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Suresh Chandra Mukherjee Vs. Lal Mohun Chatterjee and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal121
AppellantSuresh Chandra Mukherjee
RespondentLal Mohun Chatterjee and anr.
Excerpt:
- .....decree was not fully satisfied on that date and, this being the case, i am of opinion that the present application must be regarded as maintainable as relating to a suit to which this act applies.8. as regards the procedure which should be adopted in applying for relief under the provisions of the bengal money-lenders act in cases such as that with which we are now dealing the provisions of section 36 allow the borrower to obtain relief either by filing a suit or by making an application. in the case of applications, it appears from the provisions of section 36 (6) of the act that as far as courts of original jurisdiction are concerned, it was the intention of the legislature that such applications should be made either in the proceedings in execution of a decree or, if no such.....
Judgment:
ORDER

Edgley, J.

1. In this case the petitioner, Lal Mohun Chatterjee, has applied for certain relief under the provisions of Bengal Moneylenders Act, 1940. It appears from his petition that a preliminary decree was passed against him and certain other persons on 19th February 1937. An account was then taken by the learned Registrar who found that the sum of Rs. 26,076-11-9 was due to the mortgagee. The decree was made final for that amount on 14th November 1938 and the mortgaged properties were sold respectively on 30th August 1939 and 6th December 1939. The price realized for the first property was Rs. 6400 and, as regards the second property, the price realized was Rs. 17,000 or in all Rs. 23,400. The sale was confirmed on 16th August 1940. This application originally came before me in Chambers on 6th March 1941, on which occasion Mr. Das on behalf of the opposite party contended that it was not maintainable on the grounds (1) that no application for execution of the decree was pending and (2) that the application could not be treated as an application for review. At that time I was inclined to accept his contentions, but, as the matter raised some important points of law, I thought it desir- able that it should be further considered. The decision with regard to this application involves the construction of certain sections of the Bengal Money-lenders Act and the considerations which arise with reference thereto have now been placed fully before me by learned Counsel on both sides and by Mr. B.C. Ghose as amicus curice.

2. The first point which arises for consideration is whether or not this application relates to a 'suit to which this Act applies' within the meaning of Section 2(22) of the Act. The relevant portion of this Sub-section is in the following terms:

Suit to which this Act applies' means any suit or proceeding instituted or filed on or after the 1st day of January 1939, or pending on that date and includes a proceeding in execution:(a) for the recovery of a loan advanced before or after the commencement of this Act.

3. Admittedly, the suit with regard to which this application is made was filed before 1st January 1939 and no application for execution is pending with reference thereto. Learned Counsel for the petitioner contends however that an application for relief under the provisions of the Bengal Money-lenders Act is-nevertheless maintainable because the final decree passed in the mortgage suit has not yet been satisfied and, from that point of view, the suit must be regarded as 'pending' on 1st January 1939. With this contention I must agree and in fact it is not seriously disputed by Mr. Das on behalf of the opposite party that the application has been made with reference to a 'suit to which this Act applies.' It might, of course, be argued that a suit cannot be regarded as pending after a final decree has been passed therein and that, in view of the language which has been used in Section 2(22), the Act could not apply in the case of a suit which had been filed and in which a final decree had been obtained before 1st January 1939. At the same time it is clear from the provisions of Section 30, Bengal Moneylenders Act, that the petitioner in the present case is not liable to pay interest in respect of his loan in excess of the amount of 8 per cent. simple. The relevant portion of this section is in the following terms:

Notwithstanding anything contained in any law for the time being in force, or in any agreement,

(1) No borrower shall be liable to pay after the commencement of this Act.

* * * *(c) interest at a rate per annum exceeding in the case of

* * * *(2) Secured loans, eight per cent. simple, whether such loan was advanced or such amount was paid or such decree was passed or such interest accrued before or after the commencement of this Act;

4. In the present case the interest stipulated under the mortgage bond was ten per cent. compound and it follows from the provisions of Section 30, which have been quoted, that this represents a liability from which the applicant is entitled to be released. The Court is empowered to grant relief to a debtor in cases such as this under the provisions of Section 36 of the Act. Sub-section (1) of Section 36 states that, if the Court has reason to believe that the exercise of one or more powers under the section will give relief to the borrower, it shall exercise certain powers which include the release of the borrower from all liability in excess of the limits specified in Clauses (1) and (2) of Section 30. There is a proviso to this part of the section which is of importance with regard to the question now under discussion. It is in the following terms:

Provided that in the exercise of these powers the Court shall not

* * * *(ii) 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 the first day of January 1939 or anything which affects an award made under the Bengal Agricultural Debtors Act, 1935.

5. Sub-section (6) of Section 36 provides:

Notwithstanding anything contained in any law for the time being in force, (a) the Court which, in a suit to which this Act applies, passed a decree which was not fully satisfied by the first day of January 1939 may exercise the powers conferred by Sub-sections (1) and (2)

(i) in any proceedings, in execution of such decree, or

(ii) on an application for review of such decree made within one year of the date of commencement of this Act, and the provisions of Rules 2 and 5 of Order 47, Schedule 1, Civil P.C. 1908, shall not apply to any such application.

