1. The appellants before us borrowed a sum of Rs. 25,000 from the respondent on 2nd September 1936 on a mortgage executed on that date. The mortgage instrument recites that the mortgagors had debts payable to the executors of late Rai Budh Singh Dhuduria Bahadur on the basis of a karbarnama mortgage executed by them and that they had other small debts. The sole intention of the mortgagors, therefore, was to repay their debts to the executors of the late Rai Budh Singh Dhuduria Bahadur and to others. This mortgage provided for 9 per cent, compound interest with six monthly rests. The money not having been paid the mortgagee, namely, the respondent brought a suit. She obtained a preliminary decree on 20th September 1939 and the final decree on 2lst January 1940. While the decree was under execution the appellants filed an application under Section 36(6) Clause a(i), Bengal Money Lenders' Act, for relief. The learned Subordinate Judge had held that the Bengal Money-Lenders Act was applicable, has reopened the decree and has passed a new decree for Rs. 32,903-12-3 in place of the old decree which was for Rs. 34,408-6-6. The new decree is a preliminary decree, He has allowed interest at 6 per cent, till realisation and has made the amount of the new decree payable in 15 annual instalments. The mortgagors have preferred an appeal and the mortgagee a memo of cross-objection.
2. In the lower Court the mortgagee decree-holder contended that the loans which she advanced on the mortgage was a commercial loan and so the Bengal Money-Lenders Act was inapplicable. Her contention was overruled by the learned Subordinate Judge. In the appeal which has been filed by the mortgagors they contended that the learned Subordinate Judge had committed an error of law in awarding interest at 6 per cent, on the decretal amount from the date on which the preliminary decree was passed. The learned advocate appearing on behalf of the respondent contends that interest at 8 per cent, that is to say, interest not according to the contract but at the rate scaled down in terms of Section 30, Bengal Money-Lenders Act can be awarded from the date on which the new preliminary decree was passed till the date of grace that is till the dates on which instalments are to be paid in terms of the new decree. On this contention divergent views have been taken by this Court. One view expressed in Atul Krishna Das v. Amrita Lal : AIR1944Cal322 and the other in Nemai Chand Sen v. Ram Kewal Shah ('44) 48 C.W.N. 736. The decree made in Promode Nath v. Sm. Raseshwari Dassi : AIR1942Cal128 allowed interest up to the date of grace but the point as raised by the learned advocate for the respondent was not argued nor considered in that ease. But be that as it may, it is not necessary for us in the view that we are taking, to decide at this stage whether the view expressed in : AIR1944Cal322 which supports the respondent, or the view expressed in ('44) 48 C.W.N. 736 which was a decision of the Single Judge and which supports the appellant is the right view. At present we are of opinion that the case ought to be remanded to determine whether the loan on the mortgage in question was a commercial loan. If it be held that the loan was a commercial loan no further point would arise, Bengal Money Lenders Act being in that case inapplicable.
3. We have stated that the contention of the respondent in the lower Court was that the loan, was a commercial loan. For the purpose of establishing that the loan in question, was a commercial loan, the respondent wanted to prove that the whole of the amount which she had lent on the mortgage in question had been intended to be used in repayment of the previous loans taken by the mortgagors and those previous loans had been incurred by them for the purpose of their trade. With that purpose in view she put in certified copies of the mortgage deed which the mortgagors had executed in favour of the executors to the estate of late Rai Budh Singh Dudhuria Bahadur, and certified copies of two applications filed before the District Judge on behalf of Bhawani Prosad Shaha who had been appointed guardian of some minors whose predecessor in interest was one of the mortgagors. She also filed certified copies of register of trade license of the Behrampore Municipality for the year 1938-1939. She served a notice through Court on the mortgagors on the 2nd of May 1941 requiring them to admit those documents. On the 5th of May the mortgagors admitted the correctness of the certified copies and also admitted those documents. The original mortgage deed which had been executed by the appellants in favour of the executors to the estate of late Rai Budh Singh Dudhuria Bahadur was lying in the Record Room. The original was called for from the Record Room by the respondent and was brought in Court. She also prayed for summonses to examine three persons, Surendra Nath Auddy, Lachman Chandra Pal and Kalipada Dutta. Summonses were served on them and two of them appeared in Court on the date of the trial and filed haziras. We have already said that these steps were taken out by the respondent for the purpose of proving that the appellants were carrying on business at the time when she had advanced the loan and also thereafter. This she attempted to prove by the license registers. We may parenthetically observe that the appellants admit that they were business people and had trade. She wanted to prove by the mortgage executed by the appellants or their predecessors in favour of the executors to the estate of late Rai Budh Singh Dudhuria Bahadur that the bulk of amount which the mortgagors borrowed from her was borrowed with intention of paying off the dues to executors to the estate of late Rai Budh Singh Dudhuria Bahadur and that the money which had been borrowed from those executors was borrowed solely for the purpose of trade. In the mortgage in question it is recited that the money was required by mortgagors to repay their other small debts also, and to prove that the balance of the sum of us. 25,000 wa3 intended for the repayment of other commercial debts of the mortgagors they wanted to examine Surendra Nath Auddy, Lachman Pal and Kalipada Dutta.
