RADHA KISSEN CHAMRIA Vs. KESHARDEO CHAMRIA

JUDGEMENT

(1.) THE Judgment of the court was delivered by

(2.) THE point involved in this appeal is a very short one. It is whether the appellants are entitled to relief under the Bengal Money Lenders Act (Bengal Act 10 of 1940). Section 30 of that Act provides as follows :

(3.) THE first question is what is the transaction in this case which is in substance a loan ? On this question all that Mr. Chatterjee said was that the consent decree was itself such a transaction. He said that what had happened was that there was the agreement for sale under which Durga Prasad as the vendor was entitled to receive the stipulated price from the purchasers Radha Kissen, Moti Lal and Anardeyi and the compromise decree was really a transaction by which Durga Prasad agreed to treat the moneys due to him on account of price as a loan by him to the purchasers and repayable as such at a certain rate of interest and in a certain number of instalments. We agree with the learned Judge of the High court that there is no evidence of any agreement between the parties leading to the compromise decree. Both the courts below have held that there was no agreement as stated by Mr. Chatterjee. That is a question of fact and we in this court are anable to disturb such a concurrentfinding of fact. THE agreement contained in the compromise decree itself is, of course, there. But looking at its terms we are unable to bold, as the High court was unable to do, that it shows that the price due was by agreement. treated as a loan by the vendor to the purchasers. Mr. Chatterjee was unable to contend that in every case where an unpaid vendor leaves the purchase money outstanding and agrees to accept it later with interest, the transaction amounts in substance to a loan. He -said that the facts of each agreement had to be looked at to find out whether the agreement amounted in substance to a loan. Here we have no other facts than those appearing on the face of the compromise decree and these facts do not, in our view, amount to an agreement to convert the outstanding purchase money into a loan by the vendor to the purchasers. All that we have here is an agreement by the vendor to accept payment of a portion of the moneys payable under the agreement for sale immediately and the balance in certain instalments and to be paid interest on the purchase money at the same rate which was provid. ed in the agreement for sale. <PG>746</PG> THE compromise decree, no doubt;, vested the property agreed to be sold in one of the purchasers and created a charge on it for the purchase money unpaid for the time being. THE vendor under the agreement for sale had thus been converted into an unpaid vendor who had conveyed to the purchasers the property agreed to be sold and had been given a charge on the property for the unpaid purchase money. An unpaid vendor who has transferred the property has a similar charge under S. 65 (4) (b) of the Transfer of Property Act. THE only thing that was new in the compromise decree was that the moneys were payable in a number of instalments instead of at once. That cannot show that the price due had become a loan. THE compromise decree does not in our Opinion therefore alter the intrinsic nature of the moneys due to the vendor. THEy were and re. mained unpaid purchase moneys and had not at all been converted from that character into a loan.