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HIGH COURT OF CALCUTTA
G. N. Das, Guha
SASHI KUMAR BANERJEE - Appellant
Versus
D. J. HILL - Respondent
A. F. O. D. 246 Of 1949
Decided On : JULY 20, 1950
BENGAL MONEY LENDERS ACT - SECTION 36(1) - INTERPRETATION - DEPOSIT OF SURPLUS SALE PROCEEDS - TIME LIMIT - MEANING OF 'MONTH' - ADDITIONAL WRITTEN STATEMENT - ADMISSIBILITY - TRANSFER OF MORTGAGED PROPERTY - EFFECT ON SUIT - DISCRETION OF COURT IN AWARDING COSTS.
Fact of the Case:
Plaintiff borrowed money from the defendant's predecessor in 1933 with interest at 10% p.a. with quarterly rests. In 1939, the defendant's predecessor obtained a final decree for Rs. 20,580 and purchased the mortgaged properties at an auction sale for Rs. 43,300. The plaintiff filed a suit under Section 36(1) of the Bengal Money Lenders Act, which was dismissed by the trial court. On appeal, the Calcutta High Court allowed the appeal and directed the plaintiff to deposit Rs. 22781-1-6 within six months to proceed further with the suit. The plaintiff made the deposit on 28-2-1946. The defendant's predecessor filed an additional written statement raising new pleas, which the trial court refused to entertain. The trial court held that the deposit was made in time and passed a new decree for Rs. 23,195-5-2 in favor of the plaintiff.
Finding of the Court:
The Calcutta High Court held that the deposit was made in time, as the word 'month' in the judgment of the court directing the deposit meant a 'calendar month' and not a 'lunar month'. The court also held that the trial court erred in refusing to entertain the additional written statement filed by the defendant's predecessor, as the plea raised therein was still available to the appellants. However, the court upheld the trial court's discretion in awarding costs.
Issues: 1. Whether the deposit of surplus sale proceeds was made in time? 2. Whether the trial court erred in refusing to entertain the additional written statement filed by the defendant's predecessor? 3. Whether the trial court erred in its discretion in awarding costs?
Ratio Decidendi: 1. The word 'month' in the judgment of the court directing the deposit meant a 'calendar month' and not a 'lunar month', as per the ordinary interpretation of the word and the interpretation given to it in various statutes and legal documents. 2. The plea raised in the additional written statement was still available to the appellants, as it was based on the admitted fact of transfer of the mortgaged property by the plaintiff and was not inconsistent with the position taken by the defendant's predecessor in the earlier written statement. 3. The discretion of the trial court in awarding costs was not improperly exercised.
Final Decision: The order of the trial court was modified, and the case was remitted back to the trial court to take additional evidence limited to the point raised in the additional written statement filed by the appellants. Both parties were allowed to adduce evidence limited to this point only. The trial court was directed to dispose of the suit on the evidence already on record and the additional evidence adduced by the parties.
( 1 ) THIS appeal is at the instance of the representatives of the deceased defendant in a suit tinder Section 36 (1), Bengal Money Lenders Act.
( 2 ) THE plaintiff Mrs. D. J. Hill borrowed two sums of money from the appellants' predecessor in the year 1933. The interest stipulated to be paid was 10 p. e. p. a. with quarterly rests. On 21-6-1939 a suit to enforce the said mortgages was instituted by the appellant's predecessor and a final decree was obtained for a sum of Rs. 20,580. In execution of that mortgage decree the mortgaged properties were brought to sale on 19-7-1940 and were purchased by the decree-holder for a sum of Rs. 43,300. Thereafter the decree-holder auction purchaser took possession on 9-9-1940. On 30-8-1941 the plaintiff instituted the present suit under Section 36 (1), Bengal Money-Lenders Act, praying for the requisite reliefs conferred by that section. This suit was dismissed by the learned Subordinate Judge on 30-6-1942. One of the grounds on which the learned Subordinate Judge dismissed the suit was that the case did not come within the purview of Section 36 (1), Bengal Money-Lenders Act, the decree in the mortgage suit having been passed after 1-1-1939 and before the Bengal Money-Lenders Act came into force. The learned Subordinate Judge was also of the opinion that the suit could not proceed in any event unless the surplus sale proceeds fetched at the auction sale held on 19-7-1940 were brought back into Court by the plaintiff, a good portion of the same having been taken away by the creditors of the plaintiff.
( 3 ) AGAINST this judgment and decree the plaintiff preferred an appeal to this Court being P. A. No. 17 of 1943. This appeal was allowed by this Court on 29-8-1945. This Court was of the opinion that the plaintiff was not disentitled to relief under the Bengal Money-Lenders Act simply because the decree in the mortgage suit was passed after 1-1-1939 and before the Act came into operation. This Court, however, affirmed the view taken by the learned Subordinate Judge that the suit could not proceed unless the surplus sale proceeds were brought into Court. It is necessary to set out a portion of the judgment of this Court which runs as follows :"we hold that she (the plaintiff) must deposit Rs. 22781-1-6 in the lower Court before she would be allowed to proceed further with her suit under Section 36 -. . . . . The suit would be kept in abeyance for a period of six months from today. If the plaintiff (Mrs. Hill) deposits the said sum of Rs. 22781-1-6 in the Court below to the credit of the suit, the suit would proceed on, and the learned Subordinate Judge would decide it on its merits. If, however, the said sum is not deposited by Mrs. Hill within the aforesaid time, the Subordinate Judge would dismiss the suit and in that event with costs. . . . . "
( 4 ) ON 19-11-1945 the appellants' predecessor filed an application for leave to appeal to His Majesty in Council. On 28-2-1946 the plaintiff-respondent transferred the mortgaged properties to Sunil Baran Choudhury. On 4-7-1946 this Court, granted a certificate for leave to appeal to His; Majesty in Council. The appeal was ultimately heard by the Federal Court and was dismissed: on 30-3-1949. Reported in A. I. R. (36) 1949 F. C. 135-Ed. Meanwhile, on 28-2-1946 the plaintiff made the deposit as directed by this Court. The Court thereupon passed an order that the suit would proceed. On 10-7-1946 the appellants' predecessor filed an additional written statement. In 194y the appellants' predecessor died and his legal representatives have been brought on the record. On 7-2-1949 the executors to the estate of the deceased decree-holder filed an additional written statement which was accepted by the Court on payment of costs as directed by the Court. By a preliminary judgment dated 12-8-1949 the learned Subordinate Judge was of the opinion that he was not required to take any new evidence or to entertain any new plea at that stage. He, t
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