JUDGMENT D.N. Mitter, J. - This is an appeal by the Defendants against the preliminary as well as the final decree for sale in a suit to enforce four mortgage securities executed by Matilall Das. It is necessary to recite a few circumstances in order to understand the controversy raised by the Appellant in the present appeal. Mohini Mohan Das and Khetra Mohan Das possessed considerable properties in the town of Dacca. Of the two brothers Khetra squandered almost all the properties which he had possessed and he ultimately sold his share in the properties to Mohini. Mohini thus became the owner of all the properties originally possessed by Mohini and Khetra. Om Mohini's death the properties devolved on Shampeari, his mother. Shampeari died on the 16th November, 1918, and Matilal Das as the next reversioner became the owner of these properties. Matilal Das was a youngman of dissolute habits and the case made by the Defendants-Appellants in their written statement is that many unscrupulous money-lenders got hold of Moti and he executed several bonds which are described as "Captani" mortgage bonds. The mother of Moti, Srimatya Radharani Dasya, one of the Appellants before us, became anxious for the security of the estate. It was thought necessary in those circumstances to execute a trust deed in favour of the mother and the wife of Moti. It is said that in pursuance of that plan stamps were purchased on the 9th September, 1920. It is stated on behalf of the Defendants that the management of Moti's estate was left before the execution of the mortgage bond now in suit in the hands of Radha Ballav and Radha Ballav conspired with Nagendra, the mortgagee of the mortgage bond now in question, to get a fictitious mortgage bond executed. It is further pointed out on behalf of the Defendants that within the period of a few days and within the date of the mortgage now in suit which is dated the 30th October, 1920, Moti borrowed from Nagendra a sum of about Rs. 20,000 on four mortgage bonds in respect of which the present suit was instituted. The trust deed in favour of the mother was executed on the 11th November, 1920. 20,000 on four mortgage bonds in respect of which the present suit was instituted. The trust deed in favour of the mother was executed on the 11th November, 1920. Before the execution of the deed dated the 30th November, 1920, which is the mortgage in respect of which the present appeal has been brought, there was another mortgage in favour of Prasanna Kumar Sen for Rs. 8,000 with interest at the rate of 24 per cent. per annum, that is at the rate of two per cent. per mensem, with annual rests. It may be mentioned that by the trust deed of the 11th November, 1920, all the properties which belonged to Moti were conveyed to Radharani and to Brojomohini, the wife of Moti. It is important to note that in the trust deed to which reference is made there is mention of the sum of Rs. 25,000 which was borrowed from Nagendra on four mortgage bonds executed in the month of October, 1920, including the bond now in question. Nagendra, whose estate is now vested in the Receiver in Insolvency, having been adjudged an insolvent, instituted a suit on the four mortgages and valued the aggregate claim of mortgage at Rs. 1,32,000 odd. It is not necessary to indicate the defences which were taken with regard to the first three mortgages as we are concerned only with the mortgage deed, which has been marked as Ex. 2 (c) in the case and which as printed at page 110 of the second part of the paper-book: The substantial defences to the suit with reference to this mortgage fall under four heads. The first head of defence is that the mortgage was executed without consideration and that therefore it is a void instrument and cannot be enforced. The second defence to which reference might be made is that the rate of interest was one which was excessive, the rate of interest being two per cent. per mensem. that is 24 per cent. per annum with yearly rest, and that the transaction being a hard and unconscionable one, the interest claimed and mentioned in the mortgage deed should not be allowed. per mensem. that is 24 per cent. per annum with yearly rest, and that the transaction being a hard and unconscionable one, the interest claimed and mentioned in the mortgage deed should not be allowed. The third defence or rather the third ground of defence on the question of interest is that having regard to the provisions of the Bengal Council Act--Act VII of 1933, that is the Bengal Money-Lenders Act, the Plaintiff, the Receiver in Insolvency, is not entitled to get a decree for the interest in excess of the rate mentioned in sec. (3) of that enactment. The fourth head of defence which we may refer to is that the Receiver is not entitled to maintain the suit. Although the last ground was only just mentioned at the opening of the case, nothing has been said about it in course of argument and nothing further need be said about it in our judgment. 2. All the three defences, except the defence which is based on the Bengal Act VII of 1933, were considered by the Subordinate Judge who look evidence which is voluminous in character, both oral and documentary, in support of the respective contentions of the parties. The Subordinate Judge has granted a preliminary decree for the principal sum of Rs. 5,000 with interest at the rate of 24 per cent. per annum with compound interest and yearly rest. Subsequently the final decree has been passed on the basis of the preliminary decree. 3. It is against these decrees that the Defendants have preferred the present appeal and the defences which have been indicated above have been repeated before us in this appeal. It is argued in the first place that the mortgage bond was without consideration. From the facts which will be enumerated presently, it is impossible for us to accede to this contention. 