1. This appeal arises out of a refusal by the second Subordinate Judge of Pabna to reopen a decree in a mortgage suit on application being made to him under Section 36, Bengal Money Lenders Act, 1940. The borrower took a loan of Rs. 6000 on a simple mortgage bond on 15th July 1929. The lender sued for his dues by a suit brought in March 1937. Though the interest then due amounted to some Rs. 3300 in all, so that his claim might have been laid at Rs. 9300 the lender gave up some part of his claim for interest, reducing his total claim to Rs. 8000. A preliminary decree was passed on 23rd March 1938, fixing 24th September 1938, as the date for payment, and the amount at Rs. 9867-9-6, being made up as follows:
Claim Rs. 8000
Interest on the principal Rs. 1400
Costs Rs. 823-9-6
Total Rs. 9867-9-6.
2. The interest pendente lite amounting to Rs. 1044 was thus calculated at 12 per cent. per annum for a period of 17 1/3 months. Final decree was passed on 26th October 1938. The decree has been executed and the property has been sold for Rs. 3000 only, and purchased by the lender on 18th November 1940. The only point taken by Mr. Nirmal Chandra Chakravarti, who appears for the appellant, is that since interest pendente lite has been calculated in the decree at a rate of 12 per cent. the debtor has been made liable to pay interest at a rate exceeding 8 per cent. for that period and that therefore the limits laid down in Section 30 of the Act have been exceeded. Consequently if the decree is reopened the debtor can obtain relief, and thus the provisions of Section 36 of the Act are attracted. For the respondent it is contended that taken as a whole the decree does not make the borrower liable to pay interest at a rate exceeding 8 per cent. and that it is immaterial that part of the interest included in the decree has actually been calculated at 12 per cent. The total interest included in the decree is Rs. 3044, and it is conceded that this is less than what the plaintiff would have obtained if interest had been calculated at 8 per cent. throughout. The point for decision turns on the interpretation to be given to Clause (2) of Section 30 of the Act. We think that the correct interpretation is that contended for by the respondent, and that it is immaterial that in the process of calculation a rate of 12 per cent. may have been taken for part of the period, namely the period pendente lite, provided that the total interest on the principal amount included in the decree including the interest for the period pendente lite does not exceed the amount calculated for the same period at the limit of 8 per cent. laid down in Clause (1)(c)(ii) of Section 30.
3. There appears to be no previous decision on this point. Our attention has been called to the cases in Mahalakshmi v. Shamrangini : AIR1941Cal673 and Harsukdas Balkissendas v. Dhirendra Nath : AIR1941Cal498 . In both cases there are remarks indicating that in testing whether the limits of Section 30 had been exceeded or not the interest for the total period up to the date of payment, that is to say, interest including that for the period pendente lite was taken into account, but it does not appear that in either case the particular point in controversy here arose at all. In the former case interest was originally calculated at 71/2 per cent. compound, and the amount so calculated was less than the amount arrived at by calculating at 8 per cent. simple. There was no suggestion that the amount calculated at 71/2 per cent. compound for the period pendente lite would have exceeded the amount calculated at 8 per cent. for that period. In the latter case the total interest, including that for the period pendente lite exceeded 10 per cent. and it was not suggested that the interest for the period up to date of suit did not also exceed that rate. Thus in both cases for the purpose of testing whether relief could be obtained it would apparently have been immaterial whether the period up to date of suit, or the two periods up to date of suit and from the date of suit up to the date of payment separately were taken as a basis. These cases are therefore not of assistance in deciding the present point.
4. No doubt in a sense the appellant has been made liable to pay interest at 12 per cent. since the plaintiff claimed only Rs. 2000 interest in his plaint, and the interest pendente lite has been calculated by the Court at that rate but in our view, for the purpose of applying the test as to whether the limits prescribed by Section 30 of the Act have been exceeded in awarding interest to a lender, the total interest awarded is to be taken for the whole period up to the date of payment, and this is to be compared with the amount arrived at for the same period calculated at the statutory rates. It is not correct to split this period into two parts and to apply the test to the parts separately. We think that support for this view is to be found in the definition of 'interest' in Section 2(8) of the Act, and from the wording of Section 30(2) itself. We think therefore that the learned Subordinate Judge took a correct view in declining to reopen the decree in this case. The appeal is accordingly dismissed. There will be no order as to costs in this Court.
B.K. Mukherjea, J.
5. I agree.