SURESH CHANDRA MUKHERJEE Vs. LAL MOHUN CHATTERJEE

JUDGEMENT

(1.) In this case the petitioner, Lal Mohun Chatterjee, has applied for certain relief under the provisions of Bengal Moneylenders Act, 1940. It appears from his petition that a preliminary decree was passed against him and certain other persons on 19 February 1937. An account was then taken by the learned Registrar who found that the sum of Rs. 26,076-11-9 was due to the mortgagee. The decree was made final for that amount on 14 November 1938 and the mortgaged properties were sold respectively on 30 August 1939 and 6 December 1939. The price realized for the first property was Rs. 6400 and, as regards the second property, the price realized was Rs. 17,000 or in all Rs. 23,400. The sale was confirmed on 16 August 1940. This application originally came before me in Chambers on 6 March 1941, on which occasion Mr. Das on behalf of the opposite party contended that it was not maintainable on the grounds (1) that no application for execution of the decree was pending and (2) that the application could not be treated as an application for review. At that time I was inclined to accept his contentions, but, as the matter raised some important points of law, I thought it desir- able that it should be further considered. The decision with regard to this application involves the construction of certain sections of the Bengal Money-lenders Act and the considerations which arise with reference thereto have now been placed fully before me by learned Counsel on both sides and by Mr. B.C. Ghose as amicus curice.

(2.) The first point which arises for consideration is whether or not this application relates to a "suit to which this Act applies" within the meaning of Section 2(22) of the Act. The relevant portion of this Sub-section is in the following terms: Suit to which this Act applies means any suit or proceeding instituted or filed on or after the 1 day of January 1939, or pending on that date and includes a proceeding in execution: (a) for the recovery of a loan advanced before or after the commencement of this Act.

(3.) Admittedly, the suit with regard to which this application is made was filed before 1st January 1939 and no application for execution is pending with reference thereto. Learned Counsel for the petitioner contends however that an application for relief under the provisions of the Bengal Money-lenders Act is-nevertheless maintainable because the final decree passed in the mortgage suit has not yet been satisfied and, from that point of view, the suit must be regarded as pending on 1 January 1939. With this contention I must agree and in fact it is not seriously disputed by Mr. Das on behalf of the opposite party that the application has been made with reference to a "suit to which this Act applies." It might, of course, be argued that a suit cannot be regarded as pending after a final decree has been passed therein and that, in view of the language which has been used in Section 2(22), the Act could not apply in the case of a suit which had been filed and in which a final decree had been obtained before 1st January 1939. At the same time it is clear from the provisions of Section 30, Bengal Moneylenders Act, that the petitioner in the present case is not liable to pay interest in respect of his loan in excess of the amount of 8 per cent. simple. The relevant portion of this section is in the following terms: Notwithstanding anything contained in any law for the time being in force, or in any agreement, (1) No borrower shall be liable to pay after the commencement of this Act. (c) interest at a rate per annum exceeding in the case of (2) Secured loans, eight per cent. simple, whether such loan was advanced or such amount was paid or such decree was passed or such interest accrued before or after the commencement of this Act;