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1986 DIGILAW 97 (CAL)

BELA GHOSH v. ASHITENDRA NATH MITTER

1986-03-12

CHITTATOSH MUKHERJEE, SUSANTA CHATTERJI

body1986
MOOKERJEE, J. ( 1 ) THIS Revisional Application is at the instance of the Judgement - debtors and is directed against the order dated 8th April, 1985 passed by the learned sub-ordinate Judge, 3rd Court, Alipore dismissing their application for re-opening the transaction between them and the decree-holder opposite party since February, 1959 under sections 36, 37a and 38 of the Bengal Money Lenders Act, 1940 as amended by the West Bengal Acts XXI/65, XXX/1975 and IV/81 and for re-opening the decree passed in Title Suit No. 34 of 1970 which is pending execution in Title Execution Case No. 30 of 1982 of the said 3rd Court of this Subordinate Judge, Alipore. ( 2 ) ON or about 18th of February, 1959, Sailaja Bhusan Ghosh the petitioner No. 2 herein, had drawn and executed two hundies for Rs. 20000/- and Rs. 10000/- respectively in favour of the opposite party, Ashitendra Nath Mitter. The two petitioners have also deposited with the opposite party the documents of title relating to Premises No. 13/4, Hazra Lane, now known as 18 Motilal Nehru Road, by way of Security for re-payment of the said of loans Rs. 20000/- and Rs. 10000/- respectively and had re-executed confirmatory memorandum. ( 3 ) THE Opposite Party, Ashitendra Nath Mitter as plaintiff has filed suit Nos. 573 and 626 of 1960 in the Ordinary Original Civil Jurisdiction of this court against the petitioner and the same were decreed with costs. The petitioners had preferred appeals against the said judgment and decrees but the same were dismissed with costs on 28th February, 1963. On the prayer of the opposite party, the decree for costs passed in the aforesaid two suits were transferred to the Third Court of the learned Subordinate Judge, Alipore and the same were registered as Money Execution Case Nos. 14 and 15 of 1966. Portions of decretal costs were realized but execution cases for the rest were not continued. ( 4 ) THE opposite party had there after filed Title suit No. 34 of1970 in the Third Court of the Subordinate Judge, Alipore against the petitioner for recovery of the moneys due under the aforesaid equitable mortgage created by them. The said suits having been decreed in preliminary form, the petitioners filed an appeal in this Court which was dismissed on 19th February, 1975. The said suits having been decreed in preliminary form, the petitioners filed an appeal in this Court which was dismissed on 19th February, 1975. On 17th June, 1981 final decree was passed in the Title Suit No. 34 of 1970. The opposite party has put the said final decree passed in title Suit No. 34 of 1970 into execution and the same has been registered as Title Execution Case No. 30 of 1972 of the Third Court of the Subordinate Judge, Alipore, 24-Parganas. ( 5 ) IN this Revisional Application the Principal point for decision is whether or not under sections 36, 37a and 38 of the Bengal Money Lenders Act, 1940 as amended by the Bengal Money Lenders (Amendment) Act, 1981 (West Bengal Act 4 of 1981), final decree passed in Title Suit No. 34 of 1970 of the Third Court of the Subordinate Judge, Alipore, 24-Parganas was liable to be reopened for granting appropriate relief to the petitioners in accordance with the said provisions of the Bengal Money Lenders Act, 1940. ( 6 ) UNDISPUTEDLY, the said two loans of Rs. 20000/- and Rs. 10000/- respectively taken by the petitioners were commercial loans and they had deposited documents of title of their Premises at 13/4, Hazra Lane by way of Security for due repayment of the said two loans. During the passing of the Bengal Money Lenders (Amendment) Act, 1981, the expression 'loan' under section 2 (12) did not include inter-alia a commercial loan [vide sub-clause (f) of clause 12]. The said sub-clause (f) of clause (12) of section 2 was omitted by section 2 of the Bengal Money Lenders (Amendment) Act, 1981 (West Bengal Acts 4 of 1981 ). We are of the view that the learned Subordinate judge has rightly dismissed the application filed by the petitioners for re-opening the transactions between the parties relating to the said mortgage by deposit of title deed which ultimately resulted in the passing of the final decree in title Suit No. 34 of 1970. At the date of the passing of the final decree in the said suit, the provisions of the Bengal Money Lenders Act, 1940 did not apply because the transactions related to two commercial loans taken by the petitioners from the opposite party. At the date of the passing of the final decree in the said suit, the provisions of the Bengal Money Lenders Act, 1940 did not apply because the transactions related to two commercial loans taken by the petitioners from the opposite party. On 20th March, 1981 the assent of the Governor to the Bengal Money Lenders (Amendment) Act, 1981 (West Bengal Act of 1981) was published in the Calcutta Gasette (Extraordinary ). Sub-section (2) of section 1 of the said West Bengal Act 4 of 1981 is as follows :-" It shall be deemed to have come into force on 2nd day of February, 1981. " Thus, the legislature gave only limited retrospectively effect to the said West Bengal Act 4 of 1981 by Sub-section (2) of which sub-clause (f) of clause (12) of section 2 of the Principal Act was omitted. In other words, the said omission of sub-clause (f) was made with effect from 2nd February, 