agriculturists.

7. Banking Regulation Act and its meaning :

The Banking Regulation Act No. 1 of 1984 had been enacted by Parliament subsequent to the rendering of the above judgments by this court. This court had, therefore, no occasion to consider earlier either the constitutional validity or the scope and meaning of the abovesaid section 21A of the Banking Regulation Act. The question whether the abovesaid section 21A of the Banking Regulation Act has taken away the applicability of the A. P. Agriculturists Relief Act of 1938 and the Usurious Loans Act of 1918, as amended by the Madras Amendment Act VII of 1937, now falls for consideration. Section 21A of the Banking Regulation Act reads thus :

'Notwithstanding anything contained in the Usurious Loans Act, 1918, or any other law relating to indebtedness in force in any State, a transaction between a banking company and its debtor shall not be reopened by any court on the ground that the rate of interest charged by the company in respect of such transaction is excessive.'

8. For the present, I will not consider the question of constitutional validity of section 21A of the Banking Regulation Act. I assume for the purpose of this part of the discussion that section 21A of the Banking Regulation Act is constitutionally valid. I only ask whether that section has taken away the efficacy and the applicability of the abovementioned judgments of this court which are based upon the abovementioned A. P. Agriculturists Relief Act, 1938, and the Usurious Loans Act of 1918 as amended by the Madras Amendment Act VIII of 1937. Section 21A can indirect the above two Acts only if section 21A is found to cover the same field covered by the above two Acts. In other words, that question can be answered in favour of the appellant bank only by holding that the field of operation of the abovesaid section 21A of the Banking Regulation Act is conterminous with the areas of operation of the above two enactments. It must be admitted that section 21A, where it operates, forbids all courts from reopening a transaction between a banking company and its debtor on the ground that the rate of interest charged is excessive. But it would be noted that this prohibition enacted by section 21A is not general and universal and does not prevent the reopening of the loan transaction on grounds other than grounds of excessive interest. The prohibition is, therefore, applicable only to those select cases where the court finds that interest rates charged by the bank are excessive and the loan transactions are required by the defendant to be reopened for that reason. However, the powers of court to reopen a loan transaction are not confined only to the single ground of excessive interest. There are other grounds which are many and varied and still available to the courts. On the grounds that the rate of interest charged in a particular case is usurious, extortionate or penal or the transaction itself is unconscionable, or opposed to public policy, a court can still reopen a loan transaction. These grounds are not touched by section 21A picks up only one ground of excessive interest and makes that ground unavailable. In other words, section 21A of the Banking Regulation Act cannot be read as forbidding the courts from reopening a loan on any of those grounds excepting the ground of excessive interest. The ground of excessive interest which alone is made by section 21A unavailable to the courts to reopen the transaction does not bar the court's jurisdiction to reopen the transaction on other equally efficacious grounds which are different in law from the ground of excessive interest.

9. The meaning of excessive interest rate :

Before we ascertain the legal meaning of the words 'interest being excessive', we may note that economic thought found justification for charging interest. Aristotle laid it down that all money was in its nature barren meaning thereby that money was not the source of wealth. This deep insight into the economic nature and origin of the wealth of nations greatly influenced the climate of theological opinion and classical economic opinion both of which condemned the institution of interest as one of reaping a harvest without sowing. Adam Smith who extolled (sic) as the source of wealth could not justify the economic grounds for charging interest. But the running of an industrial, commercial economy demanded a pre-eminent place to be accorded to the institution of interest. Echoing this need of the industrial society, its spokesman Bentham said that 'interest as love and religion...should be free' meaning thereby that law should allow full freedom for charging of market rates of interest. Law, however, has never wholly accepted these free market ideas in money-lending even in those days of laissez-faire. Law struck a via media between the classical and theological view on the one hand and the needs of modern society on the other. Frank, the economist, who described interest as the compensation paid for the risk and uncertainty involved in leading money expressed that via media justification. Law, basing itself upon this justification, broadly defines interest as the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another. (See Vol. 32, Halsbury's Laws of England, 4th edition, para 106). This view impliedly justified the charging of interest. But courts as courts of equity and justice enjoy wide powers to hold that the interest charged in a particular case is excessive as the amount collected as interest in that case is disproportionately higher than what would be the true and rightful compensation payable for the use or retention of the borrowed money.

10. Compounding interest is inherently bad :

Compound interest as different from simple interest is regarded as inherently objectionable. Lord Cottenham said in Ferguson v. Fyffee [1841] 8 Cl & F 121 :

'Generally a contract or provision for compound interest is not available in English law, as was decided by Lord Eldon in ex pate Bevan [1803] 9 Ves 324, except perhaps as to mercantile accounts current for mutual transactions'.

