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Sm. Brinda Bala Debi Vs. Gour Mahoto and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata High Court
Decided On
Case NumberC.R. No. 3850 of 1976
Judge
Reported inAIR1977Cal441,82CWN187
ActsBengal Money-Lenders Act, 1940 - Sections 2(9), 38 and 38(2)
AppellantSm. Brinda Bala Debi
RespondentGour Mahoto and ors.
Appellant AdvocateAmiya Kumar Chatterjee and ;Abhijit Kumar Banerjee, Advs.
Respondent AdvocateTarak Nath Ray, Adv.
Cases ReferredSm. Meherunmsa Bibi v. Satis Cfeandra
Excerpt:
- .....act.7. ir, the case before us the borrower in his application has prayed for taking account of the loan, for declaration that there is nothing due on the loan and also for declaration of the amount due under the loan if it is found that the loan has not been satisfied. there is no illegality in such prayer, as the court is competent under the act on an application under section 38. which provides 'for taking accounts and for declaring the amount due to the lender', also to declare on accounting that no amount is due to the lender. the application for such alternative declaration is thus maintainable in law.8. the formidable contention urged on behalf of the opposite parties, which found favour with the learned munsif. is that the word 'lender' in sub-section (9) of section 2 of the act.....
Judgment:
ORDER

Salil Kumar Datta, J.

1. This Rule is directed against the order dated August 30, 1976 passed by the learned Munsif at Purulia rejecting the petitioner's application under Section 38 of the Bengal Money-lenders Act, 1940. The facts in short are as fallows :--

The petitioner borrowed a sum at Rs. 1,200/- by executing an usufructuary mortgage deed dated March 3, 1967 in favour of the lender late Balaram Mahoto in respect of 1 acre of kamali land. The said lender and on his death his heirs, the opposite parties had been in possession thereof by cultivation. According to the petitioner, the lender and his successors had realised Rs. 2,100 for paddy and Rs. 700 for straw in all Rs. 2,800/-during 1967 to 1973 i. e. more than double the principal. As such the petitioner was entitled to a declaration that nothing is due on the kotkobala (usufructuary mortgage deed). The application was accordingly filed on April 16, 1974 for a taking account of the said loan and for declaration that nothing was due to the lender or his heirs. In case the Court found that the loan was not fully satisfied, there was the alternative prayer for determination of the amount still payable by the borrower petitioner The application was registered as Misc. Case No. 53 of 1974.

2. The opposite parties contested the application contending thai the transaction was not a loan and consequently the application under Section 38 of the Act was not maintainable. It was also contended that the opposite parties were not the lenders under the Act and as such no relief was available against them on the said application. Further the annual income from the land less costs for production was Rs. 100/- for paddy and Rs. 5/-for straw, which for six years amounted to Rs. 630/- only. The application accordingly was liable to be dismissed.

3. The learned Munsif by the impugned order held that though the application was otherwise maintainable, thr definition 'lender' defined in Section 2(9) does not include the heirs and successors-in-interest. The application under Section 38 of the Act was accordingly not maintainable and as a result the Misc. Case was dismissed. The present rule is against this order.

4. Mr. Amiya Kumar Chatterjee appearing with Mr. Abhijit Kumar Baner-jee, learned Advocates for the petitioner contended that the learned Munsif committed an error in the exercise of his jurisdiction in holding that no relief under the Act was available against the legal heirs and successors-in-interest of the lender. He submitted that on correct interpretation, the word 'lender' should have been held as including his legal heirs and successor-in-interest who accordingly would be amenable to appropriate orders on the application under Section 38 of the Act.

5. Mr. Tarak Nath Roy learned Advocate for the opposite parties contended that the application for declaration that the lender and/or his legal heirs are indebted to the borrower on accounting is not maintainable in law. Further, the definition of 'lender' in the Act does not include his heirs or successors-in-interest, so that the application under Section 38 is not maintainable and the borrower may have hi.s remedy under the ordinary, law of the land.

6. Mr. Roy referred to the decision in Srikanta Kumar v. Atual Krishna, 49 Cal WN 143 : (AIR 1945 Cal 214) in which it was held that an application for settlement of debts under the Bengal Agricultural Debtors Act, 1936 made by an applicant while denying the debt itself was not maintainable in law. Mr. Roy referred to an earlier decision in Sm. Meherunmsa Bibi v. Satis Cfeandra, (1943) 47 Cal WN 894 wherein the Court held that in a proceeding under Section 38 of the Act, there can at most be a declaration that nothina is due under the loan but no declaration of any amount due from the lender to the borrower is permissible under the Act.

7. Ir, the case before us the borrower in his application has prayed for taking account of the loan, for declaration that there is nothing due on the loan and also for declaration of the amount due under the loan if it is found that the loan has not been satisfied. There is no illegality in such prayer, as the Court is competent under the Act on an application under Section 38. which provides 'for taking accounts and for declaring the amount due to the lender', also to declare on accounting that no amount is due to the lender. The application for such alternative declaration is thus maintainable in law.

8. The formidable contention urged on behalf of the opposite parties, which found favour with the learned Munsif. is that the word 'lender' in Sub-section (9) of Section 2 of the Act 'means a person who advances a loan and includes a money lender'. It is said that while the word 'borrower' in Sub-section (2) of Section 2 'means a person to whom a loan is advanced and includes a successor-in-interes1 of surety', these words are excluded from the meaning of the word 'lender' not without significance. We shall now examine the contention with reference to other relevant provisions of the Act.

9. Section 28 of the Act in Sub-section (1) provides that when a loan is 'assigned' to any person by the lender or his assignee, before such assignment, notice is to be given that the debt, agreement or security is affected by the operation of the Act. In Sub-section (3) it is expressly stated that the expression 'assigned' in this section means an assignment inter vivos other than assignment by operation of law. In Section 29 it is also provided that the provisions of the Act shall continue to apply as respects any debt due to a lender or money-lender in respect of loans advanced by him, as also the benefit of agreement made or security taken in respect of such debt or interest, notwithstanding that the debt or the benefit of the agreement or security may have been assigned to any assignee, and references in this Act to a lender or money-lender shall accordingly be construed as including such assignee, subject to certain limitations and except where the context otherwise requires. It is thus obvious that while Section 28 applies to assignment inter vivos and not to assignment by operation of law. there is no such prohibition in respect of the provisions of Section 29, so that its provisions will apply to assignments by operation of law. Assignment by operation of law includes inter alia involuntary sales in execution, assignments upon bankruptcy as also cases of succession which is assignment by devolution of interest. Accordingly relief in respect of a debt by a lender in accordance with the provisions of the Bengal Money Lenders Act, 1940 will be available to a borrower against the legal representatives of a deceased lender on whom the estate of the deceased lender including the debt and its security devolves by operation of law. This interpretation is consistent with the beneficent objects the Act is intended to achieve.

10. Mr. Roy took a further objection contending that under Sub-section (3) of Section 38 an appeal is provided against a declaration under gub-s. (2), so that no application in revision lies against the impugned order. The contention, it appears, is unsustainable as an appeal lies against a determination contemplated in Sub-section (2) which has the force and effect of a decree as provided in the section itself. A decision on the maintainability of the application under Section 38 is not a declaration in respect of amounts paid and payable to the lender. As such a revision lies against such order as contended by Mr. Chatterjee.

11. The application of the petitioner under Section 38 of the Act against the legal representatives of the deceased lender is thus maintainable in law. The Rule accordingly is made absolute and the impugned order of the learned Munsif is set aside. The application will now be disposed of by the learned Munsif in accordance with law. Let the records be sent down at once.

12. There will be no order for costs in the Rule.


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