RADHIKA RANJAN ROY Vs. SATYENDRA KUMAR SARKAR

JUDGEMENT

(1.) THUS appeal is directed against the decision of the learned Additional Subordinate Judge, Balurghat dated 29/11/1968 in Misc. Appeal No. 8 of 1968 affirming that of the learned Massif, raigunge dated 18/3/1968 in Misc. case Mo. 43 of 1966.

(2.) THE aforesaid Misc. case arose out of an application filed by the petitioner/respondent under Sections 37a and 38 of the Bengal Money Lenders Act for a declaration of the amount of money payable by the petitioner to the opposite party. The petitioner's case was as follows : O. P. No. 1 Radhika Ranjan Roy carried on money lending business through O. P. No. 2 Alimuddin. As he had no money lending licence, he used to take sale deeds from borrowers for double the amount of loan advanced upon stipulation that on repayment of such loan the land would be re-conveyed to the borrower. The petitioner borrowed Rs. 300/- from O. P. No. 1 through O. P. No. 2 and executed an ostensible sale deed for Rs. 600/-It was agreed that the opposite party would re-convey the property when the loan with interest would be repaid. The transaction was really a mortgage by conditional sale and the petitioner was in possession of the land. The petitioner paid in all Rs. 275'/- towards the principal and requested the OPs to take the outstanding amount of loan with interest and to re convey the mortgaged land. O. P. No. 1 contested the case by filing a written objection in which the material allegations were denied. His case was that he collected some money to purchase land and when the petitioner was in need of money and wanted to sell the disputed land, he purchased the same for Rs. 6oo/- which was the highest market price under a registered kobala dated 5th August, 1969 B. S. The transaction was and out and out sale and not a mortgage by conditional sale as alleged. After purchase OP No. 1 had been in possession of the disputed land all along. The agreement for reconveyance was denied.

(3.) THE learned Massif held that OP No. 1 was a money lender and that the transaction was a mortgage by conditional sale. He also accepted the plea of payment of the petitioner and directed the petitioner to pay Rs. 25/- only towards principal and Rs. 25/- as interest to OP No. 1. The appeal preferred by the OP No. 1 was dismissed affirming' the finding and the order of the learned Massif. Being aggrieved OP No. 1 has preferred the present 2nd appeal.