VAISHNU DASS Vs. THAKAR DASS

JUDGEMENT

(1.) The only point for decision in this case is one of rate of interest and the applicability of the Usurious Loans Act, 1918, as amended later, to the facts of the present case.

(2.) On 9-11-1915 Gian Singh mortgaged the property in dispute with possession in favour of Kanshi Ram for Rs. 600. On 19-12-1916 Gian Singh sold 2 kanals 12 marlas of land out of the land mortgaged to Mela Ram for Rs. 900. Mela Ram on 29-8-1945 filed the present suit against Thakar Das son of Kanshi Ram for redemption. One of the issues raised was as to the rate of interest which the defendant was competent to charge, and it was held that as the mortgage was previous to the Usurious Loans Act of 1918, the rate of interest chargeable was the stipulated rate of Rs. 1/8/- per cent. per mensem, and this decree was upheld by the first appellate Court. This was on 6-12-1947. The question of the rate of interest does not seem to have been argued in the Court of the District Judge although the question had been raised in the grounds of appeal. In the second appeal by the plaintiff the only question which has been canvassed for our opinion is one of interest to be awarded in view of the amended provisions of the Usurious Loans Act.

(3.) The first contention raised by the defendant-respondent is that the question of the applicability of the Usurious Loans Act was not raised in the first appellate Court and cannot be raised now. The answer to that is a very simple one, and that is that under Section 3 (1) of the Act as amended in the Punjab for the word 'may' the word 'shall' has been substituted and therefore it is incumbent upon the Court to exercise the powers given under the' Act.