BITHIKA DUTTA Vs. BELA RANI BHATTACHARYYA

JUDGEMENT

(1.) This is an appeal from an appellate decree at the instance of the defendant in a suit under Sections 36, 37A and 38 of the Bengal Money Lenders Act, 1940 (hereinafter referred to as the said Act). The appeal is directed against the decree dated August 4, 1972, passed by the learned Additional District Judge, 3rd Court. Howrah in Title Appeal No. 36 of 1972.

(2.) The plaintiff/respondent instituted Title Suit No. 153 of 1970 renumbered as Title Suit No. 74 of 1971 in the 3rd Court, of the learned Munsiff, Howrah seeking relief under Sections 36, 37A and 38 of the said Act upon a declaration that a sale executed by her in favour of the defendant on July 29, 1968, in respect of premises No. 17/2, Khetra Mitra Lane. Howrah followed by an agreement for repurchase really constitutes a mortgage in respect of which the plaintiff is entitled to the reliefs under the said Act as prayed for. The plaintiff's case shortly was that she was the owner of the said premises by purchase. She was in need of money to help her Dharmaputra Netai Charan Patra to carry on his business in fish. She approached the defendant for a loan of Rs. 7,000/- through the defendant's husband who agreed to advance the loan provided the plaintiff executed a sale deed in respect of the suit property by way of security. In view of her extreme need the plaintiff had to agree and on June 29, 1968, three documents were executed between the parties. The first one was a conveyance in favour of the defendant. The second one was an agreement by the defendant for reconveyance and the third one was a lease of the suit property by the defendant in favour of Netai on a monthly rental of Rs. 175/- which really represents the interest on the money advanced by way of loan. According to the plaintiff, the whole transaction constitutes mortgage and she having paid a total sum of Rupees 1,400/- towards interest approached the defendant to allow her to repay the loan in easy instalments as she was not in a position to pay the entire sum at a time. The defendant having refused, the plaintiff filed the above suit for the aforesaid reliefs.

(3.) The suit was contested by the defendant. The defendant admitted that the plaintiff was in need of money for the business of her Dharmaputra. But he denied that the agreement between the parties was really one for advancing a loan on a security furnished in the manner alleged by the plaintiff. The defendant claimed that it was an out and out sale. The defendant no doubt executed an agreement to reconvey the property to the plaintiff on certain terms which the plaintiff never fulfilled.