DESARTHI GHOSE Vs. TATINDRA MOHARPAL

JUDGEMENT

(1.) This is an appeal by special leave from a judgment of a Division Bench of the Calcutta High Court confirming the decree of dismissal of a suit passed by another learned Judge of that Court.

(2.) The plaintiff, the appellant before us, claims relief under the Bengal Money Lenders Act, 1940. In order to appreciate how the relief is claimed, it is necessary to set out a brief summary of the relevant facts. On September 5, 1930, the appellant executed a mortgage in favour of the first respondent to secure re-payment of a sum of Rs. 13,000/- with interest at the rate of 10% per annum with quarterly rests. The properties mortgaged were four in number, two in Calcutta within the original jurisdiction of the High Court and two outside the said jurisdiction. The plaintiff had also executed a second deed of mortgage in favour of one Hari Sadhan Banerjee in respect of two out of the aforesaid properties besides another property belonging to him. On 28th August 1939, the mortgages-first respondent instituted a suit against the plaintiff and the puisne mortgagee Had Sadhan Banerjee claiming the usual mortgage decree. On February 21, 1940 the suit was decreed on compromise providing for payment of Rs. 13,000/- as principal and Rs. 9,325/- by way of interest up to February 20, 1940 with further interest at the rate of per annum on Rs. 13,000/-. The decretal account was made payable in instalments and in default of payment of any one instalment, the mortgaged properties were to be sold. On August 27, 1940, a farther preliminary decree was passed in the same suit in favour of the second mortgagee Hari Sadhan Banerjee. On February 3, 1942 the plaintiff executed a conveyance of the mortgaged properties in favour of the first respondent By agreement between the parties the amount payable to the first respondent from the plaintiff under the compromise decree in the mortgage suit on account of principal, interest and costs was fixed at Rs. 22,000/- after taking into account all payments made up 1o date and the concessions made by the first respondent. The price of the mortgaged properties was fixed at the same amount, i.e. Rs. 22,000/- The conveyance of February 3, 1942 shows that the plaintiff had received to his satisfaction the consideration money by way of repayment through deduction or adjustment of the dues of respondent No. 1 on the basis of the compromise decree. Satisfaction of the decree was entered up in favour of the first respondent in the mortgage suit. On February 28 1944, a final decree for sale was passed in favour of Tokend Prasad Ramani Kumar Pal, the assignee of the preliminary decree passed in favour of Hari Sadhan Banerjee in suit No 1821 of 1939 (mortgage suit). On May 3, 1945; on application of Tokend Prasad Ramani Kumar Pal, an order was passed in the said suit recording the release of premise Nos. 30 and 30/1 Uma Das Lona and No. 6 Gopal Chatter-jee Road (three out of the four mortgaged propertiss) from the mortgage dated September 23 1930. On June 2, 1945, the first respondent sold to the second respondent the two Calcutta properties 30 and 30/1 Uma Das Lane for Rs. 24,000/-. On April 30, 1946, full satisfaction was entered up in Suit No, 1821 of 1938 in respect of the decree dated August 27, 1940 and 28th February 1944. On August 27, 1946, the first respondent sold to the third respondent premises No. 5 Gopal Chatterjee Road for a sum of Rs. 19,000/-.

(3.) The suit out of which this appeal arises was filed on February 19, 1952 for relief under the Bengal Money Lenders Act by re-opening the decree dated February 21, 1940 and setting aside the sale deeds dated February 3, 1942 June 12. 1945 and August 27, 1946. To appreciate the basis of the plaintiffs claim for re-opening of the decree already passed and to set aside the conveyances, it is necessary to note the provisions of Sections 30 and 36 of the Act. Under Section 30 no borrower was to be liable to pay after the commencement of the Act, interest at a rate exceeding eight per cent simple on a secured loan and no borrower was, after the commencement of the Act, to be deemed to have been liable to pay before the date of such commencement in respect of interest paid before such date included in a decree passed before such date interest at a rate exceeding the rate mentioned above on a secured loan. Section 36 laid down the conditions under which transactions and decrees could be re-opened Sub-section (1) of the section made it obligatory on the court to re open a transaction inter alia if it had reason to believe that relief could be given to the borrower by releasing him of all liability in excess of the limits specified in Section 30 and in such a case if anything had been paid or allowed in account on or after the first day of January, 1939 in respect of the liability mentioned above, it could also order the lender to repay any sum which it considered to be repayable in respect of such payment or allowed in account as aforesaid Under Sub-section (2) of Section 36 on the re-opening of a decree the court was to pass a new decree in accordance with the provisions of the Act and inter alia order the restoration to the judgment-debtor of such property, if any, of the judgment-debtor acquired by the decree-holder in consequence of the reopened decree as might be in the possession of the decree-holder on the date on which the decree was reopened at the same time directing the judgment debtor to pay to the decree-holder in such number of instalments as it thought proper, the whole amount of the new decree.