N. C. Mukherji, B. C. Ray ( 1 ) THIS revisional application under Article 227 of the Constitution of India is directed against the judgment and order dated March 23, 1973 passed in Misc. Appeal No. 9 of 1971 by the District Judge, Purulia affirming the judgment and order dated January 25, 1971 passed by the Subordinate Judge, Purulia in Misc. Case No. 10 of 1970. ( 2 ) THE brief history of the case is that the opposite party Gajadhar Rathi approached to the petitioner for sale of a shop room. The price of the said shop-room was settled at Rs. 8000/- and a deed of sale was executed by the opposite party in favour of the petitioner on January 8, 1965 on receiving the entire consideration money. Thereafter on 15th of March, 1965, the opposite party approached the petitioner and requested him to execute an agreement to reconvey the said property to him if he would pay back the consideration money whereon the petitioner executed an agreement in favour of the opposite party agreeing to reconvey the property to him if the opposite party would pay Rs. 8500/- by the end of December, 1969. On the same day an indenture of lease was also executed by the petitioner in favour of the opposite party permitting the opposite party to remain in possession of the suit premises as a tenant and to carry on his cloth business therein on payment of monthly rent of Rs. 70/ -. The opposite party subsequently filed an application under S. 36 of the Bengal Money Lenders Act which was registered as Misc. Case No. 10 of 1970 in the Court of the Subordinate Judge, Purulia alleging inter alia that the said transaction evidenced by the deed of sale, the agreement to reconvey and the indenture of lease was, in fact, a loan transaction and not an out and out sale and the stipulated amount of Rs. 70/- payable as rent per month was, in fact, a payment on account of interest on the said amount. It was also stated therein that the plaintiff was required to pay an enhanced amount of Rs. 8500/- by December, 1969 to secure payment of rent for the months of January and February of 1969. 70/- payable as rent per month was, in fact, a payment on account of interest on the said amount. It was also stated therein that the plaintiff was required to pay an enhanced amount of Rs. 8500/- by December, 1969 to secure payment of rent for the months of January and February of 1969. It has been further stated that the plaintiff required money in order to meet the marriage expenses of his daughter and the sum of Rs. 8000/- was advanced by the petitioner as loan. It has also been stated therein that the valuation of the property was much above Rs. 8000/- and he was all along in possession of the property and so prayed for relief under S. 36 of the Bengal Money Lenders Act, 1940. ( 3 ) THE petitioner contested the said Misc. Case on filing a written objection denying all material allegations made in the said application and stating specifically that the said transaction was an out and out sale and not a loan in substance and assuch the Misc. Case was liable to be dismissed. ( 4 ) ON January 25, 1971, the Subordinate Judge, Purulia held that the transaction in question was essentially a loan transaction and the plaintiff actually took a loan of Rs. 8000/- from the defendant though several deeds in the said forms were executed between the parties. The plaintiff, therefore, must be entitled to relief under S. 36 (a) (c) and (e) of the Bengal Money Lenders Act and directed that an accounting be made as contemplated under S. 36 (a) of the said Act. ( 5 ) AGAINST the said judgment and order an appeal being Appeal No. 9 of 1971 was filed before the District Judge, Purulia. On 23rd of March, 1974 the District Judge, Purulia held that the transaction in question was, in essence, a loan transaction and he affirmed the findings of the learned Subordinate Judge. The appeal was dismissed with costs. ( 6 ) IT is against these judgments and orders this revisional application has been made and the instant Rule and order of ad interim injunction restraining the opposite party from encumbering the suit property or inducting other persons in the suit premises or from transferring the suit premises was made. ( 7 ) MR. ( 6 ) IT is against these judgments and orders this revisional application has been made and the instant Rule and order of ad interim injunction restraining the opposite party from encumbering the suit property or inducting other persons in the suit premises or from transferring the suit premises was made. ( 7 ) MR. Bankim Chandra Dutt, learned Advocate appearing on behalf of the petitioner in his usual frankness has submitted that the finding that the transaction was in substance a loan transaction is a finding of fact affirmed by both the courts below and as such he does not challenge the said finding in this revisional application. ( 8 ) MR. Dutt has only submitted that the application under S. 36 of the Bengal Money Lenders Act is not maintainable