6. It could hardly have been the intention of the Legislature to absolve debtors generally after the commencement of the Act from liability to pay interest in excess of the rates specified in Section 30 and at the same time to place a serious impediment in the way of obtaining such relief in the case of unsatisfied decrees which had been obtained before 1st January 1989 by excluding the suits in which such decrees had been obtained from the category of any suit to which the Act applies which is the expression used in Section 36 (1) of the Act. In fact, it is clear from proviso 2 to Section 36 and Sub-section (6) of that section, that the Legislature intended that the powers conferred upon the Court by Sub-sections (1) and (2) should be exercised in suitable cases in the case of decrees obtained before 1st January 1939 but not fully satisfied on that date. These provisions therefore contain clear indications that in Section 2(22) the Legislature used the expression 'pending' in a technical sense wide enough to include suits in which unsatisfied decrees were outstanding on 1st January 1939.

7. From a consideration of those portions of the Act which have been quoted above it is clear that the intention of the Legislature was that by observing the appropriate procedure a debtor should be entitled to be released from liability to pay interest in excess of the rates mentioned in Section 30 even in a case in which a decree was passed before 1st January 1939 provided that decree was not fully satisfied on that date and, this being the case, I am of opinion that the present application must be regarded as maintainable as relating to a suit to which this Act applies.

8. As regards the procedure which should be adopted in applying for relief under the provisions of the Bengal Money-lenders Act in cases such as that with which we are now dealing the provisions of Section 36 allow the borrower to obtain relief either by filing a suit or by making an application. In the case of applications, it appears from the provisions of Section 36 (6) of the Act that as far as Courts of original jurisdiction are concerned, it was the intention of the Legislature that such applications should be made either in the proceedings in execution of a decree or, if no such proceedings have been taken or are pending, the debtor should be at liberty to file what is described in the Act as an application for review. It does not appear that any question of limitation can arise provided the application for relief is filed during the pendency of the execution proceedings, but, as regards application for the review of a decree, a special period of limitation has been provided, namely one year from the commencement of the Act. It may have been intended in suitable cases to treat decrees which violate the provisions of Section 30 of the Act as being open to review on account of some mistake or error apparent on the face of the record, but, owing to the length of the period during which such-application may be made, it was considered that the provisions of Rules 2 and 5 of Order 4.7, Civil P.C., would not be suitable and it is therefore provided that they should not apply to any such applications. Although in the present case the appropriate procedure for the borrower to adopt was to file an application for review it does not follow that the Court is only empowered to grant relief on such an application by re-opening the decree. As will be seen later, the powers conferred upon the Court by Section 36(1) are sufficiently wide to enable it to treat an unsatisfied decree as satisfied in certain circumstances.

9. In the present case it is argued by Mr. Das that, as his client did not wish to put the decree into execution, it was incumbent upon the applicant to file his application for relief in strict conformity with the relevant provisions of Chap. 31 of the Original Side Rules, which apply in the ease of applications for review. In that case it would have been necessary for the applicant to observe certain formalities such as the filing of copies of the judgment and the decree which he seeks to have reviewed. Admittedly, how- ever, it would be useless in the present ease to file such copies and clearly the rules contained in chap. 31 of the Original Side Rules could not have contemplated applications for the review of decrees filed under the provisions of the Bengal Money-lenders Act. I therefore propose to treat the present application as an application for review within the meaning of Section 36(6)(a)(ii) of the Act and to dispense with the filing of copies of the judgment and decree. The question remains as to which of the powers mentioned in Section 36(1) and (2) of the Act it will be appropriate to exercise. In the present case the sale has actually been confirmed, a considerable portion of the debt due to the decree-holder has been set off against the purchase-money and the price realised at the sale of the mortgaged properties was insufficient to satisfy the dues of the decree-holder even if interest be calculated at the rate prescribed in Section 30 of the Act. In such a case I do not think it necessary to reopen the entire decree, but I consider that the ends of justice will be served by releasing the borrower of all liability as regards interest in excess of the limits specified in Section 30(1)(ii) of the Act as contemplated by Section 36(1)(c).

10. It was faintly argued by learned Counsel for the applicant that the exercise of this power necessarily involves the reopening of the decree in such a way as to entitle his client to the privileges enumerated in Section 36(2) of the Act. I am not prepared to accept this argument. In my view the effect of the exercise of the power conferred on the Court by Section 36(1)(c) in this particular case will be to leave the decree intact, but at the same time the exercise of this power will result in the decree being treated as fully satisfied by writing of the amount by which the decree-holders' dues under the decree exceed the amount calculated at the rates of interest prescribed in Section 30. Admittedly, if interest be calculated at the rate of 8 per cent. simple to this date, the total sum of Rs. 24,888-12-8 would be due to the decree-holder today. The debtor is therefore released from all liability to the decree-holder in excess of this amount in regard to principal and interest. Although I am not reopening the decree it is only reasonable that the principle of Section 36(2)(a) should apply as regards costs. The decree-holder will therefore be entitled to the costs of this application which will be treated as a motion.


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