BANSILAL RAMGOPAL BHATTAD Vs. HARISCHANDRA TATYA BHAMBHURE

JUDGEMENT

(1.) Section 23, Bombay Money-lenders Act, 31 of 1947, provides that, notwithstanding anything contained in any agreement or any law for the time being in force, no Court shall in respect of any loan, whether advanced before or after the date on which this Act comes into force, decree, on account of interest, a sum greater than the principal of the loan due on the date of the decree. Is the rule laid down in this section retrospective and can it be invoked by a debtor in an appeal against his creditor when the Act did not apply at the time when the dispute between the parties had been decided by the trial Court? These are the two questions which arise for our decision in the present appeal.

(2.) The appeal arises out of a suit for redemption. The mortgage sought to be redeemed was a possessory mortgage and it was executed by the plaintiff's grandfather in favour of Tukaram on 4-9-1384, for Rs. 1,350. The property mortgaged was a house. The mortgagee was to remain in possession of the property in lieu of interest. The period stipulated was ten years and the interest agreed was 6 per cent, per annum, compound interest. Between the same parties another mortgage was executed in respect of the same property on 1-5-1837, for Rs. 150. The interest agreed under this mortgage was 12 per cent per annum. On 12-12-1933, the mortgagee assigned his rights under the said two mortgages in favour of defendant 5 for Rs. 1,500. The present suit was instituted by the mortgagor's grandson on 6-11-1943, in which he asked for accounts and claimed the redemption of the first mortgage. Defendant 5 resisted this claim on several grounds. He denied that the plaintiff was the grandson of the original mortgagor. He pleaded that the suit was incompetent since the plaintiff had not offered to redeem both the mortgages executed by the mortgagor in favour of the same mortgagee. He alleged that he had made certain improvements and he claimed in the alternative that the mortgagor was bound to reimburse him for these improvements and for the repairs made by him to the mortgaged property. A similar claim was made by him in respect of the house tax and other dues paid by him for the property under mortgage. The learned trial Judge held that the plaintiff was entitled to sue and that the suit to redeem only one mortgage was competent. The claim of defendant 5 for the improvements and for repairs, as well as for the dues paid by him in respect of the mortgaged property was upheld and the amount due under the mortgage was determined on taking accounts. Ultimately a decree was passed permitting the plaintiff to redeem the mortgage on payment of Rs. 13,533-3-1 with costs and future interest at 3 per cent, to defendant 5. This decree was passed on 31-10-1945. The suit had been filed by the plaintiff 'in forma pauperis', and when he went in appeal against this decree on 12-12-1945, be was allowed to file the appeal as a pauper. The appeal was decided on 23-12-19*8. Meanwhile on 31-5-1947, the Bombay Money-lenders Act had come into force. The appellant relied upon the provisions of Section 23 of this Act, with the result that the whole complexion of the dispute between the parties was materially changed. The main point which the appellate Court was called upon to consider was, whether the plaintiff was entitled to invoke the protection of Section 23 against defendant 5. The lower appellate Court held that he was, and in consequence the decretal amount was reduced to Rs. 4,102. Against this decree defendant 5 has preferred the present appeal, and on his behalf Mr. Parulekar has contended that the lower appellate Court was wrong in applying the provisions of Section 23 retrospectively to the dispute between the parties in the present case.

(3.) There is another minor point which Mr. Parulekar has raised, and which may be disposed of at this stage. Mr. Parulekar contends that the lower appellate Court has found that the mortgagee was entitled to be reimbursed in respect of the house tax which he has paid; but through oversight effect has not been given to this finding while the decretal amount was determined. Mr. Dharap for the respondent agrees that the failure of the learned Judge to give effect to his own finding must be recalled, and by consent an amount of Rs. 894 would, therefore, have to be added to the decretal amount.