4. In one of the petitions which Bhawani Prosad Shaha made to the District Judge as certificated guardian he asked the permission of the District Judge to raise a loan by mortgaging the minors' shares. In para. 1 of that application he stated that the minors required to borrow the sum of money for the purpose of repayment along with other co-sharers of the loan that had been taken from Joy Kumar Singh Dudhuria and that amount came up to us. 19,525 and that a further sum of Rs. 6000 was required for the purpose of paying off the debts due to Hiralal Pal, Gurudas Auddy and Kalipada Dutta. For the purpose of proving that debts due to Kalipada Dutta, Gurudas Auddy and Hiralal Pal were commercial debts, she cited three persons whom we have named above. In spite of the fact that the appellants admitted the documents which we have mentioned above, namely, the mortgage which the appellants or their predecessors had executed in favour of the executors to the estate of late Rai Budh Singh Dudhuria Bahadur, the certified copies of the petitions made by the guardian before the District Judge and the certified copies of the license registers of the Municipality-those documents were not marked as exhibits by the learned Subordinate Judge. An application for additional evidence has been made before us supported by an affidavit by the pleader who represented the respondent there; He says in his affidavit that the learned Subordinate Judge refused to mark them as exhibits or to examine the witnesses cited by her, two of whom were present in the Court at the date of the hearing on the ground that these-items of evidence would not be relevant the learned Subordinate Judge in the course of the hearing expressing verbally the opinion that a loan taken for the purpose of repaying commercial loans or debts would not be a commercial loan. A counter affidavit has been put in affirmed by Nanipada Saha to the effect that the learned Subordinate Judge made no oral remarks as stated in the affidavit of the pleader. We cannot accept the counter affidavit and accept the affidavit made by Mr. Roy. We, therefore, mark those documents as exhibit, namely, certified copies of karbamama mortgage bond executed by Nanipada Saha and Tinkari Saha in favour of Raja Bijoy Chand and Kartik Chand marked as Ex. H.C. I, certified copies of the petitions of Bhowani Prosad Saha in Act VIII case No. 49 of 1936 of the Court of the District Judge dated 10-7-1986 and 24-8-1936 marked as Exs. H.C. II and H.C. III and the certified copies of the Municipal License Registers, marked as Ex. IV.
5. We hold that at the date of the advance of the loan on the mortgage by the respondent to the appellants the appellants were carrying on business. Their business had not been closed. We hold that if at the trine when the business is continuing, a loan is incurred solely to be used for repayment of prior business loans or debts the former loan would be regarded as a commercial loan within the meaning of definition as given in the Bengal Money-Lenders Act. The point has been discussed in two cases of this Court. Purna Chandra Adhikari v. Joy Chand Lal Babu : AIR1943Cal179 and Promode Kumar Sett v. Aminuddin ('45) 49 C.W.N. 645. We do not express any opinion whether the loan taken with that purpose would be regarded as a commercial loan when at that time the business of the borrowers had already been closed but in a case which we have before us where the business was still a going concern we hold that the loan to be used solely for the purpose of paying trade debts or commercial loans would be a commercial loan, and subject to this reservation which may require consideration in a future case we agree with those cases cited above.
6. In the result this appeal is allowed and the case is remanded to the lower Court for the purpose of ascertaining on such materials which are on the record and on such further evidence which may be adduced by the parties whether the whole of the sum of Rs. 25,000 was taken for the sole purpose of repaying previous trade debts or commercial loan. If the Court answers the question in the affirmative it would dismiss the application under Section 36, Bengal Money-Lenders Act. If the Court comes to the conclusion that not the whole of the said sum but a greater portion of it was taken to be used for the repayment of the prior trade debts or commercial loans and even a small portion for other purposes it would entertain the application and re-open the decree. In that case the question as to whether interest after the date of the new preliminary decree would be allowable in law or not will have to be considered. Costs of this appeal will abide the result, hearing fee five gold mohurs.
7. The cross-objection is not pressed and dismissed without costs.