11. F. A. Mann, the well known authority on 'money', says that as a general rule, compound interest is condemned by most countries (See Vol. 101, LQR 30 at page 43). In the same article, Mann observes:

'In Roman law 'anatocism' was absolutely prohibited and under its influence the prohibition continued for many centuries on the continent. In France, the Civil Code demands a special agreement and limits compound interest to yearly rests (article 1154 of Civil Code); no restriction applies in the case of current accounts or where in the case of other monetary obligations no payment of a specific principal sum is in issue (article 1155). In Germany, the payment of compound interest cannot be agreed upon in advance, but numerous exceptions apply, particularly in the case of banking institutions and current accounts (article 248 of the Civil Code, article 355 of the Commercial Code). In Switzerland (article 314), the law is similar, and the same seems to apply to Scotland. In the United States of America, the broad rule is that contracts to pay compound interest are void'.

12. Reverting back to excessive interest :

In deciding whether a rate of interest is excessive or not, courts will have regard to the particular facts of a case before them. Such an enquiry will be conducted by the courts primarily on the basis of the security given by the debtor for the repayment of the loan and the solvency of the debtor and the market rate of interest prevailing. Normally, whether the security offered by the debtor is good and adequate as it is in a case of mortgage of property, the courts will hold the charging of compound interest to be excessive. The rate of interest, which may not be excessive on an unsecured loan, may, therefore, be found to be excessive by the courts where there is good security. (See Kruse v. Seely [1924] 1 Ch 136). Even rates of simple interest may be found to be excessive in particular cases. Thus, the question of excessive rate of interest charged in a case normally turns out to be essentially a question of fact which the courts can decide only by considering the proved facts in each individual case. (See Carringtons Ltd. v. Smith [1906] 1 KB 79). Those facts like any other facts should be proved to the satisfaction of the courts in each individual case. These are all cases which are not basically different from those cases which come before the courts for decision on the defence plea that a particular contract is voidable on the ground that it is unconscionable or harsh or opposed to public policy.

13. The scope of section 21A :

Section 21A strikes against one of those pleas of the defendant. Section 21A of the Banking Regulation Act takes away that particular power of the court to reopen the transactions on the ground of excessive rate of interest. Section 21A belongs to that genre of legislation which deals with a dispute between two parties before the court which is called upon to settle a dispute on the peculiar facts of that case and on the defendant's plea that the transaction cannot be enforced because it is harsh, etc. In those classes of cases, courts enjoy wide discretion, though judicial, in applying their powers to the varying facts. What section 21A of the Banking Regulation Act does is to cut into the width of its powers of reopening enjoyed by the courts and to prevent the courts from holding investigations into the relevant facts necessary to find out whether there is or is not excessive interest charged. In other words, the effect of section 21A is to render the defences that might be set up by the defendants on the group that the rate of interest charged is excessive, unavailable to him. In each individual case of that nature, the court applying section 21A of the Banking Regulation Act will refuse to entertain such defences and consequently refuse to go into the question of the nature of security accepted, the risk involved in lending and the prevailing market rate, etc. The courts which would have normally decided the questions relating to rate of interest will now refuse by reason of section 21A of the Banking Regulation Act to decide that issue. Section 21A of the Banking Regulation Act is, therefore, applicable only to individual cases. Its purpose is to forbid the courts from making an individual investigation and to forbid the courts entertaining a particular defence of the defendant. The legal effect of section 21A of the Banking Regulation Act is nothing more and nothing less and is nothing else, than to prevent the courts from investigating into one type of defence that might be set up by the defendants and which would require a composite inquiry into that question.

