SM MEHERUNNISA BIBI Vs. SATISH CHANDRA DUTTA

JUDGEMENT

(1.) This appeal is by the mortgagee and it arises in connexion with an application made by the respondent under the provisions of Section 38, Bengal Money-lenders Act. Exhibit 1 is a copy of the usufructuary mortgage bond executed by the respondent in favour of the appellant. Under its terms the appellant was to remain in possession of the mortgaged property in lieu of interest. The principal sum advanced was RS. 440. The respondent paid this sum into Court under the provisions of section 83, T. P. Act. The appellant refused to take it on the ground that the deposit was insufficient. It cannot be ascertained with precision from the materials on the record on what, basis this objection was sought to be sustained. It seems, however, that the appellant was relying upon Ex. 3 a later mortgage, which according to the respondent was never acted upon. At any rate, it is the validity of this document which is the chief point of dispute between the parties. A few months after the deposit Under Section 83, T. P. Act, became infructuous, the Bengal Money-lenders Act came into force. The respondent then filed the present application with, for him, the delightful result that he has obtained a declaration that, instead of being indebted to the appellant, he is entitled to recover Rs. 83 from her. An appeal by the appellant to the District Judge was dismissed

(2.) Mr. Ghose has objected to the form of the Order and contends that the Court has no jurisdiction Under this section to find that anything is due from the mortgagee to the mortgagor. Mr. Das conceded that this contention is correct, and admitted that the most he could ask for is a declaration that nothing is due on the mortgage.

(3.) On the merits, Mr. Ghose contended that section 38 has no application in view of the terms of the bond. The mortgagee was put into possession in lieu of interest. Under Section 77, T. P. Act, he was absolved from accounting. As a result, no question of accounting can arise. The question depends upon the provisions of Section 30, Bengal Money-lenders Act. Under Sub-section 1 (c) interest is not to exceed 8 per cent, per annum. This applies even when the loan was advanced and interest was paid before the commencement of the Act. The result is that the respondent is entitled to the benefit of this provision in spite of the terms of the original bond. The Munsif was, therefore, right to take an account and limit the rate of interest to that allowed by the section.