JNANENDRA NARAYAN Vs. NABA KUMAR SINGHA

JUDGEMENT

(1.) The appellants who are the plaintiffs in, a suit instituted under Section 36, Bengal Money Lenders Act, 1940, (hereafter called the Act) borrowed from the respondents predecessors a total sum of Rs. 25,700 on different dates from 5-4-1923, to 16-10-1930. All these loans were taken on hatchittas and carried compound interest at 12 per cent, per annum with yearly rests. They paid in all Rs. 8278 before April 1933. On 3-4-1933, accounts were adjusted on the basis of the hatchittas and after giving credit for those payments a sum of Rs. 45,901 was found due from them. For securing the said sum, the appellants executed on the next day a mortgage (Ex. A) in favour of the respondents. The said sum of Rs. 45,901 was taken as principal and it was to carry compound interest at the rate of 10 1/2 per cent, per annum with yearly rests. There, after the appellants paid Rs. 3200 towards the mortgage dues on different dates, the last payment being in March 1937. On 13-4-1937, there was another adjustment of accounts on the basis of the said mortgage and after giving credit for those payments a sum of Rs. 67,678 odd was found due. On 28-6-1937, the appellants sold to the respondents by a registered instrument (EX. B) two of the mortgaged properties in part satisfaction of their dues, namely 8 annas share of a revenue paying estate named Lot Krishnapur and 8 annas share of Bar Patni called Ahina. To be more precise the price was fixed at Rs. 55,200. The said sum was not paid in cash by the respondents-the purchasers-to the appellants-the vendors- but was set off against the money that was due by the latter to the former on the said mortgage. The result of this transaction was that a sum of about Rs. 12,500 still remained due from the appellants to the respondents on the basis of the said adjustment.

(2.) We may state two further facts. They are that on the same date on which the said sale was effected, the respondents granted to the appellants a patni of Lot Krishnapore and a sepatni of Ahina at rents which left them a good amount as munafa. Later on, the respondents got a decree for rent against the appellants in respect of that patni and sepatni which was later on satisfied by the appellants by payment. On 12-2-1942, the suit in which appeal arises was filed by the appellants under Section 36, Bengal Money Lenders Act, hereafter called the Act. They prayed [I] for reopening (a) the mortgage: (b) the sale, and (c) the patni and sepatni leases ; [II] for setting aside the rent decree, [III] for taking accounts in terms of the Act; [IV] for being relieved of all liabilities in excess of Section 30 of the Act; and [v] for further and consequential reliefs.

(3.) The respondents did not resist the prayer for reopening the mortgage transaction, and prayers III and IV as stated above. The learned Subordinate Judge has given the appellants appropriate relief in respect of those prayers and no further question in respect thereto has been raised before us. The respondents, however, resisted the appellants claim to have the transactions represented by the conveyance and the leases reopened, as also their claim to have the rent decree set aside. They also resisted their claim for restoration of the properties sold to them by the said conveyance and also their claim for refund of what may be found to be excess payment on accounts being taken in terms of Section 30 of the Act. Those two claims were not specifically made in the plaint but were pressed at the hearing apparently on the basis that they fell within the general prayer for "further relief." The learned Subordinate Judge gave effect to the respondents contention and has refused those prayers. He gave a number of reasons, one of them being that a sale is not a transaction within the meaning of Section 36(1)(a), but in coming to that conclusion he did not examine the Act he had to construe but relied upon commentaries made by the text book writers on the Usurious Loans Act of 1918 and the English Money Lenders Act, 1900. It would have been better if he had also made a more detailed examination of the Bengal Money Lenders Act itself. To adopt the interpretation given to the word "transaction" which is mentioned in Section 3, Usurious Loans Act, 1918, or to that word occurring in the English Money Lenders Act, 1900, is in our judgment not a safe guide. Those Acts give sure indication that the words "the transaction" mentioned in them meant "the transaction of loan" or as the English Act puts it in Section 1 (4), what in substance can be regarded as "the transaction of money-lending."