because no relief can be given to the borrower i. e. the opposite party on exercising one or more of the powers under the said Section. It has been submitted by Mr. Dutt that the monthly rent stipulated under the deed of lease did not exceed the limits specified in Clauses 1 and 2 of S. 30. The loan in question is an unsecured loan and the rate of interest as provided in the deed did not exceed 12 ? % as provided in the said Section and as such no relief can be granted by the exercise of the powers of the court conferred by the provisions of sub-s. 1 of S. 36 of the said Act. In support of his submission Mr. Dutt has referred to a large number of decisions. ( 9 ) MR. Bireswar Chatterjee, learned Advocate appearing on behalf of the opposite party has joined issue to the said submission of Mr. Dutt and has, on the other hand, contended that the loan is a secured loan inasmuch as the cloth shop had been mortgaged as evidenced by the deed of sale and the agreement to reconvey. The monthly rent is nothing but interest which exceeds the allowable limit provided in S. 30 (1) (c) Clause (ii) of the said Act and as such the courts below have rightly allowed the application under S. 36 (1) (c) and (e) of the said Act and directed for taking accounts. In support of his submission the decision in AIR 1955 2334 was cited by Mr. Chatterjee. In support of his submission the decision in AIR 1955 2334 was cited by Mr. Chatterjee. ( 10 ) THE only question debated in this revisional application is whether the application under S. 36 (1) (a) (c) and (e) of the Bengal Money Lenders Act is maintainable and the orders of the courts below are valid and within jurisdiction. In order to decide this question it is necessary to determine the scope of S. 36 of the Bengal Money Lenders Act. On a plain reading of the said Section it appears quite clear that the exercise of one of the powers under this Section can be made within when the court has the reason to believe that by exercising any such power a relief can be given to the borrower. This relief is a relief relating to the release of the borrower from all liability in excess of limits specified in Clause 1 and 2 of S. 30 of the Act as provided in Sub-clause (c) of Clause 1 of S. 36 that is exempting the borrower from his liability to pay excess interest. ( 11 ) IN AIR 1941 Cal. 495 (FB), Accowrie Mukherjee v. Sailendra Mohon Dey and another it has been held by this Court that the power of reopening the decree flows from and is dependent on powers which the court has been authorized to exercise under Clause (a) to (e) of sub-s. (1) of S. 36. It is, therefore, restricted to cases where the question of the exercise of all or any of these powers arises. Consequently no taking of accounts arises when the court has no power to reopen the decree under S. 36 (1) (a ). In another Bench decision of this Court reported in AIR 1941 Cal. 540, Raja Kamala Ranjan Roy v. Bepin Behari Sadhukhan it has been observed by Pankridge, J. that before the powers under S. 36 can be exercised the applicant must show that their exercise will bring relief against the specific evils such as unduly high rates of interest at which the Act is aimed and that the powers cannot be exercised merely on the ground that the borrower is able to show that the exercise of them will ease his burden generally without regard to the Act. ( 12 ) IN AIR 1942 Cal 65, Probodh Mohon Goswami v. Lalit Mohon Dey it has been observed that the proper test in considering whether a decree should be reopened under S. 36 (1) (a) and 36 (6) is to weigh the actual amount of the liability in respect of total interest under the decree as against what amount would be if calculated at the appropriate rate specified in S. 30, and not what the decree-holder may choose to claim in execution of his decree. Where the amount as decreed in respect of interest exceeds the amount could be decreed if the limits applicable under S. 36 (2) read with S. 39 (1) (c) are applied in calculating the liability of the judgment-debtor, the decree must be reopened under S. 36 (1) (a) and 36 (6) at the instance of the judgment-debtor. ( 13 ) IN AIR 1942 Cal. 121, Suresh Chandra Mukherjee v. Lal Mohan Chatterjee and others the interest stipulated under the mortgage bond was 10% compound. It was held that this interest being above the limit prescribed in S. 39 (1) (c) (ii) of the Bengal Money Lenders Act the applicant is entitled to be released from this liability. The court is, therefore, empowered to exercise its power under S. 36 (1) of the Act to grant a relief to the applicant. In AIR 1942 Cal. 629, Smt. Probhabati Mitra v. Anil Kumar Dey and others it has been observed that if the mortgage decree allowed interest in excess of the limits laid down in S. 30 of the Bengal Money Lenders Act the decree should be reopened under S. 36 of the said Act if other conditions laid down in that section are complied with. In AIR 1945 PC 108, Smt. Renuka