4. [His Lordship proceeded to deal with the evidence and continued as follows:--] We have no hesitation in agreeing with the Subordinate Judge that the Plaintiff has proved the passing of the consideration and his finding in this behalf must be affirmed. We have now to consider the question with regard to the rate of interest as mentioned in the bond. [His Lordship proceeded to deal with the evidence and continued as follows:--] We have no hesitation in agreeing with the Subordinate Judge that the Plaintiff has proved the passing of the consideration and his finding in this behalf must be affirmed. We have now to consider the question with regard to the rate of interest as mentioned in the bond. Before we deal with that ground challenging the rate of interest which is based on the Usurious Loans Act, it will be convenient to deal with the question of the rate of interest as founded on Bengal Act VII of 1933, because this question can be decided in a very few words. This Act which was enacted in 1933 did not come into operation before the 13th July, 1934. It has been contended that sec. 3 of the Act is retrospective in its operation and therefore although this Act did not come into operation when the suit was pending before the Court of first instance, it will apply to the proceeding in appeal, seeing, as it is contended, that the appeal is merely a continuation of the suit. We are unable to accede to this contention. 5. This defence founded on this Act is not surely available to the present Defendant and the reading of sec. 3 makes it clear that this Act can only apply to such suits as were instituted after the commencement of the Bengal, Money-Lenders Act or at any rate to that which was pending at the time when the Act came into operation. It is necessary to reproduce the language of sec. 3 in so far as it is material. That section in so far as it is material runs as follows:-- When in any suit in respect of any money lent by a money-lender after the commencement of the "Usurious Loans Act, 1918, it is found that the interest charged exceeds the rate of fifteen per cent. per annum in the case of a secured loan or twenty-five per cent. per annum in the case of an unsecured loan or that there is a stipulation for rests at intervals of less than six months, the Court shall, until the contrary is proved, presume for the purpose of section 8 of the Usurious Loans Act, 1918, that the interest Charged is excessive and that the transaction was harsh and unconscionable and was substantially unfair..... 6. 6. Now the words " until the contrary is proved " make it clear that this provision only applies when the suit is pending. This can refer to the pendency of suit when the Plaintiff should be given an opportunity of giving evidence to rebut the presumption raised by this sec. 3. This seems to be the correct view. Sec. 4 cannot apply to such cases as bas been held in a decision of this Court by Mukerji and S. K. Ghose, JJ., to which reference has been made at the Bar. The case I refer to is the case of Brojendra Kumar Datta Roy v. Sushil Chandra Chakravarty 39 C.W.N. 1213 (1935). The learned Judges held that sec. 4 of the Bengal Money-Lenders Act cannot be applied to a case when the Act came into force after the decision of the trial Court and during the pendency of an appeal. The reasoning on which the decision is based is that unless the Court is satisfied. as cl. (4) says that the parties must be given an opportunity of satisfying the Court, that the money-lender had reasonable grounds for not enforcing his claim earlier. (?) We have therefore no hesitation in rejecting this contention. 7. It remains to consider the ground with regard to the reduction of interest based on the Usurious Loans Act, 1918. 8. [His Lordship proceeded to discuss the evidence and concluded as follows:--] In considering whether the provisions of sec. 3 of the Usurious Loans Act, Act X of 1918, would apply and if they apply, in considering whether a transaction was substantially unfair, the Court shall take into account all circumstances materially affecting the relations of the parties at the time of the loan or tending to show that the transaction was unfair, including the necessities or supposed necessities of the debtor at the time of the loan so far as the same were known or must be taken to have been known to the creditor. An explanation is added to this section which is to the effect that interest may of itself be sufficient evidence that a transaction was substantially unfair. Having regard to the rate of interest at which the trustee borrowed the money, we think that that ought to furnish the true criterion as to the rate of interest. An explanation is added to this section which is to the effect that interest may of itself be sufficient evidence that a transaction was substantially unfair. Having regard to the rate of interest at which the trustee borrowed the money, we think that that ought to furnish the true criterion as to the rate of interest. We think, therefore, that the Subordinate Judge's decrees, both preliminary and final, are to be varied by reducing the race of interest from 2 per cent. per mensem with yearly rest to 1 1/2 per mensem with yearly rest from the date of the execution of the bond now in question up to the period of grace as fixed by this Court's decree and thereafter at the rate of six per cent. per annum. The mortgage money must be paid within one month from now. If the mortgage money be not paid within one month from now, the mortgaged properties will be sold. After the date fixed for redemption, interest will run at the rate of six per cent. per annum. Costs will be costs in proportion throughout. The decree of this Court in this appeal which so far is the final decree will not issue to the Plaintiff-Respondent until he puts in the deficit court-fees of Rs. 3,292-8 as. due from him. These deficit court-fees which are to be realised from the Plaintiff-Respondent will be costs on the entire suit against the Defendants. Patterson, J. I agree.