M.L. Bannerjee and anr. vs Emperor

Spens, C.J.

1.These appeals arise out of applications made by two judgment-debtors for relief under Section 36, Bengal Money-lenders Act, 1910. The

appellant''s predeeessor-in-title had obtained small cause decrees against the respondents in 1933 and 1938 respectively and certain payments had

been made towards them. On 30th August and 1st September 1941, the judgment-debtors applied to the Court to reopen the decrees, scale

down the debts and direct refund of amounts that might be found to have been overpaid on taking accounts according to the provisions of the Act.

To these claims the appellant bank raised various objections, but they were overruled by the Subordinate Judge and the judgment-debtors were

awarded small amounts by way of refund. The bank took the matter on revision to the High Court at Calcutta, on the plea that the decrees had

been obtained on ""promissory notes"" and that the Provincial Legislature had no authority to enact measures affecting promissory notes. This

contention was overruled by the High Court on the authority of a Full Bench decision of that Court 45 G.W.N. 609: Harsukhdass Balkiasendas

v.Dhirendra Nath Roy (''41) 28 A.I.R. 1941 Cal. 498. That Full Bench judgment was based on the decision of this Court in Subrahmanyan

Chettiar v. Muthuswami Goundan (''41) 28 A.I.R. 1941 F.C. 47. The ratio decidendi in that case was that similar provincial legislation in pith and

substance related to ""money-lending and money-lenders"" (Entry No. 27, List II of Schedule 7) and that any argument based on the exclusion of

promissory notes from the sphere of provincial legislation would not avail in cases where claims under promissory notes had merged in decrees

made before the commencement of the Provincial Act. On all material facts, these cases very closely resemble Subrahmanyan Chettiar v.

Muthuswami Goundan (''41) 28 A.I.R. 1941 F.C.47 and if, that decision is applicable here, these appeals must fail. Counsel for the appellant has

accordingly attempted to distinguish that case with reference to certain differences in the provisions of the two provincial enactments. We have to

decide whether these differences make any difference to the result.

The Bengal Money-lenders Act is like the Madras enactment which was the subject-matter in Subrahmanyan Chettiar v. Muthuswami Goundan

(''41) 28 A.I.R. 1941 F.C. 47 part of a scheme to relieve agricultural indebtedness in the various provinces of this country, but the enactments

passed in the different provinces have not all adopted the same lines. The Bengal Act begins with a comprehensive definition of the words ""loan

and ""lender,"" but excepts certain kinds of loans from the operation of the Act by taking them out of the definition. It makes detailed provisions for

the registration and licensing of money-lenders and for the accounts to be maintained by them. The relief intended to be afforded by the Act is

provided for in chaps. 6 and 7. Chapter 6 fixes maximum rates of interest recoverable on loans and the total amount recoverable for interest and

principal in respect of any loan. Chapter 7, of which Section 36 forms part, provides for the reopening of settlements and of decrees of Courts in

certain circumstances and for other ameliorative orders. The portion of the definition section relevant to the present case runs as follows:

Loan means an advance, whether of money or in kind, made on condition of repayment with interest and includes any transaction which is in

substance a Joan, but does not include * * * *

(e) an advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881, other than a promissory note.

Among the relieving provisions, the relevant clauses are Sub-sections (1) and (2) of Section 36. Subsection (1) gives the Court power to reopen

transactions ""in any suit to which this Act applies"" and by the definition clause this expression includes not only suits instituted after 1st January

1939, and suits pending on that date, but even suits already disposed of, unless proceedings in execution of decrees passed therein had also been

completed by that date. [See also proviso (ii) to Section 36 (1)]. Sub-section (2) of Section 36 provides that if in the exercise of the powers

conferred by Sub-section (1) the Court reopens a decree, it shall ""pass a new decree in accordance with the provisions of this Act.

