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Satya Narayan Banerjee and anr. Vs. Radha Nath Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1942Cal69
AppellantSatya Narayan Banerjee and anr.
RespondentRadha Nath Das and ors.
Excerpt:
- .....loan is pending at the time, then in the suit itself (sub-section 1); (2) in an appeal from the decree passed in that suit (sub-section 6 clause (b)), (3) if that suit had already been finally decreed and the decree not fully satisfied, then (a) by means of an application moved before the court which had passed the decree at the stage of execution (sub-section 6, clause (a), sub-clause (i)); (b) by an application for review (sub-section 6, clause (a), sub-clause (ii)); (4) by a suit (sub-section 1).4. mr. das's contention is that the fourth remedy is available only when no decree has been passed for the recovery of the loan. the drafting of the act, especially of section 36 leaves much to be desired and there is scope for improvement but that is a matter for consideration for the.....
Judgment:

1. On 12th July 1933 Ram Narayan Bannerjee, plaintiff 2, borrowed Rs. 6000 from Harihar Dass on the security of a mortgage which comprised immovable properties, some situate within the ordinary original jurisdiction of this Court and others situate in the district of 24-Parganas. The mortgagee instituted with the leave of this Court a suit No. 1507 of 1937, in the original side of this Court. The preliminary decree was passed on 21st February 1938 and the final decree sometime thereafter. On 23rd February 1934, Satya Narayan Bannerjee, plaintiff 1, borrowed a sum of Rs. 6000 also from Harihar Dass on a mortgage which also comprised properties some of which were within the ordinary original jurisdiction of this Court and the remaining properties were within the jurisdiction of the Alipore Court. The mortgagee instituted Suit No. 1508 of 1937 in the original side of this Court. The preliminary decree was passed on 21st February 1938 and the final decree some time thereafter. On 3lst July 1935 both the plaintiffs borrowed Rs. 23,000 from Harihar Dass and three other persons. The mortgage executed to secure this loan also comprised, as in other two cases properties situate in Calcutta and in the district of 24-Parganas. The mortgagees instituted in the original side of this Court their suit, No. 1455 of 1937, to enforce this mortgage, recovered the preliminary decree on 17th December 1937 and the final decree on 24th August 1938. All three loans carried interest at the rate of 12 per cent. per annum with quarterly rests. The three decrees passed by this Court allowed interest at that rate till the time fixed for redemption and thereafter simple interest at 6 per cent.

2. Execution proceedings were duly started in the original side of this Court, and as some of the properties were common to all three mortgages, those common properties have been advertised for sale in execution of all the three decrees. The said execution proceedings are still pending. The Bengal Money-lenders Act (10 of 1940) came into force on 1st September 1940. On 2nd September 1940 the plaintiffs filed this suit in the Court of the Subordinate Judge at Alipore. They impleaded as defendants the heirs of Harihar Dass who had died on 5th August 1938, as also the other mortgagee decree-holders in Suit No. 1455 of 1937. The last mentioned persons have no interest in the first two mortgages or in the decrees passed on them. In the plaint it is stated that the defendants are only entitled to charge simple interest at rates not more than 8 per cent. per annum, and that a certain sum of money was retained by the mortgagees as capitalist's commission at the time of the advance of Rs. 28,000. The plaintiffs have brought the suit under Section 36, Bengal Money-lenders Act, and pray that the three decrees passed by this Court may be reopened and new decrees passed by the Subordinate Judge giving them instalments. The defendants raised two preliminary issues, namely, (i) that that Court had no jurisdiction to entertain the suit and (ii) the suit as framed was bad for misjoinder of parties and causes of action.

