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Promode Kumar Roy and anr. Vs. Tincowrie Dey - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal37
AppellantPromode Kumar Roy and anr.
RespondentTincowrie Dey
Excerpt:
- .....the re-opening of all the transactions between the parties including the transaction prior to the decree passed in suit no. 2354 of 1931. mr. ghose on behalf of the petitioner contended that under section 36, bengal moneylenders act, this court has power to re-open all the transactions had between the plaintiffs and the defendant inasmuch as the sum of rs. 39,000 for which the mortgage was executed includes interest calculated at a rate higher than 8 per cent. simple which is maximum rate of interest allowed under the act. he argues that under the bengal money-lenders act he can get relief by a refund of the interest paid in excess of the maximum allowed under the act and that consequently this court should re-open the transactions between the parties both with respect to the mortgage.....
Judgment:
ORDER

Sen, J.

1. This is an application under the Bengal Money-lenders Act. The facts as stated in the application briefly are as follows : On 29th August 1924 the petitioner borrowed Rs. 60,000 from the opposite parties and executed a mortgage in their favour. The interest payable under the mortgage was 9 per cent, per annum with quarterly rests. There was a suit upon that mortgage being Suit No. 2354 of 1931 and a decree for the sale of mortgaged properties was passed on 12th December 1932. On 13th February 1933, an order was passed recording certain terms of settlement wherein it Was provided that the properties would not be brought to sale for three years from 1st January 1933, the interest on the amount found due would run from 28th November 1932 at the rate of 81/4 per cent. per annum and the costs would be paid by the defendant to the plaintiffs. On 1st February 1937, the amount due swelled up to Rs. 72,000 odd. On that day the mortgagor sold a portion of the mortgaged premises at Rs. 37,000 and the plaintiffs executed a reconveyance of all the mortgaged properties on receipt of Rs. 33,000 odd. The balance due was Rs. 39,000. On that date the petitioner executed another mortgage for the sum of Rs. 39,000 in favour of the plaintiffs, the interest stipulated being at 7 per cent. per annum with quarterly rests. On 5th February 1937 the plaintiffs caused satisfaction to be entered of the decrees passed in the first mortgage suit, namely, No. 2354 of 1931.

2. The present suit was instituted on 15th January 1940 on the mortgage of 1st February 1937. The preliminary mortgage decree was passed on 1st March 1940. The Registrar's report has been made. The interest fixed by the present mortgage is admittedly within the limits specified in the Bengal Moneylenders Act. What the petitioner wants is the re-opening of all the transactions between the parties including the transaction prior to the decree passed in Suit No. 2354 of 1931. Mr. Ghose on behalf of the petitioner contended that under Section 36, Bengal Moneylenders Act, this Court has power to re-open all the transactions had between the plaintiffs and the defendant inasmuch as the sum of Rs. 39,000 for which the mortgage was executed includes interest calculated at a rate higher than 8 per cent. simple which is maximum rate of interest allowed under the Act. He argues that under the Bengal Money-lenders Act he can get relief by a refund of the interest paid in excess of the maximum allowed under the Act and that consequently this Court should re-open the transactions between the parties both with respect to the mortgage of February 1937 and with respect to the mortgage of 1924.

3. Mr. Bannerjee on behalf of the plaintiffs refers me to Proviso (ii) of Section 36, Sub-section (1) and he says that this proviso would prevent the Court from granting any relief to the defendant. Now, Section 36 lays down that if a Court has reason to believe that the exercise of one or more of the powers mentioned in that section would give relief to the borrower, it may exercise all or any of such powers. One of such powers is the power to re-open any transaction and take an account between the parties. Another power is the power to set aside any agreement purporting to close previous dealings and create new obligations and to re-open any account already taken be tween the parties. The proviso to the section, however, says that in the exercise of these powers the Court shall not do anything which affects any decree of a Court other than a decree in a suit to which this Act applies which was not fully satisfied by 1st January 1939.

4. Now the decree in Suit No. 2354 of 1931 was passed on 12th December 1932 and satisfaction of that decree was entered on 5th February 1937. That decree, therefore, is not a decree passed in a suit to which the Act applies and this Court in granting relief is not permitted to do anything which affects that decree. The question which arises now is whether that decree would be affected if the prayer of the petitioner is acceded to. In my opinion it would. The dues on previous transactions between the parties were all merged in the decree passed in Suit No. 2354 of 1931. After the decree was passed the Liability of the defendant was no longer a contractual liability but it was a liability under a decree of this Court. Thus the sum of Rs. 39,000 represents a liability under a decree and it is to secure this decretal liability that the subsequent mortgage was effected. Now, if the defendant is to be relieved of a portion of this liability it means that the decrees passed in Suit No. 2354 of 1931 must be re-opened. The proviso however forbids interference with such a decree. That being so no relief can be granted. The application must accordingly be dismissed with costs.


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