14. Section 21A compared with Agriculturists Relief Act :

Now, the question is, is the purpose of the A. P. Agriculturists Relief Act of 1938 the same as that of section 21A of the Banking Regulation Act? It appears to me that it is not. On the other hand, the legal effect of the A. P. Agriculturists Relief Act is totally different from the legal effect of section 21A of the Banking Regulation Act. The questions tried and the issues decided under the A. P. Agriculturists Relief Act are not the same as those under section 21A of the Banking Regulation Act. The A. P. Agriculturists Relief Act is more like the Frazier and Lemka Act of the famous American New Deal Administration or the rule in Roman law prohibiting 'anatocism' or the American rule that contracts to pay compound interest are void. These types of cases do not depend much upon the individual features and merits of the cases for the grant relief. Agriculturists' Debt Relief Legislation is a class legislation enacted for the benefit of farmers as the class. It applies to all farmers who belong to that class. The rule against excessive interest now excluded by section 21A, depends for its application on individual facts and features, that can vary from case to case. The statement of objects and reasons of the Agriculturists Relief Bill shows that the purpose of the A. P. Agriculturists Relief Act is to rehabilitate agriculture. Treating agriculture as a basic industry of this province and holding that on its prosperity depends the prosperity depends the prosperity of all other sections of the people in the province, the A. P. Agriculturists Relief Act seeks to relieve the agriculturists of their burden of debts by wiping out existing debts in some cases and fixing ceilings on future rate of interest in all cases and forbidding the charging of compound interest altogether. Its object cannot be said to be to grant relief of individual farmers on the basis of excessive rate of interest found charged in each individual loan transactions. The relief under the A. P. Agriculturists Relief Act cannot be refused even by accepting rate of interest to be not excessive. The policy of the A. P. Agriculturists Relief Act is to grant debt relief to all farmers as a class with respect to their loan transactions, irrespective of the varying rate of interest charged in individual cases, and the nature of security accepted in those cases. For this purpose, section 13 of the A. P. Agriculturists Relief Act prevents the courts from granting decrees for the collection of interest rates over and above what is fixed by or permitted by section 13 of the A. P. Agriculturists Relief Act. In effect, though not by expression, the A. P. Agriculturists Relief Act renders the charging of interest over and above what is fixed by section 13 of the A. P. Agriculturists Relief Act of 1938 unlawful, without any reference to other relevant factors which should go into a decision that a particular rate of interest is or is not excessive. Thus, the A. P. Agriculturists Relief Act of 1938 has nothing to do with the individual merits or demerits of a particular case. In fact, it is conceivable for a court of law to find that 15% simple interest charged to an agriculturist in a particular case is not excessive, but even in such a case, the court would be without liberty to grant a decree for the suit amount because the courts under section 13 of the A. P. Agriculturists Relief Act cannot pass a decree for 15% interest. Because the passing of a decree for 15% interest would be contrary to the above section 13 of the A. P. Agriculturists Relief Act of 1938 and not because the court finds it an excessive rate of interest, the courts refuse to grant decrees at 15%. In other words, the grounds for granting relief to a farmer under the provisions of the A. P. Agriculturists Relief Act are general statutory prohibitions which are qualitatively different form the ground of excess interest which is mentioned in section 21A of the Banking Regulation Act. In implementing section 13 of the A. P. Agriculturists Relief Act, it is not at all the concern of the courts to find out whether a rate of interest is excessive or not. Such an enquiry will be wholly outside the scope of the Agriculturists Act. On the proof of the fact that the rate of interest was not simple interest or that the rate of interest was more than what the Legislature had prescribed under section 13 of the A. P. Agriculturists Relief Act, 1938, and that the debtor was an agriculturist, the court acting under section 13 of the A. P. Agriculturists Relief Act is bound to grant relief to the farmers. The court, enforcing the provisions of the A. P. Agriculturists Relief Act, will not inquire into the nature of security offered or the prevailing rate of interest or the solvency of the debtor, etc., without which the question of excess rate of interest cannot be determined. It must, therefore, be held that the area of operation of section 21A of the Banking Regulation Act is far different and removed from the area of operation of the A. P. Agriculturists Relief Act of 1938 and that particular section 13 of that Act which was enacted to relieve the agriculturists as a class of their burden of paying interest over and above what is fixed by or under section 13 is not in any way, constrict or countermanded by the obligation of the courts flowing from section 21A of the Banking Regulation Act. Enacted for the purpose of forbidding the courts from considering and accepting the defence of excessive interest in suits filed by the bank for the collection of their loans and dealing with the individual cases, section 21A of the Banking Regulation Act is not coterminous in its operation with the above two State Acts. The A. P. Agriculturists Relief Act of 1938 deals with the general class of the society. The grounds of relief permitted and prohibited to the courts by the two Acts are different. The method of enquiry contemplated to be adopted by the courts is different. The purpose, operation and the effect of section 21A of the Banking Regulation Act are not even remotely connected with the purpose, operation and the effect of the A. P. Agriculturists Relief Act of 1938. It, therefor, follows that even after the enactment of section 21A of the Banking Regulation Act by Parliament, the courts are bound to give effect to the abovementioned judgments of this court which are based on the interpreted scope, meaning and applicability of the A. P. Agriculturists Relief Act of 1938.

15. The 'debtor' in section 21A is not an agriculturist :

Further, as a matter of construction, it is not easy for me to hold that by the use of the generic word 'debtor', section 21A of the Banking Regulation Act intends to refer to the agriculturists. Agriculturists constitute a special and particular economic segment of the society found to be in dire need of statutory relief from their agricultural indebtedness. Only a small fraction of bank loans are advanced to agriculturists. They are largely given to industrialists, consumers and even to speculators. The A. P. Agriculturists Relief Act, 1938, is a special law enacted to relieve the State economy of a particular ailment found by the elected representatives to be afflicting it. That Act is, therefore, made applicable only to agriculturists. By the time section 21A of the Banking Regulation Act has come to be enacted, the law is that the Agriculturists Relief Act covers the bank loans advanced to agriculturists. Parliament which must have been aware of the applicability of the A. P. Agriculturists Relief Act to bank loans did not specifically refer to the bank loans advanced to the agriculturists and deny the farmers relief to which they are found by the State Legislature to be in need of. One would expect Parliament to use specific language to that effect if that were the intention of Parliament. Section 21A does not use any such specific language. In the absence of any such language in section 21A of the Banking Regulation Act, I find it difficult to hold that the general language of section 21A is enough to cover the bank loans advanced to the agriculturists also.

