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MahiuddIn Biswas Vs. Gopi Charan Mondal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1944Cal82
AppellantMahiuddIn Biswas
RespondentGopi Charan Mondal
Excerpt:
- .....question is whether a suit for recovery of a loan would be taken to be a suit to which the bengal money-lenders act applies by reason of the fact that the decree-holder had filed a statement of claim after 1st january 1939, on the basis of his decree to a debt settlement board (hereafter called the board) established under the bengal agricultural debtors act in pursuance of a notice issued under the provision of section 13 of that act, the debtor having applied to settle his debts under section 8. it would be unnecessary to decide the other questions raised before us, if this question be answered in the negative.2. the opposite party, gopi charan moldal filed a suit in 1933, to enfores two mortgages executed in his favour by the petitioner, one on 21st january 1921 which secured a loan.....
Judgment:
ORDER

1. This Rule raises a question, which so far as we are aware, has not yet been decided. The question is whether a suit for recovery of a loan would be taken to be a suit to which the Bengal Money-Lenders Act applies by reason of the fact that the decree-holder had filed a statement of claim after 1st January 1939, on the basis of his decree to a Debt Settlement Board (hereafter called the Board) established under the Bengal Agricultural Debtors Act in pursuance of a notice issued under the provision of Section 13 of that Act, the debtor having applied to settle his debts under Section 8. It would be unnecessary to decide the other questions raised before us, if this question be answered in the negative.

2. The opposite party, Gopi Charan Moldal filed a suit in 1933, to enfores two mortgages executed in his favour by the petitioner, one on 21st January 1921 which secured a loan of Rs. 381, and the other on 11th July 1927, which secured another loan of Rs. 946. The Properties mortgagd ofeight items of immovable porperty. The eates of interest stipulated are in excess those allowed by Section 30, Bengal Money-Lenders Act. On 3lst July 1935, he obtained a final decree for Rs. 2930 odd on account of principal and interest, besides costs. The amount for which the final decree was passed is also in excess of what can be allowed under the Bengal Money-Lenders Act.

2. The opposite party took out execution and at the execution sale purchased six out of the light items of mortgaged property on 22nd December 1936, for the sum of Rs. 2500. That sale was confirmed in 1937 and possession was taken by him on 25th April 1937. That execution thus came to an end in 1937. He has not since then applied for further execution.

3. On 25th June 1938, the judgment-debtor applied under Section 8, Bengal Agricultural Deb-tors Act, to a Debt Settlement Board estab-lished under that Act for settlement of his debts. He filed a statement in the form provided for in Section 11 of that Act, but in that statement be did not mention the opposite party as one of his creditors. In pursuance of the general notice issued under Section 13, the opposite party filed a statement on 11th February 1939, wherein he stated that a sum of Rs.1178 odd was still due to him on the mortgage decree which was passed in his favour on 31st July 1935. On the Bengal Money-Lenders Act coming into force on 1st September 1940, the debtor did not proceed with his application before the Debt Settlement Board, which was dismissed for default some time in the year 1941. On 14th January 1941, he made an application under Section 36, Bengal Money-Lenders Act, for re-opening the mortgage decrees. The learned Subordinate Judge has dismissed the said application by his Order dated 19th June 1941. The debtor applied to this Court and has obtained the aforesaid rule.

4. The first question therefore is whether the mortgage suit, is a suit to which the Bengal Money-Lenders Act applies. It was instituted before 1st January 1939, and had terminated ia a final decree before that date. No execution proceedings were pending on 1st January 1939. The question accordingly resolves itself into the question as to whether the mortgage suit can be said to be pending on that date in view of the definition given in Section 2 (22) of that Act. The portion of that section which is relevant for this case runs thus:

Suit to which this Act applies means any ... pro-seeding filed on or after the 1st day of January 1939, or pending on that date for the recovery of a loan advanced before...the commencement of the Act.

