MANINDRA NATH BOSE Vs. NARENDRA KRISHNA MITRA

JUDGEMENT

(1.) This appeal arises out of a suit under S. 36 of the Bengal Money-Lenders Act. The suit has been dismissed by the trial court. Hence this appeal by the plaintiff.

(2.) The plaintiff's case was that on October 7, 1942, he took a loan of Rs.7,000 from the defendant no. 1, Manindra Lal Gupta, on the security of his Behala Property described in the plaint schedule. It was agreed between the parties that the loan would be repaid in the course of a period of about two years and the stipulated interest for the said period was Rs.1,150. It was further agreed between the parties that in view of the Bengal Money-Lenders Act the transaction would be made in the form of a kobala or a deed of sale accompanied by a simultaneous but separate agreement for resale or reconveyance. Accordingly, the plaintiff duly executed and registered a kobala in favour of defendant no. 1 in respect of his said Behala property for an ostensible consideration of Rs.8,000, although he really got from the said defendant only Rs.7,000 and that too by way of a loan on terms, stated above, and the defendant no. 1 simultaneously executed in his turn an unregistered agreement for reconveyance of the said property in favour of the plaintiff upon the latter's paying to him the ostensible sum of Rs.9,150 within the said stipulated period of about two years or within the month or Aswin, 1351 B.S., to be precise. The agreement recited payment and receipt of a sum of Rs.1,000 as earnest money, which, according to the plaintiff, was deducted from the ostensible consideration of Rs.8,000 of the kobala, the plaintiff actually receiving only Rs.7,000 on this latter document and that too by way of a loan as aforesaid. Within the stipulated period the plaintiff offered to pay the stipulated amount of Rs.8,150 but the defendant no. 1 avoided contact and made it impossible for the plaintiff to make the payment and re-deem the mortgage property. Accordingly, the plaintiff brought the present suit for necessary reliefs under S. 36 of the Bengal Money-Lenders Act.

(3.) The suit was instituted on December 20, 1944, and during the pendency in the trial court the plaint was amended on February 26, 1946, by adding as defendant no. 2 as person named Narendra Krishna Mitra to whom, according to the plaintiff, the suit property has been transferred by defendant no.1.