JATINDRA NATH Vs. SREERUPAMANJURI ROY CHAUDHURANI

JUDGEMENT

(1.) These two appeals are by the plaintiffs and the defendant in a suit to enforce two mortgages which were admittedly taken by the plaintiffs on two loans, one of the sum of Rs. 75,000/- in May 1932 and another of the sum of Rs. 60,000/- taken in four different instalments. The mortgage bonds for the identical lands were executed--one on the 3rd of May, 1932, and the other on the 2nd of August, 1933. The main defence raised was that the mortgagor was entitled to the protection of the Bengal Money-Lenders Act.

(2.) The question on the answer to which depends the decision whether or not the defendant is entitled to the protection of the Bengal Money-Lenders Act is whether the two loans or either of them was a commercial loan within the meaning of the Money-Lenders Act. The learned Subordinate Judge came to the conclusion that the creditor had failed to discharge the burden that lay on him of proving that the loan was advanced solely for the purpose of business, and accordingly held that the interest was payable only at 8 per cent, per annum instead of the contract rate and further that the defendant was entitled to easy instalments. Accordingly he passed the decree for the sum of Rs. 70,225/10/6 on the first bond and Rs. 60,076/13/5 on the second bond as principal and interest thereupon at 8 per cent, per annum till the date of the institution of the suit and further interest for the suit period at 8 per cent, per annum on whole amount. He decreed the suit in preliminary form for Rs. 17,55,64-5-11 pies with corresponding costs and dismissed the balance of the claim with costs and directed that the balance of the dues be paid by the defendant in five equal yearly instalments, the first instalment being payable on the 10th of May, 1947, and ordered that unpaid instalments will bear interest till realisation at 6 per cent, per annum.

(3.) The appeal by the plaintiffs is directed mainly against the decision that the plaintiffs had failed to prove that the loans were commercial loans. The appeal by the defendant was directed against the order of five instalments--his case being that he is entitled to more instalments.