3. The learned Subordinate Judge upheld both these contentions and has dismissed the suit with costs. The plaintiffs have preferred this appeal. Mr. Sen appearing for them in the end conceded that the suit is bad for misjoinder of parties and causes of action, but he contended that if the Subordinate Judge of Alipore had jurisdiction, that defect cannot be fatal to the suit. In that event, his clients would have to be given the opportunity to elect and say which are of the three causes of action they would proceed with and it is only in the event of their refusing to elect that the suit can be dismissed. This, in our judgment, is a sound position. The only question of importance, therefore, is whether the learned Subordinate Judge at Alipore had jurisdiction to entertain the suit. Before dealing with this point we will consider a point of law raised by Mr. Das appearing for the respondents, a point which does not seem to have been urged in the Court below or in any of the reported decisions of this Court. As the point is of general importance and depends solely upon the construction of Section 36, Bengal Money-lenders Act, we have allowed him to urge the same. The point is that after a decree has been passed for the recovery of the loan at the suit of the creditor, a suit would not lie at the instance of the borrower but his only remedy is to proceed under Sub-section (6) of Section 36. An analysis of Section 36 discloses that a borrower can claim relief in the following manner : (1) if the suit for recovery of the loan is pending at the time, then in the suit itself (Sub-section 1); (2) in an appeal from the decree passed in that suit (Sub-section 6 Clause (b)), (3) if that suit had already been finally decreed and the decree not fully satisfied, then (a) by means of an application moved before the Court which had passed the decree at the stage of execution (Sub-section 6, Clause (a), Sub-clause (i)); (b) by an application for review (Sub-section 6, Clause (a), Sub-clause (ii)); (4) by a suit (Sub-section 1).

4. Mr. Das's contention is that the fourth remedy is available only when no decree has been passed for the recovery of the loan. The drafting of the Act, especially of Section 36 leaves much to be desired and there is scope for improvement but that is a matter for consideration for the Legislature. We have to find out the intention from the provisions as they are. We cannot, however, accept the aforesaid contention of Mr. Das for the following reasons. A loan may be either an unsecured loan or a secured loan. A suit by the debtor for relief before the creditor has filed his suit to enforce his dues and has obtained a decree would necessarily be a suit for the determination of the amount then due from him not on the basis of contract but on the basis of these provisions of the Bengal Money-lenders Act which modify the terms of the contract. In the case of a secured loan that can be done by a suit for redemption. In the case of an unsecured loan as also of a secured loan that purpose would be accomplished through Section 38. For in hearing an application made under Section 38 of the Act the Court has to follow, so far as they may be applicable, the provisions contained in Chapters 6 and 7 of the Act.

5. It was, therefore, unnecessary for the Legislature to provide for a suit by the debtor in Sub-section (1) of Section 36 if the intention of the Legislature was to confine such a suit only to the case where a decree has not been passed on the loan at the instance of the creditor. That is a circumstance that must be taken into consideration. But whatever may be the meaning and the precise effect of the phrase 'other than a decree in a suit to which this Act applies' employed in the second proviso to Sub-section (1) of Section 36, that proviso and Sub-section (2) of Section 36 indicate that the suit, which the debtor is given the right to institute by the provisions of Sub-section (1) of Section 36 can be filed even after a decree has been passed for the recovery of the loan. We do not accordingly see our way to accept Mr. Das's contention to the effect that as the procedure indicated in Sub-section (6) of Section 36 would afford adequate relief to the debtor when a decree for the recovery of the loan had already been passed it ought not to be assumed that the Legislature had intended to give the debtor the right to pursue the same remedy by a suit also. Whatever observation we have made above must not however be taken to have decided that a debtor cannot file a suit under Section 36, Sub-section (1) to claim the reliefs mentioned therein where no decree for the recovery of the loan at the suit of the creditor had been passed.

6. We accordingly hold that the suit which we have before us is maintainable, and the only question at this stage is, whether the Subordinate Judge of 24-Parganas had jurisdiction to entertain it, a question which we now proceed to decide, having in mind the fact that it is a suit for re-opening the mortgage decrees passed by the original side of this Court and for having new decrees passed in these mortgage suits. In the absence of any provision enacted by a special Act, the provisions of the Civil Procedure Code, must govern the place of institution of suits. It is also clear that if a special Act has specified a particular forum for the institution of a suit of a particular nature that suit must be instituted in that particular forum. On these principles, it has been contended by the learned advocate for the appellants that as there is no special provision in the Bengal Money-lenders Act specifying the forum for a suit by the debtor under the provisions of Section 36 of that Act, the forum must be determined by the rules contained in the Code of Civil Procedure. It is further contended that the institution of a suit of the nature we have before us must be governed by either Section 16, Sub-section (d), or by Section 17 or at any rate by Section 20, Civil P.C., and it is said that whichever of the aforesaid sections may be applicable, the Subordinate Judge of 24-Parganas had jurisdiction to entertain this suit, as some of the immovable properties included in the mortgages were in the district of 24-Parganas, and as two of the defendants reside within the jurisdiction of that Court.