1981. Sub-clause (f) of clause (12) of section 2 having been deleted, the provisions of the principal Act (the Bengal Money Lenders Act, 1940) became applicable also to commercial loans, within the meaning of repealed sub clause (f) of clause (12) of section 2 of the Bengal Money Lenders Act, 1940. In view of the provisions of sub section (2) of section 1 of the West Bengal Act 4 of 1981, there is no scope for contending that the said Amendment Act must be deemed to have come into force even earlier than 2nd February, 1981. Only if the said amendment act itself did not lay down the date of commencement of the West Bengal Act 4 of 1981, there would have been scope for considering whether by necessary application, the said Amendment Act 4 of 1981 had retrospectively deleted said sub-clause (f) and that the provisions of the Bengal Money Lenders Act were applicable even to the two commercial loans granted including the decrees passed thereon prior to the enactment of this said West Bengal Act 4 of 1981. Mr. Mr. Roy Chowdhury, learned advocate for the petitioners, submitted that the Bengal Money Lenders (Amendment) Act, 1981 (West Bengal Act 4 of 1981) was a piece of beneficial legislation and therefore even in the absence of any express provision in the said Amendment Act giving its provisions retrospective effect, the said amended law would be applicable to all transactions including the commercial loans and decrees for realization of such loans which are still pending for execution. As already stated, sub-section (2) of section 1 of the West Bengal Act 4 of 1981 itself has provided that the said Amendment Act shall be deemed to have come into force on 2nd day of February, 1981. Therefore, by applying the rules of Interpretation of Statutes it is not open to the Court to give a greater retrospective effect to the Amendment Act, as the same would be clearly contrary to sub-section (2) of section 1 of the West Bengal Act 4 of 1981. ( 7 ) FOR the foregoing reasons, omission of sub clause (f) from clause (12) of section 2 of the Bengal Money Lenders Act, 1940, which was made with effect from 2nd February, 1981 had no legal consequence upon the two commercial loans taken by the petitioners from the opposite party in the year 1959 and also upon decree passed against the petitioners in Title Suit No. 34 of 1970, filed by the opposite party. We accordingly conclude that the petitioners are not entitled to relief under Sections 36, 37a and 38 of the Bengal Money Lenders Act, 1940 in respect of the decree passed in Title Suit No. 34 of 1970 which is pending execution in Title Execution Case No. 30 of 1982 of the Third Court of the Subordinate Judge, Alipore, 24-Parganas. ( 8 ) THERE is another insurmountable bar in the way of the Petitioners now praying for such relief under sections 36, 37a and 38 of the aforesaid Act of 1940. ( 8 ) THERE is another insurmountable bar in the way of the Petitioners now praying for such relief under sections 36, 37a and 38 of the aforesaid Act of 1940. After passing of the final decree in Title Suit No. 34 of 1970, they had instituted Title Suit No. 86 of 1981 in the Second Court of the Subordinate Judge, Alipore against the opposite party, inter-alia, for obtaining substantially the same relief under sections 36, 37a and 38 of the Bengal Money Lenders Act, 1940 in respect of their aforesaid loan transactions with the opposite party and in respect of the final decree passed in Title Suit No. 34 of 1970. They had also applied for temporary injunction for restraining the opposite party from executing the decree passed in Title Suit No. 34 of 1970 till the disposal of Title Suit No. 86 of 1981. The opposite party contested the said prayer. On 24th September, 1982 the learned subordinate Judge rejected the petitioners said application for temporary injunction. Thereafter, the said Title Suit No. 86 of 1981 was dismissed for non-prosecution as the petitioners did not appear but the opposite party was present. Mr. Mitra, learned advocate for the opposite party, has rightly submitted that the petition in Title Suit No. 86 of 1981 having been dismissed under Rule 8 Order 9 of the Code 1908, they were precluded under Rule 9 of Order 9 of the Code from bringing a fresh suit in respect of the same cause of action. A proceeding under section 38 of the Bengal Money Lenders Act, 1940 is deemed to be a suit for purposes of section 11 of the Code of Civil Procedure, 1908 and a declaration under the said section is subject to appeal, if any, as if it were a decree of the Court and every decision in appeal is subject to appeal to the High Court in the same manner as a decree passed in appeal. In the instant case, the petitioners had instituted Title Suit No. 86 of 1981 for the identical reliefs which they have now claimed by way of an application before the court executing the decree obtained by the opposite party. In the instant case, the petitioners had instituted Title Suit No. 86 of 1981 for the identical reliefs which they have now claimed by way of an application before the court executing the decree obtained by the opposite party. They having allowed their said suit for obtaining relief under Sections 36, 37a and 38 of the Bengal Money Lenders Act, 1940 to be dismissed, are not entitled to again pray before the executing court for obtaining the self same reliefs. For the foregoing reasons, we dismiss this Revisional Application without any order as to costs. Application dismissed.