16. Section 21A and the Usurious Loans Act:

It must be admitted that on first look, section 21A of the Banking Regulation Act bears some similarity to the provisions of the Usurious Loans Act of 1918 as amended by the Madras Amendment Act No. VIII of 1937. But these first appearances are more deceptive than real. Both the Usurious Loans Act as well as section 21A are, no doubt, applicable to individual cases and courts, before relieving the debtors of their burden of debt under these Acts, must exercise their jurisdiction and find out in each individual case whether the assailed transaction is usurious. But beyond that point, the two Acts in their application part company with one another. Under the provisions of the Usurious Loans Act of 1918 as amended by the Madras Amendment Act No. VIII of 1937, the ground for the grant of relief is different from the ground denying relief under the provisions of section 21A of the Banking Regulation Act. We have already seen that section 21A of the Banking Regulation Act forbids the reopening of transactions only on the ground of excessive interest rates. But, after the Madras Amendment Act No. VIII of 1937, that ground of excessive interest no longer remains relevant for the application of the Usurious Loans Act of 1918. Before the amendment under section 3 of the Usurious Loans Act of 1918, the court's power to reopen a loan transaction was based upon its reasonable belief that the interest charged was excessive and that the transaction was substantially unfair. But now, the Madras Amendment Act No. VIII of 1937 has amended section 3 of the Usurious Loans Act of 1918 to say that courts can reopen the transaction where the courts have reason to believe that the transaction was substantially unfair. Thus, the ground of charging excessive interest was deleted by the Madras Amendment Act and is no longer relevant for reopening the transactions. To that amendment, Explanation I was added.

'If the interest is excessive, the court shall presume that the transaction was substantially unfair; but such presumption may be rebutted by proof of special circumstances justifying the rate of interest'.

17. To the above, a proviso was added to the effect that in the case of loans to agriculturists, if compound interest is charged, the court shall presume that the interest is excessive. It would be noted that even the above amendments do not make the power of reopening turn upon excessive rate of interest. The power of reopening a loan transaction can be exercised under the amended Usurious Loans Act only on the ground that the transaction between th parties is substantially unfair. It is true that in reaching that conclusion, the Amending Act directs the court to presume that in all cases where compound interest is charged to farmers, the interest is excessive and that, therefore, the transaction was substantially unfair between the parties unless special circumstances justifying the charging of compound interest were shown to exist. That direction merely adds a rebuttable presumption made by the statute in holding that the transaction is substantially unfair. But it does not alter the grounds contained in the enacting clauses of the amended Usurious Loans Act for the court to avoid a transaction on the ground that the rate of interest is excessive. The framers of the statute thought that conceivably there can be cases of excessive interest without the transaction being substantially unfair. That must have been the reason why the unamended Usurious Loans Act of 1918 mentions both the grounds as available for reopening a transaction. Now, of the two grounds, the Amending Act retains only the ground of substantially unfair transaction. In my opinion, there would be no justification for mixing up both the grounds. The two grounds should be kept separate. As section 21A of the Banking Regulation Act deals only with the ground of excessive interest and does not deal with the ground of substantially unfair nature of transaction with which alone the Usurious Loans Act of 1918 as amended dealt with, the applicability of the Usurious Loans Act of 1918, as amended by the Madras Amendment Act VIII of 1937, cannot be taken to have been overridden by section 21A of the Banking Regulation Act. To that extent, I am of the opinion that the law laid down by the above mentioned Krishna Murthy's case [1983] 1 ALT 357; AIR 1983 AP 347 and as elaborated by Indian Bank, Adoni, In re [1984] 1 An WR 127 still governs the transactions of debts incurred by the agriculturists on their loans from the banks. For that reason, I hold that section 21A of the Banking Regulation Act cannot be construed as overriding the operation of the Usurious Loans Act of 1918, as amended by the Madras Amendment Act VIII of 1937, in their application to farmers. Considering the scope of section 21A of the Banking Regulation Act from that angle, I come to the conclusion that section 21A would not interdict the applicability of even the Usurious Loans Act of 1918, as amended by the Madras Amendment Act No. VIII of 1937, and that according to the interpretation placed by this court by the above-mentioned decision on the Usurious Loans Act of 1918, as amended by the Madras Amendment Act No. VIII of 1937, it still applies to the loan transactions entered into by the banks with the farmers.

18. Federal distribution of legislative powers :

So long, we have not touched upon the question of the constitutional validity of section 21A of the Banking Regulation Act. Section 21A is a Parliamentary law. Such a law can be constitutionally valid only so long as it is a law within the ambit of the legislative capacity of Parliament and so long as it does not violate the constitutional injunctions contained in the Chapter on fundamental rights. So far, I have assumed that section 21A of the Parliamentary law is constitutionally valid in both respects and could, therefore, override the operation of the A. P. Agriculturists Relief Act of 1938 and the Usurious Loans Act of 1918 with its Madras amendment. We will now have to test that assumption and see whether section 21A of the Banking Regulation Act enacted by Parliament can, while carrying the meaning which the appellant-bank attributes to it as forbidding the courts not to scale down the debts owed by the agriculturists to the banks on the ground of excessive interest, be regarded as intra vires the legislative powers of Parliament. Fundamental rights apart, section 21A can be upheld only if that section is found to be a law with respect to one of the items in List I of the Seventh Schedule.