Comparing the above provisions of the Bengal Act with the corresponding provisions of the Madras Act, three points of difference were

emphasised by counsel for the appellant: (a) While the Madras Act contained no clear indication as to whether it was intended to affect promissory

notes or not, the Bengal Act, by excluding promissory notes from exception (e) to the definition of loan, has clearly shown an intention to legislate

in respect of promissory notes. (b) While Section 19 of the Madras Act was in terms limited to decrees passed before the commencement of the

Act, the Bengal Act made provision by the same section for decrees passed before the commencement of the Act as well as decrees passed after

the commencement of the Act. (c) While Section 19 of the Madras Act did not contemplate a reopening of the decree (but only its amendment),

the Bengal Act expressly provided for the reopening of the decree and the passing of a new decree. Stress was laid on these three points of

distinction with particular reference to certain observations contained in the judgments in Subrahmanyan Chettiar v. Muthuswami Goundan (''41)

28 A.I.R. 1941 F.C.47. Distinction (a) was represented as vital. It was contended that in Subrahmanyan Chettiar v. Muthuswami Goundan (''41)

28 A.I.R. 1941 F.C.47 the Court repelled the contention as to the total invalidity of the Act only on the ground that the general language of the

Madras Act could, by the application of the principle of Macleod''s case (1891) 1891 A.C. 455 be so read as not to comprehend promissory

notes within its scope. Where, as in the present case, the Provincial Legislature has shown a deliberate intention to deal with promissory notes as

well, it was contended that such legislation was an attempt to trespass upon the exclusive field of the Federal Legislature (entry No. 28 of List I)

and as such ultra vires the Provincial Legislature. It was also contended that as this provision was not an independent and severable provision, but

part and parcel of the scheme of the Act worked out on the basis of the general definition of the term ""loan,"" the doctrine of severability of the valid

from the invalid provisions could not be pressed in aid and that the whole enactment must therefore be held to be void. The Advocate-General of

India and the Advocate-General of Bengal suggested by way of answer to this argument that the provisions of Bengal Money-lenders Act, even in

their application to promissory notes, did not on their proper construction affect the rights of holders in due course under the Negotiable

Instruments Act, but only the rights of the immediate parties to the instrument and that this was only a matter of ""contract"" (entry No. 10 of List III

of Seh. 7). In support of this argument, reliance was placed on Sections 29 and 36(5) of the Bengal Act. The interpretation of these sections is not

by any means free from difficulty and as there are other objections to be considered in connexion with this line of argument, we prefer not to base

our conclusion on it.

Assuming that the Bengal Act affects and was intended to affect rights and liabilities based on promissory notes, it does not seem to us

necessarily to follow that the Act must be wholly void as ultra vires the Provincial Legislature. In Subrahmanyan Chettiar v. Muthuswami Goundan

(''41) 28 A.I.R. 1941 F.C.47 this Court discussed at some length the applicability of the principles laid down by the Judicial Committee in the

Canadian cases to the interpretation of the Indian Constitution Act. According to those cases, the mere fact that a provincial enactment may

contain provisions bearing upon a subject exclusively reserved to the Dominion Legislature will not suffice to invalidate the provincial enactment.

The other considerations which are relevant to this question have been adverted to in the judgments in Subrahmanyan Chettiar v. Muthuswami

Goundan (''41) 28 A.I.R. 1941 F.C.47 but as the effect of the decisions of the Judicial Committee has been summarised in Lefroy''s Treatise on

Canadian Constitutional Law, it would be convenient to quote from that treatise. In Section 8 (on p. 80) the author observes that the absence of

concurrent powers of legislation over certain subjects

must not be understood as meaning that if a given Act is intra vires of the Dominion Legislature, a precisely similar Act could under no

circumstances be intra vires of a Provincial Legislature. For, as we shall see (infra p. 98), subjects which in one aspect and for one purpose fall

within the provincial powers of Section 92 may in another aspect and for another purpose fall within Section 91.... It seems quite possible that a

particular Act, regarded from one aspect, might be intra vires of a Provincial Legislature and yet regarded from another aspect might be also intra

vires of the Dominion Parliament. In other words, what is properly to be called the subject-matter of an Act may depend upon what is the true

aspect of the Act.

As a foot-note to this statement, the author refers to certain early Canadian cases to show that an Act respecting bills of lading might be passed by

a Provincial Legislature as a matter relating to property and civil rights, while the Dominion Parliament might pass a similar Act as a necessary or

convenient matter to be dealt with in the regulation of trade and commerce. In Section 19 (on p. 95), he further observes:

Whatever powers the Provincial Legislatures have as included within the enumerated subject-matters of Section 92 when properly understood,

those powers they may exercise, although in so doing they may incidentally touch or affect something which might otherwise be held to come within

the exclusive jurisdiction of the Dominion Parliament under some subject-matter enumerated in Section 91.

