Research › Browse › Judgment

Calcutta High Court · body

1941 DIGILAW 42 (CAL)

Prasanna Kumar Datta v. Krishna Kishore Swami

1941-02-14

body1941
JUDGMENT Nasim Ali, J. - This appeal arises out of a suit to enforce a mortgage bond. The following facts are not in dispute: (1) On July 2nd, 1907, Defendant No. 1 and the father of Defendants Nos. 2 and 3 executed in favour of the Plaintiff No. 1 and the predecessor-in-interest of the other Plaintiffs the bond in suit for Rs. 9,000 with interest at Rs. 1-2 per cent, per month. (2) Out of the amount secured by this bond, namely, Rs. 9,000, only Rs. 1,900 was paid in cash on the date of the execution of the bond in suit and the balance was due from the mortgagors to the mortgagees on account of previous loans, namely Rs. 4,815 as principal and Rs. 2,285 as interest. (3) The mortgagors paid Rs. 3,000 towards principal and interest on January 17th, 1908, and thereafter they paid Rs. 8,082 as interest from time to time. 2. On September 7th, 1936, the mortgagees raised the present suit to recover Rs. 18,000 as principal and interest on the basis of the bond in suit. 3. The trial Judge has found that the debtors are entitled to the benefit of sec. 9 of the Assam Money-Lenders' Act. He has passed a decree for Rs. 6,658 as principal and Rs. 8,893 as arrears of interest with proportionate costs with interest at 6 per cent, till realisation. 4. Hence this appeal by the mortgagors. 5. The decree of the trial Judge so far as it directs the Appellants to pay Rs. 6,658 as principal was not challenged before us. 6. The only dispute in this appeal is about the amount of arrears of interest which the trial Judge has decreed. 7. Sec. 9 of the Assam Money-Lenders' Act is in these terms: No Court shall in respect of any loan made before or after the commencement of this Act decree on account of arrears of interest a sum greater than the principal of the loan. 8. The contention of Mr. Sen appearing on behalf of the Plaintiff-Respondents is that the concluding words of the section, namely, "the principal of the loan" mean "the amount for which the Defendants executed the bond in suit" inasmuch as the sum of Rs. 2,285 which was due as interest on account of previous loans was also agreed to be treated as part of the principal of the loan. 9. 2,285 which was due as interest on account of previous loans was also agreed to be treated as part of the principal of the loan. 9. The definition of the word "loan" as given in sec. 2, cl. (3) of the Assam Money-Lenders' Act includes a bond bearing interest executed in respect of past liabilities. The past liabilities may include principal as well as interest. Loan would, therefore, include the money actually advanced by the money-lender as well as any interest which may be due to him at the time. Sec. 9, however, does not say that the creditor is entitled to recover arrears of interest equal to the amount of the loan. In the section, it is laid down that the creditor cannot claim arrears of interest greater than the principal of the loan which evidently means the money which the money-lender actually advanced to the borrower. The Plaintiffs are, therefore, entitled to recover Rs. 6,715 as arrears of interest. The Plaintiffs are, therefore, entitled to recover from the Defendants Rs. 6,658 as principal and Rs. 6,715 as interest up to this date. The decretal amount together with proportionate costs in the trial Court will bear interest at the rate of six per cent, per annum from this date until realisation. The Defendants are directed to pay the decretal amount within three months from this date. In default, the Plaintiffs decree-holders will be entitled to apply to the lower Court for making the decree final. Parties will bear their own costs in this Court. Pal, J. I agree.