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1946 DIGILAW 182 (MAD)

Tripasura Venkata Narasinga Rao v. Vysyaraju Surayyaraju

1946-07-15

BELLIE, PATANJALI SASTRI

body1946
Patanjali Sastri, J.-This appeal has been remitted by the Federal Court1, for determination of the appellant’s claim to relief under the Orissa Money-lenders’ Act, 1939, the decision of this Court that he is not entitled to any relief under the Madras Agriculturists’ Relief Act, 1938, having been affirmed. The facts relating to the litigation have all been stated in the judgment pronounced by this Court at the former hearing (reported in Narasinga Rao v. Surayyaraju2), and, so far as they are relevant to the present dispute, may be briefly recapitulated. The appellant borrowed a sum of Rs. 26,000 from the first respondent (hereinafter referred to as “the respondent”) on a mortgage of certain immoveable properties situated partly in the Ganjam and partly in the Vizagapatam districts both of which formed part of this Province at the time of the transaction (March 27, 1929). The loan was advanced and the mortgage was executed and registered at Berhampore in Ganjam, the respondent’s place of residence. The debt was repayable, also at Berhampore, with compound interest at 14 annas per cent, per mensem. The appellant is a permanent resident of Tekkoli, a village in Vizagapatam, but has also a house at Berhampore for temporary stay in connection with the management of his properties in Ganjam. When the Province of Orissa was constituted in 1936 the town of Berhampore and certain other areas in Ganjam which included some of the mortgaged lands were transferred to that Province. On June 30, 1939, the Orissa Money-lenders’ Act, 1939, was passed granting relief to debtors by limiting the maximum rate and amount of interest which may be decreed in respect of loans advanced by money-lenders. It may be mentioned in passing that the quantum of relief provided by that Act is substantially smaller than that obtainable under the Madras Agriculturists’ Relief Act, 1938, a circumstance which presumably influenced the line of argument adopted by the appellant’s counsel, Mr. Sitarama Rao at the former hearing when he strenuously contended that the proper law of contract applicable to mortgage in question was the Madras Act and not the Orissa Act as then suggested on behalf of the respondent, a contention which this Court found it unnecessary to go into as it held that the appellant was not an “agriculturist” as that expression was defined in the Madras Act. Mr. Mr. Rajagopala Aiyangar now appearing for the appellant contended that his obligation to pay interest as stipulated in the mortgage deed was affected by the Orissa Act as the proper law of the contract in the circumstances of the case and that accordingly no more interest should be decreed than as provided in that Act. On this contention three points were argued before us: (1) what is the proper law of the contract for payment in the mortgage deed? (2) Assuming the proper law to be the Orissa Act,does it operate to affect the respondent’s right as mortgagee to recover the full amount from the mortgaged lands situated outside the Province of Orissa? (3) Does the Orissa Act apply at all in its terms. Although we heard interesting arguments on all these points, we consider it unnecessary to determine the first and second points, as we have come to the conclusion that the appellant must fail on the third. Section 10(1) of the Orissa Act on which the appellant’s claim to relief is founded runs as follows: “Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any contract, no Court shall, in any suit brought by a money-lender in respect of a loan advanced before or after the commencement of this Act, pass a decree for an amount of interest for the period preceding the institution of the suit which, together with any amount already realised as interest through Court or otherwise is greater than the amount of the loan originally advanced.” It is unnecessary to read the rest of the section for the purpose of this appeal. It is admitted that the respondent is a money-lender within the meaning of the Act but it is urged on his behalf that the provision has no application here as this suit having been brought by the appellant as the mortgagor to redeem the mortgage is not a “suit brought by a money-lender.” This contention is in our opinion bound to prevail as neither of the answers attempted on behalf of the appellant can be accepted as satisfactory. It is said, in the first place, that it cannot be supposed that the Legislature intended to benefit debtors only when they are called as defendants to actions for recovery of the debts and that a construction which limits the scope of the section by restricting the grant of relief to the debtor only to cases where a money-lender sues as a plaintiff is too narrow and irrational. We are unable to agree. When the language used in a statute is plain and unambiguous, it is as unnecessary as it is unprofitable to speculate about the true intention of the Legislature. The limiting words “in any suit brought by a moneylender” are repeatedly used in various sections of the Act providing for relief to the debtors, and we must decline, upon some speculation as to what the Legislature might have intended, to extend the scope of such relief by a construction which in effect would reduce those words to silence. There is nothing irrational in thinking that the Legislature, while providing that the Court should not assist a moneylender to recover more than a certain amount by way of interest on his advances, left him free to insist on payment of the debt in accordance with the general law where the debtor, for some advantage of his own, seeks to obtain a discharge of his debt. It may be noted that in the sections providing for the relief of payment by instalments the restrictive phrase “brought by a money-lender” is absent (vide sections 12 and 13). The contrast is significant, showing as it does that in regard to the relief of reduction of interest the introduction of the limiting words was deliberate. If it is thought desirable to extend the scope of the relief afforded by section 10 of the Act to cases like the present, it is for the Legislature to do so, and not for us, by judicial interpretation of the section in its present form, to achieve that result, more especially as the statute is avowedly expropriatory. If it is thought desirable to extend the scope of the relief afforded by section 10 of the Act to cases like the present, it is