DURGA DAS Vs. KANHAIYALAL

JUDGEMENT

(1.) -

(2.) THIS first appeal by the defendant-mortgagor is directed against both a preliminary decree dated 23-7-1962 and a final decree dated 23. 11. 1962 passed in a suit for the realisation of mortgage-money by sale of the mortgaged property.

(3.) PROCEEDING to examine the language of sec. 27 of the Act in this back ground, we must note and emphasise: - (1) That the Act seeks to control the amount of interest not only on loans advanced after the date of the commencement of the Act but also on loans advanced before the commencement of the Act. (2) The provision of the Act further issues a mandate to the courts and that too by using a negative language and prohibits the courts from passing a decree on account of interest for a sum greater than the principal of the loan. (3) Under the provision the date of the decree assumes a good deal of significance as compared with the date of the loan or the date of the institution of the suit. Having regard to all these factors, we are persuaded to take the view that the provision should be applied retrospectively. In this view, we are supported by a Bench decisions of the Bombay High Court reported in Bensilol Ramgopal Bhattad vs. Harischandra Tatya Shambhure (3 ). In that case, the Bench of the Bombay High Court had an occasion to consider a similar controversy with reference to sec. 23 of the Bombay Money Lenders Act which was worded in a similar language. Gajendragadker J. as he was then, referred to the decision in Quiller vs. Mepleson (4) and an earlier decision of that court reported in Shantiniketan Co-operative Housing Society vs. Madhavlal 5) and reached a conclusion that the provision should be given retrospective effect. We may extract the following observations from that judgment: - "in our opinion, these words are so clear and emphatic that it would be difficult to accept the contention that Legislature intended the rule laid down in this section to be prospective. The rule has been deliberately put in a negative form with a view to make it clear that its application is intended to be enforced in all cases falling under this section. The plain effect of this section is that the rule of dam-duppat shall apply in respect of any loan whenever it may have been advanced. Legislature knew that the Act would come into force on a particular date and so it has deliberately stated that the provisions of this section should apply in respect of all loans, whether they were advanced before or after the date on which the Act comes into force. Looking at this section by itself, apart from the other provisions of the Act to which we will presently refer, the conclusion seems to be inescapable that the rule laid down in this Act is intended to be retrospective. " It may be pointed out that sec. 2 (15) of the Act defines the expression "suit to which this Act applies" as meaning any suit or proceeding: - (a) for the recovery of loan made after the date on which this Act comes into force; or (b) for the enforcement of any security taken, or any agreement made after the date on which this Act comes into force in respect of any loan made either before or after the said date; or (c) for the redemption of any security given after the date on which this Act comes into force in respect of any loan made either before or after the said date;" Similarly, the Bombay Act defines the expression in Sec. 2 (17 ). Before the Bombay High Court it was argued, "if S. 23 is construed as being retrospective, the said view would be repugnant to the obvious inference which arises from the definition of the expression "suit to which this Act applies. " "a Similar argument was also adopted in the present case. After a thorough examination on the respective contentions, the learned Judges reached a conclusion - "having given our careful consideration to the question we have come to the conclusion that there is really no repugnancy between S. 23 and S. 2 (17) of the Act". It was further observed that acceptance of a contrary argument would introduce a very material limitation which is not warranted by the words used in the section itself. It was further observed, "incidentally, it may be pointed out that sec. 23 provides that the rule enunciated by it has to come into force 'notwithstanding any law for the time being in force. ' Usually the expression used in such context is 'notwithstanding any "other" law for the time being in force'. Technically speaking it may be possible to urge that the expression 'notwithstanding any law for the time being in force' may cover even the definition contained in sec. 2 (17) of this Act and in that case the argument of repugnancy would not be valid. The reasoning adopted in the case Bansilal vs. Harishchandra (3) is available for rejecting the contention of the respondent based on the basis of sec. 2 (15) of the Act.