AUDH BEHARI BHAKAT Vs. AKSHAY KUMAR DUTTA

JUDGEMENT

(1.) Only one small point is raised in this appeal. The plaintiff is the appellant. He instituted a suit on a mortgage claiming a certain sum of money. The learned Munsif gave him a decree for a slightly lesser amount with which he remained satisfied. The defendant, however, appealed. The learned Judge allowed the appeal and dismissed the suit and further ordered the plaintiff to pay to the defendant the sum of Rs. 485. It is now contended that the order for refund was not properly made and should be set aside. Briefly, the learned Judge reached this result in the following way: He held that Section 3 of the Bengal Money Lenders Act applied. Applying the provisions of that Section he came to the conclusion that the loan was really paid off by the year 1938. On this calculation the defendant paid further sums after the debt had been really discharged. He ordered the plaintiff to refund such of those sums as had been paid after the Bengal Money Lenders Act came into force. In this connection he said this: But in view of the fact that the Bengal Money-Lenders Act came into force is 1933 and that apart from this Act, it would have been difficult to give the defendant any relief I direct that the creditor do pay only those sums which he realised from the debtor since the Money Lenders Act came into force, that is to say a sum of Rs. 485.

(2.) It is not very clear under what provision of the law the learned Judge purported to act. I will assume that he was acting under the provisions of the Usurious Loans Act. Under Section 3, he was entitled to re-open the transaction, take an account between the parties, and relieve the debtor of all liability in respect of any excessive interest. He has done that and in the course of so doing has dismissed the suit. Mr. Mukherjee did not complain of that. The power of the Court to order repayment by the creditor to the debtor appears to be much more limited. The relevant words of the Section are as follows: Notwithstanding any agreement purporting to close previous dealings and to create a new obligation, re-open any account already taken between them and relieve the debtor of all liability in respect of any excessive interest, and if anything has been paid or allowed in account in respect of such liability, order the creditor to repay any sum which it considers to be repayable in respect thereof.

(3.) In my judgment this power is limited to a ease in which there is an agreement purporting to close previous dealings and to create a new obligation. In the present case there is no such agreement. The transaction was merely an ordinary mortgage in which the defendant received the consideration money. That would have been sufficient to dispose of the matter. Mr. Das however drew my attention to the fact that in Ghanasyam Das Marwari V/s. J. Nichols (1938) 42 C.W. 665, Edgley J., thought that the words ought to be given a more extended meaning. With great respect to that learned Judge, I should not be prepared to follow that decision and it would therefore have been necessary for me to refer the case to a Division Bench, if that were the only point involved. It appears however that this point was not even taken in the grounds of appeal to the lower Appellate Court and it emerged for the first time from the judgment of the learned Judge. If he had confined himself to the point made by the appellant he would have done nothing more than to dismiss the suit. The appeal is accordingly allowed. The decree of the lower Appellate Court is modified and that part of it which directs a decree for Rs. 485 to be made in favour of the defendant will be set aside. In the circumstances of the case I make no order as to costs. The cross-objection is not pressed, and is dismissed without costs.