19. Under our constitutional system of distribution of legislative powers between the Union on the one hand and the States on the other, about 97 matters are listed in the Union List, also called List I, with respect to which laws can be made only by Parliament. The legislative power of Parliament is exclusive and paramount to the legislative power given by the Constitution to the States with respect to some 66 matters listed in the State list, also called List II. Thus, notwithstanding the fact that the legislative power of the State is called 'exclusive' and extends to those 66 matters, in case of any conflict or collusion between a law made by Parliament with respect to any one or more of the items enumerated in List I and any State law made with respect to any one or more of those 66 matters abovementioned, the Parliamentary law will be treated as paramount. Thus, any finding that section 21A is a law with respect to a Union matter automatically establishes the supremacy of that law and overrides the operation of the State law. In deciding the federal question of distribution of legislative powers, one cannot forget this crucial fact.

20. Now, in examining whether section 21A of the Banking Regulation Act is a law made with respect to any one of the matters which are listed in the Union List, we need notice only items 43, 45 and 46 of the Union List. As section 21A does not deal even remotely with the incorporation or winding up of any banking corporation, the constitutional justification of section 21A on the basis that it was a law made with respect to item 43 of the Union List can neither be offered nor accepted. The above observation would apply with equal force to what I have to say on the inapplicability of item 46 of the Union List, which authorises the Union Parliament to make laws with respect to 'Bills of exchange or promissory notes or any other negotiable instruments'. Section 21A cannot be argued, with any degree of plausibility, to be a law with respect to any of the matters in the above item 46 of the Union List. These items 43 and 46 of the Union List do not fall for further consideration. The argument that section 21A may be regarded as a law with respect to item 45 of the Union List cannot, in my opinion, be so summarily dismissed. Item 45 of the Union List mentions the subject-matter of banking. Now, the question is whether section 21A, the subject-matter of which is denial of relief of agricultural indebtedness, can be said to be a law with respect to 'banking'. 'Banking' connotes the carrying on of an activity. In its strict and primary sense, that activity of banking covers only receiving of moneys on current or deposit account and payment of cheques paid in by a customer. Without doubt, it can be asserted that neither money-lending in general nor denial of grant of relief of agricultural indebtedness in particular which is the substance of section 21A will come within the scope of the basic meaning of the word 'banking' in item 45 of the Union List. (See Volume 2, Halsbury's Laws of England, 4th edition, and also the judgment of the Court of Appeal in United Dominions Trust Ltd. v. Kirkwood [1966] 1 All ER 968 (CA). IF that were all, section 21A would not be characterised as a law with respect to the item of Banking in the Union List. But the courts have attributed to the word 'Banking' an extending meaning which goes far beyond its primary meaning. Interpreting the head 15 of the enumerated class of the exclusive federal subjects in the British North America Act, the Privy Council laid down in Attorney- General for Alberta v. Attorney-General for Canada [1947] AC 503 (PC), that the word 'Banking' in that entry carries an extended meaning including grant of credit by banks to its customers. It was on that basis the Privy Council in that case struck down 'The Alberta Bill of Rights Act' as ultra vires the powers of the province of Alberta to enact. There is a similar legislative entry in section 51(XIII) of the Australian Constitution. The word 'Banking' in the Australian Constitution had also received a similar meaning in its extended sense. These cases can be taken as authorities for holding that the extended meaning of the world banking is accepted by courts. But the question still remains whether under our Constitution, the Union legislative entry of Banking in item 45 can be so expansively interpreted as it was done in Canada and Australia. This question is crucial for any discussion because section 21A of the Banking Regulation Act can be upheld as a law with respect to the Union subject only if such a wide meaning is given to the word 'Banking'.

21. As Where said in his Modern Constitutions quoting Bolingbroke, 'Constitution is an assemblage of laws, institutions and customs...that composed the general system according to which the community has agreed to be governed'. Our Constitution has set up institution which are appropriate for a welfare State under a Socialist Republic. We have agreed to be governed by a system of federal polity. The legislative powers which have been gien under that polity either to Parliament or to the States are more in the nature of duties imposed upon the representative institutions to enact laws for the purpose of alleviating the miseries of the people and meeting their needs. Under that system of laws and Government, the Authority to legislate upon money-lending and money-lenders in general and grant of relief of agricultural indebtedness in particular is made by the Constitution as the exclusive prerogative and power and concern and responsibility of the States. To that extent, the Constitution has deliberately denied power to Parliament to make laws with respect to the subject of 'Relief of agricultural indebtedness.' According to taht system of distribution of legislative powers, section 21A cannot be upheld to be a law with respect to a federal subject. The fact that the word 'banking' received a wider meaning under certain constitutional systems such as exist in Canada or Australia cannot detract from the fact that under our Constitution, relief from agricultural indebtedness is not treated as a part of federal powers of banking. It can be said with certainty, so far as our Constitution is concerned, that the legislative subject of agricultural indebtedness is always treated as separate and distinct from banking and is allotted to the exclusive jurisdiction of the regional Governments while the subject of banking is always allotted to the Union. The unimpeachable evidence of our constitutional history and the relevant constitutional texts furnish convincing support for this view. Both under the 1935 Act as well as under the present Constitution, banking is treated as a federal subject to be legislated upon by Parliament alone. Under the 1935 Act, there was no specific item of relief of agricultural indebtedness. Under the 1935 Act, there was only money-lenders as a part of item 27 of the Provincial List. Under the Draft Constitution, while retaining the item of money-lending and money-lenders as a State, but an independent, subject of legislation, it is proposed that a separate and distinct legislative item, namely, 'Relief of agricultural indebtedness' should be added to the exclusive State List in item 34. According to that draft proposal, item 34 read as 'Money-lending and Money-lenders; relief of agricultural indebtedness'. By means of that proposal of the Draft Constitution and particularly by addition of the words 'relief of agricultural indebtedness', the State jurisdiction to make exclusive laws on the subject of agricultural indebtedness was largely enlarged and was given a vastly enhanced status. The idea of the amendment was to preclude the possibility of any argument being advanced to the effect that the exclusive State subject of agricultural indebtedness could be effected or touched upon by the exercise of federal power within its domain. No one in the Constituent Assembly had ever opposed this draft scheme of item 34 granting relief of agricultural indebtedness or making the States solely responsible for that. The need for wiping out agricultural indebtedness is universally accepted. The only amendment proposed by Prof. Shibbanlal Saxena sought to transfer this draft item 34 from the exclusive State list to the concurrent list so that both the Union Parliament and the State Legislatures can be held responsible and accountable for wiping out the agricultural indebtedness. That amendment of Prof. Saxena was based on the availability of superior resources with the Centre. If we thought that the task of granting relief of agricultural indebtedness is so gigantic and urgent that its tackling would require the conjoint efforts of both the national legislatures and the regional legislatures, Prof. Saxena, moving his amendment of 2nd September, 1949, said.

