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Atul Krishna Vs. Amrita Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1944Cal322
AppellantAtul Krishna
RespondentAmrita Lal
Excerpt:
- .....principal at 8 per cent, per annum remains payable until the date fixed for redemption. after that date, the agreement is superseded by order 34 rule 11 (b), which, in its turn, is overridden by section 31, bengal money-lenders act.4. we may now dispose shortly of certain connected points. subject, as already explained, to the operation of any agreement, there can be no doubt that section 31, bengal money-lenders act, 1940, applies to the preli minary decree in a mortgage suit, since it is expressed to apply to any decree in any suit to which the act applies and section 2 (22) makes it clear that the act applies to mortgage suits. we have also no doubt that the term 'decretal amount,' with reference to such a decree, can only mean the amount found or declared to be due to the plaintiff.....
Judgment:

1. These appeals arise out of a mort gage suit brought by the appellants on 16th July 1937, against the respondent. The mortgage loan was Rs. 15,500; the date of the loan was 13th August 1934; the rate of interest in the bond was nine per cent, per annum. There was an ex parte preliminary decree on 28th February 1938; this was set aside, on the applica tion of the respondent, and another ex parte preliminary decree was made on 7th September 1938; this also was subsequently set aside, and a third ex parte preliminary decree was made on 1st March 1939. This was followed by a final decree on 24th April 1939, in execution of which the mortgaged property was sold to the decree-holders on 15th May 1940. Before the date fixed for confirmation of the sale, the respondent took various other proceedings which need not be recapitulated here. Ultimately, on 4th June 1941, the Subordinate judge reopened the decree under Section 36, Bengal Money-Lenders Act, 1940 and passed a new decree 'for the principal sum of RSection 15,500, with 8 per cent. perannum simple interest, from the date of the bond till the institution of the suit and proportionate costs.' The respondent was allowed to pay in five equal annual instalments commencing in January 1942. The sale of 15th May 1940 was cancelled.

2. One of these appeals (No. 174 of 1941) is against the new decree and the other (No. 239 of 1941) against the Order re-opening the old decree. The appellants, however, do not press the latter appeal (which we accordingly dismiss hereby) and they raise only one point in the former, namely, as to the amount allowed as interest. No objection is taken to the rate of interest having been reduced to 8 per cent, per annum, as required by Section 30, Bengal Money-Lenders Act, 1940, or to the instalments allowed under Section 34 of the Act. The only objection is as to the period for which interest has been allowed. The material portion of the decree runs: 'It is hereby declared that the amount due to the plaintiffs on the mortgage mentioned in the plaint calculated upto this 16th day of July 1937 is the sum of Rs. 15,500 for principal, the sum of Rs. 3634 for interest on the said principal at 8. pet cent, per annum from the date of the bond 13th August 1934 and the sum of Rs. 1448-2-0 for the costs in proportion of the suit awarded to the plaintiff, making in all the sum of Rs. 20,582-2-0.' It will thus be seen that the Subordinate Judge has allowed interest only from the date of the bond to 16th July 1937, that is, the date of the suit; no interest has been allowed between the date of the suit and the date of the decree, or for any subsequent period. The Subordinate Judge has given no reason for allowing no interest after the institution of the suit. Indeed, he has commenced his judgment by observing that the judgment-debtor has been guilty of consistent bad faith,' obviously, then, if the matter had: rested in the Subordinate Judge's discretion, he would have been disposed to exercise it in favour of the plaintiffs and to allow interest. We are therefore driven to infer that he was under the ifnpression that there was some provision in the Bengal Money-Lenders Act, 1940, which debarred the award of any interest after the date of the suit. We have not been able to discover any such provision. Possibly, he had in niind Section 31 of the Act. Clause (a) of which runs: 'Notwithstanding; anything contained in any law for the time being in force, no Court shall, in any decree passed in any suit to which this Act applies: (a) if the loan to which the decree relates was advanced before the commencement of this Act, allow any interest on the decretal amount.'

