FATEH CHAND MAHESRI Vs. AKIMUDDIN CHAUDHURI

JUDGEMENT

(1.) The respondent, Akimuddin Choudhury borrowed from the appellant Fateh Chand Rs. 7000 and as security for repayment of that loan executed a mortgage (EX. 1) in favour of the latter on 31 May 1921. The recital in the mortgage instrument is that he required the money for purchasing landed property (jotes). In fact he employed Rs. 6200 in purchasing landed property, namely shares iv Jote No. 491. Fateh Chand had a share in that jote (No. 491). So he and Akimuddin became cosharers in the same. The former instituted a suit for partition of the said jote. That suit ended in a compromise. By that compromise Akimuddin agreed to purchase Fateh Chand's share for Rs. 2000 and to pay him a further sum of Rs. 330 on account of mesne profits and costs of the suit. The conveyance was executed but Akimuddin could not pay in cash. Ostensibly for securing the said amount of Rs. 2330 he executed a mortgage (Ex. 2) in favour of the latter on 30 November 1925. The mortgage instrument provided for payment of interest at 15 per cent, per annum with yearly rests. Fateh Chand instituted a suit on both those mortgages. At the appellate stage a consent decree was passed in his favour for Rs. 27,350 on 9 January 1935. That decree was eventually put into execution and Fateh Chand purchased the mortgage properties. That sale was confirmed on 24 July 1939. On 7 December 1940 Akimuddin made an application for reopening the compromise decree under Section 36, Bengal Money-Lenders Act, 1940. As proceedings in relation to the mortgage suit were pending on 1 January 1939, it is admitted that that Act applies. Fateh Chand resisted the said application on two grounds. He stated that the loan of Rs. 7000 advanced on the security of the first mortgage was a commercial loan and the sum secured by the second mortgage was not a loan within the meaning of the said Act. The learned Subordinate Judge has overruled both these objections. He has re-opened the decree and has found that only Rs. 8453-14-0 was recoverable. He allowed payment by instalments.

(2.) Fateh Chand has preferred this appeal against the said decision. His advocate, Dr. Basak, reiterates the two objections which his client had preferred in the lower Court. He does not take objection to the correctness of the amount, save in one respect, but objects to the number of instalments granted, in case it be held that the judgment-debtor is entitled to relief under the Bengal Money-Lenders Act. The first question therefore is whether the loan of Rs. 7000 was a commercial loan. In support of that contention Dr. Basak places reliance upon the statement of Akimuddin made in his written statement in the mortgage suit and on the previous depositions of Akimuddin's son. His case is that the loan was taken to start a tea garden. I do not think that on the materials on the record I can hold that the loan was a commercial loan. In order to determine whether a loan is a commercial loan the material question would be what was the intention at the time when the loan was taken. If there is no indication in the instrument on which the loan was advanced it would be legitimate to make inferences from the user to which the money was put to immediately or shortly after the loan was advanced and from other facts and circumstances of the ease. This has been laid down in Guru Pada Bhowmik V/s. Upenddra Nath Dhur ( 42) 46 C.W.N. 774. I agree with that decision.

(3.) In the case before us the mortgage instrument does not give any indication that the lands which the borrower intended to buy with the money advanced was to be used for any commercial venture, e.g., for being turned into a tea garden. The lands which were purchased were capable of being used for other purposes, e.g., for growing paddy and jute or for grazing cattle and in fact they were used for those purposes. In the written statement filed in the mortgage suit Akimuddin stated that the sum of Rs. 7000 was not a loan advanced to him. His case there was that he and Fateh Chand had agreed to be partners in a tea garden to be started by them. For that purpose Akimuddin was to purchase in his name lands which would be suitable for tea plantation and after the tea garden was made, he and Fateh Chand would share the costs incurred for making the garden half and half and the said sum of Rs. 7000 was to be adjusted against the share of the money payable by Fateh Chand. If that defence had been given effect to there would have been an end to Fateh Chand's mortgage suit, so far as rupees 7000 was concerned. Akimuddin did not, however, appear at the trial to support his written statement and an ex parte mortgage : decree was passed against him. I do not think that the statement made in that written statement that lands were purchased with the said money with a view to start a tea garden can be used by Fateh Chand as an admission by Akimuddin. Apart from the fact that the statement was a purposive statement, statements in a written statement cannot be dissected for the purpose of finding out an admission.