Tara Sundari Nandy vs Balai Chandra Ghosh

M.N. Roy, J.—This Rule is directed against Order No. 39 dated June 28, 1973, passed in Misc. Case No. 52 of 1970 by Sri G.C. Mukherji, Subordinate Judge, Third Court, Howrah, on an application purported to be filed by the Petitioner u/s 38 of the Bengal Money Lenders Act, 1940 with a court-fee of Re. 1 only. By the said order, the learned Judge, on a preliminary issue as regards court-fee, held that the ad valorum court-fee was payable and the proceeding as initiated with a court-fee of Re. 1 was insufficient and improper.

On or about December 23, 1970, the Petitioner filed a proceeding under Sections 34, 36 and 38 of the Act which was entertained and registered as Misc. Case No. 52 of 1970 for the following prayers:

(a) Declaration that the transaction represented by ostensible sale deed and the agreement for reconveyance, both of 6.1.69, is loan and constitute mortgage by conditional sale and for the amount due to the O.P. Defendant.

(b) Accounts.

(c) Easy instalments for payment of amount lawfully due.

(d) Costs.

(e) Any other relief or reliefs under law and equity.

The case as sought to be made out by the Petitioner, inter alia, amongst others is that the suit property which is her residential house is in fact her only property. The valuation of the same would be about Rs. 50,000 and as she was in need of money, the Petitioner approached the opposite party for a loan of Rs. 12,000 on mortgage of the same. The opposite party agreed to the same but, as he had no money lending licence, instead of a mortgage deed, an ostensible sale deed with a simultaneous agreement for reconveyance within a stipulated time was executed. Both the said deeds were executed on January 6, 1969. It has also been alleged that on December 20, 1970, the Petitioner approached the opposite party for accounts, calculation of interest and for instalments, but there has not been any compliance with the said requests by the opposite party.

The opposite party in his petition of objection contended, inter alia, amongst others that the provisions of the Bengal Money Lenders Act, 1940, were not attracted and the court-fee as paid was insufficient. It has further been alleged that the suit property is not the residential property of the Petitioner and the transaction is not a loan transaction. The value of the property in question was also disputed.

The learned Subordinate Judge held by the impugned order that since there is a prayer for declaration with consequential reliefs, such determination of title on payment of the court-fee of Re. 1 is not contemplated u/s 38 of the Act.

At the time of the hearing of the Rule, Mr. Dutt took us through the pleadings and the relevant records and contended that the learned Subordinate Judge acted illegally with material irregularity and in improper use of jurisdiction in not holding that the court-fee of Re. 1 was just and sufficient in the instant case and more so in view of the provisions of the Act and more particularly of Section 38 of the same. It was further argued that since all questions arising in a proceeding under the Bengal : Money Lenders Act, 1940, we are to be governed by the provisions of the said Act, so the order for payment of court-fees on any other basis was bad and unauthorised and the special provisions of court-fees in the said Act should be deemed to override the general provisions for payment of court-fees. It was also contended by the Petitioner that her application was in fact and for all intents and purposes an application u/s 38 of the Act and as such, the fixed court-fee as paid was due and authorised. Mr. Choudhury appearing for the opposite party, apart from relying on the affidavit-in-opposition dated January 15, 1974, which was filed in the Rule, placed strong reliance on Sections 36 and 38 of the Act and the nature of the claim in the proceeding and contended that the court-fee payable in the instant case would be governed by chap. VII and a proceeding u/s 36, which is for reopening of transactions, contemplates special types of suits and an application under the said section is certainly different from that of Section 38. In fact, he submits that an application under the former section cannot be treated, considered or regarded as an application under the latter and the scope of the proceedings under the said two sections are different and since the claim of the Petitioner comes directly under the provisions of Section 36 and she is not expected to get the real relief except with an application under that section and in any event, not by an application u/s 38, she was required to pay court-fee according to the requirements of Section 36, viz. ad valorem court-fee according to the reliefs claimed. Thus it is contended that a proceeding with a court-fee of Re. 1 in terms of Section 38 in the instant case is not maintainable. It is further submitted that the scope of Section 38 is very limited and the meaning of the word ''accounts'' in the said section has relation to the types of accounts as mentioned in Section 25 only and not to any other account and since the proceeding in the instant case was not merely for such accounts but for some other reliefs, the same was also not maintainable with the court-fee as paid.

Thus the whole question to be decided in the instant case is whether on the pleadings and prayers the proceeding with a court-fee of Re. 1 was maintainable.

