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1940 DIGILAW 210 (CAL)

Khirode Chandra Ghosh, v. Narendra Nath Sanyal

1940-07-30

body1940
JUDGMENT Rau, J. - This appeal arises out of a suit to enforce a mortgage. The Plaintiffs-Appellants advanced to Defendants-Respondents Nos. 1 and 2 a sum of Rs. 8,000 on July 8th, 1922, upon a simple mortgage of certain property. The loan was repayable with interest within Chaitra, 1329 (March-April, 1923). There was a stipulation that the interest would be payable month by month at Re. 1 per cent. per month with half-yearly rests. The suit was brought on July 7th, 1934, that is to say, on the last day of the twelve-year period of limitation. The amount, including principal and interest, due on the date of the suit worked out to Rs. 32,389 odd, out of which the Plaintiffs-Appellants relinquished Rs. 12,389 odd and they prayed for a decree in respect of the balance of Rs. 20,000. They also prayed for interest at the bond rate, pendente lite and. subsequently till realisation. 2. The Court decreed the suit in part, allowing the Plaintiffs-Appellants Rs. 8,000 on account of principal plus Rs. 8,000 on account of interest, making a total of Rs. 16,000 to be paid within six months from the date of the decree. In cutting down the interest to an aggregate sum of Rs. 8,000, the learned Subordinate Judge purported to follow the provisions of the Bengal Money-Lenders Act, 1933, and also to exercise the discretion vested in him by Or. 34, r. 11 of the Code of Civil Procedure. The present appeal is against this preliminary decree. 3. The first point taken before us on behalf of the Appellants is that sec. 4 of the Bengal Money-Lenders Act, 1933, governs only arrears of interest due up to the date of the suit and does not extend to the interest accruing thereafter. Sec. 4 runs:-- 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 Conrt, unless it is satisfied that the moneylender had reasonable grounds for not enforcing his claim earlier shall limit the amount of each interest recoverable in the suit to an amount equal to the principal of the loan. In the present case there is no dispute that the principal of the loan was Rs. 8,000. In the present case there is no dispute that the principal of the loan was Rs. 8,000. The only question is as to the precise interpretation of the expression "the amount of such interest recoverable in the suit" occurring in the section It is reasonably plain that the words "such interest" refer to the arrears of interest mentioned earlier in the section. The real question, therefore, is as to the date up to which the arrears are to be calculated for the purposes of the section. 4. It will be noticed that the words in the section are "recoverable in the suit" and not "recoverable up to the date of the suit." The two expressions are obviously not synonymous. The presentation of the plaint is not the end, but only the beginning, of a suit. Therefore, arrears of interest recoverable in the suit are not the same thing as arrears of interest recoverable up to the date of the suit. If we ask ourselves the question what are the arrears of interest which a Plaintiff may recover in a simple mortgage suit, the answer seems plain that he may recover all the arrears accruing up to the date fixed for redemption. Until that date the matter is in the domain of contract. If the property is not redeemed; within the time allowed by the Court, the Plaintiff is doubtless entitled to subsequent interest also, up to the date of realization or actual payment, at such rate as the Court deems reasonable [Or. 34, r. 11(b)]; this subsequent interest, however, is not really interest on the money lent by the Plaintiff, but rather interest on the Court's decrees and cannot therefore, be said to be arrears of interest recoverable in the suit in respect of the money lent. 5. In our view, therefore, the expression "the amount of such interest recoverable in the suit" occurring in sec. 4 of the Bengal Money-Lenders Act, 1933, means, with reference to a simple mortgage suit, the arrears of interest up to the date fixed, for redemption. If the arrears of interest have reached the limit prescribed by the section before the institution of the suit, as in the present case, no further interest can be allowed between that date and the date fixed for redemption. 6. If the arrears of interest have reached the limit prescribed by the section before the institution of the suit, as in the present case, no further interest can be allowed between that date and the date fixed for redemption. 6. The argument against this interpretation is that the words " unless it (the Court) is satisfied that the money-lender had reasonable grounds for not enforcing his claim earlier," which also occur in sec. 4 of the Act, indicate that the section was meant to penalise the Plaintiff only to the extent to which he himself was in fault in delaying the institution of the suit, whereas on the above interpretation of the section he would be penalised not only for his own delay in bringing the suit, but also for the Court's delay in its disposal. There is, however, no real hardship involved, because he cannot be penalised under the section at all if he can explain his own delay. If he can satisfy the Court that he had reasonable grounds for not enforcing his claim earlier, the section does not limit the amount of the interest which he can recover in the suit. No such grounds existed in this case. 7. The next point taken on behalf of the Appellant is that he is at least entitled to subsequent interest under Or. 34, r. 11 (b). For the reasons already mentioned we think that this contention must succeed. Accordingly, the preliminary decree passed by the learned Subordinate Judge must be modified slightly: the amount due to the Plaintiff up to June 14th, 1937 (the date fixed for redemption) will remain as stated in that decree at the figure of Rs. 17,158. But it is hereby ordered that that amount shall carry interest at the rate of 6 per cent. per annum from the aforesaid date until the date of realisation or actual payment. 8. Each party will bear its own costs of the hearing in this Court. Mukherjea, J. I agree.