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Shyamapada Bhattacharjee Vs. Mohammad Dharam Buksh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 1119 of 1950
Judge
Reported inAIR1954Cal129
ActsDebt Law; ;Bengal Money Lenders Act, 1940 - Sections 2(2), 34 and 36(5); ;Transfer of Property Act, 1882 - Section 6
AppellantShyamapada Bhattacharjee
RespondentMohammad Dharam Buksh
Appellant AdvocateS. Das, Adv.
Respondent AdvocateGouri Mitter, Adv.
DispositionApplication allowed
Cases ReferredSailendra Nath v. Amalendra
Excerpt:
- .....24th february, 1947. a consent decree was made on 16-12-1950, but was at first in the form of a money decree only. finally however after certain proceedings the decree of the 6th december, 1950 which was a decree for money, was amended by an order of the court on the 14th february, 1952 into a mortgage decree for sale providing for six annual instalments, the first one being payable on the 14th august, 1952. this order ofthe 14th february 1952 also was a consent order.3. by a conveyance duly executed and registered on the 6th august, 1952 the said premises no. 16, toltola lane, calcutta, were sold to the present applicants subject of course to the mortgage decree. the applicants are now claiming the right to redeem and to be subrogated to the rights of the original mortgagor, on the.....
Judgment:
ORDER

P.B. Mukharji, J.

1. On this Chamber Summons the applicants want to be added as defendants to this suit and to be subrogated to the rights of defendant Mohammad Dharam Buksh under the decree, dated the 6th December, 1950, as amended by the order of the 15th February, 1952 in respect of premises No. 16, Toltola Lane, Calcutta.

2. The plaintiff in this suit asked for a mortgage decree against the defendant in respect of the said premises No. 16, Toltola Lane, Calcutta. The mortgage is dated the 10th April, 1946 and there were also three deeds of charges, dated the 17th April, 1946, the 29th June, 1946 and the 24th February, 1947. A consent decree was made on 16-12-1950, but was at first in the form of a money decree only. Finally however after certain proceedings the decree of the 6th December, 1950 which was a decree for money, was amended by an order of the Court on the 14th February, 1952 into a mortgage decree for sale providing for six annual instalments, the first one being payable on the 14th August, 1952. This order ofthe 14th February 1952 also was a consent order.

3. By a conveyance duly executed and registered on the 6th August, 1952 the said premises No. 16, Toltola Lane, Calcutta, were sold to the present applicants subject of course to the mortgage decree. The applicants are now claiming the right to redeem and to be subrogated to the rights of the original mortgagor, on the basis of such sale.

4. In the conveyance in favour of the applicants 'the benefit of the said decree' was expressly assigned and conveyed.

5. In resisting the application Mr. Mitter on behalf of the mortgagee decree-holder has argued that under the Bengal Money Lenders Act the right to the annual instalments is a personal right granted to the original mortgagor defendant at the time of the passing of the decree under Section 34 of that Act and that again on the application of the judgment-debtor. Therefore, it is argued that the assignee of the judgment-debtor cannot get the benefit of the instalments made under the decree. In support of this argument it is said that in determining the number of instalments what the court does is to see the means of the original mortgagor borrower and on that basis awards the instalments. In the case of an assignee of a mortgagor, which assignee may be more affluent than the mortgagor, there is no reason why such assignee should get the benefit of the number of instalments determined solely by reference to the means and ability of his assignor, the original mortgagor.

6. There are, in my view, many answers to this plausible argument.

7. In the first place, the word 'borrower' in Section 2(2) of the Bengal Money Lenders Act means not only the person to whom the loan is advanced but also includes a successor-in-interest. An assignee, therefore, will be, in my opinion, a successor-in-interest who can come within and claim the benefit of this statute. To meet this answer Mr. Mitter has drawn my attention to the fact that the word is 'defendant' in Section 34 and not 'borrower'. I do not think that should make any difference on the main principle of giving relief to a borrower, which is the primary object of the Act, and because the word defendant in Section 34 of the Act refers to the mortgagor who is covered by the definition of a borrower as being a person to whom a loan is advanced. A mortgagee therefore who is governed by the Bengal Money Lenders Act, grants such loan subject to all the disabilities or conditions under the Statute. One such disability or condition is that such a loan is repayable by instalments by the borrower or his assignee. Once that is so it is no longer open to defeat this statutory benefit by saying that the instalment is a personal right of the original borrower inalienable by him by any assignment.

