BABURAO BHAVADU SONAR Vs. PUNAMCHAND ONKARDAS NAHATA

JUDGEMENT

(1.) This is an appeal by special leave from a judgment of the Bombay High court in a revision petition reversing an order of the court of Civil Judge, J. D. Bhusaval.

(2.) The material facts are these : On 28/01/1957 respondent No. 2 mortgaged with possession the suit house with respondent No. 1 for Rs. 6,000. 00. The period of redemption was fixed at 10 years. On 26/02/1938 respondent No. 2 sold the equity of redemption to the appellant. On 1/03/1958, respondent No. 2 served a notice on respondent No. 1 asking for redemption of the possessory mortgage on a payment of Rs. 6,000. 00 with interest. On 20/03/1958 the appellant sent a notice to respondentno. 1 enclosing a cheque for Rs. 6,000. 00 and offering to pay a further amount due as interest and called upon him to hand over the possession of the mortgaged property. Respondent No. 1 sent a reply saying that the mortgage was not redeemable before the expiry of the period of 10 years and he returned the cheque. On 23/04/1958, the appellant filed an application in the court of the Civil Judge, J. D. Bhusaval under Section 83 of the Transfer of Property Act and S. 30 and 31 of the Bombay Money Lenders Act, 1946, hereinafter called the "act", praying that respondent No. 1 be ordered to render account as mortgagee in possession and be directed to hand over the possession of the mortgaged property to the appellant. Respondent No. 2-the original mortgagor-was also made a party to the application. Respondent No. 2 in his written statement supported the application whereas respondent No. 1 resisted it. He contended, inter alia, that the original mortgagor (respondent No. 2) and the appellant were traders with the result that the Act did not apply to them. It was also asserted that the appellant was not a debtor within the meaning of the Act. Further more the application was described as premature as the mortgage was not redeemable until the expiry of 10 years from the date of the mortgage (i. e. , 28/01/1957). The Trial court raised issues including the question whether the mortgage money was loan for the purpose of S. 30 and 31 of the Act ; whether the appellant was a debtor and whether respondent No. 2 was not a trader on the date of the mortgage. On 28/12/1958 the Trial court dismissed the application. It was held that the mortgage money was not a loan within the meaning of S. 30 and 31 of the Act. It was further held that the appellant was a debtor and respondent No. 2 was a trader. The appellant filed a petition for revision before the High court. The High court by an order, dated 15/03/1961 set aside the order of the Trial court and remanded the matter with a direction that it should proceed under Section 31 of the Act and dispose of the case in accordance with law. The findings and the conclusions of the High court will be presently noticed.

(3.) When the matter went to the Trial court after the remand, respondent No. 1 contended, inter alia, that respondent No. 2 was a trader and the petitioner having purchased the equity of redemption from him had stepped in his shoes and could not get the benefit of the provisions of the Act. The Trial court, however, negatived that contention holding that the purchaser of equity of redemption was entitled to the benefit of Section 31 and that it had been so decided by the High court. Respondent No. 1 was directed to furnish the statement of account within 8 days. The Trial court also ordered the suspension of money, lender's licence of respondent No. 1 for one year under the provisions of the Act. Respondent No. 1 preferred a petition for revision in the High court against the decision of the Trial court. Meanwhile on 1/03/1962 the appellant filed a suit under Section 83 of the Transfer of Property Act for redemption of the mortgaged property in Bhusaval court. In that suit respondent No. 1 prayed for a stay pending the disposal of his revision petition. The Trial court rejected that prayer. Respondent No. 1 filed a petition for revision against the order refusing stay. Both the revision petitions came up for hearing in the High Court before Patel, J. The learned Judge allowed the petition directed against the order of the Trial court by which respondent No. 1 had been ordered to furnish the statement of account, etc. It is unnecessary to mention the orders made on the other revision petition.