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Chandra Kanto Mahato Vs. Banka Behari Mahato and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 4414 of 1974
Judge
Reported inAIR1976Cal215
ActsBengal Money Lenders Act, 1940 - Sections 2(9) and 38; ;Code of Civil Procedure (CPC) , 1908 - Order 22, Rule 4
AppellantChandra Kanto Mahato
RespondentBanka Behari Mahato and ors.
Appellant AdvocateBasanta Kumar Panda, Adv.
Respondent AdvocateS.K. Palit, Adv.
DispositionApplication succeeds
Excerpt:
- .....an order passed by the munsif at purulia dismissing an application under section 38 of the bengal money lenders act, 1940 in miscellaneous case no, 53 of 1972.2. the petitioner before this court is the person who filed the application under section 38 of the bengal money lenders act. his allegation was that he took certain amounts of money from sanatan mahato for meeting his family expenses. he executed a sale deed in favour of the opposite party sanatan mahato in respect of certain lands and that amount was taken as loan. the opposite party got possession of the lands and executed an agreement for reconveyance of the lands. the petitioner's case is that in fact the transaction was a loan transaction coming under the purview of section 38 of the bengal money lenders act. according to.....
Judgment:
ORDER

R. Bhattacharya, J.

1. This civil revision arises out of an order passed by the Munsif at Purulia dismissing an application under Section 38 of the Bengal Money Lenders Act, 1940 in Miscellaneous Case No, 53 of 1972.

2. The petitioner before this Court is the person who filed the application under Section 38 of the Bengal Money Lenders Act. His allegation was that he took certain amounts of money from Sanatan Mahato for meeting his family expenses. He executed a sale deed in favour of the opposite party Sanatan Mahato in respect of certain lands and that amount was taken as loan. The opposite party got possession of the lands and executed an agreement for reconveyance of the lands. The petitioner's case is that in fact the transaction was a loan transaction coming under the purview of Section 38 of the Bengal Money Lenders Act. According to the petitioner he requested the opposite party Sanatan Mahato for statement of accounts and also for execution of a registered deed in respect of the disputed lands. As the opposite party did not comply with the requisition, the miscellaneous case was started. The opposite party's case was that it was not a case of advance or loan transaction, but it was purely a case of purchase. It was further stated that as the petitioner did not repurchase the property within time as per agreement executed by Sanatan, the petitioner can claim no right in respect of the disputed lands. During the pendency of the suit Sanatan died and his heirs who are now the opposite parties before this Court were substituted under Order 22, Rule 4 of the Code of Civil Procedure. The learned Munsif dismissed the application under Section 38 of the Bengal Money Lenders Act on the ground that the said application is not maintainable against the successors-in-interest of the lender because 'lender' has not been defined in Section 2(9) of the Bengal Money Lenders Act as including successor-in-inte-rest, whereas in Section 2(2) 'borrower'means a person to whom a loan is advanced and includes a successor-in-interest or surety. According to the learned Munsif when the lender dies during the pendency of the application and when his successors-in-interest cannot be held as lenders, the petitioner-borrower cannot get any relief and therefore, the application under Section 38 of the Bengal Money Lenders Act is liable to be rejected.

3. I have heard the learned Advocates of both the parties. Mr. Panda, the learned Advocate for the petitioner submits that the purpose of the Bengal Money Lenders Act is to give relief to the borrower in particular under certain circumstances and the provisions of the Act keep the lender under check. Mr. Panda's contention is that in view of the purpose of this Act and particularly when the application had already been filed during the lifetime of the lender, the borrower-petitioner will be entitled to get relief even against the successors-in-interest who are already substituted in his place after his death during the pendency of the application. It has been contended from the side of the opposite parties, however, that when according to the definition of the Act in question the lender does not include successors-in-interest and when 'borrower' has been defined to be a person to whom a loan is advanced and also includes a successor-in-interest, it must be held that on the death of the lender, the borrower can get no relief under Section 38 of the Bengal Money Lenders Act. The learned Advocates of both the parties have submitted before me that on this point they could not find any decision. We are, however, not concerned in this particular case with the broad question whether, if a lender dies immediately after the advance given to the borrower, the latter shall be entitled to get any relief under Section 38 of the Act. That question will be decided when a proper case will crop up for consideration and decision.