'This is an important amendment. I would like the House to realise the magnitude of the problem. We all want to wipe out rural indebtedness. Sir, in this connection, I would like to read an extract from the People's Plan for Economic Development of India, which runs as follows:

'The other problem that will have to be tackled, along with this problem of the outmoded land tenure system, will be the problem of rural indebtedness. The total rural indebtedness was estimated by the Central Banking Inquiry Committee, in the year 1928, at about 900 crores of rupees. Subsequent estimates have, however, put the figure at a much higher level. The estimates, according to the report of the Agricultural Credit Department of the Reserve Bank of India in the year 1937, is about 1,800 crores of rupees. It is not possible that this might have reduced to any significant extent since the year 1937, nor can the so called agricultural boom at present be said to have produced very substantial reductions. The money-lender in the country dominates more in that strata of the agricultural population which is relatively worse off.

22. The boom can hardly be said to have benefited taht strata. On the other hand, the debt represent accumulations of decades. The debt legislation in the various provinces has not, admittedly, been able to touch even fringe of the problem. We feel it necessary, therefore, that the debt should be compulsorily scaled down and the taken over by the State. Experiments made in this direction in the province of Madras, for example, serve as a useful pointer. Under the working of the Madras Agriculturists Relief Act of 1938, debts were scaled down by about 47 per cent. and the provisions of the Act can, by no logic, be characterised as drastic. In the Punjab, under the operation of the Debt Conciliation Boards, debts amounting to 40 lakhs were settled for about 14 lakhs. It should, therefore, be possible and must be considered as necessary to scale down the present debts to about 25 per cent. before they are taken over by the State. Assuming the present indebtedness to amount to about Rs. 1,000 crores, the debt to be taken over by the State will come to about Rs. 250 crores.

23. The compensation to be paid to the rent-receiver as well as to the usurers will thus amount to Rs. 1,985 crores. This should be paid in the form of self-liquidating bonds issued by the State. These should be for a period of 40 years at the rate of interest of 3 per cent. and should be compulsorily retained by the State in its possession. The annual payments to be made by the State for these bonds will come to about Rs. 60 crores. On the carrying out of these initial measures will depend the success of the planned economy for raising the productivity of agriculture in the interests of the cultivators. Unless the status quo is changed in this manner, ther can be no hope of improving the standard of living of the industrial vast bulk of our peasantry, and, therefore, no hope of building up an industrial structure in the country on sound, stable and secure foundations. We are aware of the difficulties in the way of carrying out the above measures, but we are unable to see any alternative to them whatsoever.'

24. It is thus obvious that if we really want to remove agricultural indebtedness, the problem cannot be solved merely by action taken by individual States. Only a comprehensive plan and its bold execution with the fullest co-operation of the Union Government with the Government of the States can solve these problems. It is, therefore, that I have suggested that this entry should be transferred to List III.

25. Sir, I have tabled my amendment only with this purpose in view, I feel and I am quite convinced that we cannot change the fate of our country and we cannot realise the 'India' of our dreams unless we adopt a comprehensive plan and have powers to co- ordinate the activities of the Centre and the Provinces. I, therefore, commend my amendment for the earnest consideration of the House.' (See Constituent Assembly of india Debates, Volume, page 900).

