CHANDRA KANTO MAHATO Vs. BANKA BEHARI MAHATO

JUDGEMENT

(1.) This civil revision arises out of an order passed by the Munsif at Purulia dismissing an application under Section 38 of the Bengal Money Lenders Act, 1940 in Miscellaneous Case No, 53 of 1972.

(2.) The petitioner before this Court is the person who filed the application under Section 38 of the Bengal Money Lenders Act. His allegation was that he took certain amounts of money from Sanatan Mahato for meeting his family expenses. He executed a sale deed in favour of the opposite party Sanatan Mahato in respect of certain lands and that amount was taken as loan. The opposite party got possession of the lands and executed an agreement for reconveyance of the lands. The petitioner's case is that in fact the transaction was a loan transaction coming under the purview of Section 38 of the Bengal Money Lenders Act. According to the petitioner he requested the opposite party Sanatan Mahato for statement of accounts and also for execution of a registered deed in respect of the disputed lands. As the opposite party did not comply with the requisition, the miscellaneous case was started. The opposite party's case was that it was not a case of advance or loan transaction, but it was purely a case of purchase. It was further stated that as the petitioner did not repurchase the property within time as per agreement executed by Sanatan, the petitioner can claim no right in respect of the disputed lands. During the pendency of the suit Sanatan died and his heirs who are now the opposite parties before this Court were substituted under Order 22, Rule 4 of the Code of Civil Procedure. The learned Munsif dismissed the application under Section 38 of the Bengal Money Lenders Act on the ground that the said application is not maintainable against the successors-in-interest of the lender because "lender" has not been defined in Section 2 (9) of the Bengal Money Lenders Act as including successor-in-inte-rest, whereas in Section 2 (2) "borrower" means a person to whom a loan is advanced and includes a successor-in-interest or surety. According to the learned Munsif when the lender dies during the pendency of the application and when his successors-in-interest cannot be held as lenders, the petitioner-borrower cannot get any relief and therefore, the application under Section 38 of the Bengal Money Lenders Act is liable to be rejected.

(3.) I have heard the learned Advocates of both the parties. Mr. Panda, the learned Advocate for the petitioner submits that the purpose of the Bengal Money Lenders Act is to give relief to the borrower in particular under certain circumstances and the provisions of the Act keep the lender under check. Mr. Panda's contention is that in view of the purpose of this Act and particularly when the application had already been filed during the lifetime of the lender, the borrower-petitioner will be entitled to get relief even against the successors-in-interest who are already substituted in his place after his death during the pendency of the application. It has been contended from the side of the opposite parties, however, that when according to the definition of the Act in question the lender does not include successors-in-interest and when 'borrower' has been defined to be a person to whom a loan is advanced and also includes a successor-in-interest, it must be held that on the death of the lender, the borrower can get no relief under Section 38 of the Bengal Money Lenders Act. The learned Advocates of both the parties have submitted before me that on this point they could not find any decision. We are, however, not concerned in this particular case with the broad question whether, if a lender dies immediately after the advance given to the borrower, the latter shall be entitled to get any relief under Section 38 of the Act. That question will be decided when a proper case will crop up for consideration and decision.