3. Now, apart from the fact that this does not prohibit the award of interest upto the date of the decree,- since this would necessarily be included in the decretal amount and would not be interest on that amount there is a more fundamental consideration. Sections 30 and 34 of the Act both open with the words, 'Notwithstanding anything contained in any law for the time being in force or in any agreement'; but in Section 31, which is between these two sections,, the non obstante Clause does not contain the words 'or in any agreement.' It can be plausibly argued that the words are, strictly speaking, superfluous even in SSection 30 and 34;: for, either the agreement is enforceable by law (e. g., the Indian Contract Act), or it is not. If it is, the words 'Notwithstanding anything contained in any law for the time being in force' would be sufficient to override the law by which the agreement is enforceable and therefore also the agreement itself. If, on the other hand, the agreement is such as is not enforceable by law, it can create no rights or obligations. In either case, therefore, the words 'or in any agreement' may be said to be redundant. But the fact that the Legislature has thought it necessary to insert them in Sections 30 and 34 and has left them out in Section 31 can hardly be treated as being of no significance. It does lead to the; inference that Section 31 is not intended to apply where there is an agreement to the contrary. In other words, we must read the opening Clause of Section 31 as if it ran, 'Notwithstanding anything contained in any law for the time being in force, but subject to the operation of any agreement.' In the present case there is an agree ment, namely, the mortgage bond, which specifically provides for the payment of interest at nine per cent, per annum on the principal 'till the realization of the entire amount.' Of course, the rate of interest stipulated is cut down by Section 30, Bengal Money-Lenders Act, 1940, to 8 per cent, per annum, and the period of the stipulation is cut down by Order 34, Rule 11, Civil P.C. so as to end at the date fixed for redemption in the preliminary decree instead of running on 'till the realization of the entire amount'; after the date fixed for redemption, the rate of interest allowed by Clause (b) of that Rule is such as the Court deems reasonable. But within these limits the agreement is still effective; and it remains unaffected by Section 31, Bengal Money-Lenders Act, 1940, as we read that section, so that interest on the principal at 8 per cent, per annum remains payable until the date fixed for redemption. After that date, the agreement is superseded by Order 34 Rule 11 (b), which, in its turn, is overridden by Section 31, Bengal Money-Lenders Act.

4. We may now dispose shortly of certain connected points. Subject, as already explained, to the operation of any agreement, there can be no doubt that Section 31, Bengal Money-Lenders Act, 1940, applies to the preli minary decree in a mortgage suit, since it is expressed to apply to any decree in any suit to which the Act applies and Section 2 (22) makes it clear that the Act applies to mortgage suits. We have also no doubt that the term 'decretal amount,' with reference to such a decree, can only mean the amount found or declared to be due to the plaintiff at the date of the decree under Order 34 Rule 2 (1) (a) or (b). That is the whole amount payable under the decree if the judgment-debtor is in a position to pay it at once. If he is given a period of grace for redemption, he has to make additional payments depending to some extent upon the time allowed; the total amount of these additional payments is not entered in the decree, nor can it even be computed at the date of the decree, since the time originally allowed may be subsequently extended. It cannot, therefore, be said to form part of the decretal amount. Section 31 (a), Bengal Money-Lenders Act, 1940, prohibits the award of 'any interest on the decretal amount.' It seems to us that this necessarily includes a prohibition of interest on any portion of the decretal amount; otherwise the provision could easily be circumvented by disallowing interest on one small item of the amount and allowing it on the others. We think it necessary to state this, because the interest allowed by Order 34 Rule 11 (a), Civil P.C. is not on the whole of the amount found or declared due in the preliminary decree, that is to say, not on the whole of the 'decretal amount,' but on certain items thereof; and the question may, therefore, arise whether it can. be said to be 'interest on the decretal amount' within the mischief of Section 31, Bengal Money-Lenders Act, 1940. We think that it can, and that it, therefore, falls within the ban of the section, subject, of course, to the operation of any agreement, as already explained. No question can arise with respect of the interest allowed by Order 34 Rule 11 (b),Civil P.C. for that falls on all items and is undoubtedly 'interest on the decretal amount.' The net result is that the appellants are entitled to interest at 8 percent. per annum on the principal, not only upto the date of the preliminary decree but also upto the dates fixed therein for payments of the several instalments of the decretal amount, the interest between any two successive dates being reckoned on the portion of the principal outstanding between those dates; but the appellants are not entitled to any further interest. The decretal amount declared as due upto the date of the preliminary decree will be payable in five equal annual instalments commencing on 23rd August 1943. We make no Order as to costs in this Court in these appeals. The cross-objection is dismissed without costs. [Rest of the judgment is not material for the Report.]


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