BHUPENDRA NATH DUTT Vs. DEBENDRA NATH ASH

JUDGEMENT

(1.) The only point for determination in this application is whether the protection given to assignees by Sub-section (5) of Section 36, Bengal Money-lenders Act, extends to an assignee who took his assignment before the Act. On 26 August 1935, Debendra Nath Ash borrowed the sum of Rs. 15,501 from Srimati Kumudmoni Dassi and deposited the title deeds of certain property belonging to him with her as security for the loan. The loan carried interest at 10 per cent. Kumudmoni assigned her rights under this mortgage to Bhupendra Nath Dutt for consideration on 11 April 1938. Bhupendra Nath Dutt instituted a suit against Debendra and obtained a preliminary mortgage decree on 21 March 1940. He now applies for a final decree. Debendra Nath Ash has applied under Section 36, Bengal Moneylenders Act, for relief on the ground that the interest payable on the mortgage is above the maximum allowed by Section 30 of the aforesaid Act. Both applications have been heard together. The plaintiff contends that no relief can be granted to the mortgagor as the plaintiff is protected by the provisions of Section 36(5), Bengal Money-lenders Act. The section runs as follows: Nothing in this section shall affect the rights of any assignee or holder for value if the Court is satisfied that the assignment to him was bona fide, and that he had not received the notice referred to in Clause (a) of Sub-section (1) of Section 28.

(2.) Now the relief claimed by the mortgagor can be granted only by the aid of the terms of Section 36 and if this section does not affect the rights of the plaintiff then the mortgagor can get no relief. It has been established and indeed it is not challenged before me that the plaintiff is a bona fide assignee for value. As the assignment was made long before the Act, no notice as prescribed by Section 28, Sub-section 1(a) was given or could have been given to him. In these circumstances, can it be said that he is an assignee of the kind described in Sub- section (5)? I can see no reason why he should not be considered to be such an assignee. As assignee is protected by this sub-section if he can establish that he has two qualifications : (1) That he is a bona fide assignee for value, and (2) that he has not received the notice referred to in Clause (a) of Sub-section (1) of Section 28. Both these qualifications are present in the plaintiff and he is therefore entitled to claim the benefit of Section 36(5).

(3.) It was pointed out on behalf of the mortgagor that the scheme of the Act is to place assignees in the same position as original creditors so far as the operation of the Act is concerned. The intention behind Section 36(5), it is said, is to give protection only to assignees whose assignments originated after the Act; it was contended that the provision regarding notice, made it plain that Sub-section (5) of Section 36 contemplated only post-Act assignees inasmuch as an ante-Act assignee could not possibly have received such notice. I was referred to Secs.28 and 29 and was told that if these sections were read together with Section 36(5) this intention would become perfectly plain. Now, Section 28 deals with assignments after the Act of loans advanced both before or after the Act; it provides that the assignor shall give notice to the assignee that the debt is affected by the operation of the Act when the debt is so affected. This is followed by a threat that any contravention of the section would entail punishment by imprisonment. I must express my sympathy with the assignor. He has no easy task to perform. I have often found it difficult to decide what debts would be affected by the Act and from the reports it seems that the same difficulty has been experienced by some of my learned brothers. It is hardly fair to impose upon a lender in addition to his other burdens the duty of deciding which debts would be affected by the Act. Any how, this section does not help at all in deciding the question involved. I now turn to Section 29. It consists of two parts. Sub-section (1) deals with loans advanced after the Act and Sub-section (2) with loans advanced before the Act. In both cases the assignee is made subject to the same conditions as are imposed by the Act on the original creditor.