AUNAR ALI Vs. JEBAR MULLUK CHOWDHURY

JUDGEMENT

(1.) This appeal is by defendants 1 to 4. The question involved is the amount which the plaintiff is liable to pay to them before he can be allowed to redeem a mortgage. The mortgage in question was-executed, by the plaintiff's predecessor in favour of the appellants on 8 October 1898. The mortgagees were put into possession. The arrangement was that out of the annual profits, Rs. 280 was to be retained by the mortgagees on account of interest and the remainder applied to the satisfaction of the mortgage. The plaintiff acquired a four and a half annas share of the equity of redemption in the land mentioned in Schedule 1 on 14 November 1930. He instituted the present suit for redemption on 16 January 1931. It is to be-noticed that in the meantime the appellants have themselves acquired the remainder of the equity of redemption. One of their predecessors-in-interest, namely Sarada Lala, had redeemed two other mortgages.

(2.) The plaintiff obtained a preliminary-decree on 15 October 1933. In order to ascertain the precise amount due, a commissioner had to be appointed to take accounts. The Subordinate Judge found that a sum of Rs. 100-9-0 was due from the appellants to the plaintiff. On appeal by the appellants, the District Judge modified the decree and found that a sum of Rupees 191-11-0 was due to the appellants from the plaintiff. The appellants have now filed a second appeal with regard to two matters, while there is also a cross-objection by the plaintiff with regard to two other matters. The main point which is raised in the appeal is the amount of interest due to the appellants on account of the sums which were paid by Sarada to discharge the two-other mortgages. It was contended on. behalf of the plaintiff that the case was governed by Section 4, Bengal Money-Lenders Act (Bengal Act 7 of 1933). This view found favour with both the Courts below, and in the accounting the interest allowed to the appellants has been limited to the sums actually paid to discharge the two mortgages. It has now been contended that in any view of the case this Section has no application at all. It does not appear that this particular argument was made in either of the Courts below; but it is a question which involves nothing more than the interpretation of the Section. The Section in question is in these terms: Notwithstanding anything in any other Act, where in any suit in respect of any money lent by a money-lender before the commencement of this Act it is found that the arrears of interest amount to a sum greater than the principal of the loan, the Court, unless it is satisfied that the moneylender had reasonable grounds for not enforcing his claim earlier, shall limit the amount of such interest recoverable in the suit to an amount equal to the principal of the loan.

(3.) Now, I will assume that this Section applied to suits for redemption, although it is obviously a question which is open to arguments : for example, the words "unless it is satisfied that the money-lender had reasonable grounds for not enforcing his claim earlier" seem to suggest that in the suit in question the creditor must be the plaintiff. But, be that as it may, there is a further question in this case whether the arrears of interest refer to interest due on money which was not lent by this particular money-lender at all. In the present case the Section has been applied to two sums of money which were paid by the predecessor of the appellants in discharge of mortgages which had been executed to secure money lent by other persons. There is certainly nothing in the plain wording of the Section to suggest that it is meant to apply to a case of this kind. The arrears of interest seem to refer to the money lent by the particular money-lender. In view of the fact that the appeal must succeed on other grounds, it is not necessary to decide the point now. But as at present advised, I should certainly be disposed to hold that this Section is not intended to apply to a case of this kind.