UDAY CHAND MAHATAB Vs. KALYANI DEBI

JUDGEMENT

(1.) This is an appeal by the Plaintiff against a preliminary decree made in a suit for sale based upon a document that has been described as an instalment mortgage bond and the only question that arises for consideration in this appeal is whether the transaction evidenced by this instalment mortgage bond is a loan within the meaning of the Bengal Money-Lenders Act.

(2.) The facts of this case are not in dispute and they are as follows: Under the Plaintiff-Appellant, the Maharaja of Burdwan, Respondents other than Respondents Nos. 1 and 2 held a patni tenure which was put up to astam sales on more than one occasion and was purchased by Respondents Nos. 1 and 2, who are mere relations of the original Patnidars and who instituted a suit for setting aside the last patni sale. Ultimately all the parties interested in the patni came to terms and upon accounting it was found that a sum of Rs. 16,857 was due to the Plaintiff Maharaja as arrears of patni rent from Baisakh, 1340 B. S. to Chaitra, 1343 B.S. and Rs. 3,560 was due as interest. The Maharaja remitted the claim for interest at the instance of some of the original Patnidars and the Respondents amicably paid two sums of Rs. 4,500 and Rs. 2,358 and the balance of Rs. 9,999 remained due as arrears of patni rent. For this amount all the Respondents joined in executing what has been described as instalment mortgage bond in respect of the patni interest on May 19, 1937. By this document all the Respondents agreed to pay Rs. 1,142 within Jaistha, 1344 B.S. and a sum of Rs. 1,000 within the month of Chaitra, 1344 B.S. and a further sum of Rs. 1,000 within the month of Chaitra, 1345 B.S. and the balance of Rs. 6,857 in equal kists every year in the course of 14 years from 1346 to 1359 B.S., that is to say, within the month of Chaitra of each year according to the instalments mentioned in the schedule to the bond and there was a further stipulation which is very important for the purposes of the present appeal and which runs as follows:

(3.) On December 22, 1947, the Plaintiff Maharaja instituted a suit for sale upon this bond and in this suit the Respondents inter alia pleaded that the transaction evidenced by the instalment mortgage bond was a loan within the meaning of Section 2(12) of the Bengal Money-Lenders Act. The learned Subordinate Judge, who tried the suit, accepted this plea and held that the Bengal Money-Lenders Act applied to the facts of this case with the result that the Plaintiff-Appellant was not entitled to recover interest at a rate higher than the statutory rate of 8 per cent, per annum and he made a decree in favour of the Plaintiff at the reduced rate for a sum of Rs. 15,375-4-6p. plus Rs. l,309-4-6p. as costs, the total being Rs. 16,684-9-0p. to be paid by the Respondents to the Plaintiff-Appellant in 8 equal annual instalments payable in Agrahayan from 1356 B.S. and he further directed that in default of payment of any kist the entire sum under the decree shall fall due at once.