Suppose in a case of loan governed by this Statute, the assignment by the mortgagor takes place before any decree. In that case the assignee is certainly entitled to claim and obtain instalment at the time of the passing of the decree on the basis of his being a successor-in-interest to the original borrower. It is true that his instalments may be different from the instalments which the original borrower might have claimed had he not assigned his interest.but that is a question of number of instalments and does not affect the mortgagor's assignee's legal right to instalment. I am therefore unable to come to the conclusion that because the decree has intervened, his legal right to instal-rent is lost. At best it can be said that the decree-holder then in such case should have a right to re-open the question of number of instalments. But then no such right is given by the Statute to re-open decree only to vary instalment on the ground that the borrower has assigned his interest. Because no such right is given, therefore to hold that the right to redeem by instalment cannot be assigned will be to defeat the amplified right of redemption by instalment under Statute and will be a clog on the equity of such redemption.

8. In the second place, I do not find that there is any legal prohibition against transferring the benefit and liability under such a decree as this. It is not hit by Section 6 of the Transfer of Property Act. A mortgagor can, in my judgment transfer his interest and such transfer means transfer of his right to redeem which itself is immovable property and which is all that a mortgagor can transfer.

9. Mr. Mitter relies on the case of -- Gour Chand v. Pradyumna Kumar' : AIR1945Cal6 where at page 17 Das J. observed: 'In my opinion the language used in Section 34 of this Act clearly indicates that this section is only for the defendant's benefit and is merely directory and can be waived by the defendant.'

That it is for the benefit of the defendant there can be no doubt. At the same time when it is made it is made for the benefit of the defendant. But the whole question now before me is whether such a benefit is assignable or not by the defendant for a valuable consideration. That case, therefore, has no application to the facts or law now presented in this application before me.

10. On a careful consideration of the arguments advanced I am of the opinion that right to redeem by instalments under the Bengal Money Lenders Act is not a personal right reserved only for the original borrower. This statutory right to pay by instalments is attached to the loan itself and not only to the person who takes the loan. My first reason for this opinion is that the purpose of the Statute is not only to control money lenders but also 'control of money lending' as declared in the preamble and the special definition of borrower in Section 2(2) of the Act extends its meaning to all successors-in-interest- Purchaser of equity of redemption is in my judgment such a borrower and successor-in-interest within the meaning of the Statute. While the definition of borrower included successor-in-interest the definition of the word 'lender' not being so wide, the legislature was careful enough to provide separately in Chapter IV of the Statute that the lender's assignee will not be able to get out of the Statute and made special provision in Section 29 of the Act for the application of the Statute to lender's assignees. In the general scheme of the Bengal Money Lenders Act, I find nothing to hold that assignees either of the lender or the borrower as defined therein to be immune from the operation of the Act except of course where expressly provided as in Section 36(5). On the contrary as I have already shown there are indications of the Statute which bring assignees!within the ambit of the Statute.

A Division Bench of this Court in -- 'S. K. Budhan Mia v. Jotindra Mohun' : AIR1942Cal132 following another Division Bench decision in -- 'Sailendra Nath v. Amalendra' : AIR1941Cal484 definitely held that a purchaser of the equity of redemption was a borrower within the Statute. There is also another way of looking at the problem. If the right to pay by instalment was personal to the original borrower then I find it will mean upsetting the decree every time the original borrower dies and his estate comes to the hands of his heirs, or legal representatives or any other successor. Without clearer expression to that effect, I am not prepared to hold that the Statute leads to that conclusion. I am of the opinion that the whole object of that Act is to give mortgagor borrowers a right to redeem in different instalments. Instalment, therefore, is an integral quality of the new and amplified right to redeem under the Bengal Money Lenders Act. Wherever there is a loan under the Statute there is this right to instalment. If that be so, then I do not see any reason why an assignment of such right could not be made.

11. In the third place, a very important consideration, in my opinion, is that all the previous mortgage or contract has now merged under the decree. The decree as it stands not only gives the right to redeem but also to redeem it in six equal annual instalments. The right to instalments, therefore, is an inseparable part of the decree itself. To say now that the portion of the decree which gives the right to redeem can be assigned but not the portion that allows the redemption to be made in six equal annual instalments is to spell out a new decree for the assignee. I do not think that is a legal or justifiable course. The decree cannot be split up in this manner and the benefit that a borrower receives by paying the money in instalments under the decree is a benefit which is assignable and affects the very character of redemption of the loan which has merged into a judgment debt.

12. For these reasons I hold that the assignee of the decree affected by the Bengal Money Lenders Act can avail of the right to pay by instalments conferred by the decree.

13. For these reasons there should be an order in terms of Clauses (a), (b) and (c) of the Summons and the applicants will have the rights of the mortgagor defendant under the mortgage decree in order to enable them to redeem by instalments as provided in the decree. The mortgagor defendants will of course continue as defendants in this suit as no order for their removal from suit is asked for and because their personal obligation in case of a shortfall in any event remains. The mortgagee decree-holder's costs of this application will be added to his costs in the mortgage decree. There will be no further order for costs on this application. Certified for counsel.


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