SK ABDUL SATTAR Vs. SITARAM SAH

JUDGEMENT

(1.) On the 13th of May, 1981, a learned single Judge of this Court directed that this case be referred to a Division Bench for hearing. It has been stated in the order of reference that one of the questions involved in this appeal is as to whether the mortgages (Exts. 1 and 1/a) in question are usufructuary mortgages and this relates to the interpretation of the documents. Since the documents have to be read and interpreted, the learned single Judge was pleased to refer it to a Division Bench. So, this appeal before us.

(2.) The crux of the question involved in this appeal is as to whether the mortgages in question stand redeemed by virtue of the provisions of Section 12 of the Bihar Money Lenders Act, 1974 (Bihar Act 22 of 1975) (hereinafter referred to as 'the Act' for the sake of brevity and easy reference). If the intent and purpose of Section 12 of the Act has already been served, the appeal is bound to succeed; otherwise not. Before embarking upon this question, it is relevant to state at the outset that the Act was brought on the statute book to consolidate and amend the law relating to regulation of money-lending transactions and to grant relief to the debtors in the State of Bihar. Before I proceed any further, however, I think it worthwhile to observe that the legislation regarding regulation is a concept, which has dawned upon the wisdom of the legislature too late all the world over. All the Usurious Loans Acts were enacted either in England or in this country or, for that matter, in any other country in the world reminds me of a terse passage in the first scene of Volpone where Ben Johnson summaries the ways to wealth : I glory More in the cunning purchase of my wealth Than in the glad possession, since I gain No common way; I use no trade, no venture; I wound no earth with ploushares, I fat no beasts To feed the shambles; have no mills for iron, Oil, corn, or men, to grind them into powder; I blow no subtle glass, expose no ships To threat'nings of the furrow-faced sea; I turn no moneys in the public bank, No usure private. Each way of gain is reviewed in turn; 'trade', 'the earth', 'usure' - and each is placed and dismissed, first together, in the phrase 'no common way', and then successively, for trade is linked with 'venture' and the threatenings of the sea; the earth is 'wounded' as it produces grain for the humanity at large and supports the beasts; banks and, 'usure private' are equally condemned as the 'turning of moneys'. From such a mosaic of small details in themselves insignificant, the dating and context has to be determined. The 'contemporary relevance' is of great importance. The greater, then, is our obligation to be clear about the intellectual and emotional limits within which we have to handle these questions. Gone are the days when the treatment of usury, debt and interest were ambiguous. The argument is oblique justification of interest and usury is not the crux of the matter. The Greek and Latin background is summarised by Julius Paulus, writing at the beginning of the third century A.D. Usury, usurers and the law concerning loans are called 'fenabris' from the word 'featus', since money on loan gives birth to money : for the same reason the Greeks call this process TO KOS [a word that could carry the diverse senses of childbirth, offspring of animals or men and (metaphorically, in both Plats and Aristophanes) interest on a loan.] But, there must be an objective approach including the detached irony of the subject-matter with which we are dealing this case. We respond gravely to the nature of usury and to the contrasts of charity, compassion, and equity. Sometimes our deepest intuitions are flatly contradicted concerning a strange and complex situation. A superficial reading, a perfunctory performance remains at that level more often than not. This is the background in which I am scrutinising the provisions of Section 12 of the Act. The relevant portion of Section 12 of the Act is that -

(3.) Gordon Graig's comment is just and has a more universal application than our immediate concern. His work was the natural realistic link between the unimaginative and the imaginative. In the immediate tomorrow comes the next link in which the accessories shall be not correct in data but correct in spirit; when we shall not interpret the law.