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Mrinalini Debi Vs. Harlal Roy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal339
AppellantMrinalini Debi
RespondentHarlal Roy
Cases ReferredBrojendra Kumar Dutta Roy v. Sushil Chandra Chakrabarty
Excerpt:
- .....of the language used. if the intention of the legislature was that the section should apply to suits instituted before the act came into force, the words to which i have referred would have no real meaning at all. it is quite clear that a suit which is instituted before the act comes into force must be concerned with money which was lent before the act came into force and all that it would have been necessary to say is that the act is to apply to suits even though they were instituted before it came into force. if this view of mine is correct, the words 'before the commencement of this act' have entirely spent their force by the qualification which i have indicated. the result is that there is nothing left in the section to suggest that it is to apply to suits instituted before the.....
Judgment:

Cunliffe, J.

1. This appeal arises out of a suit which was commenced on 18th September 1931 in the Court of the Additional Subordinate Judge at Alipore. It was an action for the recovery of a sum of money which comprised both capital and interest upon a mortgage bond and it may be stated at once that of the amount claime which was Rs. 3,238 odd the principal loan only amounted to Rs. 800. It was for an old debt going back as far as the year 1919, and the balance of the amount claimed was for compound interest at about 12 per cent. The learned Judge gave his judgment in the month of December 1933. Then it went up to the lower appellate Court where the judgment was delivered in April 1934. From that judgment an appeal to this Court was preferred. The question of the rate of interest was the real dispute between the parties, and the judgment of the Court of first instance shows, and also the judgment of the lower appellate Court, which is a very short one, demonstrates that this question of interest was pressed very hardly upon both Courts, the provisions of the Imperial Act known as the Usurious Loans Act being prayed in aid by the original defendant. Now after the appeal was preferred an interesting position was created, because during the pendency of the appeal before the matter reached this Court, there came into force a local Act known as the Bengal Money-lenders Act of 1933, which was ordered to become operative on 1st July 1934, and it was then that the defendants realised that they had another weapon in their hands on this question of interest, because the provisions of this local Act in favour of the borrowers are even more advantageous than the Usurious Loans Act. Now what we have to decide here is whether the appellant is entitled to rely upon the provisions of this local Act having regard to the fact that when the respondents first launched the suit, the Act in question was not yet upon the Statute Book and was therefore not law operating in the borrowers' favour. It is argued that we ought to apply in favour of the appellant Section 4, Bengal Money-lenders' Act, which I think I ought to set out in full. It runs as follows:

Notwithstanding anything in any other Act, where in any suit in respect of any money lent by a money-lender before the commencement of this Act it is found that the arrears of interest amount to a sum greater than the principal of the loan, the Court, unless it is satisfied that the money-lender had reasonable grounds for not enforcing his claim earlier, shall limit the amount of such interest recoverable in the suit to an amount equal to the principal of the loan.

2. That section is a part apparently of the scheme of the Act to benefit the borrowers. Other sections in the favour of those who have got into the hands of the money-lenders with regard to the reduction on interest are Sub-section 3, 5 and 6. I am also informed by the learned Advocate that there is a still greater advantage in favour of the borrowers under this local Act because in the Usurious Loans Act the onus of proving that the interest was harsh and unconscionable falls upon the borrowers. Here in this Act the reverse is the case, as the onus is upon the creditor to show that the interest which he has charged does not come into that category. It will thus be seen that it is extremely important from the borrower's point of view to ascertain whether in this particular class of case the operation of this Section 4 can be utilised to reduce the amount due to the lender. It is argued that it is however now settled law that in the peculiar circumstances of a case such as this, where the Act has come into forco after a suit has already been launched and after the decision has already been given in the Court of first instance, the Act cannot possibly be applied. The authority for that proposition is reported in Brojendra Kumar Dutta Roy v. Sushil Chandra Chakrabarty 1936 Cal 334. It was a decision of the Acting Chief Justice of this Court together with S.K. Ghose, J. Those learned Judges came to the conclusion that the Section was not applicable to a case such as we are considering now for various reasons. To quote from that judgment I may cite this passage.

Now we do not find either in Section 4 itself or in any other section of the Act, anything which would indicate that any retrospective operation to the section was intended. And, in our opinion, the argument (that is the argument to the contrary) is entirely misconceived when it speaks of 'retrospective operation'.

3. 'The real question is' the learned Judges went on 'whether at this stage, at the hearing of the appeal, the law which came into force during the pendency of the appeal on 1st July 1934 is to be applied to the case.'