for the Legislature to do so, and not for us, by judicial interpretation of the section in its present form, to achieve that result, more especially as the statute is avowedly expropriatory. It is next urged that even assuming that the Act has made provision for reduction of interest by the Court only in cases where the money lender is suing to recover money lent, a suit for redemption of a mortgage may well be regarded as a suit “brought” by him, having regard to the provisions of the Civil Procedure Code which contemplate a decree for sale or foreclosure as the case may be being passed in default of payment by the mortgagor of the amount adjudged due to the mortgagee (vide Order 34, rules 7 and 8). Our attention was also drawn in this connection to the written statement filed by the respondent where he “prays that a decree for the full amount due as per terms of the mortgage bond be given and if the said amount and costs are not paid a decree for sale under Order 34, rule 8 Civil Procedure Code, may be granted.” It should however be noted that the respondent’s primary prayer is that the “plaintiff’s suit may be dismissed with costs” for want of jurisdiction in the Court to entertain the suit, and it would be somewhat incongruous to describe the suit which he wants dismissed as “brought” by him. But apart from this, we cannot, without doing violence to the language, regard a suit for redemption of a mortgage brought by the mortgagor as a suit for sale brought by the mortgagee merely because the Code allows the latter in a certain event to apply for and obtain a decree for sale or foreclosure according to the nature of the mortgage. The appellant’s claim to relief under the Orissa Act also fails and the appeal is dismissed with costs. (This appeal having been set down for “being mentioned” the Court delivered the following Judgment): Patanjali Sastri, J.-We are asked to certify under section 205 of the Government of India Act, 1935, that this case involves a substantial question of law as to the interpretation of that Act. (This appeal having been set down for “being mentioned” the Court delivered the following Judgment): Patanjali Sastri, J.-We are asked to certify under section 205 of the Government of India Act, 1935, that this case involves a substantial question of law as to the interpretation of that Act. Although one of the questions raised and argued before us was a substantial question as to the interpretation of sections 99 and 100 of that Act it was considered unnecessary to decide it and the appeal was disposed of on another point. Can it then be said that the case “involves” that question? We think not. Sub-section 2 of section 205 clearly contemplates that such question should not only have been raised but also decided by the High Court, for otherwise it would not be possible for any party in the case to appeal to the Federal Court “on the ground that any such question as aforesaid has been wrongly decided.” Reading sub-sections (1) and (2) together, it would seem that a case cannot be said to “involve” a question unless its decision is necessary for the purpose of the case. In Gaddam Padmanabham v. Pasupuleti Kamaraju and others1, one of us sitting alone had to consider whether a certificate under section 205 could be given in respect of a question which was not raised in this Court at all, although it was raised and decided against the appellant in the Courts below. The question having been decided adversely to the appellant by a Full Bench of this Court, Counsel for appellant did not argue the point at the hearing of the appeal and the Court made no reference to it in the judgment. Subsequently however an application was made for the issue of a certificate under section 205 as the question was one of interpretation of the Constitution Act. The Court refused to grant a certificate observing: “Section 205 allows an appeal to the Federal Court on defined grounds where a certificate under sub-section (1) is given. One of such grounds which is material here is that a question of the kind specified in the section has been”wrongly decided“which, I take it, means wrongly decided by the Court from whose judgment, decree or final order the appeal is sought to be preferred.” That decision was followed later by a Division Bench. Here , no doubt, the point was raised and argued. Here , no doubt, the point was raised and argued. But, as already stated we did not find it necessary to decide it in the view we took on another point arising in the case. The reasoning of the decision therefore applies here and no certificate can be given. A similar view has been expressed by the Allahabad and Bombay High Courts. In Muhammad Saidkhan v. Shiam Lall and others2, the learned Judges observed thus-: “The principle underlying all the cases which, I have mentioned above is that there must be a pressing necessity for the decision of the point. The point may be important or its attractiveness may invite an adjudication, but can it be said that its importance to the case compels decision? This is the principal test and this test the present application does not answer.” In Emperor v. Savar Manuel Banks 1, the Court said, referring to sub-section (2), “The wording of the sub-section seems to indicate that the Legislature did not contemplate an appeal against a decision not based on a point of law arising under the Government of India Act.” The learned Judges were of opinion that the expression “involves” could not mean the mere possibility of some question of law arising in a remote contigency. Reference was made by Mr. Rajagopala Aiyangar for the appellant to Mohamed Mohy-ud-din v. The King-Emperor 2, where the Lahore High Court appears to have given a certificate under section 205 although the decision of the case was not based upon the question of law lating to the interpretation of the Government of India Act. One of the learned Judges dealt with the question in his judgment, but the case was decided in the High Court on a different point. Apparently no objection was raised to the issue of a certificate, and the present question does not appear to have been argued with reference to the terms of section 205. We cannot, therefore, regard the order of the High Court in that case as an authority on the point now arising for our decision. For the reasons we have indicated we must decline to certify that the case involves a substantial question of law as to the interpretation of the Government of India Act, 1935. V.S. ---- Appeal dismissed. Certificate under S. 205, Govt, of India Act, refused.