Section 36(1) authorises the Court to reopen a decree in any suit to which the Act applies or in any suit brought by a borrower for relief under the section, to reopen transaction whether the suit has been heard ex parte or otherwise. The said section authorises the Court to reopen transactions ''in any suit to which the Act applies'' and u/s 2(22), the said expression will include not only suits instituted after January 1, 1939 and suits pending on that date r but will include even suits disposed of, unless proceeding in execution of decrees, as has been held in the case of Bank of Commerce Ltd. v. Amulya Krishna Basu Roy Choudhury (1944) F.C.R. 126, passed therein, have also been completed by that date. Section 36 applies to two types of proceedings brought by a borrower, viz. to (i) suits to which the Act applies and (ii) suits for any of the reliefs under the section. The expression ''suit to which this Act applies'' applies to suits as also to execution proceedings provided they answer the description as enumerated in Section 2(22) of the Act. In the case of Bejoy Krishna Roy Vs. Pasupati Karmakar it has been held that an application will be the proper procedure where execution proceeding is going on while a suit will be the procedure when a decree has to be reopened. But for merely taking accounts, the proper procedure will be an application u/s 38 of the Act. Proviso (ii) to Section 36(i) puts an embargo on Court in affecting a decree which wais not fully satisfied by January 1, 1939. There is, however, no bar to affect such a decree in a ''suit to which the Act applies''. Under the said proviso a decree which stands fully satisfied, whether by payment in Court or outside, cannot be touched by Court while reopening; a transaction. As has been held in the case of Tarapada Banerjee v. Ajimuddin Mullick 74 C.L.J. 7 the said proviso contemplates just the possibility of affecting decrees which were already satisfied and were no longer subsisting. Thus on a reasonable construction of Section 36 it appears that the same has application after the passing of a decree or proceedings arising out of execution of the same.

Apart from the consideration of the provisions of Section 38 of the Act another section, viz. Section 37A, needs consideration in the instant case. The said section is attracted to transactions entered into even previous to the Amendment Act of 1965 which, as has been held in the case o Abdul Rahim and Others Vs. Kamalapati Mukherjee, , introduced the section. The words "the transaction shall always be deemed to be a mortgage by conditional sale" would affect even the pending suits. Thus suits pending on the date of coming into force of a statute may be continued under the old law because every statute which implies that the provisions would apply to pending suits expressly provide for that. As has been found in the case of Smt. Luxmi Devi and Others Vs. Akul Mahato, , if there is no such provision then the inference would be that the old law would continue to govern the right of the parties. This section overrides the proviso to Section 58(C) of the Transfer of Property Act which lays down that no transaction shall be deemed to be a mortgage unless the condition of sale and agreement of reconveyance are embodied in the same document. As has been held in the cases of P.L. Bapuswami Vs. N. Pattay Gounder, and Murugan Vs. Jayarama Pillai and Others, respectively, the question whether a transaction is a mortgage by conditional sale or a sale outright with a condition to repurchase is to be decided on the facts of each case.

The deficiency that a borrower prior to incorporation of Section 38 of the Act could not institute a suit against the lender when the loan was secured by a mortgage or charge with a simple prayer for accounts and without a prayer for redemption, has been removed on incorporation of the said section. When an application u/s 38 is made the Court is to determine the amount payable by the borrower to the lender and for that purpose the Court can direct accounts to be taken and after such accounts have been taken, make a declaration in terms of requirements of the section. As has been observed in the case of Biraj Kumar Banerjee and Others Vs. Indu Bala Gupta, in making such determination, the Court cannot determine the rights of third parties. u/s 38 it is only a borrower can call in aid the section and ask the Court to take an account and declare the amount due to the lender. If a borrower intends to have the aid of Section 38, in terms of Rule 26 of the Bengal Money Lenders Rules, 1940, he is required to make an application in terms of Form XVII and the form of the application would also play an important part in finding out the nature and scope of the application and that too for the purpose of ascertaining the court-fee required to be paid. The Petitioner in the instant case has substantially used the said form and from that also, apart from the averments and prayers as quoted hereinbefore, it appears that the proceeding in the instant case has been purported to be in effect initiated u/s 38 of the Act and as such the fixed court-fee which has been paid in terms of the said Act is due and the same has been duly paid and the Petitioner is not required to pay ad valorem court-fee as has been and is contended by the opposite party and also found by the learned Subordinate Judge.

In view of the above, the impugned order should be set aside. The Rule is thus made absolute. There will however be no order for costs.

Let the records be sent down as expeditiously as possible.

K.J. Sengupta J.

I agree,