Gouri Sankar Daga vs Parashuram Agarwalla

Renupada Mukherjee, J.—The Plaintiff-Appellant purported to have filed the suit out of which this appeal arises u/s 36 of the Bengal Money Lenders Act. Various defences had been raised but the question about the maintainability of the suit was raised as a preliminary issue. That issue has been decided against the Plaintiff.

Such facts as are relevant to appreciate the question of maintainability may be stated within a short compass. The Defendant-Respondent had advanced to the Plaintiff different sums. The Defendant brought a suit (being suit No. 8 of 1951), in the court of the Subordinate Judge, Jalpaiguri, for recovery of the alleged dues of Rs. 43,000 and odd. This suit was decreed by consent of parties in accordance with certain terms of compromise filed in court. Rs. 15,000 Was the amount held due payable in 12 equal annual instalments. Certain items of moveable property belonging to the Defendant which had been attached before judgment were to remain so attached until the realisation of the entire decretal dues. A decree was passed on April 16, 1951. Within a few months thereafter in September, 1951, the present suit filed by the debtor u/s 36 of the Bengal Money Lenders Act for reopening the transaction and the consent decree referred to above. It was prayed for after proper accounting the amount payable might be determined, releasing the Plaintiff from all liabilities in excess of the limits specified in the relevant provisions of the Money Lenders Act. The Plaintiff accordingly prayed that a new decree be passed in accordance with the Act, the amount due being payable in 20 annual instalments.

Of the various issues raised the question of maintainability of the suit was taken up as a preliminary issue. The learned Subordinate Judge held that the suit as filed was not maintainable, as advances were made, as it appears from the recitals in the present plaint, on the basis of cheques which were negotiable instruments. It was also found that the decree which is proposed to be reopened was passed in 1951 and could not be deemed to be a decree in a "suit to which the Act applies" "which was not "fully satisfied by the first day of January, 1939". On both these grounds the court found against the Plaintiff. Hence this appeal to this Court by the debtor-Plaintiff.

The most important question which arises for consideration is whether the powers conferred upon the court u/s 36 of the Bengal Money Lenders Act are wide enough to reopen a decree which had been passed after the said Act had come into force.

The expression "suit to which the Act applies" as explained in Clause (22) of Section 2 of the said Act is in very wide terms. This expression means "any suit or proceeding instituted or filed on "or after the first day of January, 1939, or pending on that "date". Under Sub-clause (b) for expression "includes a proceeding "in execution for the enforcement of any agreement entered into "before or after the commencement of this Act, whether by "way of any security so taken in respect of any "loan advanced whether before or after the commencement of "this Act". In Clause (c) of the same Sub-section also a reference is made of redemption of security given before or after the commencement of this Act in respect of any loan advanced whether before or after the commencement of this Act.

Bearing in mind the very wide implication of the expression "suit to which this Act applies" we proceed to refer to the opening paragraph in Sub-section (1) of Section 36 of the said Act:

Notwithstanding anything contained in any law for the time being in force, in any suit to which this Act applies or in any suit brought by a borrower for reliefs under this section whether heard ex parte or otherwise the court has reason to believe that the exercise of one or more of the powers under this section will give relief to the borrower, it shall exercise all or any of the following powers as it may consider appropriate.

The question before us is whether a decree passed after the Act had been come into force can be re-opened u/s 36 of the said Act.

In Sailabala Dassi v. Harish Chandra De (1942) 46 C.W.N. 875 Mukherjee and Blank, JJ., had come to conclusion that Section 36(a)(i) of the Bengal Money Lenders Act would be attracted to a case where the decree was passed subsequent to 1st of January, 193d, in a suit to which that act had applied, namely, in a suit which was pending on that date and thereafter. It was further observed that all suits or proceedings instituted or filed on or after 1st of January, 1939 or pending on that date would be regarded as a suit to which the act applied (Section 2(22)). Their Lordships pointed out the anomalous position which would be created if the contentions of the Appellant that all suits instituted after 1st of January, 1939, would be outside the scope of the Act were accepted. It was possible to interpret the word in a way consistent with the other provisions of the Act and such an interpretation would include a suit in which the decree was passed subsequent to the 1st of January, 1939. The preliminary mortgage decree in question in that suit was passed on February 27, 1939 and the final decree on December 11, 1939, in a suit which was pending on the 1st of January, 1939.