Bose v. Rai Manmatha Nath Bose and others it has been observed by Their Lordships of the Privy Council that by sub-s. (1) of S. 36 of the Bengal Money Lenders Act the Court is given power to reopen any transaction and take an account between the parties, reopen any account already taken following an agreement between them, release the borrower from liability to excess of the limits specified in S. 30 and other consequential relief. This may be done either in an action brought by the lender or any one brought by the borrower to obtain a relief under the said Section. This may be done either in an action brought by the lender or any one brought by the borrower to obtain a relief under the said Section. In AIR 1949 FC 15, Smt. Padma Kamini Devi v. Naba Kumar Singh Dudhuria and another it has been held by Their Lordships of the Federal Court:"the language of Section 36 makes it clear that the powers that are given to the court in the several parts of the Section are to be exercised if and only if the court has reason to believe that the exercise of all or any of these powers would give relief to the borrower. By 'relief' against is meant not any kind of relief which the borrower. By 'relief' again is meant not any kind of relief which the borrower might pray for or the court might think fit to grant, but the relief that is provided for in the Act itself and which is to release the borrower of all liability for interest in excess of the limits prescribed by Section 30 of the Act. The transactions that could be reopened under Clause (a) of Section 36 (i) must, therefore, be deemed to be limited in their scope by the express object and policy of the Act and the nature of the relief which it is designed to afford to borrowers. What the Act aims at is not to wipe out all transactions between the lender and the borrower and the rights flowing from them, but to reopen those transactions only which are necessary for adjusting and moulding the rights of the parties in accordance with the provisions of the Act and to substitute a statutory method of accounting in place of that based on a contract between the parties. " ( 14 ) IN AIR 1954 Supreme Court 309, Smt. Oramba Sundari Dasi v. Sri Sri Iswar Gopal Jieu and others it has been held by the Supreme Court:"it cannot be disputed that the court reopens a decree under S. 36 (2) only for the purpose and so far as it is necessary to give relief to the borrower in the manner provided for in the Act namely, to release him from all liability for interest in excess of the limit prescribed by S. 30 of the Act. " ( 15 ) ON a review of all the above decisions the legal position is quite clear that the court can entertain an application and exercise its powers under S. 36 (1) and (2) of the Bengal Money Lenders Act only if the court finds that the interest stipulated in the loan transaction is in excess of the ceiling prescribed by S. 30 (1) (c) (i) and (ii) of the said Act. ( 16 ) IN this case the transaction in question has been concurrently held to be a loan transaction by the courts below. The question that next arises for the decision is whether the loan is a secured loan or an unsecured loan and whether the rate of interest is within the ceiling limit or not. In AIR 1955 NUC 2334 it has been held by this Court that transaction purporting to be in the form of sale with a condition to re-transfer or re-purchase not complying with the proviso to sub-s. 2 of S. 58 (c) of the Transfer of Property Act, though cannot be in law a mortgage by conditional sale would still be a loan within the meaning of S. 2 (12) of the Bengal Money Lenders Act. In this case the transaction evidenced by sale of the suit premises and an agreement to reconvey undoubtedly is a secured loan. The rate of interest stipulated being Rs. 840/- for one year for a sum of Rs. 8000/- which was advanced, the interest exceeds the limit specified in S. 30 (1) (c) Clause (ii) of the said Act and as such the courts below were perfectly justified in allowing the said application and in granting relief under S. 36 (1) (a) (c) and (d) of the Bengal Money Lenders Act in respect of the said transaction and in directing accounts to be taken. The impugned orders passed by the courts below are not per se without jurisdiction or in excess of jurisdiction and as such in our considered opinion this is not a fit case for revising the said orders by exercising our power of superintendence under Article 227 of the Constitution of India. ( 17 ) IN the premises aforesaid the contention raised on behalf of the petitioner having failed this Rule is discharged. There will be no order as to costs. The interim order is vacated. ( 17 ) IN the premises aforesaid the contention raised on behalf of the petitioner having failed this Rule is discharged. There will be no order as to costs. The interim order is vacated. Let the records be sent down to the court below immediately. N. C. Mukherji, J. : I agree. Rule discharged.