7. We will first examine the last mentioned branch of the argument and see in the first instance which of the aforesaid sections of the Civil Procedure Code would have been applicable on the assumption that there is no provision, express or implied, in the Bengal Money-lenders Act on the subject. In our judgment Sections 16, 17 and 20 (c) are out of question. The suit is a suit for re-opening the mortgage decrees passed by this Court in the exercise of its ordinary original jurisdiction. It is not a suit for the determination of any right to or interest in immovable property. So it does not fall within the provisions of Section 16. Section 17 has no application. That section only supplements the provisions of Section 16. Section 16 enacts that suits concerning immovable property of the description mentioned in Sub-sections (a) to (e) of that section will have to be instituted in the Court within the local limits of whose jurisdiction the immovable property is situate, the only exception being what is enacted in the proviso.

8. The meaning of Section 17 is that where the immovable property in suit is situate within the local limits of the jurisdiction of two or more Courts, the suit claiming the reliefs mentioned in Section 16 may be instituted in any one of those Courts. The phrase 'relief respecting...immovable property' mentioned in Section 17 has not the effect of including in that section suits relating to immovable property of a nature different from suits in respect thereto as are specified in Section 16, Sub-sections (a) to (e). The Legislature could not have but employed that phrase, for different kinds of reliefs in respect of immovable property have been mentioned in Section 16. Section 20(c) also could not have had any application for the cause of action for such a suit did not arise wholly or partly within the jurisdiction of the Courts of 24-Parganas. The subject-matters of the suit are the three decrees passed by this Court. Those decrees have not been sent for execution to a Court exercising jurisdiction in the district of 24-Parganas. They are being executed in the original side of this Court. On this view of the matter the Court of the Subordinate Judge of 24-Parganas could have had jurisdiction only under Section 20(b) as some of the defendants reside within the local limits of his jurisdiction. The position being thus cleared up we now proceed to examine the relevant provisions of the Bengal Money-lenders Act.

9. Section 36 of the Act gives power to the Court to re-open a decree passed in favour of the creditor, if that is necessary for giving the debtor any of the reliefs mentioned in that section. But if the decree is re-opened by the Court, it is made obligatory on the Court to pass a new decree. The provision is not that one Court should re-open the decree and another Court is to pass the new decree. It necessarily follows from this that the Court which can entertain a suit under Section 36, Sub-section (1) must be the Court which can also pass the new decree. Where the decree asked to be re-opened is a mortgage decree, the Court having jurisdiction over the place of residence of the defendant or some of the defendants creditors would not have jurisdiction to pass the new mortgage decree. Section 20, Clauses (a) and (b) are thus necessarily excluded by reason of the provisions of Section 36, Sub-section (2), Bengal Money-lenders Act. That Sub-section furnishes the clue to the intention of the Bengal Legislature, which in our judgment is that the suit which the debtor is given the right to institute under Section 36, Sub-section (1) must be instituted in the Court which had passed the decree for recovery of the loan at the suit of the creditor and in no other Court. The fact that in the case before us some of the immovable properties included in the mortgages are situate within the local limits of the Court exercising jurisdiction in the district of 24-Parganas is a fortuitous circumstance, which has no legal significance on the matter of jurisdiction of the Court, for as we have pointed out that if there was no indication in the Bengal Money-lenders Act, such a suit could only have been entertained by the Court of 24-Parganas, not because a portion of the immovable properties are there, but because some of the defendants reside within the district.

10. On principle the matter would stand on the same footing as the case where the mortgage decree had been passed by this Court in the exercise of its ordinary original jurisdiction and some of the mortgage properties were within that jurisdiction and the rest were within the local limits of the district of Hughli, but the mortgagee defendants, some or all, were residing in the district of 24-Parganas. In such a case on the view we have expressed above the Court of the Subordinate Judge at 24-Parganas would not have been able to entertain the suit by the judgment-debtors under Sub-section (1) of Section 36 as that Court would not have been in a position to pass a new mortgage decree on re-opening the mortgage decree passed by this Court, as none of the immovable properties included within the mortgage was within its local limits. We accordingly hold that the suit, which we have before us, was instituted in a Court which had no jurisdiction to entertain it. The appeal is accordingly dismissed. As the case is of first impression and as the inartistic drafting of Section 36, Bengal Moneylenders Act, is to a great extent responsible for inducing the plaintiffs to file their suit in a Court, where they thought they could have had relief at a much less cost than if they had invoked the jurisdiction of this Court, in its ordinary original jurisdiction, we direct each party to bear their respective costs throughout.


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