4. In the case before us we find that the petitioner filed an application under Section 38 of the Bengal Money Lenders Act when the alleged lender Sanatan Mahato was alive. In fact Sanatan Mahato appeared in the proceedings to contest and filed an objection denying the material allegations made by the petitioner. While the proceedings were pending, Sanatan died and under the provision of Order 22, Rule 4 of the Code of Civil Procedure his legal representativeswere substituted in his place and they have been contesting the claim of the petitioner. There is no doubt that according to the definition given in Section 2(2) of the Bengal Money Lenders Act, 'borrower' means a person to whom a loan is advanced and includes a successor-in-interest or surety. Sub-section (9) of Section 2 of the Act defines the word 'lender' which means a person who advances a loan and includes a money lender.

5. Next let us come to Section 38 of the Bengal Money Lenders Act which is particularly relevant in this case. I quote below the relevant portions of Section 38:--

(1) Any borrower may make an application at any time to a Court which would have jurisdiction to entertain a suit by the lender for the recovery of the principal and interest of a loan made before or after the commencement of this Act for taking accounts and for declaring the amount due to the lender. Such application shall be in the prescribed form and shall be accompanied by a fee of one rupee. and on receipt of such application the Court shall cause a notice thereof to be served on the lender.

(2) The Court shall thereafter take an account of the transaction between the parties and shall declare the amounts, if any,--

(a) payable and already due,

(b) payable but not yet due by the borrower to the lender, whether as principal or interest or both. In taking accounts under the section the Court shall follow the same procedure as it does in regard to civil suits and, so far as may be the provisions of Chapter IV, VI and VII.

(3) a proceeding under this section shall be ..................... in appeal.

Sub-section (1) of Section 38 says that a borrower may make an application at any time to a Court as mentioned therein for taking accounts and for declaring the amount due to the lender. Sub-section (2) enjoins that the Court shall upon such an application take an account of the transactions between the parties and shall declare the amounts, if any, payable and already due and also payable, but not yet due by the borrower to the lender whether as principal or interest or both. In this Sub-section it has been clearly stated that in the matter of taking accounts under Section 38 the Court shall follow the same procedure as it does in regard to the civil suits and as far as practicable the provisions of Chapters IV, VI and VII in particular. There is no ambiguity in Sub-section (2) about the court's duty to follow the same procedure followed by civil courts. There is no doubt that the Code of Civil Procedure was brought into existence to be followed by the courts of civil judicature. According to Sub-section (1) of Section 38 of the Act, an application for taking accounts is to be filed before a civil court and in the present case such an application was filed in the court of the learned Munsif. The Court of the Munsif is certainly a court of civil judicature and therefore, the civil court where the application under Section 38 of the Bengal Money Lenders Act is filed, is to follow the provisions of the Code of Civil Procedure. In the present case on the death of Sanatan Mahato, his successors and legal representatives were admittedly substituted under order 22 Rule 4 of the Code of Civil Procedure and the present proceedings are to be proceeded with according to the law- The proceedings ought not to have been found unmaintainable and should not have been dismissed by the learned Munsif on the ground that the 'lender'' as defined in the Bengal Money Lenders Act did not include successors-in-interest. I, therefore, find that the learned Munsif below acted without jurisdiction clearly on wrong conception of law. The order complained against is liable to be set aside.

6. In the result, the application succeeds and the Rule is hereby made absolute. The order passed by the learned Munsif on 20-9-1974 is hereby set aside and the miscellaneous case started on the application under Section 38 of the Bengal Money Lenders Act shall be restored and shall be disposed of according to law. I, however, pass no order as to costs in this application.

7. Let the lower court records go down as early as possible.


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