26. It is common knowledge of Indian economic history that the burden of the whiteman (which is not be the same as whiteman's burden ) in this country was borne principally by our agriculturists who produce the primary goods. The colonial exploitation of our country was carried on by the British mainly at their cost and expense. Several official reports including those submitted by famine commissions and unofficial publications of reputed economists bear eloquent testimony to those economic facts. One of the major pledges of the Indian National Movement is to eradicate this economic stage of helpessness of the Indian agriculturists. But none had ever more forcibly described this economic tragedy of the Indian farmer than Mahatma Gandhi who in his famous statement made to an Indian criminal court trying him for sedition:

'No sophistry, no jugglery in figures can explain away evidence that the skeletons in many villages present to a naked eye. I have no doubt whatsoever that both England and the town-dwellers of India will have to answer, if there is a God above, for this crime against humanity, which is perhaps unequalled in human history.

The Constituent Assembly rejected Prof. Saxena's amendment to transfer item 34 to the concurrent list. The rejection to Prof. Saxena's amendment to transfer the item of relief of agricultural indebtedness to the concurrent list is a clear proof of the fact that in the view of the Constitution, the power, the responsibility and the accountability for solving the problem of agricultural indebtedness should not be shared by the States with Parliament and that it should exclusively belong to the States alone. This exclusion of the subject to relief of agricultural indebtness from the jurisdiction of Parliament must be taken to have been based upon the principle that the grant of relief of agricultural indebtedness calls for different approaches at State level. To uphold the authority of Parliament tto legislate upon the subject of grant or denial of relief of agricultural indebtedness on the ground that the word 'Banking' would include grant of credit also would amount to destroying the above federal scheme of distribution of legislative powers carefully drawn by our Constitution. The responsibility of the States to alleviate the misery of agriculturists would be whittled down and would almost be wiped out. So long as the State laws are allowed to be overridden by the paramount Union laws made on banking, no State legislation enacted for the purpose of granting relief of agricultural indebtedness can either be effective or complete. It would be illogical to hold that the same Constitution which deliberately made the States responsible and accountable to relieve agricultural indebtedness has denied them the exercise of the necessary and plenry powers to legislate upon that subject of relief of agricultural indebtedness arising out of the bank loans. The Constitution could not have intended providing for a scheme of maimed, moth-eaten and truncated relief of agricultural indebtness. With the rapid changes in the methods of agricultural operations, carrying on agriculture is becoming more and more dependent upon the use of costly machinery and costlier chemical inputs and pesticides and less and less on the direct support of the mother earth and the monsoon. These changes, coupled with the drastic reductions in extents of individual agricultural holdings brought about by social legislation, drive the agriculturist to lean more and more on the support of bank loans for carrying on his occupation. These consideration induce me to hold that denial of relief of agricultural indebtedness to the famers by Parliament would be beyond the legislative competence of Parliament.

27. These constitutional entries intended for achieving a great social object cannot be read as if they are contained in the last will and testament of the Constitutional makers. The correct constitutional perspective is sure to elude the grasp of best of minds which, though strong in concept, are weak in vision and slow in capturing the historical truths. Our history is full of evidence of the British colonial exploitation of this country which necessitated taking of measures for providing relief of agricultural indebtedness. Examining the matter from that angle, I am led to the conclusion that the legislative subject of grant of credit to the agriculturists is treated by the Constitution to be an exclusive State subject with which the Union has no concern.

28. The scheme of the Canadian Constitution and the Australian Constitution are not at all identical without constitutional scheme. No famine, no pestilence or no disease did hit the Canadian farmer or Australian farmer with the same force or frequency as they hit the Indian farmer ; nor did they hit them with on such a gigantic scale. The absence of the item or relief of agricultural indebtedness being mentioned as a separate and distinct item of regional jurisdiction, in those Constitutions, is understandable. In the absence of such a separate enumeration in those conditions, the need to subtract from the general meaning of the word 'banking' in the federal list the specific meaning of the words 'relief of agricultural indebtedness' was never felt. The abovementioned Canandian and Australian decisions cannot, therefore, in my opinion, be applied to the solution of our constitutional problems. Although Maitland condemned unorthodox law and orthodox history, a constitutional lawyer cannot but be contemporaneous. The light derived from one page of the history of our national movement about which our Constitution makes a specific mention in article 51A might illumine more brightly the meaning, the purpose, the scope and the scheme of our Constitution that the entire case-law on the Canadian and Australian Constitutions. Constitutional law is neither metaphysics for the constitutional scholars to dispute learnedly about; nor is it a revelation for the constitutional priests to gloss and annotate. Constitutional law deals with the live problems of the nation.

29. The interpretation that might be appropriate to a statute cannot be appropriate for the interpretation of a dynamic document like the Constitution. Prof. Powell said commenting on the decisions of the American Supreme Court on Commerce Clause : 'The court has drawn its lines where it has drawn them because it has thought it wise to draw them there. The wisdom of its wisdom depends upon a judgment about practical matters and not upon a knowledge of the Constitution'. (See Halbury's Laws of England, Volume 36, at page 914, where Powell was quoted by Prof. Frankfurter). I am, therefore, of the opinion that section 21A of the Banking Regulation Act cannot be considered as a law with respect to the item of 'Banking' in the Union List.

