KASHAVLAL JOSHI Vs. MKASANKARA IYER

JUDGEMENT

(1.) The petitioner brought a suit in the Court of Small Causes, Madras, on a promisory note. An earlier suit had been, filed which had been settled out of Court by the execution of the suit promissory note. The Court noted that the matter had been settled (and presumably dismissed the suit). During the hearing of the present suit, the provisions of Section 3 of the Usurious Loans Act were invoked and the Court was asked to re-open the transaction, take an account between the parties, and relieve the debtors of all liability on account of the excessive interest already paid. The Court did so. On a point of law, an application for a new trial was made ; and the only question considered by the Full Bench was whether the transaction was one which attracted the provisions of the Usurious Loans Act. The Full Bench agreed with the trial judge and dismissed the application. The result was that the suit was dismissed.

(2.) It is argued here that since the earlier transaction between the parties had been the subject of a suit, it was not open to the trial Judge to reconsider in the present suit matters which had already been the subject of a suit. In support of this argument, the learned advocate for the petitioner has referred to a decision of Finlay, J., in Cohen V/s. Jonesco (1926) 1 K.B. 119. In that case, the prior transactions had come up before a Judge and a decree on those prior transactions had been passed. The decision was of course based on the corresponding English Act, which is similar in its terms to the Indian Act, but does not contain a proviso such as that to which I shall presently refer. The learned Judge, regretting the absence of any authority on this point, said : I think that if it had been intended to give the Court power to re-open a former transaction between the parties, notwithstanding that it had been the subject of a judgment, the section must have specifically mentioned a judgment.

(3.) In other words, the learned Judge read into the Act an implied proviso that it would not apply to transactions that had been the subject of a judgment. In the