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Dr. S. Roy Vs. Karuna Kisore Kar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal452
AppellantDr. S. Roy
RespondentKaruna Kisore Kar
Excerpt:
- .....claims that this alone would give him a right to relief under the act. he also claims that the decree passed is for more than twice the principal of the original loan.2. the plaintiff meets this application on two broad grounds. first, he says that this application is incompetent inasmuch as it has been made more than one year since the bengal money-lenders act came into force, and inasmuch as no proceedings in execution are pending before this court. in support of this contention he relies on section 86 (1) and (6), bengal money-lenders act. next he contends that he is a bona fide assignee for value without notice, and therefore protected by the provisions of section 36, sub-section (5). in my opinion, the first point urged on behalf of the decree-holder must prevail. it is admitted.....
Judgment:
ORDER

Sen, J.

1. This is an application by the defendant for relief under the Bengal Money-Lenders Act. The plaintiff, Dr. S. Roy, instituted a suit against the defendant on a promissory note which had been executed by the defendant in favour of one Capt. N. N. Dutt endorsed by Capt. N. N. Dutt in favour of the plaintiff. The promissory note was for the sum of Rs. 11,970 and interest was payable thereon at 12 per cent. The suit was instituted in this Court in the year 1936 and a decree was passed ex parte on 20th November 1936. This decree was transferred for execution to the Court of the Third Subordinate Judge at Alipore, and execution proceedings are still pending in that Court. The defendant has moved this Court by an application in which various allegations have been made many of which it is not necessary for me to consider. The main point urged is that the interest charged on the note was in excess of that payable under the Bengal Money-Lenders Act. The defendant claims that this alone would give him a right to relief under the Act. He also claims that the decree passed is for more than twice the principal of the original loan.

2. The plaintiff meets this application on two broad grounds. First, he says that this application is incompetent inasmuch as it has been made more than one year since the Bengal Money-Lenders Act came into force, and inasmuch as no proceedings in execution are pending before this Court. In support of this contention he relies on Section 86 (1) and (6), Bengal Money-Lenders Act. Next he contends that he is a bona fide assignee for value without notice, and therefore protected by the provisions of Section 36, Sub-section (5). In my opinion, the first point urged on behalf of the decree-holder must prevail. It is admitted that this application has been made more than one year since the commencement of the Bengal Money-Lenders Act. It is also clear that no proceedings in execution are pending before this Court. The execution proceedings are pending before the Subordinate Judge at Alipore. Now Section 36, Sub-section (1) runs as follows:

Notwithstanding anything contained in any law for the time being in force, if in any suit to which this Act applies, or in any suit brought by a borrower for relief under this section whether heard ex parte or otherwise, the Court has reason to believe that the exercise of one or more of the powers under this section will give relief to the borrower, it shall exercise all or any of the following powers as it may consider appropriate, namely, shall, etc.

Sub-section (6) is in these terms:

Notwithstanding anything contained in any law for the time being in force,--

(a) the Court which, in a suit to which this Act applies, passed a decree which was not fully satisfied by the first day of January 1939 may exercise the powers conferred by Sub-sections (1) and (2);

(i) in any proceedings in execution of such decree, or;

(ii) on an application for review of such decree made within one year of the date of commencement of this Act, and the provisions of Br. 2 and 5 of Order 47 of Schedule 1, Civil P.C., 1908, shall not apply to any such application;

(b) any Court before which an appeal is pending in respect of a decree referred to in Clause. (a) may either itself exercise the like powers as may be exercised under Sub-sections (1) and (2), or refer the case to the Court which passed the decree directing such Court to exercise such powers, and such Court shall after exercise thereof return the record with the additional evidence, if any, taken by it and its findings and the reasons therefor to the appellate Court and thereupon the provisions of Rule 26 of Order 41 of Schedule 1, Civil P.C., 1908, shall apply.