Mitter and Akram, JJ. held in Mrs. D.J. Hill v. Ran Ramvtaran Banerjee Bahadur (1945) 50 C.W.N. 47 that the court had power u/s 36 of the Bengal Money Lenders Act to re-open a decree passed after 1st January. 1939 but before the Act came into force in 1940 (see also AIR 1949 135 (Federal Court) ). The final decree in that case was passed on April 12, 1940, the sale was held on July 19, following and confirmed on August 21, 1940.

In (1945) L.R. 72 I.A. 156 (Privy Council) the Judicial Committee had observed that the drafting of Section 36 of the Bengal Money Lenders Act was unfortunate and obscure. Similar observations had also been made in Saila Bala v. Harish Chandra (1942) 46 C.W.N. 875, repeated by the Federal Court in AIR 1949 135 (Federal Court) .

It is, therefore settled on the highest authority that a decree passed after 1st of January, 1939, can be re-opened u/s 36 of the Act.

We have now to consider whether a suit filed after September 1, 1940, for the recovery of a loan advanced before or after the commencement of Act, though a suit to which this act applied, attracts Sub-section (1) of Section 36. On the face of the section itself there is nothing which militates against the re-opening of a decree passed in a suit instituted after September 1, 1940.

It may however be noticed that Chapter 6 of the Act (including Sections 30 to 33) apply to all suits which are brought after September 1, 1940. It is the duty of the court to see that a borrower is not made liable after the commencement of the Act for any sum which is not allowed under Sections 30 to 33 of the Act. In the present case it was the duty of the court to see that the terms of compromise did not militate against any of the provisions contained in the Money Lenders Act. If the decree passed in money suit No. 8 of 1951 contravened any of the provisions of the Bengal Money Lenders Act such a decree would be one passed in a suit to which the act applied. The learned Subordinate Judge was not correct in stating that if a decree was not in existence on the 1st of January, 1939, that decree could not be styled as one not fully satisfied by the 1st of January 1939. It was observed in Sailabala Dassi v. Harish Chandra De (Supra) and Mrs. D.J. Hill v. Ram Taran Bnnerjee (Supra) affirmed by the Federal Court in Ram Taran Banprjee v. Mrs. D.J. Hill (Supra) that the decree coming into existence after the 1st of January, 1939 and before the Act come into force could be re-opened. The fact that the decree was not in existence on 1st January, 1939, prima facie satisfied the condition that the decree had not been fully satisfied before that date.

This Act is a remedial statute and the words must be construed, so far as they may reasonably admit, so as to secure that the relief contemplated by the statute shall not be denied to the person intended to be relieved. The interpretation we are placing on the provisions of the Act is in consonance with the spirit of the statute. Such an interpretation is justified if that gives effect to the principles underlying the Act.

The learned Subordinate Judge has dismissed the Plaintiff-debtor''s suit u/s of the Act on the ground that the suit having been filed in 1951 was not maintainable. This decision cannot be upheld.

learned Subordinate Judge has given another reason for dismissing the Plaintiff''s suit. He has summarily dealt with the question whether the basis of the transaction was a negotiable instrument. That is a question which has to be considered more fully and with reference to the evidence as to how the transaction had been entered into. He has to find on evidence whether the advance was made on a negotiable instrument or not. As no proper enquiry had been made we do not express any opinion in this point at this stage. This matter will have to be considered further by the lower court on materials as may be produced.

The result therefore is that the appeal is allowed, the judgment and decree passed by lower court are set aside. The case will go back to the trial court for deciding whether the advance was made on the basis of a negotiable instruments as defined in the Negotiable Instruments Act other than a promissory note; and if it is found that it was not so then to consider whether the decree passed in Money Suit No. 8 of 195) contravened any of the provisions contained in the Bengal Money Lenders Act and if so, whether the Plaintiff is entitled to any relief. On the final conclusion to be reached a proper decree is to be drawu up.

Cost of this hearing will abide the result. Hearing fee is assessed at Re. 170 (Rupees one hundred and seventy only).

No order is necessary on the application.

Renupada Mukherjee, J.

I agree.