30. I cannot even consider that section 21A can be upheld by the application of the talismanic doctrine of path and substance. The pith and marrow of section 21A is denial of relief of agricultural indebtedness. It is a direct invasion of item 30 of the State List. To such a situation the doctrine of pit and substance can have no application. For that reason, I hold that the doctrine of pith and substance cannot be applied to the present discussion.

31. The right rule, in my opinion, which could be applied for the interpretation of the federal power of banking is the one laid down by the Privy Council in John Deere Plow Co. Ltd. v. Theodore F. Wharton [1915] AC 330 (PC) and Great Westt Saddlery Co. Ltd. v. King [1921] 2 AC 91 (PC), preventing federal law from sterilising or destroying the capacities and powers of the State Legislature to grant relief from agricultural indebtedness. In the view, I am in most respectful agreement with the judgment of the Full Bench of the Madras High Court in Nagarathnam v. Seshaiah, AIR 1939 MAd 361.

32. Our Supreme Court in Fatehchand Himmatlal v. State of Maharashtra, : [1977]2SCR828 , categorically declared that money- lending and debt liquidation are within the State's legislative competence. It said (at page 1844):

'Entry 30 in List II is 'money-lending and money-lenders ; relief of agricultural indebtedness'. If commonsense and common English are components of constitutional construction, relief against loans by scaling down, discharging, reducing interest and principal and staying the realisation of debts will , a amount other things, fall squarely within the topic... The whole gamut of money-lending and debt liquidation is thus within the State's legislative competence.'

33. In Pathuma v. State of Kerala, : [1978]2SCR537 , our Supreme Court had reiterated the above view of item No. 30 of List II.

34. Considering the fact that grant of debt relief has always been treated in our country as a legislative subject to be passed upon by the regional Governments alone and that the words 'relief of agricultural indebtedness' were specially added by our Constitution to enable the State Legislatures to alleviate the suffering of the farmers from their agricultural indebtedness and that the Constituent Assembly had deliberately rejected an amendment moved seeking to transfer this item to the concurrent list, I hold that section 21A of the Banking Regulation Act which forbids the courts from reopening the bank loans on the ground of excessive interest is not a law enacted by Parliament with respect to the item of banking.

35. In that view, I consider it not necessary to discuss the doctrine of reading down.

36. I am also of the opinion that section 21A is not consistent with the constitutional mandate of article 14. I am of the opinion that it will not be constitutionally open for our Parliament working in a Democratic Socialist Republic like ours to compel the judicial organs of the State to supply unfailingly in all cases public force to collect interest on the loans advanced by money-lenders to their debtors by completely disregarding the questions relating to the harsh or unconscionable nature of the loan transaction or the excessive or extortionate rate of interest charged. This limitation would apply in particular to monopoly State institutions like the banks. Such a law takes away some of the age-old defence open to a debtor to show that legal action instituted by a creditor for the enforcement of his loan transaction should fail on the ground that the interest charged is usurious is excessive. It appears to me that supplying public force by the courts for enforcing all private agreements is permissible only on the condition that the transaction sought to be enforced is basically just. Otherwise economic might will be turned with the support of State authority into jurisprudential right. In a constitutional democracy, the State cannot be turned into an executive committee for the management of the rapacious interests of the rich. An unjust transaction is often enough an unlawful transaction. Law requiring courts to enforce harsh, unequal or unconscionable bargains providing for payment of compound interest or usurious rates of interest by depriving the debtors of their right to set up traditional defences which are recognised as available to them directly offends the mandate of article 14 of the Constitution. Such a law would violently discriminate against the hapless borrowers. Law cannot, in its majestic abstraction, forget the social realities that those who are compelled to sleep under the bridges cannot be treated as equal to those who can live in palaces and that it is always necessary for our law to adopt a realistic policy of protective discrimination of the weak, the helpless and the hapless for realising the egalitarian goals of our constitutional directives and fundamental rights. Section 21A of the Banking Regulation Act does not merely wink at inequality. By withdrawing legal defences traditionally available to the debtors from the arena of court litigation, section 21A actively enforces inequality. The fact that ours is the world's longest Constitution with express powers of judicial review conferred on the superior courts has heightened the responsibility of the courts for social, political and economic transformation of our society. Clearly the elaboration of the details in our Constitution shows that the courts are intended to be active vehicles of social transformation in several areas. It is for this purpose that the Constitution directly confers the powers of judicial review on our superior courts. In my humble opinion, Parliament cannot derogate from this constitutional grant given to the superior courts by compelling them to enforce even unjust claims. The power to do justice is an inalienable and inseparable insignia of our Constitutional courts.

37. It appears to me that a law totally banning all the courts including the constitutional courts from granting relief to all debtors under all circumstances by disregarding the nature of the loan transactions would no more be acceptable to our Constitution than a similar law would do to Portia's sense of justice. In this very case, the debt is secured by a mortgage and yet carries a stipulation for payment of compound interest. But the transaction cannot be reopened if section 21A of the Banking Regulation Act is valid and applicable. I consider such a provision of law to be nakedly arbitrary and partisan and offensive to the sense of equity and equality of article 14 of the Constitution.

38. For the above reasons, I dismiss this second appeal. But, in the circumstances, I make no order as to costs.


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