In Section 21 (on p. 98), the author refers again to the distinction founded on difference in aspects of legislation and observes:

The cases which illustrate this principle show, by ''aspect'' here must be understood the aspect or point of view of the legislator in legislating, the

object, purpose and scope of the legislation. The word is used subjectively of the legislator rather than objectively of the matter legislated upon.

Judged by these tests, the Bengal Moneylenders Act must, taken as a whole, be held to fall within the description, legislation in resspect of

money-lending and money-lenders,"" a subject within the exclusive competence of the Provincial Legislature (entry No. 27 in List II). As pointed

out in Subrahmanyan Chettiar v. Muthuswami Goundan (''41) 28 A.I.R. 1941 F.C.47 the fact that among the documents on which moneys may be

lent, promissory notes form an important class will not justify the view that the regulation and control of money-lending have to that extent been

taken out of the purview of provincial legislation.

The further question may no doubt still arise as to what is to happen in the event of a conflict between provisions contained in a provincial

enactment so far as they bear upon promissory notes and provisions relating thereto contained in a central enactment. Certain aspects of this

question have been adverted to in Macleod''s case (1891) 1891 A.C. 455 and the difficulty of applying Section 107, Constitution Act, to solve the

conflict, so far as such conflict may arise out of central legislation bearing on List I subjects, but passed before 1935, has also been pointed out.

Even if, as suggested by Sulaiman J. in that case, it should be held that such conflict should be resolved by an extension of the principle of Section

107 by analogy or by the application of the Canadian doctrine of the ""occupied field,"" that would not help the appellant in the present cases. That

line of argument would not support the plea of ultra vires, but would only bring in the principle of repugnancy, that is, in the event of and in so far as

there is a conflict between provincial legislation and central legislation, the latter shall prevail. In the present cases, we are not concerned with the

rights of parties under a promissory note. Here, as in Subrahmanyan Chettiar v. Muthuswami Goundan (''41) 28 A.I.R. 1941 F.C.47 their rights

and liabilities had merged in decrees even before the passing of the Bengal Money-lenders Act, and, subject to the observations to be made when

dealing with points (b) and (c), the principle of that decision is equally applicable.

In this view, it is not necessary to refer at length to the arguments urged or authorities cited on the question of the severability of the invalid

provisions of an Act from the valid provisions. The question will be material only if the Act is in some measure held to be ultra vires the Provincial

Legislature. Where the problem can only be one of conflict between the provisions of the local law and the provisions of a central enactment, each

being intra vires the particular Legislature, it is unnecessary to invoke the rule of severability to uphold the validity of the impugned Act. Language

has sometimes been employed in enunciating the doctrine of ""occupied field"" which may seem to suggest that in respect of a field occupied by

central legislation, the Provincial Legislature would have no power at all to deal with the subject. But having considered all the decisions bearing on

that question, in our judgment it is the doctrine of repugnancy and not the doctrine of ultra vires that has to be applied in this class of cases.

Distinction (b)as to the wide terms of the Bengal Act covering both decrees passed before the Act and decrees passed after the Actwas

emphasised in view of an observation in Subrahmanyan Chettiar v. Muthuswami Goundan (''41) 28 A.I.R. 1941 F.C.47. It was there said that it

might be necessary to draw a distinction between decrees passed on promissory notes before the commencement of the Act and decrees passed

after the commencement of the Act, because in the latter case the Act might in substance interfere with rights which, at or after the date of its

commencement, were only rights under promissory notes. This question, again, might assume some importance if the existence of provisions

relating to promissory notes would have the effect of rendering the provincial enactment invalid. If, however, the operation of such provisions is

only to be determined by the application of the doctrine of repugnancy, the circumstance that one and the same section provides for both kinds of

decrees cannot affect the decision of the present cases, where admittedly the decrees had been passed before the Act came into operation.

Distinction (c) does not, in our opinion, amount to more than a verbal distinction. We do not understand Section 36 (2) (a) as relegating the

parties to their rights and liabilities on the original cause of action. The decree is reopened only to the extent necessary to substitute the method of

account-taking sanctioned by the Act in place of the calculation on which the original decree was passed.

We are accordingly of the opinion that these points of difference between the Bengal Act and the Madras Act do not warrant the conclusion

that the present case differs in any essential respects from Subrahmanyan Chettiar v. Muthuswami Goundan (''41) 28 A.I.R. 1941 F.C.47. The

appeals accordingly fail and are dismissed with costs (counsel''s fee only in one case). According to the usual practice, there will be no order as to

costs in favour of the Advocate-General of Bengal who intervened.