SATYA NARAYAN BANERJEE Vs. RADHA NATH DAS

JUDGEMENT

(1.) On 12 July 1933 Ram Narayan Bannerjee, plaintiff 2, borrowed Rs. 6000 from Harihar Dass on the security of a mortgage which comprised immovable properties, some situate within the ordinary original jurisdiction of this Court and others situate in the district of 24- Parganas. The mortgagee instituted with the leave of this Court a suit No. 1507 of 1937, in the original side of this Court. The preliminary decree was passed on 21 February 1938 and the final decree sometime thereafter. On 23 February 1934, Satya Narayan Bannerjee, plaintiff 1, borrowed a sum of Rs. 6000 also from Harihar Dass on a mortgage which also comprised properties some of which were within the ordinary original jurisdiction of this Court and the remaining properties were within the jurisdiction of the Alipore Court. The mortgagee instituted Suit No. 1508 of 1937 in the original side of this Court. The preliminary decree was passed on 21 February 1938 and the final decree some time thereafter. On 3l July, 1935 both the plaintiffs borrowed Rs. 23,000 from Harihar Dass and three other persons. The mortgage executed to secure this loan also comprised, as in other two cases properties situate in Calcutta and in the district of 24-Parganas. The mortgagees instituted in the original side of this Court their suit, No. 1455 of 1937, to enforce this mortgage, recovered the preliminary decree on 17 December 1937 and the final decree on 24 August 1938. All three loans carried interest at the rate of 12 per cent. per annum with quarterly rests. The three decrees passed by this Court allowed interest at that rate till the time fixed for redemption and thereafter simple interest at 6 per cent.

(2.) Execution proceedings were duly started in the original side of this Court, and as some of the properties were common to all three mortgages, those common properties have been advertised for sale in execution of all the three decrees. The said execution proceedings are still pending. The Bengal Money-lenders Act (10 of 1940) came into force on 1 September 1940. On 2 September, 1940 the plaintiffs filed this suit in the Court of the Subordinate Judge at Alipore. They impleaded as defendants the heirs of Harihar Dass who had died on 5th August 1938, as also the other mortgagee decree-holders in Suit No. 1455 of 1937. The last mentioned persons have no interest in the first two mortgages or in the decrees passed on them. In the plaint it is stated that the defendants are only entitled to charge simple interest at rates not more than 8 per cent. per annum, and that a certain sum of money was retained by the mortgagees as capitalist's commission at the time of the advance of Rs. 28,000. The plaintiffs have brought the suit under Section 36, Bengal Money-lenders Act, and pray that the three decrees passed by this Court may be reopened and new decrees passed by the Subordinate Judge giving them instalments. The defendants raised two preliminary issues, namely, (i) that that Court had no jurisdiction to entertain the suit and (ii) the suit as framed was bad for misjoinder of parties and causes of action.

(3.) The learned Subordinate Judge upheld both these contentions and has dismissed the suit with costs. The plaintiffs have preferred this appeal. Mr. Sen appearing for them in the end conceded that the suit is bad for misjoinder of parties and causes of action, but he contended that if the Subordinate Judge of Alipore had jurisdiction, that defect cannot be fatal to the suit. In that event, his clients would have to be given the opportunity to elect and say which are of the three causes of action they would proceed with and it is only in the event of their refusing to elect that the suit can be dismissed. This, in our judgment, is a sound position. The only question of importance, therefore, is whether the learned Subordinate Judge at Alipore had jurisdiction to entertain the suit. Before dealing with this point we will consider a point of law raised by Mr. Das appearing for the respondents, a point which does not seem to have been urged in the Court below or in any of the reported decisions of this Court. As the point is of general importance and depends solely upon the construction of Section 36, Bengal Money- lenders Act, we have allowed him to urge the same. The point is that after a decree has been passed for the recovery of the loan at the suit of the creditor, a suit would not lie at the instance of the borrower but his only remedy is to proceed under Sub-section (6) of Section 36. An analysis of Section 36 discloses that a borrower can claim relief in the following manner : (1) if the suit for recovery of the loan is pending at the time, then in the suit itself (Sub-section 1); (2) in an appeal from the decree passed in that suit (Sub-section 6 Clause (b)), (3) if that suit had already been finally decreed and the decree not fully satisfied, then (a) by means of an application moved before the Court which had passed the decree at the stage of execution (Sub-section 6, Clause (a), Sub-clause (i)); (b) by an application for review (Sub-section 6, Clause (a), Sub-clause (ii)); (4) by a suit (Sub-section 1).