Reading these two sub-sections together it seems to me that the position of a person claiming relief under Section 36 would be as follows: If the suit has not proceeded to a final decree, that is to say, if the suit is actually being heard the borrower may apply in that suit for relief under the Bengal Money lenders Act. No separate formal application would be necessary. He may raise the plea in his written statement or he may claim relief at the time of the hearing of the suit by placing such facts before the Court as would entitle him to relief. After the suit has proceeded to a final decree the borrower has four remedies, namely, (a) he may apply for relief by instituting a suit for that purpose before the Court having jurisdiction to entertain such suit. This is provided for in Sub-section (1) of Section 36; (b) he may apply to the Court which passed the decree if there are proceedings in execution pending before that Court. This is provided for by Section 36 (6) (a) (i); (c) he may apply to the Court which passed the decree for a review of such decree, provided he makes that application within one year of the commencement of the Act. This is provided for by Section 86 (6) (a) (ii); and (d) if an appeal is pending he may apply to the appellate Court: vide Section 36 (6) (b).

3. Once the suit has proceeded to a final decree the borrower can obtain relief by application, only if the application is made in accordance with the provisions of Sub-section (6); any other application is not provided for. If for any reason he cannot make an application in accordance with the provisions of Sub-section (6) he has the other remedy open to him, namely, by way of suit for relief under the Bengal Moneylenders Act. It was contended on behalf of the borrower that the present application is one made in accordance with the provisions of Sub-section (6) (a) (i). Counsel argued that so long as proceedings in execution are pending in any Court it is open to the borrower to apply to the Court which passed the decree for relief. In my opinion, the terms of the sub-section cannot admit of this interpretation. The sub-section says:

The Court which... passed a decree... may exercise the powers conferred by sub-sections (1) and (2) in any proceedings in execution of such decree.

The sub-section does not say that the Court which passed the decree may exercise the powers granted by Sub-sections (1) and (2) whenever execution proceedings are pending anywhere. The order must be passed in execution proceedings and not in any other proceeding. This means that execution proceedings must be pending before the Court which is asked to exercise such powers. One Court cannot pass orders in execution proceedings pending before another Court. Orders must be passed by a Court in its own proceedings. As no execution proceedings are pending before this Court which passed the decree, no application lies to this Court under Section 36 (6) (a) (i). As more than one year has elapsed since the passing of the Bengal Money-lenders Act before the making of this application the borrower cannot avail himself of the provisions of Section 36 (6) (a) (ii). Section 36 (6) (b) obviously does not apply there being no appeal from the decree.

4. Next, it was argued on behalf of the borrower that I should consider the suit to be still pending before this Court, and treat this application as being made during the pendency of the suit because of the definition of the phrase 'suit to which this Act applies,' which is to be found in Section 2, Sub-section (22), Bengal Money-lenders Act. All that that section says is that the phrase 'suit to which this Act applies' includes a proceeding in execution. It does not say that a suit which has proceeded to a final decree must be deemed to be a suit which is still pending. The Act gives, what I may be allowed to call, an artificial meaning to the phrase 'suit to which this Act applies,' by including execution proceedings pending on or after 1st January 1939, within the term 'suit.' By reason of this definition the suit instituted by the plaintiff, namely, Suit No. 1678 of 1986, must be considered to be 'a suit to which the Act applies' as proceedings in execution of the decree passed in that suit are still pending. But there is nothing said in the definition which would require me to hold that the suit is still pending before me, even though it has been finally decreed.

5. Next, it was argued on behalf of the borrower that this application need not be treated as an application for relief under Section 36, Bengal Money-lenders Act, but it should be treated as an application for relief granted to a borrower by Section 30, Bengal Money-lenders Act. I am unable to appreciate his argument. Section 30 merely limits the liabilities of a borrower. It makes no provision as to how a borrower is to obtain relief, if he is sought to be saddled with greater liabilities than the Act allows. The procedure for obtaining such relief is laid down in Section 86. Further, it seems to me to be futile for the petitioner to contend that he is not seeking relief under Section 36. A decree has been passed, and if the borrower is to get any relief at all the decree will have to be re-opened, accounts will have to be taken and anew decree will have to be passed. These are precisely the things for which Section 36 provides. The application is therefore clearly one for relief under Section 36. In view of what I have said before, I must hold that this application is not maintainable and that it must be dismissed with costs. I express no opinion on the question whether the decree-holder is a bona fide assignee for value without notice. It may be that if I went into that question I would have to take evidence. I do not propose however to go into this question, inasmuch as I am of opinion that the application is not maintainable.


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