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Raja Kamala Ranjan Roy Vs. BepIn Behari Sadkhan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1941Cal540
AppellantRaja Kamala Ranjan Roy
RespondentBepIn Behari Sadkhan
Excerpt:
- .....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 ax 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.and then follows a list of the powers. the defendant asks me to construe 'relief' in a broad way. if that construction is the correct one, there is no doubt that he can call upon the court as of right to exercise the powers set out in the section because obviously if he can sell these properties and pay off part of the debt he is relieved of a certain amount of his burden. on this construction of the.....
Judgment:
ORDER

Panckridge, J.

1. This application raises a difficult question of construction with regard to that exceedingly confused piece of legislation, the Bengal Money-lenders Act. The facts are simple enough. A borrower borrowed a sum of Rs. 2,00,000 from the lender on 24th July 1937, which was secured by a mortgage agreement covering twenty one separate premises, which are admittedly of a value of more than Rs. 5,00,000. The interest provided by the mortgage deed was 7 per cent. with quarterly rests. The interest has been paid with more or less regularity, and the applicant concedes that in the circumstances the provision as to interest does not offend against Section 30 of the Act. A preliminary decree was made on 1st March 1940 for Rs. 2,17,000 with interest thereon at the stipulated rate up to the date of redemption and thereafter at 6 per cent. The final decree has not yet been made. The application for final decree is the next with which I shall have to deal. The notice of motion before me contains various prayers, but the defendant has limited his claim to a request for an order permitting him to sell two of the mortgaged premises for a sum of Rs. 85,000, Rs. 80,000 of which is to be paid to the mortgagee. This is a privilege to which he is not entitled, either under the mortgage deed or under the ordinary provisions of the law.

2. He however relies on Section 36 (1) (e), Moneylenders Act. The section gives the Court various powers, and the one which it is suggested it should exercise in this case is the power to set aside either wholly or in part, or revise, or alter any security given or agreement made in respect of any loan, and if the lender has parted with the security to order him to indemnify the borrower in such manner as may appear just. What I am asked to do is to revise the security in part by releasing the two properties I have mentioned. It cannot be contended, and in fact, it has not been contended, that there is anything unreasonable in the defendant's request. The plaintiff is well secured, and he would have no ground of complaint whatever, were these properties sold and Rs. 80,000 of the purchase price or possibly even the entire purchase price, were paid to him; it seems a hardship that the borrower cannot as of right reduce his indebtedness in the manner he suggests. The difficulty in the borrower's way arises from the language of Section 36. The section runs:

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 ax 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.

And then follows a list of the powers. The defendant asks me to construe 'relief' in a broad way. If that construction is the correct one, there is no doubt that he can call upon the Court as of right to exercise the powers set out in the section because obviously if he can sell these properties and pay off part of the debt he is relieved of a certain amount of his burden. On this construction of the section it would be within my power to permit him to sell the properties without any restriction as to the manner in which he should apply the purchase price. Indeed, it is obvious that in any suit to which the Act applies (and it is significant that suits can be brought by borrowers for relief under the section), the exercise of one or more of the powers must always give relief to the borrower in the sense of making his position easier than it would be if the power were not exercised. I should be more inclined to favour this very liberal construction were it not that the exercise of all or any of the powers is mandatory and the Court has no discretion to refuse to exercise its powers even in a case where the borrower's claim is entirely lacking in merits. For example suppose there is a loan the only security for which is a property, which at the time the suit is brought is one-tenth of the value of the amount lent, and also suppose there is nothing in the agreement as to interest or otherwise which offends against the provisions of the Money-lenders Act. In such a case, obviously, if the already inadequate security is reduced, the borrower will get relief in the sense that he will be better off than before the redaction is made. If the Court in a case like that had a discretion to decline to exercise its powers, I should be more inclined than I am to take the view that the Legislature had intended that the Court should have the sort of fairy godmother jurisdiction for which the applicant contends.

3. I cannot assent to a construction which makes it compulsory on the Court to be the engine for a series of explosions of generosity regardless of the merits of the particular cases. I am of opinion that Mr. Ghose is right when he contends that before the; powers can be execrised the applicant must show that their exercise will bring relief against the specific evils such as unduly high rates of interest at which the Act is aimed and that the powers cannot be exercised merely on the ground that the borrower is able to show that the exercise of them will ease his burden generally without regard to the Act.

4. In this case it is not contended that any provision of the Act is violated. As I say in this particular case I would have willingly given the borrower what he asks, for it seems to me once the Legislature has decided that the sanctity of contract as between borrower and lender is to go by the board his request might reasonably be granted. But I am bound by the terms of the Act and I feel I cannot give to the section a construction which would lead to results as absurd as those indicated when there is a narrower construction possible which does not entail those results. In the circumstances I dismiss the application; I make no order as to costs.


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