GOVIND DHONDO TAMBOLI Vs. MANNABAI GOVIND DALWALE

JUDGEMENT

(1.) THIS revision application raises a question as to the maintainability of an application made under Section 80 of the Bombay Money -lenders' Act, 1946. The opponents filed this application before the learned Senior Civil Judge, Ahmed -nagar, in respect of three sets of transactions. One was of four mortgages, the principal amount of which was about Rs. 19,600, executed by the opponents between 1923 and 1945. The second set of transactions was in respect of three promissory notes, the principal amount of which was Rs. 950, executed by the opponents between 1940 and 1948, and an amount due at the foot of a khata, the amount being Rs. 141, which money was borrowed by the opponents in 1948 -49.

(2.) MR . Tarkunde's contention is two -fold. One is that an application under Section 80 can only be made provided a suit is pending, and the second that an application for taking accounts and declaring the amount due to the money -lender can only be made under Section 80 in respect of loans which were made after the date on which the Act comes into force. Now, barring one promissory note for 1948 and the khata account, all the transactions in respect of which the opponents seek a declaration under Section 80 are transactions prior to the coming into force of the Money -lenders Act. Turning to Section 80 it provides that Any debtor may make an application at any time to the Court, whether the loan to which the suit relates has or has not become payable, for taking account and for declaring the amount due to the money -lender. Such application shall be in the prescribed form and accompanied by the prescribed fee. Therefore the application contemplated by Section 30 is clearly in a suit, because the parenthetical sentence refers to a suit and it makes it clear that the loan to which the suit relates may or may not have become payable. Turning to the prior section, Section 29, it provides that notwithstanding anything contained in any law for the time being in force, the Court shall, in any suit to which this Act applies, whether heard exparte or otherwise, do any of the things mentioned in Clauses (a), (b), (c) and (d), i.e. reopening transactions, taking accounts between parties, reducing the amount in respect of excessive interest and so on. Now, a suit to which the Act applies is denned inSub -section (17) of Section 2, and the definition is; ''Suit to which this Act applies, means any suit or proceeding', and the relevant sub -clause for the purposes of this case is sub -cl. (a) 'for the recovery of a loan made after the date on which this Act comes into force.' Therefore, it is clear that as far as Section 29 is concerned, the reopening of transactions can only be done in a suit which is for the recovery of a loan made after the date on which the Act comes into force. The Court would have no jurisdiction to do this if the suit is to recover a loan which was made before the Act came into force. As s. 30 follows Section 29 the expression 'the suit' used in Section 30 is clearly the suit referred to in Section 29 and that is the suit to which the Act applies. Therefore, in my opinion it is clear that under Section 29 there must be a suit pending to which the Act applies. In other words, it must be a suit in respect of a loan which was made after the coming into force of the Act and it is in such a suit that an application for a declaration can be made under Section 30. The reason for enacting Section 30 is clear. A money -lender may file a suit for recovery of a loan and the Court may find that the loan is not payable and the suit is premature, in which case the Court would be bound to dismiss the suit. Section 30 gives a protection to the debtor that notwithstanding the fact that the suit is premature and notwithstanding the fact that the loan has not become payable, on an application made by the debtor the Court may give a declaration as to what is the amount due in respect of the claim. Mr. Tulzapurkar has drawn my attention to the fact that Section 2(17) refers not only to a suit but also to a proceeding, and therefore Mr. Tulzapurkar says that this application should be looked upon as a proceeding, in which case no difficulty would arise with regard to the parenthetical sentence 'the loan to which the suit relates has or has not become payable.' But Mr. Tulzapurkar's' difficulty still remains. Even though the suit to which the Act applies may include proceeding, even so the proceeding must be for recovery of a loan made after the date on which the Act comes into force, and clearly this particular application refers to transactions which are antecedent to the coming into force of the Act. Mr. Tulzapurkar is right that it may be that there may be a proceeding for the recovery of a loan and not a suit and even in such a proceeding an application under Section 30 may be made. But the condition precedent to the right of the debtor to make an application under Section 30 is the pending of a suit or a proceeding of the nature contemplated by Section 2(17). Then Mr. Tulzapurkar has drawn my attention to Sub -section (3) of Section 80 which provides that in taking accounts under Section 30 the Court shall follow the provisions of Sections 18 to 29 and Section 31A, and Mr. Tulzapurkar says that some of these sections clearly indicate that the Act was to be retrospective, and he has drawn my attention to two sections. First is Section 19. That section gives the right to the debtor to demand from a money -lender a statement containing various particulars with regard to the loan advanced by the money -lender and this right of the debtor is not confined to a loan made after the coming into force of the Act, but it also applies to loans made before the Act was passed, and Section 19 in terms says so. But I fail to understand how Section 19 has any relevancy to the taking of accounts under Section 20. Then Section 23 provides : 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.

(3.) This Section applies to all suits and also to all loans, whether advanced by moneylenders or not, and it prohibits the Court from passing a decree in respect of interest for an amount exceeding the amount of principal. But here again I find it difficult to understand the bearing of this section on the accounts to be taken under Section 30. If in taking accounts under Section 30 of a loan advanced subsequently to the passing of the Act, the Court finds that the amount of interest exceeds the amount of principal, then undoubtedly the Court will not give a declaration with regard to an interest which exceeds the amount of the principal. But it does not mean that by reason of Section 28 the Court is given jurisdiction under Section 30 to take accounts of loans which have been made prior to the passing of the Act.