Judgement

SARKAR, J.- The point involved in this appeal is a very short one. It is whether the appellants are entitled to relief under the Bengal Money Lenders Act (Bengal Act 10 of 1940). Section 30 of that Act provides as follows:

"Notwithstanding anything contained in any law for the time being in force, or in any agreement.

(1) no borrower shall be liable to pay after the commencement of this Act-

(a) any sum in respect of principal and interest which together with any amount already paid or included in any decree in respect of a loan exceeds twice the principal of the original loan,

(b) ..........................................................

(c) ...............................................................

Whether such loan was advanced or such amount was paid or such decree was passed or such interest accrued before or after the commencement of this Act,"

The appellants contend that they are borrowers and are being made to pay in excess of the limit prescribed by this section in respect of a loan to them and this they are not liable to do. The question that arises on this contention is whether what the appellants are sought to be made liable to pay is in respect of a loan within the meaning of the Act.

2. The litigation out of which this appeal arises started in 1923 and the proceedings in it have been exceedingly numerous. For the purpose of this appeal, however, it is necessary to refer to a very few of those proceedings. The respondent Durga Prasad Chamria purchased at a Court sale in execution of a decree a property in Howrah in West Bengal for a sum of Rs. 8,61,000. He paid 1/4th of the price, namely Rs. 2,15,250 on July 14,1920, which perhaps was the date of the purchase and the balance, Rs. 6,45,750, on August 20,1920.

Later on in the same year an agreement was arrived at between him and the appellants Radha Kissen Chamria and Moti Lal Chamria and their mother Anardeyi Sethani since deceased for the sale of the property to the latter for the same sum at which he had purchased it himself, namely, Rs. 8,61,000 but with interest at 6 3/4 per annum with annual rests calculated on the instalments paid by him in respect of the price for the purchase from the respective dates of payment thereof as earlier stated and the costs incurred by him in connection with the purchase together with interest at a similar rate.

The purchase not having been completed by Radha Kissen, Moti Lal and Anardeyi with sufficient dispatch the respondent Durga Prasad on June 21, 1923, instituted a suit being Title Suit No. 61 of 1923 in the Court of the Additional Subordinate Judge, Howrah against the purchasers for specific performance of the agreement for the purchase. That suit was compromised and a decree was passed on April 19, 1926, in terms of the agreement arrived at between the parties. The compromise decree is set out below:

1. The defendants shall pay to the plaintiff the moneys paid by the plaintiff for purchase of Rurmull Goenka s Howrah property as shown in Schedule A hereunder as also the expenses actually incurred by him for such purchase and the confirmation thereof with interest up to payment or realisation at the rate of nine annas per Rupees one hundred per Sambat month from the respective dates of payment by the plaintiffs with yearly rests the rest being calculated according to Sambat Mit up to the Thirty First December in each year.

The payment of the moneys mentioned above shall be made by the following instalments:

(a) The sum of money in the hands of the Receiver in this suit shall be paid at once to the plaintiff.

(b) The sum of Rupees Four Lacs Twenty Five Thousand to be paid on the execution of these presents.

(c) Thereafter the sum of Rupees Thirty Five Thousand shall be paid every month on the Twenty first day of each month commencing from the 21st day of April, one Thousand Nine Hundred and Twenty Six. The first of such payment being made on the Twenty First day of April one Thousand Nine Hundred and Twenty Six up to Sevente