4. Now I may say at once that I have the misfortune to doubt whether, if I had been a member of this Bench, I should have been able to subscribe to this very specifically enunciated view. Reading the language of Section 4 and the language of Sub-section 5 and 6 I am of opinion that the scope of these sections is undoubtedly retrospective. Moreover it seems to me that even Section 3 of the Act has, to a more limited extent, it is true, a reference to retrospective action. If it is held that the expression 'any suit' must exclude any suit which has already been instituted and is under appeal, then I think the general principle of the interpretation of statutes and the rules which govern all interpretations of formal documents will be broken. That rule, as I understand it, is that the ordinary meaning of the language employed is to be looked at and it ought never to be necessary to introduce words of limitation or words of qualification to explain the intention of the drafters of the Act. Here if the section is to be read as only referring to suits which have not already been instituted, then it seems to me that it would have been quite easy for the framers of the Act to have given an indication of their intention by the addition of a few qualifying words. It would have been only necessary, e.g. to put in brackets after the word 'suit,' the words 'not already instituted' or 'not already under appeal'. But that has not been done and it may be further interesting to note that in this Imperial Act, to which I have already referred, the Usurious Loans Act, the class of suits to which the Act applies is specifically definite in Chapter II, Sub-section 2 and 3 with three definitive sub-paragraphs so that, so far as the Usurious Loans Act is concerned, no person who wishes to consult it can be in any doubt as to what is meant by the word 'suits' to which this Act applies when they are affected by this particular piece of law. It seems to me however that as in the peculiar circumstances of this appeal my learned brother is willing to accept the interpretation of the Bench of the Acting Chief Justice and S.K. Ghose, J., in Brojendra Kumar Dutta Roy v. Sushil Chandra Chakrabarty 1936 Cal 334 referred to above, in that he agreed with them that the words 'any suit' in Section 4 must exclude those suits which have already been put on the file, and having regard also to the fact that the number of the persons and the number of the actions which are going to be affected by this particular section in these particular circumstances are a diminishing class, and more especially having regard to the necessity of preserving and supporting the rule which is so well known in our Courts as 'stare decisis' I am not prepared to press my opinion whilst reserving it upon this specific point in the way I have already indicated. I therefore propose, with deference to the views already expressed by the learned Chief Justice and S.K. Ghose, J., and the views which are about to be expressed by my learned brother, to agree that the appeal should be dismissed.

5. The appeal is accordingly dismissed with costs.

Henderson, J.

6. The short problem which has been propounded for our decision is whether Section 4, Bengal Money Lenders Act, applies to suits which were instituted before that Act came into force. My learned brother has already set out the terms of that section in full and it is unnecessary for me to do so. I do not think it can be seriously disputed that this section will not have such retrospective effect unless it is abundantly clear from the provisions of the Act itself that such was the intention of the legislature. The section really deals with two distinct matters; firstly, suits which are instituted before the Act comes into force and secondly money which was lent before the Act comes into force. Such being the-case the legislature might deal with the matter in three ways. The Section might have no retrospective effect at all. Secondly it might be completely retrospective or thirdly it might be retrospective in one respect and not in the other. I have read and re-read the section and the conclusion I have reached is that the intention of the legislature is that it should have no application to suits filed before the Act comes into force but that it should apply to suits relating to money lent before the Act came into force.

7. My reason for this view is that in my opinion the words 'before the commencement of this Act' are intended to qualify only the words 'money lent by a money lender.' This appears to me to be the natural interpretation of the language used. If the intention of the legislature was that the section should apply to suits instituted before the Act came into force, the words to which I have referred would have no real meaning at all. It is quite clear that a suit which is instituted before the Act comes into force must be concerned with money which was lent before the Act came into force and all that it would have been necessary to say is that the Act is to apply to suits even though they were instituted before it came into force. If this view of mine is correct, the words 'before the commencement of this Act' have entirely spent their force by the qualification which I have indicated. The result is that there is nothing left in the section to suggest that it is to apply to suits instituted before the Act comes into force. That being the case the ordinary rule of interpretation ought to apply and in the absence of any indication that the legislature intended it to be retrospective in this respect the contention of the appellant ought to be overruled. This opinion is supported by the decision of the Acting Chief Justice and S.K. Ghose, J. to which my learned brother has referred. There can be no doubt that if that case was rightly decided, the present appeal must be dismissed. We were strongly pressed by Mr. Mukherjee to dissent from that decision on the ground that the chief reason given in support of it appears to go too far. I allude to the sentence which has been set out by my learned brother. In my opinion what the learned Judges say should be interpreted with reference to the context. The only problem which they had to deoide was whe ther the Section applies to suits instituted before the Act came into force. They were not concerned with the further question whether it applies to money lent before the Act comes into force. I am therefore of opinion that they were not intending to lay down the law on this latter point. If however that decision was intended to lay down that Section 4 has no retrospective effect of any kind I entirely agree with my learned brother that .I could not interpret it in that way.

8. The conclusion which is reached by this decision at any rate avoids the absurdity that the question whether the appellant is to make a profit of several-hundred rupees depends upon the entirely fortituous circumstance that he made a delay of some weeks in filing this appeal. There is no room for doubt that had he filed his appeal before 1st July, it would have been summarily dismissed. Then again we should be compelled in second appeal to have an investigation made into facts in order to see whether the respondent has explained a delay which did not require explanation when the suit was brought.

9. The only other thing I desire to say is that I regret that I should have to differ from my learned brother. But had I agreed with him I should still have been pressed by his opinion that in a matter of this sort, which only affects suits that were instituted before 1st July 1934 and will have soon no practical importance, we ought to follow the decision of a Division Bench of this Court whatever our personal views about it might have been. I therefore agree that this appeal should be dismissed.


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