5. By this definition the ordinary meaning of a suit is extended. A suit ordinarily means a proceeding started in a civil Court on a plaint. It terminates with the decree. By the defini- tion, as given in Section 2 (22), a suit includes any proceedings for the recovery of a loan-a proceeding for execution of the decree or any other proceeding. Such a proceeding need not be on the basis of a plaint, nor be before the civil Court. A proceeding before the Debt Settlement Board, would come within the definition if it be for the recovery of a loan by the creditor.

6. The first question therefore is whether a proceeding under the Bengal Agricultural Debtors Act is a proceeding for a recovery of a loan by the creditor, when the application is not made by that particular creditor under Section 8 (2) of that Act, but when that creditor appears in pursuance of a general notice published under Section 13 and files before the Board particulars of his claim. In our view it would be a proceeding for recovery of the loan due to him, for the Board can include his claim in its award, whether he agrees to the settlement or not. The procedure is laid down in Section 19. If he agrees to the proposal of the debtor, the agreement has to be recorded by the Board in writing. If he does not agree to the debtor's offer and that offer is considered to be fair by the Board, the Board can still settle the debt in terms of Section 19, Sub-section (1), Clause (b). The debt so settled is to be included in the award to be made by the Board under Section 25 and the award can be executed, if the debtor fails to pay up in terms of that award (Section 28). Where the debtor is insolvent, an award has to be made under Section 22 and all the properties of the debtor, subject to some exceptions, have to be sold and the proceeds applied for satisfaction of his debts as settled. The creditor can ultimately recover his loan, though scaled down, through the machinery provided for in the Bengal Agricultural Debtors Act. A proceeding before the Debt Settlement Board either started by the creditor, or in which the creditor had filed a claim under Section 13, when the proceedings had been started by the debtor, would be a 'suit to which the Bengal Money-Lenders Act applies,' if it was pending on or started after 1st January 1939. In the case before us as the proceeding was pending before the Board after 1st January 1939, that proceeding amounts to a suit to which the Bengal Money-Lenders Act applied and any award made by the Board could have been re-opened, if affected by provisions of the Bengal Money-Lenders Act, but for Section 36, Sub-section (1) proviso (ii), which protects such awards The debtor here, however, seeks to re-open the decree passed in the mortgage suit, and he cannot re-open it, unless it can be a said that the mortgage suit was pending on or after 1st January 1939.

7. In ordinary parlance a suit terminates with the decree passed by the original Court. If there is an appeal, the suit can be said to be still pending till that appeal is disposed of, on the ground that an appeal is regarded as the continuation of the suit. The Bengal Money-Lenders Act makes that position clear by Sub-section (2l) of Section 2. It is also clear, as we have already held, that the definition in the Bengal Money-Lenders Act enlarges the ordinary conception of a suit. It would include a proceeding in execution. In our judgment the meaning of Sub-section (22) of Section 2 is that a particular suit would still be considered to be a suit to which the Act would apply, though it had terminated in a final decree before 1st January 1939, if any proceeding in connexion with that suit was pending on 1st January 1939 or had been instituted since then. An independent proceeding pending on or instituted after 1st January 1939-that is to say, a proceeding entirely unconnected with that particular suit-would not bring thatsuit within the scope of the Bengal Money-Lenders Act, though that independent proceeding may relate to the same loan which was the subject matter of that suit. In this view of the matter the mortgage decrees cannot be re-opened by reason of the first part of proviso (ii) to Section 36 (1) of the Act.

8. We accordingly, hold that the petitioner's application under Section 36, Bengal Money-Lender's Act, for re-opening the mortgage decree was not maintainable. If the mortgagee decree.holder later on applies to execute his decree or applies for a personal decree the debtor would then have the right to make an application under Section 86, but we express no opinion as to the nature or extent of the relief that he would be entitled to have, as we have not expressed any opinion on the other questions that had been raised before us. The result is that this Rule is discharged but without costs.


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